Bishop v. Reno

210 F.3d 1295

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 24, 2000
• Docket: 98-4109
• Status: Published

Opinion

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _______________ ELEVENTH CIRCUIT APR 24 2000 THOMAS K. KAHN No. 98-4109 CLERK _______________ D. C. Docket No. 96-2457-CV-FAM

WILLIAM BISHOP, Petitioner-Appellee,

versus

JANET RENO, U.S. ATTORNEY GENERAL, DIRECTOR OF THE UNITED STATES BUREAU OF PRISONS, U.S. Bureau of Prisons, WARDEN, DADE COUNTY JAIL, Federal Detention Center, Miami, U.S. PAROLE,

Respondents-Appellants.

______________________________

Appeal from the United States District Court for the Southern District of Florida _______________________ (April 24, 2000)

Before EDMONDSON and BIRCH, Circuit Judges, and OWENS*, Senior District Judge.

__________________ * Honorable Wilbur D. Owens, U.S. Senior District Judge for the Middle District of Georgia, sitting by designation. BIRCH, Circuit Judge: This appeal requires us to determine whether a district court has subject matter

jurisdiction to entertain habeas corpus relief for a foreign sentence of a United States

citizen, who is serving the foreign sentence in the United States pursuant to treaty

transfer. The district judge granted habeas relief and reduced the foreign sentence. We

reverse and remand for dismissal.

I. BACKGROUND

In July, 1995, petitioner-appellee and United States citizen, William Bishop, was

convicted by a Bahamian court of conspiracy to possess with intent to supply 1,956

pounds of marijuana. He was sentenced to a five-year term of imprisonment and an

$80,000 fine. If Bishop failed to pay the fine by the end of this five-year term of

imprisonment, then the Bahamian court sentenced him to serve an additional five years

in prison "bringing the to[t]al imprisonment to 10 years." R1-1-Exh. A-1.1

In a March 22, 1996, letter to the Attorney General of the Bahamas, the United

States Department of Justice ("DOJ") requested that Bishop be transferred to the

United States to serve the remainder of his sentence pursuant to the Council of Europe

Convention on the Transfer of Sentenced Persons, Mar. 21, 1983, 35 U.S.T. 2867,

T.I.A.S. No. 10824 (entered into force in the United States on July 1, 1985) ("Treaty"),

1 The Bahamian prison authorities subsequently accorded Bishop a "[r]emission" of three years and four months that commuted his imprisonment term to six years and eight months, which made him "due for discharge on the 11th March, 2002. 11/3/2002." R1-1-Exh.1-2.

2 to which the United States and the Bahamas are signatories. The DOJ letter

specifically states that "[t]he United States will apply the 'continued enforcement'

provision of the [Treaty] to the United States nationals transferred from the Bahamas

to serve their sentences in the United States." R1-11-Exh. D, Attachment C. In

accordance with 18 U.S.C. § 4108, a United States magistrate judge conducted a

hearing in the Bahamas that included Bishop and other similarly sentenced offenders

to verify their consent to the transfer.

At this April 10, 1996, hearing, Bishop and the other convicted transferees were

represented by an assistant federal public defender from the Southern District of New

York. That counsel subsequently testified at an evidentiary hearing that he advised the

transferees "that a sentence can only be modified or set aside by a proceeding brought

in the Bahamas and not in the United States."2 R2-9. During the hearing, the

magistrate judge explained the consequences of the convicts' consent to transfer. He

informed the sworn transferees collectively: "[Y]ou understand that your conviction

or sentence can only be modified or set aside through appropriate proceedings brought

by you, or on your behalf, in the Commonwealth of the Bahamas. " R1-11-Exh. E-13.

Bishop raised his hand acknowledging his understanding. Pursuant to individual

2 The assistant federal public defender testified that he informed Bishop that the worst case scenario was that he would serve ten years of imprisonment "[l]ess good time" earned in the Bahamas and in the United States. R2-14.

