[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT 07/29/99 No. 97-5570 THOMAS K. KAHN ________________________ CLERK D.C. Docket No. 97-71-CV-JAL
HECTOR RICARDO MANSO, JR.,
Petitioner-Appellant,
versus
FEDERAL DETENTION CENTER, MIAMI, Patrick Whalen, Warden,
Respondent-Appellee. _________________________
Appeal from the United States District Court for the Southern District of Florida _________________________
(July 29, 1999)
Before BLACK and BARKETT, Circuit Judges, and CUDAHY*, Senior Circuit Judge.
_________________ *Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation. CUDAHY, Senior Circuit Judge: Hector Manso pleaded guilty to certain drug-related offenses and was
sentenced to one year imprisonment to be followed by five years special parole.
When Manso violated the terms of his special parole, the Parole Commission
revoked it and sent him back to prison for a further two months. He was then re-
released on special parole. One year later, Manso’s special parole was revoked for
a second time. He was returned to prison, escaped, was rearrested and eventually
served out the remainder of his special parole term in prison. He is currently doing
time for the escape. Manso petitioned the district court for a writ of habeas corpus
arguing that the special parole statute, see 21 U.S.C. § 841(c), does not permit the
Parole Commission to impose a new term of special parole once the original term
has been revoked. The district court denied the petition and Manso now appeals.
We part company with the district court and hold that the Parole Commission
exceeded its authority in assigning Manso an additional term of special parole.
However, because we find that Manso was not entitled to an unconditional release,
we affirm the district court’s denial of his habeas petition.
Background
On March 5, 1984, Manso pleaded guilty to conspiracy to import marijuana
in violation of 21 U.S.C. §§ 952(a) & 960(a)(1) and importation of marijuana in
2 violation of 21 U.S.C. §§ 952(a) & 960(a)(1) and 18 U.S.C. § 2. He was sentenced
by the United States District Court for the Southern District of Mississippi to one
year imprisonment to be followed by five years special parole and five years
probation. On March 23, 1985, Manso was released from prison and began serving
his five-year special parole term. On February 24, 1988, a warrant was executed
alleging that Manso had committed certain parole violations. The Parole
Commission revoked Manso’s special parole and returned him to prison for two
months incarceration but gave him credit for street time, i.e. his special parole time
spent on the street. On May 9, 1988, Manso was re-released on special parole. At
that time, he had 682 days remaining of the five-year special parole term and a full-
term expiration date of March 22, 1990. However, on June 4, 1989, on a tip from
Manso’s probation officer, a warrant was issued charging Manso with cocaine
distribution. On October 10, 1990, following a parole cancellation hearing, the
Commission revoked Manso’s special parole for a second time, denied him credit
for any street time (including the time previously credited) and ordered that he be
denied any further parole. Manso escaped from custody on December 16, 1990
and remained at large for five and a half years. Following his arrest, he was
convicted of escape on April 28, 1997 and sentenced to 27 months imprisonment to
run consecutively to the special parole violator term he was serving at the time of
3 his escape. On April 10, 1998, he was released from the special parole violator
term and began serving his 27 month sentence for escape. On January 13, 1997,
Manso filed a writ of habeas corpus in the district court. The case was assigned to
a magistrate judge and a hearing was conducted. The district court denied the
relief sought, adopting in full the report and recommendation of the magistrate
judge.
Discussion
Special parole is a statutory creation that was used in sentencing up until the
late 1980s. Unlike regular (or traditional) parole, whereby the Parole Commission
releases an individual into the community before the end of his term of
imprisonment, special parole was imposed by the district court at sentencing and
followed the term of imprisonment.1 Special parole was eventually replaced by
supervised release, a similar mechanism that is administered by the courts. This
appeal focuses on the special parole statute’s revocation provision, § 841(c), which
states:
1 As the Seventh Circuit has explained: “Three things are ‘special’ about special parole: first, special parole follows the term of imprisonment, while regular parole entails release before the end of the term; second, special parole was imposed, and its length selected, by the district judge rather than by the Parole Commission; third, when special parole is revoked, its full length becomes a term of imprisonment. In other words, ‘street time’ does not count toward completion of special parole . . .” Evans v. United States Parole Comm’n, 78 F.3d 262, 263 (7th Cir. 1996).
4 A special parole term imposed under this section or section 845 of this title may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment . . .
