David Jackson v. U.S. Parole Comm.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2724
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David Jackson, *
*
Appellant, *
*
v. *
*
U.S. Parole Commission; Conrad *
Patillo, in his official capacity as *
U.S. Marshal for the Eastern District *
of Arkansas, *
*
Appellees, *
*
Randy Johnson, in his official capacity *
as Sheriff of Pulaski County Arkansas, * [UNPUBLISHED]
*
Defendant. *
___________
Appeals from the United States
No. 96-3583 District Court for the
___________ Eastern District of Arkansas.
United States of America, *
*
Appellee, *
*
v. *
*
David Houston Jackson, *
Appellant. *
___________
Submitted: November 10, 1997
Filed: November 19,
1997
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Before WOLLMAN, FLOYD R. GIBSON, and HANSEN, Circuit
Judges.
___________
PER CURIAM.
In this consolidated appeal, David Houston Jackson
appeals from the district court&s1 order denying his 28
U.S.C. § 2241 habeas petition, and from the 24-month
sentence imposed by the district court2 after he pleaded
guilty to drug and firearm offenses. His counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and has moved to withdraw. Jackson filed a pro
se supplemental brief. We affirm both cases.
1
The Honorable Jerry W. Cavaneau, United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
2
The Honorable Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas.
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In March 1995, Jackson was granted a mandatory
release under 18 U.S.C. § 4164 (repealed 1984),3 having
earned enough statutory and good time credits to
3
Section 4164 provided: “A prisoner having served his term or terms less good-
time deductions shall, upon release, be deemed as if released on parole until the
expiration of the maximum term or terms for which he was sentenced less one hundred
and eighty days.”
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complete his imprisonment for a 1977 conviction for,
inter alia, engaging in a continuing criminal enterprise
in violation of 21 U.S.C. § 848. In September 1995,
Jackson was arrested and charged with drug and firearm
offenses in state court. The United States Parole
Commission (USPC) issued a warrant and placed a detainer
on Jackson. Jackson filed the instant habeas petition,
arguing that the USPC&s detainer was illegal because it
lacked jurisdiction to supervise him, as he had been
serving a nonparolable sentence. Jackson further argued
that, even if the USPC had authority to supervise him
under section 4164, the savings provision contained in
section 235(b) of the Sentencing Reform Act extended this
provision only until November 1, 1992. See Pub. L. No.
98-473, § 235(b), 98 Stat. 2032 (Oct. 12, 1984).
After the government responded, the district court
denied relief, noting that the government had
subsequently indicted Jackson and the USPC had revoked
his parole. The court concluded that the USPC had
authority to supervise Jackson under the plain language
of section 4164, and that although the Sentencing Reform
Act saved the applicability of this section until
November 1, 1992, the general savings statute, 1 U.S.C.
§ 109,4 applied to extend the “as if released on parole”
4
Section 109 provides:
The repeal of any statute shall not have the effect to release or extinguish
any penalty, forfeiture, or liability incurred under such statute, unless the
repealing Act shall so expressly provide, and such statute shall be treated
as still remaining in force for the purpose of sustaining any proper action
or prosecution for the enforcement of such penalty, forfeiture, or liability.
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provision past that time, because such a release
constitutes a penalty or liability.
Jackson subsequently pleaded guilty to conspiring to possess
heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At
sentencing, Jackson objected to the finding that he was
on parole when he was arrested, although he
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conceded that the finding would have no effect on his
Guidelines sentence. The district court granted the
government&s motion for a downward departure under U.S.
Sentencing Guidelines Manual § 5K1.1, p.s., and imposed
concurrent sentences of 24 months on each count, to be
served consecutively to Jackson&s 60-month parole
revocation sentence, and to be followed by 6 years of
supervised release.
We reject Jackson&s argument that the USPC had no
authority to supervise him following his mandatory
release because he was convicted of a nonparolable
offense. Cf. Combs v. Carroll, 446 F.2d 893, 894 (5th
Cir. 1971) (per curiam) (§ 4164 applied even when
defendant not eligible for parole on federal sentence);
Leyvas v. Harris, 428 F.2d 366, 367 (7th Cir. 1970) (per
curiam) (§ 4164 applied to defendant subject to
nonparolable sentence under 21 U.S.C. § 174). We also
agree with the district court that the provisions of
section 4164 survived its repeal as a result of the
general savings provision of 1 U.S.C. § 109. Cf. Warden
v. Marrero, 417 U.S. 653, 659-64 (1974) (§ 109 bars
application of parole following repeal of parole-
ineligibility provision; ineligibility for parole part of
“penalty” saved by § 109); Martin v. U.S. Parole Comm&n,
108 F.3d 1104, 1106 (9th Cir. 1997) (per curiam) (ongoing
supervision after release mandated by § 4164 is “penalty”
within meaning of § 109).
We further affirm Jackson&s conviction and sentence.
We need not consider Jackson&s double jeopardy argument
raised in his pro se supplemental brief. See United
States v. Goodwin, 72 F.3d 88, 91 (8th Cir. 1995) (double
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jeopardy claim may not be raised for first time on
appeal). To the extent Jackson challenges his 1977
conviction, he must present that claim in the sentencing
court. See United States v. Hutchings, 835 F.2d 185, 187
(8th Cir. 1987).
Having carefully reviewed the record, we find no
other nonfrivolous issues for appeal. See Penson v.
Ohio, 488 U.S. 75, 80 (1988). Counsel&s motion to
withdraw is granted.
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Accordingly, we affirm the judgments of the district
court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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