3 questioning as to understanding of the result of the transfer, Bishop stated that he

understood the consequences. See id. at 18. In the presence of the magistrate judge,

Bishop additionally signed a verified consent form, showing his agreement to being

transferred to the United States to serve the remainder of his Bahamian sentence.3

Because Bishop did not pay his imposed fine, the Bureau of Prisons ("BOP")

calculated his sentence to include the additional five-year incarceration ordered by the

Bahamian court if the fine was not paid.4 This five-year term subsequently was

translated by the United States Parole Commission ("Parole Commission") into

supervised release.5 An assistant federal public defender in the Southern District of

Florida wrote the BOP on Bishop's behalf that his imprisonment for his inability to pay

his fine violated the United States Constitution under Tate v. Short, 401 U.S. 395, 91

3 In relevant part, the verified consent states:

My conviction or sentence can only be modified or set aside through appropriate proceedings brought by me or on my behalf in the Commonwealth of The Bahamas; .... I HEREBY CONSENT TO MY TRANSFER TO THE UNITED STATES OF AMERICA FOR EXECUTION OF THE PENAL SENTENCE IMPOSED ON ME BY A COURT OF THE COMMONWEALTH OF THE BAHAMAS

R1-11-Exh. F. 4 Although his statutory release date was set as August 17, 2004, his projected satisfaction date with anticipated adjustments was July 26, 2003. See R1-1-Exh. C at 3. 5 After an evidentiary hearing, the Parole Commission reduced Bishop's incarceration term from 120 months to 60 months to be followed by 60 months of supervised release.

4 S.Ct. 668 (1971). While the BOP acknowledged that a defendant's imprisonment

because of his inability to pay a fine would be unconstitutional in the United States, it

explained that "the sentence is enforceable in the United States as required by the

treaty. The defendant was fully aware of, and accepted, the conditions under which the

transfer was made." R1-1-Exh. D at 5 (BOP Bahamian Foreign Treaty Sentences

memorandum). The BOP response further advised "that the defendant's method of

relief should be taken up with the Bahamian courts or by way of a petition for a writ

of habeas corpus with the federal court." Id. at 6.

The assistant federal public defender then filed a petition for writ of habeas

corpus under 28 U.S.C. § 2241 in federal court for the Southern District of Florida and

asserted that a prison term imposed for indigence "may not be enforced and a federal

court has authority to release an inmate from service of such an illegal sentence." R1-

1-3. In a consolidated response for respondents Attorney General Janet Reno, the BOP

Director, and the Federal Detention Center Warden, the government asserted that the

district court was without jurisdiction under the Treaty to modify Bishop's Bahamian

sentence. Because of his verified and documented consent to the conditions of his

transfer to the United States to serve the remainder of his Bahamian sentence, the

government alternatively argued that Bishop had waived his right to challenge his

Bahamian sentence in a United States court.

5 Following two reports and recommendations by a magistrate judge that Bishop's

habeas corpus petition be granted as well as an evidentiary hearing, the district judge

conducted a status conference in Bishop's case and the other transferee cases presenting

the same issue. With respect to Bishop, the following exchange occurred between the

assistant federal public defender and the district judge:

[COUNSEL]: When Mr. Bishop filed his initial petition, he had a ten year sentence. The Parole Commission has reduced that to five years, which was the imprisonment relief he sought by way of this petition, but they tacked on a five year period of supervised release to follow. As to Mr. Bishop, our request is for the Court to strike the five year period of supervised release which would make his sentence longer in effect.

THE COURT: What authority do I have to do that? I either vacate — you get the whole thing or nothing. .... [COUNSEL]: You could. That is an alternative you have. You can either strike — you can vacate the treaty transfer determination of the Parole Commission completely. They can hold a new hearing or you can just strike that portion of it which offends the constitution which at this point is the supervised release portion of five years.

R3-4, 5 (emphasis added). The government maintained its position that the district

judge was without jurisdiction to strike any part of Bishop's sentence based on his

Bahamian sentence.

Thereafter, the district judge granted Bishop's habeas petition by striking the

Bahamian five-year sentence for failure to pay his fine: "The terms of imprisonment

that were imposed shall be ADAPTED, in accordance with the U.S. - Bahamas Treaty,

6 Art. 10 § 2, Art. 9 § 3, to include only that portion of the sentence which was actually

imposed, and not the remaining portion which is optional upon the payment of a fine."

