Ramsey v. United States Parole Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2016 Decided November 4, 2016
No. 15–5121
CHARLES W. RAMSEY, JR.,
APPELLANT
v.
UNITED STATES PAROLE COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01003)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for the appellant. A.J. Kramer, Federal
Public Defender, was with her on the briefs.
Daniel J. Lenerz, Assistant United States Attorney, argued
the cause for the appellee. Elizabeth Trosman and John P.
Mannarino, Assistant United States Attorneys, were with him
on the brief.
Before: HENDERSON and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: “The
essence of parole is release from prison, before the completion
of sentence, on the condition that the prisoner abide by certain
rules during the balance of the sentence.” Morrissey v.
Brewer, 408 U.S. 471, 477 (1972). But what if the parolee
breaks the rules? More specifically, what happens if he
commits a new offense? In the federal system, the United
States Parole Commission (Commission) can revoke the
offender’s parole and order that he serve all or some of the
remaining sentence in prison. The Commission can also
retrospectively deny him credit for the time he has served on
parole—his “street time”—so that his remaining sentence is
the same as it was when he was released on parole.
These general principles guide our resolution of Charles
Ramsey’s appeal. In the 1970s, Ramsey was convicted of
drug and firearm offenses for which he was sentenced to a total
of 32 years in federal prison. In the 1980s, he was paroled and
released from prison. In the 1990s, he violated the conditions
of his parole by committing a new drug offense. He pleaded
guilty to the 1990s offense pursuant to a plea agreement that
said nothing about his past offenses, parole or street time. In
this case, he filed a habeas corpus petition in which he argued
that the plea agreement, as construed by the Southern District
of West Virginia, terminated his parole or at least prohibited
the Commission from using his 1990s offense to deny him
credit for street time or for other parole-related purposes.
Unpersuaded, the district court denied his habeas petition. 82
F. Supp. 3d 293 (D.D.C. 2015). We, too, reject his reading of
the plea agreement and accordingly uphold the denial of his
petition.
3
I. BACKGROUND
A. THE FEDERAL PAROLE SYSTEM
The Congress abolished parole for federal offenders in
1984, effective November 1, 1987. Sentencing Reform Act of
1984, Pub. L. No. 98-473, §§ 218(a)(5), 235(a)(1), 98 Stat.
1987, 2027, 2031 (Oct. 12, 1984); Sentencing Reform
Amendments Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat.
1728, 1728 (Dec. 26, 1985); see Gozlon-Peretz v. United
States, 498 U.S. 395, 400 n.4 (1991). Remnants linger,
however, because repeal did not affect offenders convicted
before November 1987. Sentencing Reform Act §
235(b)(1)(A), 98 Stat. at 2032. Chapter 311 of title 18
continues to govern parole for such offenders. 18 U.S.C. §§
4201-4218; see United States Parole Commission Extension
Act of 2013, Pub. L. No. 113-47, § 2, 127 Stat. 572, 572 (Oct.
31, 2013) (extending parole system through October 2018).
As relevant here, section 4203 gives the Commission the
power to “grant or deny an application or recommendation to
parole any eligible prisoner[,]” 18 U.S.C. § 4203(b)(1), and to
“modify or revoke an order paroling any eligible prisoner[,]”
id. § 4203(b)(3). Section 4209 provides that, “[i]n every case,
the Commission shall impose as conditions of parole that the
parolee not commit another Federal, State, or local crime [and]
that the parolee not possess illegal controlled substances . . . .”
Id. § 4209(a). Section 4210(b)(2) applies to an offender who,
having been released on parole, is “convicted of any criminal
offense . . . punishable by a term of imprisonment, detention or
incarceration in any penal facility . . . .” Id. § 4210(b)(2). In
such a case, “the Commission shall determine . . . whether all
or any part of the unexpired term being served at the time of
parole shall run concurrently or consecutively with the
sentence imposed for the new offense . . . .” Id. Section 4211
 4
gives the Commission authority to grant “[e]arly termination of
parole” but only “[u]pon its own motion or upon request of the
parolee . . . .” Id. § 4211(a). Section 4213 provides that “[i]f
any parolee is alleged to have violated his parole, the
Commission may” summon him to appear at a revocation
hearing or “issue a warrant and retake” him. Id. §
4213(a)(1)-(2). Section 4214(d) provides that when a parolee
is summoned or retaken and the Commission finds that he has
violated a condition of his parole, the Commission may
“restore the parolee to supervision,” “reprimand” him,
“modify” the conditions of his parole, “refer [him] to a
residential community treatment center,” “release” him “as if
on parole” or “formally revoke parole.” Id. § 4214(d).
