1

The Honorable Robert W. Pratt, United States District Court for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1937

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Amel F. Lueth, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Charles Beach, Sr.; Edward F. *

Reilly, Jr., *

*

Appellees. *

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Submitted: June 15, 2007

Filed: August 17, 2007 (Corrected: 9/04/07)

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Before MURPHY, BOWMAN, and SHEPHERD, Circuit Judges.

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BOWMAN, Circuit Judge.

The question presented in this case is whether a special parole term for a drug

offense begins to run immediately upon the expiration of the imprisonment term for

that particular offense or, rather, upon the expiration of the aggregate imprisonment

term for all of the offenses of conviction. Like the District Court,1

 we conclude that

the special parole term must run consecutive to the aggregate term of imprisonment.
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Lueth had been released pursuant to 18 U.S.C. § 4161 on at least two previous

occasions, but was re-incarcerated on each occasion for violating the conditions of the

mandatory release.

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On July 31, 1985, Amel F. Lueth was sentenced for his convictions of various

drug offenses. On Count 1 (engaging in a continuing criminal enterprise in violation

of 21 U.S.C. § 848), Lueth was sentenced to a twenty-year term of imprisonment. On

Counts 3, 6, 7, 9, 10, and 11 (possession of cocaine and marijuana with intent to

distribute in violation of 21 U.S.C. § 841), Lueth was sentenced to terms of

imprisonment ranging from five to fifteen years plus a three-year special parole term.

On Counts 13–16 (income tax fraud and evasion in violation of 18 U.S.C. § 371 and

26 U.S.C. §§ 7201, 7206(1)), Lueth was sentenced to terms of imprisonment ranging

from three to five years. The court ordered the sentences to run concurrently, except

that the sentences on Counts 13–16 were ordered to run consecutive to the sentences

on Counts 3, 6, 7, 9, 10, and 11.

The United States Bureau of Prisons (BOP) aggregated the sentences into a

single twenty-year imprisonment term followed by a three-year special parole term.

See generally BOP Sentence Computation Manual, ch. VII (1993) (discussing

aggregation of adult sentences). On November 10, 2004, the BOP released Lueth

from prison before the expiration of his twenty-year term on account of good-time

allowances that Lueth had earned under 18 U.S.C. § 4161. Lueth remained, however,

under mandatory release supervision of the United States Parole Commission and was

subject to certain conditions "as if on parole" until the expiration of the twenty-year

term, less 180 days, that being November 30, 2004.2

 Certificate of Mandatory Release

and Mandatory Release to Special Parole, Joint Ex. App. at 32 (citing 18 U.S.C. §

4164). According to the Parole Commission, Lueth's three-year special parole term

commenced the following day, December 1, 2004, and required Lueth to continue

abiding by the conditions attached to his mandatory release. On December 8, 2004,

Lueth's probation officer advised the Parole Commission that Lueth had violated a
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condition of his special parole; therefore, Lueth was re-incarcerated on December 10,

2004.

On February 18, 2005, Lueth filed a petition for a writ of mandamus under 28

U.S.C. § 1361, arguing that the Parole Commission erroneously determined the

commencement date of his special parole term. According to Lueth, he began to serve

his special parole term on July 31, 2000, the date he discharged the longest sentence

on the counts carrying special parole (Counts 3, 6, 7, 9, 10, and 11). Thus, Lueth

argues, he completed his special parole term on July 31, 2003, and was not subject to

the Parole Commission's supervision after his release from prison on November 30,

2004. The Parole Commission filed a motion to dismiss Lueth's petition, asserting

that the petition was both procedurally flawed and without merit. The District Court

determined that Lueth's sentence was correctly calculated and dismissed the case. See

Fed. R. Civ. P. 12(b)(6) (dismissal for failure to state a claim upon which relief can

be granted). We review de novo a dismissal for failure to state a claim upon which

relief can be granted, accepting all well-pleaded facts in the petition as true. Ferris,

Baker Watts, Inc. v. Ernst & Young, LLP, 395 F.3d 851, 853 (8th Cir. 2005).

Before addressing the merits of Lueth's claim, we consider whether Lueth

properly brought the claim in a petition for a writ of mandamus under 28 U.S.C.

§ 1361. The Parole Commission argues that Lueth should have brought the claim in

a petition for habeas corpus under 28 U.S.C. § 2241 and that the District Court should

have construed Lueth's petition as such. Because the District Court found "no merit

to the underlying claim," however, it "assume[d] without deciding that the case ha[d]

been properly pled and [was] properly before th[e] Court." Order Dismissing Case,

March 8, 2006, at 1. We agree with the Parole Commission that Lueth's petition is

more appropriately construed as a petition for habeas corpus. See Huskey v. Keohane,

No. 96-3069, 1998 WL 2457, at *1 (8th Cir. Jan. 6, 1998) (per curiam) (stating that

petitions for writ of mandamus that challenged the execution of prisoner's sentence

were correctly construed by the District Court "as § 2241 petitions"); Chatman-Bey
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We note that our jurisdiction to decide this case is not affected by Lueth's

alleged failure to exhaust his administrative remedies because the exhaustion

prerequisite for filing a 28 U.S.C. § 2241 petition is judicially created, not

jurisdictional. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on

other grounds by Reno v. Koray, 515 U.S. 50, 54–55 (1995); Del Raine v. Carlson,

826 F.2d 698, 703 (7th Cir. 1987); see also Day v. McDonough, 126 S. Ct. 1675,

1681–82 (2006) (noting that the requirement that state prisoners exhaust state

remedies before filing a federal habeas petition is not a jurisdictional requirement);

Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 996–97 (8th Cir.