R1-36-2. Although Bishop has completed the incarceration portion of his sentence, he

remains on supervised release pending this appeal. On appeal from the grant of habeas

relief to Bishop, the government pursues its argument that the district court lacked

jurisdiction to reduce Bishop's Bahamian sentence.6

II. DISCUSSION

Subject matter jurisdiction of the district court is a legal question that we review

de novo. See Abebe-Jira v. Negewo, 72 F.3d 844, 846 (11th Cir. 1996). "Federal

courts are courts of limited jurisdiction" and "possess only that power authorized by

Constitution and statute." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377,

114 S.Ct. 1673, 1675 (1994); see Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115

S.Ct. 1493, 1498 (1995) (stating that the jurisdiction of "federal courts . . . is grounded

in, and limited by, statute"). "It is to be presumed that a cause lies outside this limited

jurisdiction, and the burden of establishing the contrary rests upon the party asserting

6 The government also maintains on appeal its alternative argument that, even if the district court has jurisdiction to grant habeas relief on a foreign sentence being served in the United States, Bishop's sworn consent to transfer to the United States to serve the remainder of his sentence waived such a collateral challenge. Because we decide that a district court lacks jurisdiction to grant habeas relief for a foreign sentence being served in the United States pursuant to the Treaty, we need not address this alternative waiver argument.

7 jurisdiction." Kokkonen, 511 U.S. at 377, 114 S.Ct. at 1675 (citation omitted). "As

courts of limited jurisdiction, the federal district courts possess no warrant to create

jurisdictional law of their own." Insurance Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 711, 102 S.Ct. 2099, 2109 (1982).

Questions of statutory and treaty interpretation present legal questions that are

subject to plenary review. See United States v. MacAllister, 160 F.3d 1304, 1306 (11th

Cir. 1998) (per curiam), cert. denied, __ U.S. __, 120 S.Ct. 318 (1999); United States

v. Puentes, 50 F.3d 1567, 1575 (11th Cir. 1995). "[I]t is a well established axiom of

statutory interpretation that in construing a statute, courts must first look to the plain

meaning of the statute itself." Solis-Ramirez v. United States Dep't of Justice, 758

F.2d 1426, 1430 (11th Cir. 1985) (per curiam). "When the text of the statute is clear,

our interpretive inquiry ends." Fogerty v. Fantasy, Inc., 510 U.S. 517, 538, 114 S.Ct.

1023, 1035 (1994) (Thomas, J., concurring). "'In expounding a statute, we must not

be guided by a single sentence or member of a sentence, but look to the provisions of

the whole law, and to its object and policy.'" Philbrook v. Glodgett, 421 U.S. 707, 713,

95 S.Ct. 1893, 1898 (1975) (citation omitted). Penal laws are construed strictly

because legislatures, not courts, define crimes and establish punishments. See Yates

v. United States, 354 U.S. 298, 304, 77 S.Ct. 1064, 1069 (1957), overruled on other

grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141 (1978). Therefore, "we

8 must adopt the plain meaning of a statute, however severe the consequences." Jay v.

Boyd, 351 U.S. 345, 357, 76 S.Ct. 919, 927 (1956).

"When interpreting a treaty, we 'begin "with the text of the treaty and the

context in which the written words are used."'" Volkswagenwerk Aktiengesellschaft

v. Schlunk, 486 U.S. 694, 699, 108 S.Ct. 2104, 2108 (1988) (citations omitted). In

construing treaties, "'"we may look beyond the written words to the history of the

treaty, the negotiations, and the practical construction adopted by the parties.'"" Id. at

700, 108 S.Ct. at 2108. Under the Supremacy Clause, "an Act of Congress, which

must comply with the Constitution, is on a full parity with a treaty." 7 Reid v. Covert,

354 U.S. 1, 18, 77 S.Ct. 1222, 1231 (1957). While we construe treaties and statutes

alike in determining meaning from the terms, see United States v. Alvarez-Machain,

504 U.S. 655, 663, 112 S.Ct. 2188, 2193 (1992), the "rule of equality" prohibits

implementing statutory law that renders any treaty term nugatory, Asakura v. City of

Seattle, 265 U.S. 332, 341, 44 S.Ct. 515, 516, amended on other grounds, 44 S.Ct. 634

(1924).

7 The Supremacy Clause provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." U.S. Const. art. VI, cl. 2. We note that this case does not involve a statute that is subsequent to and inconsistent with a treaty, which would render the treaty void to the extent of the conflict. See Reid, 354 U.S. at 18, 77 S.Ct. at 1231; see also Herrmann v. Meese, 849 F.2d 101, 103 (3d Cir. 1988) (concluding that the preceding statutes that implement this Treaty were intended to apply to future treaties).

9 To decide if the district court had jurisdiction to grant collateral, habeas relief

on a foreign sentence is to delineate the interaction between the Treaty and the

implementing statutes, which determine the procedure in the United States for

administering a foreign-imposed sentence to be completed here. See Cannon v. U.S.