18 U.S.C. § 841(c). Manso argues that the Parole Commission lacked the authority
to impose a second term of special parole after it had revoked the original term. He
concedes that the Commission may incarcerate a special parole violator for the full
duration of the special parole term (or for a lesser term) without any credit for
street time. But once time has been served for the parole violation, Manso
maintains that the prisoner must be released unconditionally and not on special
parole. In other words, the Commission, in 1988, could have imprisoned Manso
for five years (the duration of his special parole term) but, having chosen to
imprison him for only two months, it could not re-release him on special parole.
By way of analogy, Manso points to the supervised release statute which
superseded the special parole statute. See 18 U.S.C. § 3583(e). In its original
form, the supervised release statute allowed a district court to modify or “revoke”
an individual’s supervised release and return the individual to prison to serve all or
part of the remainder of his supervised release term. In construing the statute, we
joined a majority of our sister circuits in holding that, where supervised release had
5 been revoked and the individual returned to prison, the court could not impose an
additional term of supervised release. See United States v. Tatum, 998 F.2d 893,
895 (11th Cir. 1993).2
The Parole Commission has a different take on this principle as applied to
special parole under § 841(c). As the agency charged with administering the
statute, the Commission has construed § 841(c) to permit re-release on special
parole for the remainder of the original special parole term imposed by the district
court. See 28 C.F.R. §§ 2.52(b), 2.57(c) & 2.57(d). The Commission contends
that its construction is reasonable because it respects the sentence imposed by the
district court and, at the same time, it comports with the Congressional objective of
ensuring a period of post-imprisonment supervision. In addition, the Commission
rejects the analogy with supervised release on the ground that special parole is an
entirely different statutory creature.
This issue is one of first impression in this Circuit. In our sister circuits that
have addressed the issue, two divergent views have emerged. The first view holds
that a special parole violator who has been returned to prison may be reparoled as a
special parolee to continue serving the remaining, unserved portion of his special
2 But see United States v. Williams, 2 F.3d 363, 364-65 (11th Cir. 1993) (applying Tatum but expressing disagreement with its rationale), discussed below.
6 parole term. The special parolee receives no credit for street time (time previously
spent on special parole) but does receive credit for time spent in prison on a
violator term. The District of Columbia Circuit and the Eighth Circuit have
subscribed to this view. See United States Parole Comm’n v. Williams, 54 F.3d
820, 822-23 (D.C. Cir. 1995) (holding that the phrase “new term of imprisonment”
in § 841(c) was sufficiently ambiguous to permit incarceration plus time spent on
the street in the form of special parole); Billis v. United States, 83 F.3d 209 (8th
Cir. 1996) (same). This was also the position of the district court and magistrate
judge below and is the approach which the Parole Commission asks us to endorse
on appeal.
The second view is that when special parole is revoked for parole violations
and the offender is returned to prison, he may be released subsequently not on
special parole but on regular parole. This is the view of the majority of the circuits
that have addressed the issue. See Strong v. United States Parole Comm’n, 141
F.3d 429, 433 (2d Cir. 1998); Fowler v. United States Parole Comm’n, 94 F.3d
835, 840 (3d Cir. 1996) (“the parole that is imposed after special parole is revoked
can only be traditional parole”); United States v. Robinson, 106 F.3d 610, 612 (4th
Cir. 1997); Campos v. United States Parole Comm’n, 120 F.3d 49, 50 (5th Cir.
1997); Evans v. United States Parole Comm’n, 78 F.3d 262, 264 (7th Cir. 1996)
7 (“the first revocation turns special parole into regular imprisonment, release from
which is normal parole”); Robles v. United States, 146 F.3d 1098, 1102 (9th Cir.
1998).3 We subscribe to this view for several reasons.
We begin with the statutory text. See Kelly v. Robinson, 479 U.S. 36, 43,
107 S. Ct. 353, 93 L. Ed. 2d 216 (1986). Section 841(c) authorizes the
Commission to revoke a term of special parole for a violation of its conditions and
return the parolee to prison for a “new term of imprisonment” -- equal to the
special parole term -- without any credit for street time. It further provides that the
prisoner be required to serve “all or part of the remainder of the new term of
imprisonment.” Thus, after revoking special parole and returning the offender to
prison, the Commission clearly has the authority to release him to serve the
remainder of his new term on the street. As Manso suggests, the language of §
841(c) is similar to that of the supervised release statute (now repealed).4 In
Tatum, we held that, while § 3583(e) (formerly governing supervised release)
3 At least one district court in this Circuit has followed this line. See United States v. Clemmons, 945 F. Supp. 1519 (M.D. Fla. 1996). 4 The statute provided that a court could “revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision . . .”. 18 U.S.C. § 3583(e)(3). Congress has since amended § 3583 to specifically authorize a district court to reimpose supervised release after revocation. See United States v. Strong, 141 F.3d 429, 432-33 (2d Cir. 1998) (finding “compelling reasons” to interpret §§ 3583(e) and 841(c) together); United States v. Robinson, 106 F.3d 610, 612 (4th Cir. 1997) ( noting that the distinctions between the two programs are “distinctions without a difference”) (internal quotation and citation omitted).