The Commission’s regulations are codified in 28 C.F.R.
Part 2. Section 2.20 establishes guidelines that “indicate the
customary range of time to be served [in prison] before release
for various combinations of offense (severity) and offender
(parole prognosis) characteristics.” 28 C.F.R. § 2.20(b).
Section 2.20’s table of ranges is akin to the sentencing table of
the United States Sentencing Guidelines. See U.S.
SENTENCING COMM’N, U.S. SENTENCING GUIDELINES
MANUAL ch. 5, pt. A (2015). The vertical axis in section 2.20
is divided into eight categories based on “Offense
characteristics: Severity of offense behavior.” 28 C.F.R. §
2.20. The horizontal axis is divided into four categories based
on “Offender characteristics: Parole prognosis,” also known as
the offender’s “salient factor score.” Id. The shortest
guideline range, stated in months, is “≤4.” Id. The longest is
“180+.” Id. Pursuant to section 2.21, the guidelines in
section 2.20 apply when the Commission considers reparoling
an offender whose parole has been revoked. Id. § 2.21(b).
Section 2.21 makes clear that the guidelines are just that:
non-binding recommendations. Id. § 2.21(d) (“The above are
5
merely guidelines. A decision outside these guidelines (either
above or below) may be made when circumstances warrant.”).
Finally, section 2.52 governs the Commission’s
“[r]evocation decisions.” Section 2.52(b) provides that, when
the Commission revokes parole, it “shall also determine, on the
basis of the revocation hearing, whether reparole is warranted
or whether the prisoner should be continued for further
review.” 28 C.F.R. § 2.52(b). Section 2.52(c) sets forth “the
Commission’s interpretation of 18 U.S.C. 4210(b)(2).” Id. §
2.52(c)(2). The Commission’s interpretation is that
if a parolee has been convicted of a new offense
committed subsequent to his release on parole,
which is punishable by any term of
imprisonment, detention, or incarceration in
any penal facility, forfeiture of time from the
date of such release to the date of execution of
the warrant is an automatic statutory penalty,
and such time shall not be credited to the
service of the sentence.
B. RAMSEY’S PAROLE
With the foregoing provisions in mind, we recap
Ramsey’s odyssey through the parole system.
1. Ramsey’s 1970s offenses and 32-year sentence
In February 1975, Ramsey began serving a maximum
aggregate prison sentence of 32 years for importation of a
controlled substance, unlawful possession of firearms and
related offenses of which he was convicted in three federal
cases in the District of Columbia (D.C.) and the Southern
District of New York. His 32-year term was to be followed by
six years of “special parole,” the pre-Sentencing Reform Act
6
equivalent of supervised release. 28 C.F.R. § 2.57(a)
(describing special parole as “an additional period of
supervision which commences upon completion of any period
on parole or mandatory release supervision from the regular
sentence”); see United States v. Todd, 287 F.3d 1160, 1161
(D.C. Cir. 2002).
In May 1989, Ramsey was released on parole with about
17 years and nine months left of his 32-year term. Consistent
with 18 U.S.C. § 4209(a), one of the conditions of his parole
provided in part: “You shall not violate any law.” United
States’ Resp. to Def.’s Mot. to Amend or Correct Sentence,
Dkt. No. 3, Ex. 3 at 3. Another condition prohibited him from
possessing drugs. Id.
2. Ramsey’s 1995 cocaine offense
and 2004 plea agreement
In November 1995, while on parole for the 1970s offenses,
Ramsey was charged in D.C. district court with a new federal
offense: possessing with intent to distribute cocaine. He was
immediately detained pending trial. Based on the cocaine
charge, the Commission issued a warrant alleging that Ramsey
had violated his parole. The U.S. Marshals Service lodged the
warrant as a detainer to be executed once he was released from
custody on the cocaine charge. In May 1996, following a
six-day trial, a jury convicted him of the cocaine offense. In
an August 1996 presentence report (PSR), the United States
Probation Office noted that Ramsey had been continuously
detained for the cocaine offense since November 1995 and
that, on completing his sentence for that offense, he would still
be subject to a detainer for violating his parole on the 1970s
offenses. In December 1997, the district court sentenced him
to 210 months of imprisonment for the cocaine offense.