Dep't of Justice, 973 F.2d 1190, 1197 (5th Cir. 1992) ("Procedural legislation which

makes operation of a Treaty more convenient cannot amend or abrogate a self-

executing Treaty."). The Treaty signatories recognized "that foreigners who are

deprived of their liberty as a result of their commission of a criminal offense should be

given the opportunity to serve their sentences within their own society" and "that this

aim can be achieved by having them transferred to their own countries." 8 Treaty, 35

U.S.T. at 2870 (preamble)9; see Kanasola v. Civiletti, 630 F.2d 472, 474 (6th Cir.

8 The Treaty defines "'sentence'" as "any punishment or measure involving deprivation of liberty ordered by a court for a limited or unlimited period of time on account of a criminal offence," and "'judgment' means a decision or order of a court imposing a sentence." Treaty, art. 1, §§ a, b, 35 U.S.T. at 2870. The terms "'sentencing State,'" meaning "the State in which the sentence was imposed on the person who may be, or has been, transferred," and "'administering State,'" meaning "the State to which the sentenced person may be, or has been, transferred in order to serve his sentence" because he is a citizen of that country, id. at art. 1, §§ c, d, also are referenced respectively in this opinion as "sentencing country" and "administering country." We additionally include the reasoning of other circuit courts that have addressed similar transfer treaties with analogous provisions. 9 Explaining the general considerations behind the Convention on the Transfer of Sentenced Persons, the Council of Europe stated:

In facilitating the transfer of foreign prisoners, the convention takes account of modern trends in crime and penal policy. . . . As penal policy has come to lay greater emphasis upon the social rehabilitation of offenders, it may be of paramount

10 1980) (per curiam) (acknowledging that our country enters into transfer treaties with

foreign nations "to permit an American citizen convicted of a crime in a foreign

country to serve his sentence in a prison at home where conditions are much better").

Nevertheless, "[a] sovereign nation has exclusive jurisdiction to punish offenses

against its laws committed within its borders, unless it expressly or impliedly consents

to surrender its jurisdiction." Wilson v. Girard, 354 U.S. 525, 529, 77 S.Ct. 1409, 1412

(1957). Furthermore, provisions of our Constitution, including the writ of habeas

corpus, "have no relation to crimes committed without the jurisdiction of the United

States against the laws of a foreign country"; an American citizen who commits a

crime in a foreign country is subject to trial and punishment under the laws of that

country. Neely v. Henkel, 180 U.S. 109, 122, 123, 21 S.Ct. 302, 307 (1901).

"A sovereign does not lose its power to keep a convict in custody by turning the

convict over to another sovereign for service of a sentence. . . .'[T]he question of

importance that the sanction imposed on the offender is enforced in his home country rather than in the state where the offence was committed and the judgment rendered. This policy is also rooted in humanitarian considerations: difficulties in communication by reason of language barriers, alienation from local culture and customs, and the absence of contacts with relatives may have detrimental effects on the foreign prisoner. The repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned.

Council of Europe, Explanatory Report on the Convention on the Transfer of Sentenced Persons at 6-7, ¶ 9 (1983) (hereinafter "Explanatory Report").

11 jurisdiction and custody is one of comity between the two governments and not a

personal right of the prisoner.'" Tavarez v. U.S. Attorney General, 668 F.2d 805, 809

(5th Cir. 1982) (citation omitted) (alteration in original). Because foreign governments

likely would not consent to the transfer of United States citizens serving sentences in

their countries for crimes committed while abroad if the United States were to

disregard the convictions and sentences of transferees in this country, jurisdictional

exclusivity is a reasonable treaty term. See Rosado v.Civiletti, 621 F.2d 1179, 1200

(2d Cir. 1980) ("In assessing the interacting interests of the United States and foreign

nations, 'we must move with the circumspection appropriate when [a court] is

adjudicating issues inevitably entangled in the conduct of our international relations.'"

(quoting Romero v. International Terminal Operating Co., 358 U.S. 354, 383, 79 S.Ct.

468, 486 (1959) (alteration in original)).

A "sentence" under the Treaty means imprisonment for a criminal conviction.

