United States v. Robinson ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Respondent-Appellee,
v.
No. 95-7620
WILLIAM BARRY ROBINSON,
a/k/a/ Barry,
Petitioner-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-79-93-A, CA-95-638-A)
Argued: September 25, 1996
Decided: February 10, 1997
Before HALL and ERVIN, Circuit Judges,
and HALLANAN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
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Reversed and remanded by published opinion. Judge Ervin wrote the
opinion, in which Judge Hall and Judge Hallanan joined.
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COUNSEL
ARGUED: Neal Lawrence Walters, Supervising Attorney, Appellate
Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Sharon A. Gervasoni,
UNITED STATES PAROLE COMMISSION, Chevy Chase, Mary-
land, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, Jeri Kaylene Somers, Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
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OPINION
ERVIN, Circuit Judge:
I
William Barry Robinson (Robinson) appeals from an order of the
district court denying his petition for a writ of habeas corpus. For the
reasons hereinafter set forth we reverse the district court's order and
remand with instructions to grant the writ.
Robinson was convicted in 1979 of conspiracy to distribute and of
distribution of cocaine in violation of 21 U.S.C.§§ 841 (a)(1) and
846. He was sentenced to seven years' imprisonment and a five-year
term of special parole. In 1990, after Robinson had been out of prison
for more than three years, the United States Parole Commission
issued a warrant charging him with violating the terms of his special
parole. In 1991 the Commission revoked his parole and sentenced
him to fifteen months' imprisonment. The Commission denied him
credit for time served on special parole. The Commission also
imposed a new term of special parole to begin upon his release and
last until October 14, 1995. In 1992, following his release, Robinson
again violated his parole, was sentenced to twelve months in prison,
and was released to a third term of special parole. In 1993, less than
two months after Robinson's third release from prison, his parole was
again revoked and he was incarcerated for sixteen months. In 1994 he
was released to a fourth term of special parole, set to last until the end
of December 1996. This term of special parole was violated in March
1995 and Robinson was sentenced to sixteen additional months of
incarceration and a new term of special parole.
Robinson challenged his most recent incarceration in a petition to
the district court for habeas corpus relief pursuant to 28 U.S.C.
§ 2241. The district court denied all of Robinson's claims and did not
2
grant a writ of habeas corpus. Robinson appealed the lower court's
denial of relief on October 11, 1995. On April 17, 1996, we granted
Robinson's request to be released on bond pending appeal.
Robinson challenges the current sentence against him on several
grounds. His first assertion is that the Commission was without power
to return him to special parole status following the first revocation of
his parole in March 1991, and was also without power to repeat the
process four times. We agree with Robinson on this point and reverse
the district court's denial of a writ of habeas corpus. Because of our
decision to grant the relief requested, we do not reach Robinson's
other challenges.
II
The question before us is whether the Parole Commission exceeded
its power when it assigned Robinson a new term of special parole
after it had revoked his original term of special parole for parole vio-
lations. At the time Robinson was originally sentenced, 21 U.S.C.
§ 841(c) required the court to sentence him to a mandatory period of
special parole because he was convicted of a drug crime.1 The rele-
vant statute provided:
A special parole term imposed under this section . .. 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 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.
21 U.S.C. § 841(c). Robinson argues that once the special parole term
has been revoked, it is terminated. He asserts that because the Parole
Commission itself is without power to create and impose a new sen-
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1 This statutory provision was repealed by the Anti-Drug Abuse Act,
Pub. L. No. 98-473, Title II, § 224(a)(2), 98 Stat. 2030 (1984). Special
Parole has been replaced in all sentencing provisions with "supervised
release."
3
tence of special parole, no term of special parole remains to be
enforced following re-release from prison. The Commission can
instead require Robinson to serve the full original term of special
parole in prison, or it can release him after some incarceration to a
term of regular parole.
We have previously held, in the context of the supervised release
provisions which replaced special parole, that "revoke" means to
"annul" or "extinguish." United States v. Cooper, 962 F.2d 339, 341
(4th Cir. 1992). In Cooper we held that, when a court revoked a term
of supervised release pursuant to 18 U.S.C. § 3583(e), it was without
the authority to impose any new term of supervised release. A strong
majority of our sister circuits also concluded that once revoked pursu-
ant to § 3583(e), supervised release could not be reimposed.2 Our
decision in Cooper guides us in the instant case and requires us to
find that, once revoked, Robinson's term of special parole could not
be reimposed by the Parole Commission.
The Parole Commission tries to persuade us that we need not be
controlled by our decision in Cooper, but its arguments are unpersua-
sive. First, the Commission asserts that supervised release and special
parole are entirely different penal entities and the word "revoke" has
distinct meanings in the two statutes. While it is certainly undeniable
that there are small variations in the way the two programs are han-
dled, and in the entities which handle them, these are mere "distinc-
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2 See United States v. Koehler, 973 F.2d 132, 134-36 (2nd Cir. 1992);
United States v. Malesic, 18 F.3d 205, 206 (3rd Cir. 1994); 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 State 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.), cert. denied, 508 U.S. 966 (1993); United States v. Tatum,
998 F.2d 893, 895-96 (11th Cir. 1993) (per curiam). But 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). The Circuit for the District
of Columbia has yet to decide this issue.