7
For nine years and one month, Ramsey was in prison for
the 1995 cocaine offense. In 2004, the district court
concluded that the lawyer who had represented Ramsey during
the trial on the cocaine offense had rendered ineffective
assistance. United States v. Ramsey, 323 F. Supp. 2d 27,
35-44 (D.D.C. 2004). The court ordered a new trial. Id. at
44.
Foregoing an appeal or retrial, the D.C. United States
Attorney’s Office entered a plea agreement with Ramsey.
The agreement provided that Ramsey was to plead guilty to the
cocaine offense and receive a prison sentence of time served, to
be followed by eight years of supervised release. Plea
Agreement ¶¶ 1, 6. 1 Under paragraph 3 of the agreement,
“[t]he parties agree[d] to accept” the PSR that had been
prepared in August 1996. Paragraph 5 of the agreement
provided:
The United States Attorney’s Office for the
District of Columbia will not prosecute
[Ramsey] for any other charges arising out of
the transactions and events that are the subject
of the [1995] indictment and this guilty plea.
And paragraph 6 stated in pertinent part:
Since the sentence is to be time served, the
parties contemplate that [Ramsey] will be
processed for release by the U.S. Marshals
Service in the cell block of the U.S. Courthouse
and will be released to commence his period of
1
The plea agreement is not on the district court’s electronic
docket but is available in Ramsey v. Felts, 5:06-cv-00637, Dkt. No.
3, Ex. 12 (S.D. W. Va. Aug. 16, 2006).
8
supervised release from there without being
returned to any other prison facility.
In December 2004, the district court accepted the plea
agreement and sentenced Ramsey to time served for the
cocaine offense (nine years and one month), to be followed by
eight years of supervised release. But Ramsey was not
released from custody. Instead, the U.S. Marshals Service
executed the parole violator warrant the Commission had
issued back in 1995. In other words, Ramsey remained in
prison but was now serving time on his 32-year sentence for
the 1970s offenses, not on his sentence for the 1995 offense.
3. The Commission’s 2005 decision to revoke parole
and deny credit for street time
In February 2005, Ramsey appeared with counsel for a
hearing on whether the Commission, in view of the 1995
cocaine offense, should revoke parole on his earlier 32-year
sentence. So far as the record reflects, he did not argue that
the plea agreement terminated his parole or precluded
revocation. Nor did he argue that the plea agreement
prohibited the Commission from using his 1995 offense to
deny him credit for his street time from May 1989 to
November 1995.
In March 2005, the Commission indeed revoked
Ramsey’s parole based on his 1995 cocaine offense. Partly
because of the offense’s severity—it involved up to 44
kilograms of cocaine—he faced the highest possible guidelines
range of 180+ months of reimprisonment under 28 C.F.R. §§
2.20 and 2.21(b). Seeing no basis for a departure, the
Commission ordered a reimprisonment term within the range
and set a presumptive reparole date of October 21, 2014.
Consistent with 28 C.F.R. § 2.52(c)(2), the Commission also
9
denied Ramsey any credit for his street time from May 1989 to
November 1995.
Later in March 2005, Ramsey appealed the decision to the
Commission’s National Appeals Board, again without
invoking the plea agreement. The National Appeals Board
affirmed the Commission’s decision.
4. The 2007 decision in Felts
In August 2006, while serving time on his 32-year
sentence at a federal prison in West Virginia, Ramsey filed a
petition for writ of habeas corpus under 28 U.S.C. § 2241 in the
United States District Court for the Southern District of West
Virginia. Ramsey v. Felts, 5:06-cv-00637, Dkt. No. 2 (S.D.
W. Va. Aug. 16, 2006) (Felts). As relevant here, he claimed
that the Commission was bound by the 2004 plea agreement
and breached it by revoking parole and reincarcerating him
based on his 1995 cocaine offense. Felts, Dkt. No. 3 at 10-11.
In particular, he argued that the Commission violated
paragraph 5, under which the D.C. United States Attorney’s
Office agreed “not [to] prosecute [Ramsey] for any other
charges arising out of the transactions and events that are the
subject of the [1995] indictment and this guilty plea”; and
paragraph 6, under which Ramsey was to “be released to
commence his period of supervised release . . . without being
returned to any other prison facility.”
The case was referred to a magistrate judge who agreed
that the Commission was in breach of the plea agreement and
recommended that the district court grant Ramsey’s habeas
petition. Felts, Dkt. No. 30 at 1, 24-25. The magistrate
concluded that, taken together, “paragraphs 5 and 6 contain
very significant promises to [Ramsey], the benefit of which he
has not received.” Id. at 21. She acknowledged that the
parties to the agreement apparently “never gave the Parole
10
Commission a thought” and that paragraph 5 expressly bound
only the D.C. United States Attorney’s Office. Id. at 23-24.