See Treaty, art. 1, § a, 35 U.S.T. at 2870. The Treaty "applies only" to implementing

this "deprivation of liberty . . . regardless of whether the person concerned is already

serving his sentence or not." Explanatory Report at 8, ¶ 13. Upon agreement between

the sentencing country and the administering country to a prisoner's transfer, see

Treaty, art. 3, § 1, ¶ f, 35 U.S.T. at 2872, enforcement of the sentence is suspended in

the sentencing country, see Treaty, art. 8, § 1, 35 U.S.T. at 2876, and the administering

12 country must either continue or convert the sentence of the sentencing country, see

Treaty, art. 9, § 1, 35 U.S.T. at 2876. See also Asare v. United States Parole Comm'n,

2 F.3d 540, 541 (4th Cir. 1993) (interpreting this Treaty). The distinction between

"continued enforcement" and "conversion of sentence" in the administering country is

that the former "continues to enforce the sanction imposed in the sentencing state,"

although it may be adapted in accordance with the Treaty, while the latter converts the

sentence "into a sanction of the administering state, with the result that the sentence

enforced is no longer directly based on the sanction imposed in the sentencing state."

Explanatory Report at 15, ¶ 46.

When the administering country elects continued enforcement, as in this case,

the Treaty provides:

13 Continued enforcement

1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offense. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.

Treaty, art. 10, 35 U.S.T. at 2876. Consequently, the administering country "is bound

by" two conditions of the sentence as imposed by the sentencing country: the legal

nature and the duration of the sentence. Explanatory Report at 16, ¶ 49. "Legal

nature" means "the kind of penalty imposed where the law of the sentencing state

provides for a diversity of penalties involving deprivation of liberty, such as penal

servitude, imprisonment or detention." Id. "Duration" is the term of the sentence to

be served in the administering country, subject to that country's decision on conditional

release or remission corresponding to the original sentence and "taking into account

the time served and any remission earned in the sentencing state up to the date of

transfer." Id.

When the sentencing country and the administering country "have different

penal systems with regard to the division of penalties or the minimum and maximum

14 lengths of sentence," Explanatory Report at 16, ¶ 50, the Treaty permits the

administering country to adapt the sentence in accordance with "the punishment or

measure prescribed by its own law for a similar offence," Article 10, § 2 . This

adaptation by the administering country, however, is restricted: the administering

country may adapt the original sentence so long as it does not render a more severe

detention in nature or duration than the sentence imposed by the sentencing state "and

it must not exceed the maximum prescribed by the law of the administering state."

Explanatory Report at 16, ¶ 50. Under the adaptation procedure of Article 10, § 2, the

administering country adapts the original sentence "to an equivalent sanction

prescribed by its own law in order to make the sentence enforceable" and "thus

continues to enforce the sentence imposed in the sentencing state, but it does so in

accordance with the requirements of its own penal system." Id.; see Herrmann v.

Meese, 849 F.2d 101, 102-03 (3d Cir. 1988) (interpreting the same Treaty with the

Explanatory Report, the Third Circuit determined that Article 10, § 2 is applicable only

if the government chooses to adapt the foreign sentence). In contrast to the adaptation

procedure of Article 10, § 2, the sentence conversion of Article 11 "substitutes a

sanction for that imposed in the sentencing state." Explanatory Report at 16, ¶ 50.

Additionally, Article 13 provides that "[t]he sentencing State alone shall have

the right to decide on any application for review of the judgment." Treaty, art. 13, 35

15 U.S.T. at 2878. The Treaty defines "judgment" as the sentencing order of the court in

the sentencing country. See Treaty, art. 1, § b; Explanatory Report at 8, ¶ 14. While

the convicted prisoner may challenge his sentence factually and legally, the exclusive

jurisdiction of the sentencing country to review the sentence is justified because such

"review proceedings are not part of enforcement" in the administering country.

Explanatory Report at 18, ¶ 60. Under the plain meaning of its terms, "[t]he Treaty

does not create new rights which enable a foreign convict to have a review of an

otherwise final foreign judgment." Pfeifer v. United States Bureau of Prisons, 615

F.2d 873, 876 (9th Cir. 1980) (affirming denying habeas relief to United States citizen

serving remainder of Mexican sentence in federal penitentiary).

Significantly, the DOJ's letter informed the Bahamian government that the

United States would continue Bishop's Bahamian sentence. Under the Treaty, that

election committed the United States to maintain the nature and duration of Bishop's

Bahamian sentence, although adaptation in accordance with our penal law was

permissible. See Treaty, art. 10, 35 U.S.T. at 2876; Herrmann, 849 F.2d at 102-03.

