United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2016 Decided November 4, 2016

No. 15–5121

CHARLES W. RAMSEY, JR.,

APPELLANT

v.

UNITED STATES PAROLE COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01003)

Beverly G. Dyer, Assistant Federal Public Defender, 

argued the cause for the appellant. A.J. Kramer, Federal 

Public Defender, was with her on the briefs.

Daniel J. Lenerz, Assistant United States Attorney, argued 

the cause for the appellee. Elizabeth Trosman and John P. 

Mannarino, Assistant United States Attorneys, were with him 

on the brief.

Before: HENDERSON and MILLETT, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: “The 

essence of parole is release from prison, before the completion 

of sentence, on the condition that the prisoner abide by certain 

rules during the balance of the sentence.” Morrissey v. 

Brewer, 408 U.S. 471, 477 (1972). But what if the parolee 

breaks the rules? More specifically, what happens if he 

commits a new offense? In the federal system, the United 

States Parole Commission (Commission) can revoke the 

offender’s parole and order that he serve all or some of the 

remaining sentence in prison. The Commission can also 

retrospectively deny him credit for the time he has served on 

parole—his “street time”—so that his remaining sentence is 

the same as it was when he was released on parole.

These general principles guide our resolution of Charles 

Ramsey’s appeal. In the 1970s, Ramsey was convicted of 

drug and firearm offenses for which he was sentenced to a total 

of 32 years in federal prison. In the 1980s, he was paroled and 

released from prison. In the 1990s, he violated the conditions 

of his parole by committing a new drug offense. He pleaded 

guilty to the 1990s offense pursuant to a plea agreement that 

said nothing about his past offenses, parole or street time. In 

this case, he filed a habeas corpus petition in which he argued 

that the plea agreement, as construed by the Southern District 

of West Virginia, terminated his parole or at least prohibited 

the Commission from using his 1990s offense to deny him 

credit for street time or for other parole-related purposes. 

Unpersuaded, the district court denied his habeas petition. 82 

F. Supp. 3d 293 (D.D.C. 2015). We, too, reject his reading of 

the plea agreement and accordingly uphold the denial of his 

petition.
3

I. BACKGROUND

A. THE FEDERAL PAROLE SYSTEM

The Congress abolished parole for federal offenders in 

1984, effective November 1, 1987. Sentencing Reform Act of 

1984, Pub. L. No. 98-473, §§ 218(a)(5), 235(a)(1), 98 Stat. 

1987, 2027, 2031 (Oct. 12, 1984); Sentencing Reform 

Amendments Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 

1728, 1728 (Dec. 26, 1985); see Gozlon-Peretz v. United 

States, 498 U.S. 395, 400 n.4 (1991). Remnants linger, 

however, because repeal did not affect offenders convicted 

before November 1987. Sentencing Reform Act § 

235(b)(1)(A), 98 Stat. at 2032. Chapter 311 of title 18 

continues to govern parole for such offenders. 18 U.S.C. §§ 

4201-4218; see United States Parole Commission Extension 

Act of 2013, Pub. L. No. 113-47, § 2, 127 Stat. 572, 572 (Oct. 

31, 2013) (extending parole system through October 2018).

As relevant here, section 4203 gives the Commission the 

power to “grant or deny an application or recommendation to 

parole any eligible prisoner[,]” 18 U.S.C. § 4203(b)(1), and to 

“modify or revoke an order paroling any eligible prisoner[,]”

id. § 4203(b)(3). Section 4209 provides that, “[i]n every case, 

the Commission shall impose as conditions of parole that the 

parolee not commit another Federal, State, or local crime [and] 

that the parolee not possess illegal controlled substances . . . .” 

Id. § 4209(a). Section 4210(b)(2) applies to an offender who, 

having been released on parole, is “convicted of any criminal 

offense . . . punishable by a term of imprisonment, detention or 

incarceration in any penal facility . . . .” Id. § 4210(b)(2). In 

such a case, “the Commission shall determine . . . whether all 

or any part of the unexpired term being served at the time of 

parole shall run concurrently or consecutively with the 

sentence imposed for the new offense . . . .” Id. Section 4211 
4

gives the Commission authority to grant “[e]arly termination of 

parole” but only “[u]pon its own motion or upon request of the 

parolee . . . .” Id. § 4211(a). Section 4213 provides that “[i]f 

any parolee is alleged to have violated his parole, the 

Commission may” summon him to appear at a revocation 

hearing or “issue a warrant and retake” him. Id. § 

4213(a)(1)-(2). Section 4214(d) provides that when a parolee 

is summoned or retaken and the Commission finds that he has 

violated a condition of his parole, the Commission may 

“restore the parolee to supervision,” “reprimand” him, 

“modify” the conditions of his parole, “refer [him] to a 

residential community treatment center,” “release” him “as if 

on parole” or “formally revoke parole.” Id. § 4214(d).