Nonetheless she reasoned that paragraph 6, in promising that
Ramsey would be released from his jail term for the 1995
cocaine offense without having to return to any prison facility,
necessarily affected the Commission. Id. at 21-22. In the
magistrate’s view, the tension between paragraphs 5 and 6
produced an ambiguity that had to be resolved in favor of
release because (inter alia) the government wrote the
agreement and bore “responsibility . . . for imprecision,” id.;
Ramsey had relied on the promise of immediate release when
he pleaded guilty, id. at 24-25; and the promise “ha[d] not been
fulfilled,” calling into question the voluntariness of the plea
and undermining “public confidence in the fair administration
of justice,” id. at 24.
No one objected to the magistrate judge’s findings and
recommendation. In August 2007, the district court in Felts
adopted them and ordered that Ramsey “be immediately
released” from prison so that he could “commence his period
of supervised release” on the 1995 cocaine offense. Felts,
Dkt. No. 31 at 3. The Commission immediately paroled him
and indicated that he had about 15 years remaining on his
initial 32-year sentence. Consistent with 18 U.S.C. § 4209(a),
the Commission again imposed as a condition of parole that
Ramsey not violate any law.
5. Ramsey’s 2010 gambling conviction
Ramsey ran into new legal trouble in April 2010, when he
was convicted in D.C. Superior Court for “maintaining a
gambling premises.” United States’ Resp. to Def.’s Mot. to
Amend or Correct Sentence, Dkt. No. 3, Ex. 20 (capitalization
altered). The Commission issued another parole violator
warrant, this one based on the gambling offense. The U.S.
11
Marshals Service executed the warrant upon Ramsey’s release
from a short jail term for the gambling offense.
In September 2010, Ramsey appeared for a hearing on
whether the Commission, in view of the gambling offense,
should revoke parole on his earlier 32-year sentence. In
November 2010, the Commission in fact revoked his parole.
Pursuant to the guidelines in 28 C.F.R. §§ 2.20 and 2.21(b), the
Commission ordered that he spend another 12 months of the
32-year sentence in prison. The Commission’s decision was
based in part on its calculation that Ramsey had a salient factor
score of 2. The salient factor score, in turn, was based on
Ramsey’s past offenses, including his 1995 cocaine offense.
Finally, the Commission denied Ramsey any credit for his
street time between August 2007 and April 2010, leaving him
with about 15 years remaining on his initial 32-year sentence.
Ramsey served his 12 months of additional prison time
and the Commission reparoled him in April 2011. At that
point he had about 14 years left to serve on his 32-year
sentence. He has been on parole ever since and now has about
eight and one-half years left: his anticipated completion date is
July 16, 2025. After that, he must serve his six-year term of
special parole.
6. The decision under review
In 2013, Ramsey filed a habeas petition in district court
under 28 U.S.C. § 2241. 2 He made two claims, the second of
2
Ramsey filed his habeas petition in the D.C. district court,
naming the Commission as the respondent. The district court had
subject-matter jurisdiction because Ramsey, as a parolee, remains
“in custody” within the meaning of section 2241 even though he is
not in prison. Jones v. Cunningham, 371 U.S. 236, 243 (1963)
(restraints on parolee’s liberty “are enough to invoke the help of the
12
which had two components. First, he argued that the 2004
plea agreement, as interpreted in Felts, “authorized his release
on supervised release alone” so that his parole was necessarily
“terminated.” Pet’r’s Mot. to Amend or Correct Sentence,
Dkt. No. 1 at 9-10. Second, he argued that the agreement at a
minimum prohibited the Commission from using his 1995
cocaine offense (a) to deny him credit for street time in the
2005 parole revocation proceeding; and (b) to calculate his
salient factor score in the 2010 parole revocation proceeding.
In Ramsey’s telling, the plea agreement’s prohibition against
“prosecut[ing]” him on additional charges based on his 1995
conviction meant that the Commission could not use the
conviction to “penalize” him in any way. Id. at 11. It
followed, in his view, that he was entitled to a remand to the
Commission for recalculation of his sentence.