In response to these interpretations, Congress amended § 3583 in 1994
to specifically authorize a court to reimpose supervised release after
revocation. 18 U.S.C. § 3583(h).
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tion[s] without a difference." United States v. Molina-Uribe, 853 F.2d
1193, 1197 (5th Cir. 1988), cert. denied , 489 U.S. 1022 (1989);
United States v. Smith, 840 F.2d 886, 890, n.3 (11th Cir.), cert.
denied, 488 U.S. 859 (1988). The Parole Commission is not able to
point to differences between the two types of post-release supervision
that would justify employing radically different definitions of the
word "revoke."
The Parole Commission next argues that in Cooper we were moti-
vated, not by an interpretation of the word "revoke," but by the dis-
junctive phrasing of § 3583(e).3 It is true that there we pointed out that
other courts addressing the power of the Parole Commission under
§ 3583 had relied upon the fact that the court could either extend the
term of supervised release or revoke the term of release and reincar-
cerate the person. Cooper, 962 F.2d at 341 (discussing United States
v. Behnezhad, 907 F.2d 896 (9th Cir. 1990)). In Cooper, however, we
also discussed a decision of the Fifth Circuit which relied upon the
plain meaning of the word "revoke," rather than upon the structure of
§ 3583. Id. (discussing United States v. Holmes, 954 F.2d 270 (5th
Cir. 1992)). We therefore explicitly embraced both lines of analysis
in deciding that a term of supervised release, once revoked, could not
be reimposed. Id. at 343. We will follow both Cooper's plain interpre-
tation of the word revoke, and its interpretation of the disjunctive
phrasing of § 3583 in deciding the instant case.
Finally, the Parole Commission asserts that we should adopt the
reasoning of other circuits which have found that§ 841(c) allows the
Commission to reinstate special parole following revocation. The
Parole Commission relies on United States Parole Commission v.
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3 18 U.S.C. § 3583(e) provides that a court may:
(1) terminate a term of supervised release and discharge the
defendant released . . . ;
(2) extend a term of supervised release . . . ;
(3) revoke a term of supervised release, and require the defen-
dant to serve in prison all or part of the term of supervised
release . . . without credit for the time previously served on
postrelease supervision . . . ; or
(4) order the defendant to remain at his place of residence.
5
Williams, 54 F.3d 820 (D.C. Cir. 1995), and United States v. Billis,
83 F.3d 209 (8th Cir.), cert. denied, 1996 WL 686611 (1996). For two
reasons we are not persuaded by the reasoning of those decisions.
First, the majority of the circuit courts which have addressed the very
issue before us today have rejected the position advocated by the
Parole Commission and found that the Commission lacks the power
to reimpose special parole. Fowler v. United States Parole
Commission, 94 F.3d 835 (3rd Cir. 1996); Evans v. United States
Parole Commission, 78 F.3d 262 (7th Cir. 1996); Artuso v. Hall, 74
F.3d 68, 72 (5th Cir. 1996).
Second, neither the Billis court nor the Williams court was bound
by a previous interpretation of the word "revoke" in the § 3583 con-
text. The District of Columbia Circuit had never addressed the § 3583
issue, and the Eighth Circuit had interpreted § 3583 to allow reimpo-
sition of supervised release. We, in contrast, are bound by our own
recent interpretation of "revoke."
The Commission also points to United States v. Gozlon-Peretz, 894
F.2d 1402 (3d Cir. 1990), aff'd, 498 U.S. 395 (1991). The Third Cir-
cuit, in a footnote, suggested that a defendant could be "reparoled"
after special parole was revoked. Id. at 1405 n.5. It is not clear from
that brief note whether the court meant to suggest that the new parole
term could also be special parole, or whether the Parole Commission
only retained the power to impose a new term of regular parole. Since
oral argument in this case, however, the Third Circuit has clarified its
position on this matter and has rejected the interpretation of the Parole
Commission. In Fowler v. United States Parole Commission, 94 F.3d
835 (3d Cir. 1996), the court joined the Evans and Artuso courts in
deciding that once special parole has been revoked, the Parole Com-
mission is without power to issue a new term of special parole. Id. at
841.
The plain language of 21 U.S.C. § 841(c), our own prior interpreta-
tion of the word revoke in Cooper, and the reasoned decisions of the
majority of our sister circuits all compel us to find that the Parole
Commission was without power to reassign Robinson to any of his
four additional terms of special parole.
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III
We therefore reverse the district court's decision and remand for
issuance of a writ of habeas corpus.
REVERSED AND REMANDED
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