The Commission’s regulations are codified in 28 C.F.R. 

Part 2. Section 2.20 establishes guidelines that “indicate the 

customary range of time to be served [in prison] before release 

for various combinations of offense (severity) and offender 

(parole prognosis) characteristics.” 28 C.F.R. § 2.20(b). 

Section 2.20’s table of ranges is akin to the sentencing table of 

the United States Sentencing Guidelines. See U.S.

SENTENCING COMM’N, U.S. SENTENCING GUIDELINES 

MANUAL ch. 5, pt. A (2015). The vertical axis in section 2.20 

is divided into eight categories based on “Offense 

characteristics: Severity of offense behavior.” 28 C.F.R. § 

2.20. The horizontal axis is divided into four categories based 

on “Offender characteristics: Parole prognosis,” also known as 

the offender’s “salient factor score.” Id. The shortest 

guideline range, stated in months, is “≤4.” Id. The longest is 

“180+.” Id. Pursuant to section 2.21, the guidelines in 

section 2.20 apply when the Commission considers reparoling 

an offender whose parole has been revoked. Id. § 2.21(b). 

Section 2.21 makes clear that the guidelines are just that: 

non-binding recommendations. Id. § 2.21(d) (“The above are 
5

merely guidelines. A decision outside these guidelines (either 

above or below) may be made when circumstances warrant.”).

Finally, section 2.52 governs the Commission’s 

“[r]evocation decisions.” Section 2.52(b) provides that, when 

the Commission revokes parole, it “shall also determine, on the 

basis of the revocation hearing, whether reparole is warranted 

or whether the prisoner should be continued for further 

review.” 28 C.F.R. § 2.52(b). Section 2.52(c) sets forth “the 

Commission’s interpretation of 18 U.S.C. 4210(b)(2).” Id. § 

2.52(c)(2). The Commission’s interpretation is that

if a parolee has been convicted of a new offense 

committed subsequent to his release on parole, 

which is punishable by any term of 

imprisonment, detention, or incarceration in 

any penal facility, forfeiture of time from the 

date of such release to the date of execution of 

the warrant is an automatic statutory penalty, 

and such time shall not be credited to the 

service of the sentence.

B. RAMSEY’S PAROLE

With the foregoing provisions in mind, we recap 

Ramsey’s odyssey through the parole system.

1. Ramsey’s 1970s offenses and 32-year sentence

In February 1975, Ramsey began serving a maximum 

aggregate prison sentence of 32 years for importation of a 

controlled substance, unlawful possession of firearms and 

related offenses of which he was convicted in three federal 

cases in the District of Columbia (D.C.) and the Southern 

District of New York. His 32-year term was to be followed by 

six years of “special parole,” the pre-Sentencing Reform Act 
6

equivalent of supervised release. 28 C.F.R. § 2.57(a) 

(describing special parole as “an additional period of 

supervision which commences upon completion of any period 

on parole or mandatory release supervision from the regular 

sentence”); see United States v. Todd, 287 F.3d 1160, 1161 

(D.C. Cir. 2002).

In May 1989, Ramsey was released on parole with about 

17 years and nine months left of his 32-year term. Consistent 

with 18 U.S.C. § 4209(a), one of the conditions of his parole 

provided in part: “You shall not violate any law.” United 

States’ Resp. to Def.’s Mot. to Amend or Correct Sentence, 

Dkt. No. 3, Ex. 3 at 3. Another condition prohibited him from 

possessing drugs. Id.

2. Ramsey’s 1995 cocaine offense

and 2004 plea agreement

In November 1995, while on parole for the 1970s offenses, 

Ramsey was charged in D.C. district court with a new federal 

offense: possessing with intent to distribute cocaine. He was 

immediately detained pending trial. Based on the cocaine 

charge, the Commission issued a warrant alleging that Ramsey 

had violated his parole. The U.S. Marshals Service lodged the 

warrant as a detainer to be executed once he was released from 

custody on the cocaine charge. In May 1996, following a 

six-day trial, a jury convicted him of the cocaine offense. In 

an August 1996 presentence report (PSR), the United States 

Probation Office noted that Ramsey had been continuously 

detained for the cocaine offense since November 1995 and 

that, on completing his sentence for that offense, he would still 

be subject to a detainer for violating his parole on the 1970s 

offenses. In December 1997, the district court sentenced him 

to 210 months of imprisonment for the cocaine offense.
7

For nine years and one month, Ramsey was in prison for 

the 1995 cocaine offense. In 2004, the district court 

concluded that the lawyer who had represented Ramsey during 

the trial on the cocaine offense had rendered ineffective 

assistance. United States v. Ramsey, 323 F. Supp. 2d 27, 

35-44 (D.D.C. 2004). The court ordered a new trial. Id. at 

44.