The district court rejected Ramsey’s claims and denied his
habeas petition. 82 F. Supp. 3d 293 (D.D.C. 2015). First,
the court concluded that the plea agreement and Felts “did not
terminate . . . [Ramsey’s] parole from the 1970s cases.” Id. at
Great Writ” even absent “immediate physical imprisonment”); see
18 U.S.C. § 4210(a) (“A parolee shall remain in the legal custody
and under the control of the Attorney General, until the expiration of
the maximum term or terms for which such parolee was
sentenced.”); see also United States ex rel. New v. Rumsfeld, 448
F.3d 403, 406 (D.C. Cir. 2006) (“in custody” requirement of section
2241 goes to subject-matter jurisdiction). We need not decide
whether the Commission is a proper respondent, or the D.C. district
court a proper venue, because the Commission “raised no objections
on grounds of venue or personal jurisdiction.” Fletcher v. Reilly,
433 F.3d 867, 875 (D.C. Cir. 2006); see Chatman-Bey v.
Thornburgh, 864 F.2d 804, 813 (D.C. Cir. 1988) (“It is, of course,
elementary that a defense of improper venue or lack of personal (as
opposed to subject matter) jurisdiction is waived unless the defense
is asserted . . . .”).
13
304; see id. at 303-05. The court pointed out that the 1970s
cases were neither “the subject of” nor “referenced in” the
2004 plea agreement, which used the terms “‘case’” and
“‘matter’” to refer solely to the 1995 cocaine case. Id. at 304
(citation omitted). In the court’s view, although the
agreement promised that Ramsey was to “‘be released to
commence his period of supervised release . . . without being
returned to any other prison facility,’” neither that assurance
nor the Felts decision “gave Mr. Ramsey license to commit
new crimes without risking parole revocation and being
sentenced to serve his back-up time.” Id. The court
emphasized that Felts “held only that . . . the Parole
Commission could not require Mr. Ramsey to serve additional
prison time as a parole violator based directly on his conviction
in” the 1995 case. Id. at 305.
Second, the district court concluded that nothing in the
plea agreement, as construed in Felts, prevented the
Commission from using the 1995 cocaine offense to deny
Ramsey credit for street time or to calculate his salient factor
score. 82 F. Supp. 3d at 305-07. The court acknowledged
that paragraph 5 of the agreement prohibited the D.C. United
States Attorney’s Office from “prosecuting” him based on the
1995 conduct that was the subject of his guilty plea. Id. at
306-07. It reasoned, however, that paragraph 5 “did not bind”
the Commission, let alone in a way that foreclosed it from even
“taking the [cocaine] conviction into account when
calculating” street time or Ramsey’s salient factor score. Id.
at 307. Finally, the court emphasized that paragraph 6 of the
agreement only “preclude[d] the Commission from
reincarcerating Ramsey as a parole violator” “based directly
on” the cocaine offense. Id. at 305-06. In the court’s view,
paragraph 6 did not displace “the applicable statutes,
regulations, and case law” authorizing the Commission’s
14
“actions with respect to Ramsey’s parole.” Id. at 306 (citing,
inter alia, 18 U.S.C. § 4210(b)(2)).
II. ANALYSIS
On appeal, Ramsey renews essentially the same two
claims he made in district court: (1) the plea agreement as
construed in Felts terminated his parole or precluded
revocation; or (2) at a minimum, it prohibited the Commission
from using his 1995 cocaine offense to deny him credit for
street time and to calculate his salient factor score. Our
review is de novo. See United States v. Henry, 758 F.3d 427,
431 (D.C. Cir. 2014) (“We interpret the terms of a plea
agreement de novo . . . .”); cf. United States v. TDC Mgmt.
Corp., 24 F.3d 292, 295 (D.C. Cir. 1994) (“[w]e review de
novo” question of what issues were decided in prior case
involving same parties). We reject Ramsey’s claims as set
forth below.
A. THE PLEA AGREEMENT DID NOT TERMINATE PAROLE
OR PRECLUDE REVOCATION FOR FUTURE OFFENSES.
According to Ramsey, the plea agreement terminated his
parole or at least prohibited the Commission from revoking it.
“[W]e look to principles of contract law” to determine “the
reasonable understanding of the parties.” Henry, 758 F.3d at
431. The leading indicator of their understanding is the
agreement’s “plain language.” See United States v. Jones, 58
F.3d 688, 691 (D.C. Cir. 1995). But there are additional
indicators. General customs of which the parties are aware, as
well as the parties’ conduct in carrying out the agreement, can
aid in discerning what the parties meant by the words they
used. RESTATEMENT (SECOND) OF CONTRACTS § 203(b)
(1981) (“usage of trade” and “course of performance” are
relevant to “interpretation of a promise or agreement”).