The Treaty terms, therefore, required the United States to retain Bishop's Bahamian

sentence of five years of imprisonment for his drug crime, with an additional five years

16 of imprisonment for his failure to pay his $80,000 fine as imposed by the Bahamian

court.10

Our implementing legislation governing treaty transferees who are completing

their foreign sentences in the United States, 18 U.S.C. §§ 3244 and 4100 et seq.,11 is

10 Because this appeal relates only to Bishop's original Bahamian sentence, we do not address specifically any credits or adjustments applied to that sentence either in the Bahamas or in the United States. 11 The Transfer of Offenders To and From Foreign Countries Act, 18 U.S.C. § 4100 et seq. (1977), authorizes the Attorney General "to make regulations for the proper implementation of such treaties in accordance with this chapter and to make regulations to implement this chapter." 18 U.S.C. § 4102(4). Thus, the various provisions establish the procedure by which the foreign sentence of a Treaty transferee is translated into a United States sentence appropriate for domestic penal enforcement. "Upon the receipt of an offender who is on parole from the authorities of a foreign country, the Attorney General shall assign the offender to the Parole Commission for supervision." 18 U.S.C. § 4106A(a). The Sentencing Guidelines apply to the sentences of transferees whose convictions occurred after November 1, 1987, as in this case. See 18 U.S.C. § 4106A(c); Cannon, 973 F.2d at 1196 & n.36. The Parole Commission is designated to adapt the foreign sentence so that it can be administered under the laws of the United States and to determine a "release date" from incarceration together with the period and conditions of supervised release "as though the offender were convicted in a United States district court of a similar offense." See 18 U.S.C. § 4106A(b)(1)(A); see Tramel v. United States Parole Comm'n, 100 F.3d 129, 130 (11th Cir. 1996) (per curiam) (stating that the Parole Commission "ha[s] jurisdiction to determine a release date and a period of supervised release for each [transferred] prisoner"). "The combined periods of imprisonment and supervised release" determined by the Parole Commission "shall not exceed the term of imprisonment imposed by the foreign court" on the transferee. 18 U.S.C. § 4106A(b)(1)(C); see Cannon, 973 F.2d at 1197 & n.42 (recognizing that "the [Parole] Commission is not free to vary the total sentence of a Treaty prisoner," consisting of incarceration plus supervised release); see also Tramel, 100 F.3d at 131 ("When the applicable sentencing guideline range exceeds the full term of the sentence imposed by a foreign court, a transfer treaty prisoner's foreign sentence should be treated by the Parole Commission as analogous to a § 5G1.1(a) 'guideline sentence.'"). Consequently, the Parole Commission is in an analogous position to that of the district court relative to the convicted transferee, and the United States court of appeals for the circuit where the transferee is imprisoned at the time of the Parole Commission's determination has jurisdiction for an appeal therefrom. See 18 U.S.C. § 4106A(b)(2)(A); Trevino-Casares v. U.S. Parole Comm'n, 992 F.2d 1068, 1069, 1070 (10th Cir. 1993) (explaining that, because the Parole Commission translates the transferee's foreign

17 consistent with the Treaty in establishing procedure in the United States for

administering foreign sentences. Section 3244 provides:

When a treaty is in effect between the United States and a foreign country providing for the transfer of convicted offenders—

(1) the country in which the offender was convicted shall have exclusive jurisdiction and competence over proceedings seeking to challenge, modify, or set aside