Foregoing an appeal or retrial, the D.C. United States 

Attorney’s Office entered a plea agreement with Ramsey. 

The agreement provided that Ramsey was to plead guilty to the 

cocaine offense and receive a prison sentence of time served, to 

be followed by eight years of supervised release. Plea 

Agreement ¶¶ 1, 6.1

 Under paragraph 3 of the agreement, 

“[t]he parties agree[d] to accept” the PSR that had been 

prepared in August 1996. Paragraph 5 of the agreement 

provided: 

The United States Attorney’s Office for the 

District of Columbia will not prosecute 

[Ramsey] for any other charges arising out of 

the transactions and events that are the subject 

of the [1995] indictment and this guilty plea.

And paragraph 6 stated in pertinent part: 

Since the sentence is to be time served, the 

parties contemplate that [Ramsey] will be 

processed for release by the U.S. Marshals 

Service in the cell block of the U.S. Courthouse 

and will be released to commence his period of 

 1

 The plea agreement is not on the district court’s electronic 

docket but is available in Ramsey v. Felts, 5:06-cv-00637, Dkt. No. 

3, Ex. 12 (S.D. W. Va. Aug. 16, 2006).
8

supervised release from there without being 

returned to any other prison facility.

In December 2004, the district court accepted the plea 

agreement and sentenced Ramsey to time served for the 

cocaine offense (nine years and one month), to be followed by 

eight years of supervised release. But Ramsey was not 

released from custody. Instead, the U.S. Marshals Service 

executed the parole violator warrant the Commission had 

issued back in 1995. In other words, Ramsey remained in 

prison but was now serving time on his 32-year sentence for 

the 1970s offenses, not on his sentence for the 1995 offense.

3. The Commission’s 2005 decision to revoke parole

and deny credit for street time

In February 2005, Ramsey appeared with counsel for a 

hearing on whether the Commission, in view of the 1995 

cocaine offense, should revoke parole on his earlier 32-year 

sentence. So far as the record reflects, he did not argue that 

the plea agreement terminated his parole or precluded 

revocation. Nor did he argue that the plea agreement 

prohibited the Commission from using his 1995 offense to 

deny him credit for his street time from May 1989 to 

November 1995.

In March 2005, the Commission indeed revoked 

Ramsey’s parole based on his 1995 cocaine offense. Partly 

because of the offense’s severity—it involved up to 44 

kilograms of cocaine—he faced the highest possible guidelines 

range of 180+ months of reimprisonment under 28 C.F.R. §§ 

2.20 and 2.21(b). Seeing no basis for a departure, the 

Commission ordered a reimprisonment term within the range 

and set a presumptive reparole date of October 21, 2014. 

Consistent with 28 C.F.R. § 2.52(c)(2), the Commission also 
9

denied Ramsey any credit for his street time from May 1989 to 

November 1995.

Later in March 2005, Ramsey appealed the decision to the 

Commission’s National Appeals Board, again without 

invoking the plea agreement. The National Appeals Board 

affirmed the Commission’s decision.

4. The 2007 decision in Felts

In August 2006, while serving time on his 32-year 

sentence at a federal prison in West Virginia, Ramsey filed a 

petition for writ of habeas corpus under 28 U.S.C. § 2241 in the 

United States District Court for the Southern District of West 

Virginia. Ramsey v. Felts, 5:06-cv-00637, Dkt. No. 2 (S.D. 

W. Va. Aug. 16, 2006) (Felts). As relevant here, he claimed 

that the Commission was bound by the 2004 plea agreement 

and breached it by revoking parole and reincarcerating him 

based on his 1995 cocaine offense. Felts, Dkt. No. 3 at 10-11. 

In particular, he argued that the Commission violated 

paragraph 5, under which the D.C. United States Attorney’s 

Office agreed “not [to] prosecute [Ramsey] for any other 

charges arising out of the transactions and events that are the 

subject of the [1995] indictment and this guilty plea”; and 

paragraph 6, under which Ramsey was to “be released to 

commence his period of supervised release . . . without being 

returned to any other prison facility.”

The case was referred to a magistrate judge who agreed 

that the Commission was in breach of the plea agreement and 

recommended that the district court grant Ramsey’s habeas 

petition. Felts, Dkt. No. 30 at 1, 24-25. The magistrate 

concluded that, taken together, “paragraphs 5 and 6 contain 

very significant promises to [Ramsey], the benefit of which he 

has not received.” Id. at 21. She acknowledged that the 

parties to the agreement apparently “never gave the Parole 
10

Commission a thought” and that paragraph 5 expressly bound 

only the D.C. United States Attorney’s Office. Id. at 23-24. 