15
Applying those precepts to Ramsey’s case, we reject his
interpretation of the plea agreement. If he were right, the
agreement would not only preclude revocation based on his
1995 cocaine offense but arguably would give him a free pass
to commit new crimes—such as his 2010 gambling
offense—without parole-related consequences. If that had
been the parties’ intention, we would expect them to have said
so specifically because the arrangement would contradict the
laws that otherwise govern Ramsey’s parole. As we have
discussed, the Congress required that parole “[i]n every case”
be conditioned on the parolee’s “not commit[ting] another
Federal, State, or local crime,” 18 U.S.C. § 4209(a), and it gave
the Commission authority to revoke parole and reimprison the
parolee for a violation, 18 U.S.C. § 4214(d). Parole would
make little sense absent such a condition and without the
Commission’s ability to enforce it through reincarceration or
other punishment. Morrissey v. Brewer, 408 U.S. 471, 478-79
(1972) (“The enforcement leverage that supports the parole
conditions derives from the authority to return the parolee to
prison to serve out the balance of his sentence if he fails to
abide by the rules.”). Dovetailing with sections 4209 and
4214, section 4211 gives the Commission exclusive authority
to grant “[e]arly termination of parole” “[u]pon its own motion
or upon request of the parolee.” 18 U.S.C. § 4211(a).
It is questionable whether the D.C. United States
Attorney’s Office, without the Commission’s authorization,
had the legal authority to bargain around the foregoing statutes
to terminate parole or forbid revocation. But we need not
decide that issue. What matters here is that nothing suggests it
meant to do so: the plea agreement said nothing about the
Commission, parole, Ramsey’s 32-year sentence or the age-old
offenses from which that sentence stemmed. It did not say his
parole was terminated. And it did not say the Commission
16
was forbidden from revoking parole for offenses subsequent to
Ramsey’s 1995 cocaine offense. 3
Ramsey emphasizes the plea agreement’s statement that
he was not to “be[ ] returned to any other prison facility.” Plea
Agreement ¶ 6. He reasons that the agreement thereby
“prohibited incarceration,” leading him to believe that “it also
prohibited revocation” based on any future offense because
revocation would inevitably lead to incarceration.
Appellant’s Br. 25. But the agreement governed only “United
States v. Charles W. Ramsey, Cr. No. 95-0326(PLF),” Plea
Agreement p. 1—and stated that “[t]here are no other
agreements, promises, understandings or undertakings
between” the parties, id. ¶ 7—so it could not be construed to
prohibit incarceration for all time and any offense. Instead,
we read it to forbid any further incarceration based directly on
the 1995 offense. Id. ¶ 6 (manifesting that, because prison
term for 1995 offense was “to be time served,” parties
contemplated that Ramsey would be released from that term
“without being returned to any other prison facility”). 4
3
The closest the agreement came to discussing parole was
paragraph 3, under which “[t]he parties agree[d] to accept” the
August 1996 PSR. The PSR noted that, on completing his sentence
for the 1995 cocaine offense, Ramsey was still subject to a detainer
for violating his parole. Oral Arg. Recording 5:40-5:57,
11:35-11:49, 19:43-20:35. The PSR thus confirmed that Ramsey
had time left to serve on his 32-year sentence. Neither the PSR nor
the “agree[ment] to accept” it suggested the parties had agreed to
terminate parole or to forbid revocation forevermore.
4
The Commission makes the additional point that revocation
need not lead to imprisonment. Appellee’s Br. 24. We assume
without deciding that the latter does not always follow the former.
See 28 C.F.R. § 2.52(b) (after revoking parole, Commission must
determine “whether reparole is warranted”); 28 C.F.R. §§ 2.20 and
17
Undeterred, Ramsey contends that, because the plea
agreement “ordered [his] release on supervised release . . . with
no mention of parole,” it did not “contemplate[ ] continuing
parole.” Appellant’s Br. 25 (citing Plea Agreement ¶ 6). He
gets things backwards. Under the governing statutes, the
default was that Ramsey’s parole carried forward subject to
revocation for a future violation. See RESTATEMENT
(SECOND) OF CONTRACTS § 222(3) (“Unless otherwise agreed,
a usage of trade . . . of which [the parties] know or have reason
to know gives meaning to . . . their agreement.”) (emphasis
added). The agreement’s bare statement about supervised
release did not reflect any intent to displace the statutory
default: far from ruling out parole, supervised release based on
a new offense ordinarily runs concurrently with a preexisting
parole term. 18 U.S.C. § 3624(e) (“The term of supervised
release commences on the day the person is released from
imprisonment and runs concurrently with any Federal, State, or
local term of . . . parole for another offense to which the person
is subject . . . .”).
