In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2205
GEORGE H. EDWARDS, JR.,
Petitioner-Appellant,
v.
JAMES N. CROSS, Warden, & U.S.
PAROLE COMM’N,
Respondents-Appellees.
Appeal from the United States District Court for the
Southern District of Illinois.
Nos. 13-cv-934 & 13-cv-944 — David R. Herndon, Judge.
ARGUED JANUARY 8, 2015 — DECIDED SEPTEMBER 16, 2015
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. George H. Edwards, Jr. appeals
from the district court’s denial of his petition for a writ of
habeas corpus. See 28 U.S.C. § 2241. He is currently under the
supervision of the United States Parole Commission serving a
term of special parole that stems from a narcotics conviction in
1985. Although Edwards completed his term of imprisonment
2 No. 14-2205
for that conviction in 2000, the Parole Commission has re-
sponded to his regrettable history of parole violations with
repeated reimprisonment and the reimposition of special
parole, which remains in force to this day. Edwards maintains
that the Parole Commission lacks the authority to reimpose
special parole and seeks an order compelling the Commission
to convert his current term of special parole to ordinary parole.
Edwards’ appeal hinges on the definition of the word “revoke”
in the special parole statute, see 21 U.S.C. § 841(c) (1982 ed.),
which was repealed over twenty years ago in 1984, see Act of
Oct. 12, 1984, Pub. L. No. 98-473, § 224(a)(6). Although we
concluded in Evans v. U.S. Parole Commission, 78 F.3d 262
(1996), that the Parole Commission could not reimpose special
parole after a term of reimprisonment, that conclusion has
since been called into question by the Supreme Court’s
subsequent decision in Johnson v. United States, 529 U.S. 694
(2000), interpreting the word “revoke” in 18 U.S.C. § 3583(e)
(1988 & Supp. II 1990), a supervised release statute with some
similarities to 21 U.S.C. § 841(c). The district court concluded
that our interpretation of the word “revoke” in Evans was
undermined by the Court’s holding in Johnson and denied
Edwards’ petition. We conclude that the differences between
former § 841(c) and § 3583(e) predominate over the admitted
similarities; thus, we hold that our decision in Evans interpret-
ing § 841(c) continues to be good law. Accordingly, we vacate
and remand the decision of the district court.
I.
In order to understand the issue presented by this case and
why Edwards remains under the authority of the Parole
No. 14-2205 3
Commission over thirty years after his 1985 narcotics convic-
tion, we must recount both the history of Edwards’ repeated
parole violations and the enactment and repeal of several
statutes pertaining to post-imprisonment supervision. Ed-
wards’ extended encounter with imprisonment and parole
began in 1985 when he was convicted of cocaine distribution
and sentenced to fifteen years imprisonment to be followed by
ten years of “special parole.” See § 841(c) (1982 ed.).1
Special parole was created in 1970 as a mandatory addi-
tional penalty for drug offenses. The Sentencing Reform Act of
1984 eliminated parole (both special and regular), replaced it
with supervised release, and repealed 21 U.S.C. § 841. See
United States v. Sandidge, 784 F.3d 1055, 1067 (7th Cir. 2015)
(“We note that the system of supervised release followed the
elimination of parole in the federal system.”). However, the
Parole Commission continues to exercise jurisdiction over the
dwindling number of individuals, like Johnson, who commit-
ted a federal offense before November 1, 1987, when the
Sentencing Reform Act took effect.2 E.g., United States v. Wells,
1
All citations to § 841(c) refer to the 1982 edition.
2
In May 1976, the Parole Commission and Reorganization Act took effect
and established the United States Parole Commission as an independent
agency within the Department of Justice. Although the Comprehensive
Crime Control Act of 1984 provided for the abolition of the Parole
Commission in November 1992, Congress has continued to extend the life
of the Parole Commission, most recently with the United States Parole
Commission Extension Act of 2013, which extends Parole Commission’s
existence until 2018. See generally United States Department of Justice,
History of the Federal Parole System, 1-3 (May 2003), available at
(continued...)
4 No. 14-2205
177 F.3d 603, 607 n.3 (7th Cir. 1999). “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.” Evans, 78 F.3d at 263.
Thus, if an individual is reimprisoned for violating special
parole, when he is released he must serve the entire original
term of the special parole reduced only by the additional time
spent in prison—he receives no credit for the “street time”
spent on special parole before the violation.