Nonetheless she reasoned that paragraph 6, in promising that 

Ramsey would be released from his jail term for the 1995 

cocaine offense without having to return to any prison facility, 

necessarily affected the Commission. Id. at 21-22. In the 

magistrate’s view, the tension between paragraphs 5 and 6 

produced an ambiguity that had to be resolved in favor of 

release because (inter alia) the government wrote the 

agreement and bore “responsibility . . . for imprecision,” id.; 

Ramsey had relied on the promise of immediate release when 

he pleaded guilty, id. at 24-25; and the promise “ha[d] not been 

fulfilled,” calling into question the voluntariness of the plea 

and undermining “public confidence in the fair administration 

of justice,” id. at 24.

No one objected to the magistrate judge’s findings and 

recommendation. In August 2007, the district court in Felts

adopted them and ordered that Ramsey “be immediately 

released” from prison so that he could “commence his period 

of supervised release” on the 1995 cocaine offense. Felts, 

Dkt. No. 31 at 3. The Commission immediately paroled him 

and indicated that he had about 15 years remaining on his 

initial 32-year sentence. Consistent with 18 U.S.C. § 4209(a), 

the Commission again imposed as a condition of parole that 

Ramsey not violate any law.

5. Ramsey’s 2010 gambling conviction

Ramsey ran into new legal trouble in April 2010, when he 

was convicted in D.C. Superior Court for “maintaining a 

gambling premises.” United States’ Resp. to Def.’s Mot. to 

Amend or Correct Sentence, Dkt. No. 3, Ex. 20 (capitalization 

altered). The Commission issued another parole violator 

warrant, this one based on the gambling offense. The U.S. 
11

Marshals Service executed the warrant upon Ramsey’s release 

from a short jail term for the gambling offense.

In September 2010, Ramsey appeared for a hearing on 

whether the Commission, in view of the gambling offense, 

should revoke parole on his earlier 32-year sentence. In 

November 2010, the Commission in fact revoked his parole. 

Pursuant to the guidelines in 28 C.F.R. §§ 2.20 and 2.21(b), the 

Commission ordered that he spend another 12 months of the 

32-year sentence in prison. The Commission’s decision was 

based in part on its calculation that Ramsey had a salient factor 

score of 2. The salient factor score, in turn, was based on 

Ramsey’s past offenses, including his 1995 cocaine offense. 

Finally, the Commission denied Ramsey any credit for his 

street time between August 2007 and April 2010, leaving him 

with about 15 years remaining on his initial 32-year sentence.

Ramsey served his 12 months of additional prison time 

and the Commission reparoled him in April 2011. At that 

point he had about 14 years left to serve on his 32-year 

sentence. He has been on parole ever since and now has about 

eight and one-half years left: his anticipated completion date is 

July 16, 2025. After that, he must serve his six-year term of 

special parole.

6. The decision under review

In 2013, Ramsey filed a habeas petition in district court 

under 28 U.S.C. § 2241.2

 He made two claims, the second of 

 2

 Ramsey filed his habeas petition in the D.C. district court, 

naming the Commission as the respondent. The district court had 

subject-matter jurisdiction because Ramsey, as a parolee, remains 

“in custody” within the meaning of section 2241 even though he is 

not in prison. Jones v. Cunningham, 371 U.S. 236, 243 (1963) 

(restraints on parolee’s liberty “are enough to invoke the help of the 
12

which had two components. First, he argued that the 2004 

plea agreement, as interpreted in Felts, “authorized his release 

on supervised release alone” so that his parole was necessarily 

“terminated.” Pet’r’s Mot. to Amend or Correct Sentence, 

Dkt. No. 1 at 9-10. Second, he argued that the agreement at a 

minimum prohibited the Commission from using his 1995 

cocaine offense (a) to deny him credit for street time in the 

2005 parole revocation proceeding; and (b) to calculate his 

salient factor score in the 2010 parole revocation proceeding. 

In Ramsey’s telling, the plea agreement’s prohibition against 

“prosecut[ing]” him on additional charges based on his 1995 

conviction meant that the Commission could not use the 

conviction to “penalize” him in any way. Id. at 11. It 

followed, in his view, that he was entitled to a remand to the 

Commission for recalculation of his sentence.