Ramsey’s contemporaneous conduct reinforces our
analysis. In February 2005—barely two months after he
signed the plea agreement—he appeared with counsel for a
hearing on whether the Commission should revoke his parole
because of his 1995 cocaine offense. He did not argue, either
to the Commission or to the National Appeals Board thereafter,
that the plea agreement terminated his parole or precluded
2.21(b) (prescribing advisory reimprisonment ranges as short as
“≤4,” which suggests possibility of no reimprisonment). Even so,
that would not heavily bear on the parties’ understanding of the plea
agreement in this case: Ramsey’s offense history all but guaranteed
that he faced imprisonment in the event of revocation based on a new
offense. The Commission’s decision to reimprison him for 12
months based on a minor gambling offense illustrates as much.
18
revocation resulting from any future offenses. If he had
thought it did, he would have said so. See RESTATEMENT
(SECOND) OF CONTRACTS § 202(4) (“[A]ny course of
performance accepted or acquiesced in without objection is
given great weight in the interpretation of the agreement.”).
Faced with dead ends in the statutes and the plea
agreement, Ramsey turns to Felts but it does not aid him either.
In Felts, the district court for the Southern District of West
Virginia ordered Ramsey’s immediate release because he
could not be required to serve any additional jail time for the
1995 cocaine offense. Crucial to Felts’s reasoning was that
Ramsey had pleaded guilty in reliance on the prosecutor’s
promises (1) against “any other charges arising out of” the
1995 offense, Felts, Dkt. No. 30 at 23; and (2) that Ramsey was
to be immediately “released to commence his period of
supervised release” for the 1995 offense, id. at 14. Felts
ensured that Ramsey received “the benefit of” those promises
so that his “bargain” was “not frustrated.” Id. at 21, 25.
Felts did not address, however, whether parole could later
be revoked because of some future offense not even mentioned
in the plea agreement. To the contrary, Felts acknowledged
that, when drafting and signing the agreement, the parties
“never gave the Parole Commission a thought.” Felts, Dkt.
No. 30 at 23-24. That acknowledgment forecloses any
contention that Felts construed the agreement to terminate
parole or precluded revocation for all time and any offense.
B. THE PLEA AGREEMENT DID NOT PROHIBIT USING
RAMSEY’S 1995 OFFENSE TO DENY CREDIT FOR STREET
TIME OR TO CALCULATE HIS SALIENT FACTOR SCORE.
Alternatively, Ramsey urges that the plea agreement
prohibited the Commission from using his 1995 cocaine
offense (a) in the 2005 revocation proceeding to deny him
19
credit for street time from May 1989 through November 1995;
and (b) in the 2010 revocation proceeding to calculate his
salient factor score. Both components of his contention are
meritless. 5
Ramsey relies heavily on paragraph 5 of the plea
agreement. To repeat, paragraph 5 stated that “[t]he United
States Attorney’s Office for the District of Columbia will not
prosecute [Ramsey] for any other charges arising out of” the
1995 cocaine offense. As an initial matter, Ramsey suggests
that Felts interpreted paragraph 5 to bind the Commission, not
simply the D.C. United States Attorney’s Office. That
construction is far from clear: Felts acknowledged that
“paragraph five identified the only prosecutorial agency bound
not to prosecute [Ramsey],” namely, “the ‘Office of the United
States Attorney for the District of Columbia.’” Felts, Dkt.
No. 30 at 23. But even assuming paragraph 5 bound the
Commission, a prohibition against “prosecut[ing]” Ramsey for
additional “charges” based on his 1995 conduct would not
prevent the Commission from using the conduct to deny him
credit for street time or to calculate his salient factor score.
Nothing in the plea agreement suggests that the parties meant
for the words “prosecute” and “charges” to have anything other
than their ordinary meaning. And in the criminal context, the
ordinary meaning of “prosecute” is “[t]o institute and pursue a
criminal action . . . .” BLACK’S LAW DICTIONARY 1416 (10th
ed. 2014). Similarly, a “charge” ordinarily connotes “[a]
formal accusation of an offense as a preliminary step to
prosecution . . . .” Id. at 282. Denying credit for street time
5
Ramsey advances additional arguments that the Commission
miscalculated his parole but they turn entirely on the
proposition—which we today reject—that the Commission could
not revoke parole or use the 1995 cocaine offense to deny credit for
street time.