This mechanism is illustrated by Edwards’ long history of
violating his special parole. In February 2000, Edwards began
his term of special parole, which was due to expire in February
2010. In March 2001, he was taken into custody for violating
the terms of his parole (by shoplifting, failing a drug test, and
failing to provide personal and business records to his parole
officer). His special parole was revoked, and he returned to
prison on July 26, 2001. He was released from prison in
December 2001. At this point, under § 841(c), his special parole
reverted to a full ten year term less the time he spent in
custody (March to December 2001); no credit was given for the
2
(...continued)
http://www.justice.gov/uspc/history.pdf; see also H.R. 3190 (113th): United
States Parole Commission Extension Act of 2013, available at
https://www.govtrack.us/congress/bills/113/hr3190 (last visited Sept. 14,
2015).
No. 14-2205 5
time he had already spent on special parole. Thus, his new
parole term was set to expire in March 2011.
But in 2007, Edwards pleaded guilty to one count of wire
fraud. He was sentenced to one year and a day in prison to be
followed by four years of supervised release. He completed the
prison term for wire fraud in December 2007 but remained in
prison because the Parole Commission revoked his parole.
Reasoning that he had been on special parole when he pleaded
guilty in 2007, the Parole Commission added six more years to
his sentence to account for the forfeited street time between his
December 2001 release from prison (following the first parole
revocation) and his 2007 conviction. Edwards’ parole term was
then set to expire in February 2017.
Edwards challenged the reimposition of special parole
following his wire fraud conviction. The Sixth Circuit rejected
Edwards’ challenge, noting that because he had been convicted
of a crime, under current parole law Edwards would have
forfeited his street time even if he had been serving regular
parole. See Edwards v. Dewalt, 681 F.3d 780 (6th Cir. 2012);
28 C.F.R. § 2.52(c)(2) (providing that an ordinary parolee
convicted of a new offense while on parole will not receive
credit on service of his sentence for time spent on supervision).
It thus concluded that it need not decide the “interesting and
difficult issue” of whether its own holding that a revoked
special parole term could not be reimposed survived the
Supreme Court’s decision in Johnson v. United States, 529 U.S.
694 (2000), interpreting the supervised release statute, 18 U.S.C.
§ 3583(e) to allow reimposition of supervised release following
its revocation. See Dewalt, 681 F.3d at 784-85 (citing Dolfi v.
Pontesso, 156 F.3d 696, 698-99 (6th Cir. 1998) which had held
6 No. 14-2205
that the Parole Commission lacked authority under 21 U.S.C.
§ 841(c) to impose a new term of special parole after revoking
the original term).
Edwards’ current situation forces us to confront this
“interesting and difficult issue” directly. He was released on
parole in 2010 but then sent back to prison in 2013 for again
violating the terms of his supervised release (stemming from
the wire fraud conviction). Shortly thereafter, the Parole
Commission issued a parole-violator warrant (for the same
conduct that led to his supervised release revocation) as a
detainer against him pending the completion of his sentence
for violating the supervised release. See Matamoros v. Grams,
706 F.3d 783, 788 (7th Cir. 2013) (“The purpose of [a] detainer
is to make sure the U.S. Marshal is notified when [a parolee] is
discharged from his … prison sentence so he can be immedi-
ately taken into federal custody for a revocation of parole
hearing.”).
At that time, Edwards filed a petition for a writ of manda-
mus under 28 U.S.C. § 1361 seeking an order compelling the
Parole Commission to conduct a parole termination hearing
and terminate his parole violation status and suspend his
supervision in the interim. He also filed a petition for a writ of
habeas corpus under § 2241, requesting an order compelling
warden James Cross to convert his special parole to a regular
term of imprisonment and hold a hearing on his parole
violation or, in the alternative, terminate his special parole and
release him from all conditions of parole. The district court
denied Edwards’ mandamus petition after concluding that
Edwards had not shown that the Parole Commission owed him
a duty which it had failed to perform.
No. 14-2205 7
It also denied Edwards’ habeas petition. The court first
rejected Edwards’ arguments attacking the Parole Commis-
sion’s failure to hold a revocation hearing within 90 days of his
violation and its failure to hold a dispositional review within
180 days of placing the detainer against him. See 18 U.S.C.
§ 4214(b)(1) (repealed 1984). Finally, on the issue of the
reimposition of special parole, the district court declined to
address Edwards’ argument that the Commission could not re-
impose special parole following his third violation because the
parole had not yet been revoked. However, the court con-
cluded that such a reimposition of special parole would be
unproblematic because the Supreme Court’s decision in
Johnson indirectly abrogated this court’s conclusion in Evans
that release from imprisonment following revocation of special
parole must be to regular, not special parole.
II.
On appeal, Edwards focuses solely on his claim that under
Evans, the Parole Commission lacks the authority to reimpose
special, as opposed to regular, parole once it is revoked. We
note at the outset that § 2241 is a proper vehicle for relief
because special parole satisfies the “custody” requirement of
that statute and Edwards is in essence claiming that he is being
kept on special parole in “violation of the Constitution or laws
or treaties of the United States”—specifically § 841(c). See
Evans, 78 F.3d at 264; see also Edwards, 681 F.3d at 784 (“Because
Edwards is challenging the manner in which his parole is to be
served, his claims were properly brought pursuant to the
provisions of § 2241.”)