The district court rejected Ramsey’s claims and denied his 

habeas petition. 82 F. Supp. 3d 293 (D.D.C. 2015). First, 

the court concluded that the plea agreement and Felts “did not 

terminate . . . [Ramsey’s] parole from the 1970s cases.” Id. at 

 

Great Writ” even absent “immediate physical imprisonment”); see

18 U.S.C. § 4210(a) (“A parolee shall remain in the legal custody 

and under the control of the Attorney General, until the expiration of 

the maximum term or terms for which such parolee was 

sentenced.”); see also United States ex rel. New v. Rumsfeld, 448 

F.3d 403, 406 (D.C. Cir. 2006) (“in custody” requirement of section 

2241 goes to subject-matter jurisdiction). We need not decide 

whether the Commission is a proper respondent, or the D.C. district 

court a proper venue, because the Commission “raised no objections 

on grounds of venue or personal jurisdiction.” Fletcher v. Reilly, 

433 F.3d 867, 875 (D.C. Cir. 2006); see Chatman-Bey v. 

Thornburgh, 864 F.2d 804, 813 (D.C. Cir. 1988) (“It is, of course, 

elementary that a defense of improper venue or lack of personal (as 

opposed to subject matter) jurisdiction is waived unless the defense 

is asserted . . . .”).
13

304; see id. at 303-05. The court pointed out that the 1970s 

cases were neither “the subject of” nor “referenced in” the 

2004 plea agreement, which used the terms “‘case’” and 

“‘matter’” to refer solely to the 1995 cocaine case. Id. at 304

(citation omitted). In the court’s view, although the 

agreement promised that Ramsey was to “‘be released to 

commence his period of supervised release . . . without being 

returned to any other prison facility,’” neither that assurance 

nor the Felts decision “gave Mr. Ramsey license to commit 

new crimes without risking parole revocation and being 

sentenced to serve his back-up time.” Id. The court 

emphasized that Felts “held only that . . . the Parole 

Commission could not require Mr. Ramsey to serve additional 

prison time as a parole violator based directly on his conviction 

in” the 1995 case. Id. at 305.

Second, the district court concluded that nothing in the 

plea agreement, as construed in Felts, prevented the 

Commission from using the 1995 cocaine offense to deny 

Ramsey credit for street time or to calculate his salient factor 

score. 82 F. Supp. 3d at 305-07. The court acknowledged 

that paragraph 5 of the agreement prohibited the D.C. United 

States Attorney’s Office from “prosecuting” him based on the 

1995 conduct that was the subject of his guilty plea. Id. at 

306-07. It reasoned, however, that paragraph 5 “did not bind” 

the Commission, let alone in a way that foreclosed it from even 

“taking the [cocaine] conviction into account when 

calculating” street time or Ramsey’s salient factor score. Id. 

at 307. Finally, the court emphasized that paragraph 6 of the 

agreement only “preclude[d] the Commission from 

reincarcerating Ramsey as a parole violator” “based directly 

on” the cocaine offense. Id. at 305-06. In the court’s view, 

paragraph 6 did not displace “the applicable statutes, 

regulations, and case law” authorizing the Commission’s 
14

“actions with respect to Ramsey’s parole.” Id. at 306 (citing, 

inter alia, 18 U.S.C. § 4210(b)(2)).

II. ANALYSIS

On appeal, Ramsey renews essentially the same two 

claims he made in district court: (1) the plea agreement as 

construed in Felts terminated his parole or precluded 

revocation; or (2) at a minimum, it prohibited the Commission 

from using his 1995 cocaine offense to deny him credit for 

street time and to calculate his salient factor score. Our 

review is de novo. See United States v. Henry, 758 F.3d 427, 

431 (D.C. Cir. 2014) (“We interpret the terms of a plea 

agreement de novo . . . .”); cf. United States v. TDC Mgmt. 

Corp., 24 F.3d 292, 295 (D.C. Cir. 1994) (“[w]e review de 

novo” question of what issues were decided in prior case 

involving same parties). We reject Ramsey’s claims as set 

forth below.

A. THE PLEA AGREEMENT DID NOT TERMINATE PAROLE

OR PRECLUDE REVOCATION FOR FUTURE OFFENSES.

According to Ramsey, the plea agreement terminated his 

parole or at least prohibited the Commission from revoking it. 