2006) ("[T]he language of a statute must be 'sweeping and direct' for [an exhaustion

requirement] to be considered jurisdictional." (quoting Weinberger v. Salfi, 422 U.S.

749, 757 (1975)). But see Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.

1992) (per curiam) (holding that the exhaustion requirement in § 2241 is

jurisdictional, but relying on a case addressing the exhaustion requirement of 18

U.S.C. § 3585(b)).

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Section 841(c) was repealed by the Comprehensive Crime Control Act of 1984,

but remained applicable to offenses committed prior to November 1, 1987. See Billis

v. United States, 83 F.3d 209, 210 n.2 (8th Cir.) (per curiam) (citing legislative history

of § 841(c)), cert. denied, 519 U.S. 900 (1996).

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v. Thornburgh, 864 F.2d 804, 806–10 & nn.2, 4 (D.C. Cir. 1988) (en banc) (cited with

approval in Huskey and holding that prisoner's claim that authorities failed to properly

aggregate his consecutive sentences in determining his parole eligibility could only

be brought in habeas, not in mandamus).3

Turning to the substance of Lueth's petition, we conclude that it lacks merit for

several reasons. First, the statute authorizing the imposition of special parole

commands that special parole be served in addition to, and not concurrent with, other

parole. 21 U.S.C. § 841(c) ("A special parole term provided for in this section . . .

shall be in addition to, and not in lieu of, any other parole provided for by law.");4

 see

also U.S. Parole Comm'n v. Viveros, 874 F.2d 699, 700–01 (9th Cir. 1989) (holding

that special parole term imposed on a drug conviction did not begin running until

defendant completed parole on a separate conspiracy conviction); United States v.
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Qualls, No. 96-7129, 1997 WL 337534, at *2 (10th Cir. June 19, 1997) ("A special

term of parole can only be served after completion of incarceration and any term of

regular parole."). The reasons for this requirement were recognized by the Second

Circuit in Mastrangelo v. United States Parole Commission: 

The mandatory special parole term is designed to test the offender's

ability to lead a lawful life in the community. . . . To permit the special

parole term to run concurrently with an ordinary term of imprisonment

would undermine this process. Nor is it the answer that the intended

effect might be preserved if the prisoner is released on regular parole

from a term of imprisonment during some or all of the time that the

special parole term is claimed to be running concurrently, since it cannot

be known at the time [of sentencing] that the prisoner's future behavior

and the parole board's future decision concerning the prisoner's destiny

will have led to his release on regular parole by the time petitioner claims

the special parole term should commence.

682 F.2d 402, 404–05 (2d Cir. 1982) (per curiam). The Second Circuit's reasoning

is well taken and directly applicable to Lueth's claim. We reject Lueth's suggestion

that his special parole term could run while he was serving his imprisonment term on

Count 1 (even though, as it turned out, he was on mandatory release at the time). See

Qualls, 1997 WL 337534, at *2 (rejecting prisoner's argument that "because the

district court ordered his sentences on Counts 1, 3, and 4 to run concurrently, the

special terms of parole [for Counts 3 and 4] would begin to run and expire prior to the

end of his period of incarceration on Count 1").

Second, we conclude that the BOP appropriately aggregated Lueth's multiple

sentences into a single sentence. Such aggregation is permitted by 18 U.S.C. §§ 4161

(providing for the aggregation of sentences in calculating sentence reductions based
5

Sections 4161 and 4205 have been repealed, but remain applicable to offenses

committed before November 1, 1987. Pub. L. No. 98-473, §§ 218(a)(4)–(5),

235(a)(1), (b)(1)(A)–(B), 98 Stat. 2027, 2031–32 (1984).

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on "good time allowances") and 4205 (discussing eligibility for release on parole).5

"When multiple sentences are aggregated by the Bureau of Prisons pursuant to 18

U.S.C. [§§] 4161 and 4205, such sentences are treated as a single aggregate sentence

for the purpose of every action taken by the Commission pursuant to these rules . . . ."

28 C.F.R. § 2.5; see also BOP Sentence Computation Manual, ch. VII, at 29 (1993)

("A concurrent sentence or violator term that is running along with another sentence

or violator term, and that has an [expires full term] date which is longer, are combined

to form a single sentence."). The BOP Sentence Computation Manual directs that in

a concurrent sentence situation, if the sentence that does not include a special parole

term is longer than the sentence that includes a special parole term "then the [special

parole term] will not begin to run until the expiration of the aggregated sentence,

including any period of supervision." BOP Sentence Computation Manual, ch. VII,

at 54 (1993). The BOP and the Parole Commission therefore correctly determined

that the special parole term did not commence until the expiration of Lueth's twentyyear aggregated imprisonment term.

 

Finally, we reject Lueth's argument that commencing the special parole term at

the end of his twenty-year aggregated imprisonment term violated Bifulco v. United

States, 447 U.S. 381 (1980). Bifulco recognized that a special parole term could not

be imposed as a sanction for violating 21 U.S.C. § 848. Id. at 399. The court

sentencing Lueth, however, specifically attached the special parole term to the

violations of 21 U.S.C. § 841 listed in Counts 3, 6, 7, 9, 10, and 11, not to the

violation of 21 U.S.C. § 848 listed in Count 1. "Imposition of a longer term of

imprisonment on Count 1 . . . than those imposed on [the other counts] did not convert

the special parole term[] into part of the sentence imposed on Count 1." Qualls, 1997

WL 337534, at *2. See also United States v. Tarvers, 833 F.2d 1068, 1077 (1st Cir.

1987) (holding that, while special parole term could not be imposed for a violation of
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21 U.S.C. § 848, special parole term was properly imposed for violations of 21 U.S.C.

§ 841). 

For these reasons, we affirm the District Court's order dismissing the case.

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