sentence into an imprisonment release date and supervised release under § 4106A(b)(1)(A), "it is in procedure, substance, and effect tantamount to the imposition of a federal sentence," and thus, § 4106(b)(2)(A) "expressly makes the [Parole] Commission's determination directly appealable to the circuit level"); see also Asare, 2 F.3d at 542 (addressing this Treaty and the implementing statutes). "[T]he [Parole] Commission's order is not subject to collateral attack," Bennett v. United States Parole Comm'n, 83 F.3d 324, 328 (10th Cir. 1996), and "circuit courts of appeal have no original jurisdiction to consider habeas corpus petitions," Trevino-Casares, 992 F.2d at 1070. Although the Parole Commission transforms the foreign sentence into a federal sentence, its function is discrete: "[t]he [Parole] Commission is authorized to determine a release date and period of supervised release, not to sentence the transferred prisoner." Navarrete v. United States Parole Comm'n, 34 F.3d 316, 319 (5th Cir. 1994) (per curiam). Separate from the Parole Commission's translation of a transferee's foreign sentence into a surrogate sentence that complies with United States penal law for service in this country is the BOP's implementation of that sentence of the convicted transferee with its determination of foreign and domestic good-time credits in accordance with 18 U.S.C. § 3624(a), (b). See 18 U.S.C. § 4105(c)(1); Ajala v. United States Parole Comm'n, 997 F.2d 651, 656 (9th Cir. 1993) ("[T]he calculation and award of foreign and domestic credits is not part of the [Parole] Commission's § 4106A determination, but is a matter for the Bureau of Prisons."); see also 18 U.S.C. § 4105(a) ("[A]n offender serving a sentence of imprisonment in a foreign country transferred to the custody of the Attorney General shall remain in the custody of the Attorney General under the same conditions and for the same period of time as an offender who had been committed to the custody of the Attorney General by a court of the United States for the period of time imposed by the sentencing court."). Pursuant to § 4105(c)(1), "the application of service credits is governed by 18 U.S.C. § 3624(a), which indicates, uncontroversially, that such credits are applied to the sentence of confinement the prisoner is serving." Trevino-Casares, 992 F.2d at 1072 (emphasis added). Dissatisfaction with the BOP's determination is addressed in federal district court by a habeas corpus petition. See Asare, 2 F.3d at 544. Thus, the distinct functions performed by the Parole Commission and the BOP "have separate procedural routes for judicial review." Trevino-Casares, 992 F.2d at 1069.

18 convictions or sentences handed down by a court of such country; .... (3) all proceedings instituted by or on behalf of an offender transferred to the United States pertaining to the manner of execution in the United States of the sentence imposed by a foreign court shall be brought in the United States district court for the district in which the offender is confined or in which supervision is exercised . . . .

18 U.S.C. § 3244(1), (3) (emphasis added). With respect to § 3244, jurisdiction in the

Bahamian courts or federal district court turns on whether Bishop's habeas corpus

proceeding is one "to challenge, modify, or set aside" his Bahamian sentence, §

3244(1), which plainly reserves jurisdiction in the sentencing court in the foreign

country,12 or pertains solely "to the manner of execution in the United States" of his

12 The House Report explains the policy concerns behind limiting jurisdiction to challenge a foreign sentence to the sentencing country and specifically addresses habeas corpus relief:

[Section 3244(1), formerly 28 U.S.C. § 2256,] provides that exclusive jurisdiction of any proceeding seeking to challenge, modify, or set aside convictions or sentences shall be in the country in which the offender was convicted and sentenced. Some question has been raised as to whether this is an improper limitation o[n] an individual's right, under the United States Constitution, to seek a writ of Habeas Corpus. This provision does not, in any way, suspend the writ of Habeas Corpus. It merely states that certain types of challenges—to foreign convictions and sentences—may not be brought in American courts. Witnesses before the Subcommittees of both the House and Senate Judiciary Committees were unanimous that such a provision is constitutionally valid. . . . [I]t is important to note that these provisions were considered essential in protecting the integrity of the judicial process of the respective countries and in securing approval for prisoner exchange treaties, in the past and presumably in the future. The Departments of Justice and State indicated that neither the United States nor any other country which is currently a party or expected to become a party to a treaty for the execution of penal sentences would have acquiesced to a

19 Bahamian sentence, § 3244(3), which places jurisdiction in the district court in the

district where the convicted transferee is imprisoned or supervised.13 Once a sentence

has been imposed by a foreign sentencing court and translated by the Parole

Commission into a sentence under our penal law, it is the BOP's determination of

service credits that has been challenged in habeas corpus proceedings under "manner

of execution."14 See Kass v. Reno, 83 F.3d 1186, 1191 (10th Cir. 1996) ("Congress

made it clear that despite the provision barring United States courts from reviewing the

validity of a foreign conviction or sentence, 'a transferred offender may challenge in

provision which would permit the courts of the Receiving State to set aside or modify a sentence imposed by the courts of the Transferring State. Otherwise the fundamental sovereignty of a nation over crimes committed within its territorial boundaries would be impugned.