“[W]e look to principles of contract law” to determine “the 

reasonable understanding of the parties.” Henry, 758 F.3d at 

431. The leading indicator of their understanding is the 

agreement’s “plain language.” See United States v. Jones, 58 

F.3d 688, 691 (D.C. Cir. 1995). But there are additional 

indicators. General customs of which the parties are aware, as 

well as the parties’ conduct in carrying out the agreement, can 

aid in discerning what the parties meant by the words they 

used. RESTATEMENT (SECOND) OF CONTRACTS § 203(b) 

(1981) (“usage of trade” and “course of performance” are 

relevant to “interpretation of a promise or agreement”). 
15

Applying those precepts to Ramsey’s case, we reject his 

interpretation of the plea agreement. If he were right, the 

agreement would not only preclude revocation based on his 

1995 cocaine offense but arguably would give him a free pass 

to commit new crimes—such as his 2010 gambling 

offense—without parole-related consequences. If that had 

been the parties’ intention, we would expect them to have said 

so specifically because the arrangement would contradict the 

laws that otherwise govern Ramsey’s parole. As we have 

discussed, the Congress required that parole “[i]n every case” 

be conditioned on the parolee’s “not commit[ting] another 

Federal, State, or local crime,” 18 U.S.C. § 4209(a), and it gave 

the Commission authority to revoke parole and reimprison the 

parolee for a violation, 18 U.S.C. § 4214(d). Parole would 

make little sense absent such a condition and without the 

Commission’s ability to enforce it through reincarceration or 

other punishment. Morrissey v. Brewer, 408 U.S. 471, 478-79 

(1972) (“The enforcement leverage that supports the parole 

conditions derives from the authority to return the parolee to 

prison to serve out the balance of his sentence if he fails to 

abide by the rules.”). Dovetailing with sections 4209 and 

4214, section 4211 gives the Commission exclusive authority 

to grant “[e]arly termination of parole” “[u]pon its own motion 

or upon request of the parolee.” 18 U.S.C. § 4211(a).

It is questionable whether the D.C. United States 

Attorney’s Office, without the Commission’s authorization, 

had the legal authority to bargain around the foregoing statutes 

to terminate parole or forbid revocation. But we need not 

decide that issue. What matters here is that nothing suggests it

meant to do so: the plea agreement said nothing about the 

Commission, parole, Ramsey’s 32-year sentence or the age-old 

offenses from which that sentence stemmed. It did not say his 

parole was terminated. And it did not say the Commission 
16

was forbidden from revoking parole for offenses subsequent to 

Ramsey’s 1995 cocaine offense.3

Ramsey emphasizes the plea agreement’s statement that 

he was not to “be[ ] returned to any other prison facility.” Plea 

Agreement ¶ 6. He reasons that the agreement thereby 

“prohibited incarceration,” leading him to believe that “it also 

prohibited revocation” based on any future offense because 

revocation would inevitably lead to incarceration. 

Appellant’s Br. 25. But the agreement governed only “United 

States v. Charles W. Ramsey, Cr. No. 95-0326(PLF),” Plea 

Agreement p. 1—and stated that “[t]here are no other 

agreements, promises, understandings or undertakings 

between” the parties, id. ¶ 7—so it could not be construed to 

prohibit incarceration for all time and any offense. Instead, 

we read it to forbid any further incarceration based directly on 

the 1995 offense. Id. ¶ 6 (manifesting that, because prison 

term for 1995 offense was “to be time served,” parties 

contemplated that Ramsey would be released from that term 

“without being returned to any other prison facility”).4

 3

 The closest the agreement came to discussing parole was 

paragraph 3, under which “[t]he parties agree[d] to accept” the 

August 1996 PSR. The PSR noted that, on completing his sentence 

for the 1995 cocaine offense, Ramsey was still subject to a detainer 

for violating his parole. Oral Arg. Recording 5:40-5:57, 

11:35-11:49, 19:43-20:35. The PSR thus confirmed that Ramsey 

had time left to serve on his 32-year sentence. Neither the PSR nor 

the “agree[ment] to accept” it suggested the parties had agreed to 

terminate parole or to forbid revocation forevermore.

4

 The Commission makes the additional point that revocation 

need not lead to imprisonment. Appellee’s Br. 24. We assume 

without deciding that the latter does not always follow the former. 

See 28 C.F.R. § 2.52(b) (after revoking parole, Commission must 

determine “whether reparole is warranted”); 28 C.F.R. §§ 2.20 and 
17

Undeterred, Ramsey contends that, because the plea 

agreement “ordered [his] release on supervised release . . . with 

no mention of parole,” it did not “contemplate[ ] continuing 

parole.” Appellant’s Br. 25 (citing Plea Agreement ¶ 6). He 

gets things backwards. Under the governing statutes, the 

default was that Ramsey’s parole carried forward subject to 

revocation for a future violation. See RESTATEMENT 

(SECOND) OF CONTRACTS § 222(3) (“Unless otherwise agreed, 

a usage of trade . . . of which [the parties] know or have reason 

to know gives meaning to . . . their agreement.”) (emphasis 

added). The agreement’s bare statement about supervised 

release did not reflect any intent to displace the statutory 

default: far from ruling out parole, supervised release based on 

a new offense ordinarily runs concurrently with a preexisting 

parole term. 18 U.S.C. § 3624(e) (“The term of supervised 

release commences on the day the person is released from 

imprisonment and runs concurrently with any Federal, State, or 

local term of . . . parole for another offense to which the person 

is subject . . . .”).