8 authorized the district court to “revoke” supervised release and require the offender
to serve time in prison, nothing in the statute authorized the court to impose an
additional term of supervised release. See 998 F.2d at 895. We quoted with
approval the reasoning of the Fifth Circuit:
Section 3583(e)(3) authorizes the district court to “revoke” a term of supervised release. “Revoke” generally means to cancel or rescind. Once a term of supervised release has been revoked under § 3583(e), there is nothing left to extend, modify, reduce or enlarge under § 3583(e)(2). The term of release no longer exists.
United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992). An additional term of
supervised release could not be imposed “given the conspicuous absence of a
statutory provision clearly permitting a court to do so.” United States v. Malesic,
18 F.3d 205, 208 (3d Cir. 1994). Several other courts of appeals adopted a similar
construction of § 3583(e).5 Applied to § 841(c), this reasoning suggests that the
term of special parole, once revoked, is extinguished and replaced by “a normal
term of imprisonment.” Evans, 78 F.3d at 264. Section 841(c) allows the Parole
Commission to revoke a term of special parole, but not to reimpose or extend it;
5 See United States v. Koehler, 973 F.2d 132, 134-36 (2d Cir. 1992); United States v. Cooper, 962 F.2d 339, 341 (4th Cir. 1992); United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992); United States v. Truss, 4 F.3d 437, 441 (6th Cir. 1993); United States v. McGee, 981 F.2d 271, 274-76 (7th Cir. 1992); United States v. Behnezhad, 907 F.2d 896, 898-99 (9th Cir. 1990); United States v. Rockwell, 984 F.2d 1112, 1116-17 (10th Cir. 1993). The First and Eighth Circuits have taken a different view. See United States v. O’Neil, 11 F.3d 292, 293 (1st Cir. 1993); United States v. Schrader, 973 F.2d 623, 625 (8th Cir. 1992).
9 the Commission can only return the violator to prison for all or part of the new
term of imprisonment.
In United States v. Williams, 2 F.3d 363 (11th Cir. 1993), another panel of
this Circuit expressed its disagreement with the holding in Tatum, deriving from
common sense and the language of § 3583(e) a Congressional intent to allow the
district court the option, after revocation of supervised release, to imprison the
offender for all or, alternatively, only part of the original term of supervised
release. See id. at 365 (“It is hard to imagine why Congress might authorize [a
sentence of imprisonment for the full supervised release term] but nevertheless
withhold authority to impose a more lenient sentence – e.g., the sentence in this
case, one-half of the original supervised release term in prison and the other half on
supervised release.”) Congress subsequently amended the supervised release
statute and mooted this disagreement. But, in any event, we believe that the
concerns voiced in Williams are assuaged in the present context by certain factors
unique to special parole. Recall that both the district court and the Parole
Commission have a hand in the operation of special parole: the district court
imposes the original term and determines its length whereas the Commission
revokes it. The Commission – unlike the district court in the supervised release
context – lacks any inherent authority to create or impose terms of special parole.
10 See Evans, 78 F.3d at 265 (“The Parole Commission cannot ‘impose’ a term of
special parole any more than it can ‘sentence’ a defendant to prison.”); Strong, 141
F.3d at 433. On the other hand, the Commission does have the authority to release
an offender from incarceration to serve the remainder of his term under non-
custodial supervision on regular or traditional parole. Thus, the Commission
always has at its disposal a more lenient option than incarceration (following
revocation) for the full duration of the original term.
The unresolved issue, then, is the nature of the release -- special parole or
regular parole. While Congress clearly intended the possibility that a special
parole violator could be released before the end of his new term of imprisonment,
as a practical matter, we fail to see why release should take the form of special
parole. Release into the community is, by its nature, more akin to regular parole.