20
and calculating a parolee’s salient factor score do not institute a
criminal action. Indeed, the Supreme Court has long held that
“revocation of parole is not part of a criminal prosecution . . . .”
Morrissey, 408 U.S. at 480. A fortiori, we cannot conclude
that parole-related measures short of revocation are
tantamount to “prosecution.”
We recognize, as Felts did, that paragraph 6 of the plea
agreement—promising that Ramsey was to be released from
his jail term for the 1995 cocaine offense “without being
returned to any other prison facility”—could be read to
prohibit the Commission from reincarcerating Ramsey based
directly on his 1995 conduct. In our view, however, that
promise did not foreclose forfeiture of street time, especially
because the agreement did not mention 18 U.S.C. § 4210(b)(2)
or 28 C.F.R. § 2.52(c)(2). As noted, section 4210(b)(2)
provides that “the Commission shall determine . . . whether all
or any part of the unexpired term being served at the time of
parole shall run concurrently or consecutively with the
sentence imposed for the new offense . . . .” And in section
2.52(c)(2), the Commission “interpret[ed]” section 4210(b)(2)
to require forfeiture of street time as “an automatic statutory
penalty.” 6 If the parties had meant to displace the “automatic
6
As Ramsey notes in passing, the Ninth Circuit has held that
section 2.52(c)(2) contravenes section 4210(b)(2). Rizzo v.
Armstrong, 921 F.2d 855, 859-61 (9th Cir. 1990). He does not
mention, however, that at least three other circuits have concluded
otherwise. See Edwards v. Dewalt, 681 F.3d 780, 786-87 (6th Cir.
2012); Harris v. Day, 649 F.2d 755, 759-60 (10th Cir. 1981); United
States ex rel. Del Genio v. Bureau of Prisons, 644 F.2d 585, 587-88
(7th Cir. 1980). We need not weigh in on the conflict, for two
reasons. First, nothing suggests the parties here agreed that
Ramsey was to be exempt from section 2.52(c)(2). Second,
Ramsey has not properly preserved a claim that section 2.52(c)(2)
conflicts with the statute. He did not make the claim in his habeas
21
statutory penalty” by virtue of the plea agreement—assuming
that would even be possible—presumably they would have
done so more explicitly than paragraph 6 did. At least they
would have mentioned the concept of street time; that it
appears nowhere in the agreement shows that the parties
reached no understanding about it. As if to confirm the point,
Ramsey did not invoke the agreement at the February 2005
revocation hearing or before the National Appeals Board in an
effort to preserve his street time. See RESTATEMENT
(SECOND) OF CONTRACTS § 202(4).
Finally, paragraph 6 did not prohibit the Commission from
using Ramsey’s 1995 cocaine offense to calculate his salient
factor score in 2010. The Commission used the score to
weigh the likelihood that he would violate his parole on the
1970s offenses. See 28 C.F.R. § 2.20(e) (“An evaluation sheet
containing a ‘salient factor score’ serves as an aid in
determining the parole prognosis (potential risk of parole
violation).”). The Commission did not use the score to punish
him directly for his 1995 offense. Cf. Witte v. United States,
515 U.S. 389, 400 (1995) (use of past conviction at sentencing
for new offense “is not to be viewed as either a new jeopardy or
additional penalty for the earlier crime[ ], but instead as a
petition. Instead, he advanced it for the first time in an oblique
one-sentence footnote in a reply supporting his petition.
Unsurprisingly, the district court did not address it. We agree with
several other courts that, ordinarily, a habeas petitioner does not
preserve a claim by raising it for the first time in a reply. See Tyler
v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005) (holding as much and
citing additional cases from First, Seventh and Ninth Circuits).
Moreover, even if Ramsey had preserved the claim in district court,
his perfunctory appellate briefing does not suffice to raise it in this
Court. See Ry. Labor Execs. Ass’n v. U.S. R.R. Ret. Bd., 749 F.2d
856, 859 n.6 (D.C. Cir. 1984).
22
stiffened penalty for the latest crime, which is considered to be
an aggravated offense”) (internal quotation marks omitted).
*****
Nothing in the 2004 plea agreement or in Felts terminated
Ramsey’s parole, precluded revocation for future offenses or
prohibited the Commission from using his 1995 cocaine
offense to deny him credit for street time or to calculate his
salient factor score. We therefore affirm the judgment of the
district court denying Ramsey’s petition for a writ of habeas
corpus.
So ordered.