Ramsey’s contemporaneous conduct reinforces our 

analysis. In February 2005—barely two months after he 

signed the plea agreement—he appeared with counsel for a 

hearing on whether the Commission should revoke his parole 

because of his 1995 cocaine offense. He did not argue, either 

to the Commission or to the National Appeals Board thereafter, 

that the plea agreement terminated his parole or precluded 

 

2.21(b) (prescribing advisory reimprisonment ranges as short as 

“≤4,” which suggests possibility of no reimprisonment). Even so, 

that would not heavily bear on the parties’ understanding of the plea 

agreement in this case: Ramsey’s offense history all but guaranteed 

that he faced imprisonment in the event of revocation based on a new 

offense. The Commission’s decision to reimprison him for 12 

months based on a minor gambling offense illustrates as much.
18

revocation resulting from any future offenses. If he had 

thought it did, he would have said so. See RESTATEMENT 

(SECOND) OF CONTRACTS § 202(4) (“[A]ny course of 

performance accepted or acquiesced in without objection is 

given great weight in the interpretation of the agreement.”).

Faced with dead ends in the statutes and the plea 

agreement, Ramsey turns to Felts but it does not aid him either. 

In Felts, the district court for the Southern District of West 

Virginia ordered Ramsey’s immediate release because he 

could not be required to serve any additional jail time for the 

1995 cocaine offense. Crucial to Felts’s reasoning was that 

Ramsey had pleaded guilty in reliance on the prosecutor’s 

promises (1) against “any other charges arising out of” the 

1995 offense, Felts, Dkt. No. 30 at 23; and (2) that Ramsey was 

to be immediately “released to commence his period of 

supervised release” for the 1995 offense, id. at 14. Felts

ensured that Ramsey received “the benefit of” those promises 

so that his “bargain” was “not frustrated.” Id. at 21, 25.

Felts did not address, however, whether parole could later 

be revoked because of some future offense not even mentioned 

in the plea agreement. To the contrary, Felts acknowledged 

that, when drafting and signing the agreement, the parties 

“never gave the Parole Commission a thought.” Felts, Dkt. 

No. 30 at 23-24. That acknowledgment forecloses any 

contention that Felts construed the agreement to terminate 

parole or precluded revocation for all time and any offense.

B. THE PLEA AGREEMENT DID NOT PROHIBIT USING 

RAMSEY’S 1995 OFFENSE TO DENY CREDIT FOR STREET 

TIME OR TO CALCULATE HIS SALIENT FACTOR SCORE.

Alternatively, Ramsey urges that the plea agreement 

prohibited the Commission from using his 1995 cocaine 

offense (a) in the 2005 revocation proceeding to deny him 
19

credit for street time from May 1989 through November 1995; 

and (b) in the 2010 revocation proceeding to calculate his 

salient factor score. Both components of his contention are 

meritless.5

Ramsey relies heavily on paragraph 5 of the plea 

agreement. To repeat, paragraph 5 stated that “[t]he United 

States Attorney’s Office for the District of Columbia will not 

prosecute [Ramsey] for any other charges arising out of” the 

1995 cocaine offense. As an initial matter, Ramsey suggests 

that Felts interpreted paragraph 5 to bind the Commission, not 

simply the D.C. United States Attorney’s Office. That 

construction is far from clear: Felts acknowledged that 

“paragraph five identified the only prosecutorial agency bound 

not to prosecute [Ramsey],” namely, “the ‘Office of the United 

States Attorney for the District of Columbia.’” Felts, Dkt. 

No. 30 at 23. But even assuming paragraph 5 bound the 

Commission, a prohibition against “prosecut[ing]” Ramsey for 

additional “charges” based on his 1995 conduct would not 

prevent the Commission from using the conduct to deny him 

credit for street time or to calculate his salient factor score. 

Nothing in the plea agreement suggests that the parties meant 

for the words “prosecute” and “charges” to have anything other 

than their ordinary meaning. And in the criminal context, the 

ordinary meaning of “prosecute” is “[t]o institute and pursue a 

criminal action . . . .” BLACK’S LAW DICTIONARY 1416 (10th 

ed. 2014). Similarly, a “charge” ordinarily connotes “[a] 

formal accusation of an offense as a preliminary step to 

prosecution . . . .” Id. at 282. Denying credit for street time 

 5

 Ramsey advances additional arguments that the Commission 

miscalculated his parole but they turn entirely on the 

proposition—which we today reject—that the Commission could 

not revoke parole or use the 1995 cocaine offense to deny credit for 

street time.
20

and calculating a parolee’s salient factor score do not institute a 

criminal action. Indeed, the Supreme Court has long held that 

“revocation of parole is not part of a criminal prosecution . . . .” 