It is a conditional release before the end of a term of imprisonment; the
Commission merely allows the offender to serve the remainder of his term under
non-custodial supervision. See Fowler, 94 F.3d at 839 (“[Regular parole] is a part
of a sentence of imprisonment, and has historically been a mechanism whereby one
could be released yet continue to serve the sentence -- so long as the parolee
complied with those rules of society that were a condition of parole. In stark
contrast, special parole is a statutory creation imposed in addition to any term of
11 years”) (internal citation omitted). Moreover, the fact that § 841(c) denies the
special parole violator any credit for street time lends a commonsense attraction to
the view that the special parole violator is released on regular parole. If the Parole
Commission had the authority to re-release the offender to serve his special parole
term anew (minus any time spent in prison following revocation), a persistent
violator would be forced to commence his special parole term from scratch each
time it was revoked. By creating additional terms of special parole, the
Commission could trigger an endless cycle of incarceration and release on special
parole.
Manso supports the majority view insofar as it holds that, when a special
parole violator has been returned to prison, the Parole Commission cannot release
him to another term of special parole. But he asks us to go one step further and
hold that the special parole violator cannot be released on any form of parole –
special or regular – and must be released unconditionally. In support of his
position, Manso cites Artuso v. Hall, 74 F.3d 68 (5th Cir. 1996) in which the Fifth
Circuit held that “when the [Commission] cancels or rescinds a term of special
parole, nothing in former section 841(c) provides it with additional authority to
impose a second term.” Artuso, 74 F.3d at 71. The Fifth Circuit has since
subscribed to the majority view -- that the parolee can be released on regular or
12 traditional parole -- observing that “Artuso did not reach the question of the
Commission’s powers beyond imposing a second term of special parole.” Campos,
120 F.3d at 50. We fail to see how Artuso supports Manso’s claim that the
Commission lost jurisdiction over him altogether when his original term of special
parole was revoked and he was imprisoned for a time. Nor does the text of §
841(c) avail Manso’s cause. The offender is re-released to serve the remainder of
his “new term” under non-custodial supervision and the Commission clearly
retains jurisdiction over him for the duration of that term. See Fowler, 94 F.3d at
839, n.5 (noting that, under 18 U.S.C. § 4210 (repealed), the Commission’s
jurisdiction terminates “no later than the date of the expiration of the maximum
term or terms for which [a parolee] was sentenced . . .”); Campos, 120 F.3d at 50.
Thus, we reject Manso’s contention that when the Parole Commission returns a
special parole violator to prison, it must chose between the extremes of forcing the
offender to serve the entirety of his term behind bars or, alternatively, releasing
him unconditionally.6
Turning to the facts of the present case, the Parole Commission argues that,
even applying the majority view, Manso is not entitled to the relief he seeks.
6 See United States v. Robles, 146 F.3d 1098, 1102 (9th Cir. 1998) (“[The special parole violator] doubtless would prefer that his release be considered unconditional, but we conclude that it is more appropriately considered to be release on ordinary parole.”).
13 Manso commenced his five-year special parole term on March 23, 1985 with a full
term date of March 22, 1990. His special parole was revoked and a warrant for
parole violations executed against him on February 24, 1988. Without any credit
for street time, Manso’s new full term date would have been five years from the
date of the execution of the warrant, i.e. February 24, 1993. Applying the majority
view, his subsequent release on May 9, 1988, would be treated as release on
regular parole. The Commission points out that Manso’s regular parole would
have been canceled on June 9, 1989 when a second warrant was executed for
cocaine distribution. However, he would have received credit for the time he spent
in the community between May 9, 1988 and June 9, 1989 so that his full-term date
would have remained February 23, 1993. When he escaped from prison on
December 17, 1990, Manso had just over two years and two months of his term
remaining. He was arrested on June 18, 1996 and released on April 10, 1998 – a
few months shy of his full term – to begin serving a 27-month sentence for the
escape. Manso actually served slightly less – and certainly not more -- than his
full-five-year term. In the circumstances, we agree with the Commission that, even
14 recalculating his sentence consistent with this opinion, Manso was not entitled to
an accelerated or early release date.7
In summary, for the foregoing reasons we disagree with the district court’s
construction of § 841(c) and hold that the Parole Commission erred when it
released Manso on special parole for a second time. However, because Manso has
failed to show that he was prejudiced by the Commission’s error – and,
consequently, that he is entitled to release from incarceration -- we affirm the
district court’s denial of his habeas petition.
AFFIRMED
7 The Commission contends that notwithstanding its error in re-releasing Manso on special parole, it is not estopped from treating the May 9, 1988 release as a regular parole. It notes that, at the time, our sister circuits had not addressed the construction of § 841(c). In addition, the Commission argues that Manso has not relied on the error to his detriment. Manso appears to concede the point, having failed to submit a reply brief responding to any aspect of the Commission’s argument on the facts.