H.R. Rep. No. 95-720, at 41-42 (1977), reprinted in 1977 U.S.C.C.A.N. 3146, 3164-3165 (emphasis added); see 28 U.S.C. § 4100(c) ("An offender shall not be transferred to or from the United States if a proceeding by way of appeal or of collateral attack upon the conviction or sentence be pending."). 13 See Boyden v. Bell, 631 F.2d 120, 121 n.1 (9th Cir. 1980) (acknowledging that 18 U.S.C. § 3244(3) "confers jurisdiction upon the district court of the district in which the transferring prisoner is confined to hear any challenges to the manner of execution of a sentence imposed by a foreign court"). 14 Since the administration of service credits, including calculation, awarding, and withholding, is done by the BOP under 18 U.S.C. § 3624, this process involves the execution rather than the imposition of sentence; thus, this function of the BOP is a matter for habeas corpus review in the district court. See Trevino-Casares, 992 F.2d at 1070; Boyden, 631 F.2d at 122-23 (challenging award of remission credits affecting parole); see also Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373 (1963) (holding that parole constitutes custody amenable to habeas corpus relief under 28 U.S.C. § 2241); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994) (upholding denial of parole, the Fifth Circuit recognized that a habeas petition under 28 U.S.C. § 2241 "challeng[es] the manner in which [a] sentence is being executed rather than the validity of [the] conviction and sentence").

20 the [United States] . . . the manner of the execution of his confinement' and '[a]ny

challenge in the courts of the [United States], other than to the foreign conviction or

sentence is not precluded by [the implementing statutes], or any treaty.'" (quoting H.R.

Rep. No. 95-720, at 43 (1977), reprinted in 1977 U.S.C.C.A.N. 3146, 3165)

(alterations in original) (emphasis added)). The district judge adopted the magistrate

judge's conclusion that Bishop's habeas petition "involve[d] questions concerning both

the nature of the sentence and the execution of the sentence." R1-32-4. Accordingly,

the district judge determined that he properly had jurisdiction to consider Bishop's

habeas petition pursuant to § 3244(3), and that is the argument of Bishop's counsel in

this court.

We disagree. Although the district judge purported to have adapted Bishop's

Bahamian sentence, he actually converted it into a new sentence by impermissibly

eliminating the additional five-year imprisonment term of Bishop's sentence for failure

to pay the $80,000 fine imposed by the Bahamian court. Because the United States had

informed the Bahamian government that it would continue the original sentence, the

district judge had no jurisdiction to convert or override Bishop's Bahamian sentence

by fiat, when neither the Treaty nor the implementing statutes authorizes a district

judge to convert a foreign-imposed sentence. Furthermore, the district judge did not

even have jurisdiction to adapt Bishop's Bahamian sentence because Congress has

21 charged the Parole Commission with the authority to translate a foreign sentence of a

transferee into a sentence recognized under United States law. See 18 U.S.C. § 4106A;

Asare, 2 F.3d at 542 (recognizing that the Treaty and statutory scheme do not authorize

the Parole Commission to impose a new sentence but to translate the original, foreign

sentence into one that can be administered under United States law).

As we have explained, the term of Bishop's sentence, as adapted by the Parole

Commission to retain his Bahamian sentence, was consistent with and not "in violation

of the Constitution or laws or treaties of the United States."15 28 U.S.C. § 2241(c)(3).

The implementing statutes clarify "that while the laws of the receiving nation shall

govern the manner in which the sentence is served, the laws of the sentencing nation

shall continue to govern both the validity of the conviction and the term of the

sentence." Tavarez, 668 F.2d at 808. Therefore, we reverse the district judge's grant

of habeas relief to Bishop because the judge had no jurisdiction to entertain Bishop's

habeas corpus petition challenging his sentence, much less to eliminate the supervised

release established by the Parole Commission to retain the original Bahamian sentence.

See Bennett v. United States Parole Comm'n, 83 F.3d 324, 328 (10th Cir. 1996).

III. CONCLUSION

15 To the extent that Bishop argues that this appeal and issues regarding his sentence are moot, our explanation of his original sentence, as appropriately adapted in compliance with the Treaty and implementing statues by the Parole Commission and not the district judge, nullifies this argument.

22 This appeal concerns whether a district court has subject matter jurisdiction to

consider habeas corpus relief for a foreign-imposed sentence of a United States citizen

who is to serve the remainder of his sentence in the United States pursuant to Treaty

transfer. As analyzed, we conclude that the district judge did not have jurisdiction to

grant Bishop collateral relief as to the five-year term of supervised release imposed by

the Parole Commission for his failure to pay the fine imposed for his drug crime by the

Bahamian court. Accordingly, the grant of habeas corpus relief to Bishop is

REVERSED, and we REMAND with instructions that the district judge dismiss this

case for lack of jurisdiction.