Morrissey, 408 U.S. at 480. A fortiori, we cannot conclude 

that parole-related measures short of revocation are 

tantamount to “prosecution.”

We recognize, as Felts did, that paragraph 6 of the plea 

agreement—promising that Ramsey was to be released from 

his jail term for the 1995 cocaine offense “without being 

returned to any other prison facility”—could be read to 

prohibit the Commission from reincarcerating Ramsey based 

directly on his 1995 conduct. In our view, however, that 

promise did not foreclose forfeiture of street time, especially 

because the agreement did not mention 18 U.S.C. § 4210(b)(2) 

or 28 C.F.R. § 2.52(c)(2). As noted, section 4210(b)(2) 

provides that “the Commission shall determine . . . whether all 

or any part of the unexpired term being served at the time of 

parole shall run concurrently or consecutively with the 

sentence imposed for the new offense . . . .” And in section 

2.52(c)(2), the Commission “interpret[ed]” section 4210(b)(2) 

to require forfeiture of street time as “an automatic statutory 

penalty.”6

 If the parties had meant to displace the “automatic 

 6

 As Ramsey notes in passing, the Ninth Circuit has held that 

section 2.52(c)(2) contravenes section 4210(b)(2). Rizzo v. 

Armstrong, 921 F.2d 855, 859-61 (9th Cir. 1990). He does not 

mention, however, that at least three other circuits have concluded 

otherwise. See Edwards v. Dewalt, 681 F.3d 780, 786-87 (6th Cir. 

2012); Harris v. Day, 649 F.2d 755, 759-60 (10th Cir. 1981); United 

States ex rel. Del Genio v. Bureau of Prisons, 644 F.2d 585, 587-88 

(7th Cir. 1980). We need not weigh in on the conflict, for two 

reasons. First, nothing suggests the parties here agreed that 

Ramsey was to be exempt from section 2.52(c)(2). Second, 

Ramsey has not properly preserved a claim that section 2.52(c)(2) 

conflicts with the statute. He did not make the claim in his habeas 
21

statutory penalty” by virtue of the plea agreement—assuming 

that would even be possible—presumably they would have 

done so more explicitly than paragraph 6 did. At least they 

would have mentioned the concept of street time; that it 

appears nowhere in the agreement shows that the parties 

reached no understanding about it. As if to confirm the point, 

Ramsey did not invoke the agreement at the February 2005 

revocation hearing or before the National Appeals Board in an 

effort to preserve his street time. See RESTATEMENT 

(SECOND) OF CONTRACTS § 202(4).

Finally, paragraph 6 did not prohibit the Commission from 

using Ramsey’s 1995 cocaine offense to calculate his salient 

factor score in 2010. The Commission used the score to 

weigh the likelihood that he would violate his parole on the

1970s offenses. See 28 C.F.R. § 2.20(e) (“An evaluation sheet 

containing a ‘salient factor score’ serves as an aid in 

determining the parole prognosis (potential risk of parole 

violation).”). The Commission did not use the score to punish 

him directly for his 1995 offense. Cf. Witte v. United States, 

515 U.S. 389, 400 (1995) (use of past conviction at sentencing 

for new offense “is not to be viewed as either a new jeopardy or 

additional penalty for the earlier crime[ ], but instead as a 

 

petition. Instead, he advanced it for the first time in an oblique 

one-sentence footnote in a reply supporting his petition. 

Unsurprisingly, the district court did not address it. We agree with 

several other courts that, ordinarily, a habeas petitioner does not 

preserve a claim by raising it for the first time in a reply. See Tyler 

v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005) (holding as much and 

citing additional cases from First, Seventh and Ninth Circuits). 

Moreover, even if Ramsey had preserved the claim in district court, 

his perfunctory appellate briefing does not suffice to raise it in this 

Court. See Ry. Labor Execs. Ass’n v. U.S. R.R. Ret. Bd., 749 F.2d 

856, 859 n.6 (D.C. Cir. 1984).
22

stiffened penalty for the latest crime, which is considered to be 

an aggravated offense”) (internal quotation marks omitted).

* * * * *

Nothing in the 2004 plea agreement or in Felts terminated 

Ramsey’s parole, precluded revocation for future offenses or 

prohibited the Commission from using his 1995 cocaine 

offense to deny him credit for street time or to calculate his 

salient factor score. We therefore affirm the judgment of the 

district court denying Ramsey’s petition for a writ of habeas 

corpus.

So ordered.