In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2971

James J. Valona,

Plaintiff-Appellant,

v.

United States Parole Commission,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 97-C-531--Rudolph T. Randa, Judge.

Submitted November 20, 2000--Decided December 22, 2000

 Before Fairchild, Easterbrook, and Diane P. Wood,

Circuit Judges.

 Easterbrook, Circuit Judge. Federal offenders

whose crimes predated November 1, 1987, remain

eligible for parole. James Valona was released on

parole in December 1992 and, under 18 U.S.C.

sec.4211(c)(1) (1982 ed.), was presumptively

entitled to release from supervision five years

later:

Five years after each parolee’s release on

parole, the Commission shall terminate

supervision over such parolee unless it is

determined, after a hearing conducted in

accordance with the procedures prescribed in

section 4214(a)(2), that such supervision should

not be terminated because there is a likelihood

that the parolee will engage in conduct violating

any criminal law.

December 1997 came and went without the hearing

and decision required by sec.4211(c)(1). Valona

sought a judicial order ending the Commission’s

supervision over him. Twice the district court

declined to reach the merits of this claim; twice

we remanded, the second time adding that, until

the Parole Commission got around to Valona’s

case, supervision must cease. Valona v. United

States, 138 F.3d 693 (7th Cir. 1998); Valona v.

United States Parole Commission, 165 F.3d 508

(7th Cir. 1998). In February 1999 the National
Appeals Board of the Commission concluded that he

should remain under supervision because he is a

suspect in an ongoing arson investigation. The

district court concluded that this decision is

neither arbitrary nor capricious and reinstated

the Commission’s authority over Valona. (The

district court used the standard of the

Administrative Procedure Act, 5 U.S.C. sec.706,

as our opinions required. See 18 U.S.C. sec.4218

(1982 ed.).)

 One of Valona’s arguments is that, because the

Commission missed the five-year deadline and this

court lifted his supervision as an interim

remedy, see 5 U.S.C. sec.705, the Commission

cannot resume supervision. An interim remedy

under sec.705 is just that, however--interim. Now

that the Commission has rendered its decision,

the legal question is whether delay always brings

parole supervision to a close. Two decades ago we

addressed that question and concluded that parole

supervision can survive tardy actions by the

Parole Commission. Pullia v. Luther, 635 F.2d 612

(7th Cir. 1980). Accord, Russ v. Perrill, 995

F.2d 1001, 1003 (10th Cir. 1993); Penix v. United

States Parole Commission, 979 F.2d 386, 388-90

(5th Cir. 1992); Robbins v. Thomas, 592 F.2d 546,

549 n.7 (9th Cir. 1979). Revisiting that

interpretation of a repealed statute applicable

to a dwindling number of cases could not be

justified--especially not after Brock v. Pierce

County, 476 U.S. 253 (1986), which shows that as

a rule an agency that misses a statutory deadline

does not lose authority to make a belated

decision with the same legal effect as a timely

one. Congress sometimes specifies a consequence

of delay, along the lines of a statute of

limitations or the law at issue in Miller v.

French, 120 S. Ct. 2246 (2000), but, when the

statute is silent on the effect of delay,

shortcomings by public officials rarely preclude

(eventual) implementation of laws designed for

protection of the public at large. Valona

received an appropriate remedy when he was

released from supervision pending the

Commission’s action. Whether he should be on

parole supervision in 2001 and later depends on

the adequacy (as opposed to the timing) of the

Commission’s disposition.

 Section 4211(c)(1) calls for extended

supervision if the Commission concludes that

there "is a likelihood that the parolee will

engage in conduct violating any criminal law."

This language does not answer a vital question:

how likely must future criminality be? Even a

saint may violate the criminal law in the future;

what is more, most hardened criminals eventually

go straight (if only because many kinds of crime

require physical exertion in which older persons
cannot engage). Efforts to predict future

criminality person-by-person have not done well.

Although past convictions are good indicators of

future crimes, this is prediction in the

statistical sense; no one has been able to devise

a method of determining which released convicts

will commit new crimes. Those who kill in a fit

of passion are unlikely to murder again, but

Valona was a drug dealer, and the recidivism rate

is high when crime pays. If this regularity were

enough to justify a finding of "likelihood,"

however, the statute might as well deny release

to all drug dealers; yet if "likelihood" means

"more likely than not" then there is little point

to the possibility of extension, because someone

who spends five years on parole without a fresh

conviction must be among those at lesser risk of

recidivism.

 Because any mechanical reading of "likelihood"

either extends or terminates parole

automatically, and because automatic extensions

(or terminations) are just what sec.4211(c)(1)

does not authorize, the statute effectively hands

discretion to the Parole Commission. See Chevron

U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). One of the

Commission’s regulations specifying how this

discretion will be exercised provides that

supervision will continue if unresolved criminal

charges are pending against the parolee. 28

C.F.R. sec.2.43(e)(4). No "charges" have been

leveled against Valona, but a cloud hangs over

his head, and an investigation is ongoing.

 In July 1996 Valona asked his parole officer to

arrange for early termination of his supervision.

The parole officer replied that this could not be

done while the balance of Valona’s criminal fine,

some $23,000, remained unpaid. Only that month

Valona had filed a financial statement claiming

to have at least $75,000 worth of antiques

available for sale. That inventory was soon

turned into cash-- though in a way the parole

officer could not have contemplated. Six days

after the officer told Valona to pay his fine,

the warehouse holding that inventory burned to

the ground, and Valona submitted an insurance

claim for the stated value of his stock in trade.

At about the same time Michael Antonelli, who

Valona had come to know while in prison and who

like Valona had been released on parole, told his

wife that he had a contract to burn down a

warehouse holding antique furniture; later

Antonelli told his wife that the job had been

done and that he had been paid for his work.

Valona has not been charged with hiring Antonelli

to torch the warehouse, but neither has he been

absolved of suspicion. Parole officials also

suspect him of bankruptcy fraud (it seems that he
obtained a discharge in 1995 without revealing

his antiques and other assets) and of associating

with other felons. Suspicion is not proof, but

"likelihood" also falls short of proof--and new

crimes committed after release from prison are

the best possible indicator that there "is a

likelihood that [Valona] will engage in conduct

violating any criminal law." Sensible people

could conclude that supervision should be

continued, if only to allow the intermediate step

of revoking Valona’s parole rather than

initiating a new criminal prosecution. The

Commission’s decision to continue Valona’s parole

cannot be set aside under the APA.

 Valona argues that, even if the Commission’s

decision of February 1999 is lawful, we should

remand to the district court with instructions to

enter an order requiring the Commission to comply

with sec.4211(b): "Two years after each parolee’s

release on parole, and at least annually

thereafter, the Commission shall review the

status of the parolee to determine the need for

continued supervision." The Commission’s record

of delay does raise the question whether it can

be counted on to review Valona’s situation "at

least annually"; it not only missed the five-year

deadline under sec.4211(c)(1) but also has not

inquired since February 1999, yet we are closing

in on the second anniversary of that decision.

Perhaps, however, the Commission believed that it

could not properly hold additional proceedings

while the interim order lifting supervision

remained in force. Now that supervision has

resumed, so has the schedule under sec.4211(b).

If the Commission again lapses into inaction,

Valona will again be entitled to interim

cessation of supervision. We are confident that

the district court will protect his entitlements.

Affirmed