8 No. 14-2205
The defendants first claim that Edwards has waived his
argument about reimposition of special parole. This argument
goes nowhere. Not only should his pleadings in the district
court be construed liberally because he was proceeding pro se,
e.g., Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 600
(7th Cir. 2014), it is clear that he has argued from the beginning
that the Parole Commission lacked power to reimpose his term
of special parole. The Commission argues that Edwards did
not raise his “specific complaint regarding re-imposing special
parole” until his reply to the Commission’s opposition to his
motion for summary judgment. But the Commission itself
acknowledges that from the outset Edwards contested its
authority to impose another term of special parole. The
Commission also notes that it responded to Edwards’ (alleg-
edly inadequate) argument with its own “extensive legal
argument” as to whether it could reimpose special parole, so
there is no question that he provided fair notice of his claim.
Thus, his failure to respond to specific arguments by the
Commission in a sur-reply (filed in response to Edwards’ reply
to the Commission’s response to his motion for summary
judgment) hardly amounts to waiver. See Sidney Hillman Health
Ctr. v. Abbott Lab., Inc., 782 F.3d 922, 927 (7th Cir. 2015)
(“‘[w]aiver is not meant as an overly technical appellate
hurdle’ and the nuances of a litigant’s arguments may differ
from their stance in the district court without resulting in
waiver.”) (quoting Fox v. Hayes, 600 F.3d 819, 832 (7th Cir.
2010)).
The Commission also argued that Edwards’ claim was not
yet ripe for review because he was not yet serving a term of
special parole. But given events subsequent to Edwards’
No. 14-2205 9
appeal, that argument too goes nowhere. In October 2014,
Edwards was scheduled to be released from prison for his
supervised release violation, but he remained in prison on the
detainer. Although he was still in prison on the detainer when
this case was argued, the Parole Commission revoked Ed-
wards’ parole approximately one month after oral argument.
Because he did not contest that he had violated parole terms,
his parole was revoked without a hearing under the expedited
revocation procedure. See 28 C.F.R. § 2.66 (authorizing revoca-
tion decision without hearing in certain circumstances). In the
Parole Commission’s view, Edwards was then reparoled to
special, as opposed to regular parole, for what is now the
fourth time—a term of special parole that, without credit for
street time, will expire in February 2020. If he is reparoled to
regular parole instead, as Edwards insists he must be, that
parole will expire in February 2017 because he will receive
credit for the three years of “street time” between January 2010
and January 2013.
Whether the Commission has the authority to reimpose a
term of special parole depends on the proper interpretation of
the word “revoke” in the special parole statute, § 841(c). That
section states that:
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 of imprison-
ment shall not be diminished by the time which
was spent on special parole. A person whose
10 No. 14-2205
special parole term has been revoked may be
required to serve all or part of the remainder of
the new term of imprisonment. A special parole
term provided for in this section or section 845
of this title shall be in addition to, and not in lieu
of, any other parole provided by law.
The Parole Commission originally interpreted § 841(c) to
allow the reimposition of special parole following reimprison-
ment after a revocation. See 28 C.F.R. § 2.57(c) (“Should a
parolee violate conditions of release during the Special Parole
Term he will be subject to revocation on the Special Parole
Term … and subject to reparole or mandatory release under
the Special Parole Term.”)(promulgated under its statutory
authority, 18 U.S.C. § 4203(a)(1) (repealed 1984)).
The authority to reimpose special parole was called into
question subsequently when this court and a number of others
interpreted 18 U.S.C. § 3583(e)(3), the supervised release
statute that replaced § 841(c) to some extent, as prohibiting a
district court from reimposing a new term of supervised
release after reimprisonment. See United States v. McGee,
981 F.2d 271 (7th Cir. 1992) (“Once a court revokes a defen-
dant’s supervised release and imprisons him under
§ 3583(e)(3), no residual term of supervised release survives
revocation.”), abrogated by Johnson, 529 U.S. at 713; see also
United States v. Malesic, 18 F.3d 205 (3d Cir. 1994), abrogated by
Johnson, 529 U.S. at 713; United States v. Truss, 4 F.3d 437
(6th Cir. 1993), 4 F.3d 437; United States v. Rockwell, 984 F.2d
1112 (10th Cir. 1993), abrogated by Johnson, 529 U.S. at 713;
United States v. Tatum, 998 F.2d 893 (11th Cir. 1993), abrogated
No. 14-2205 11
by Johnson, 529 U.S. at 713; United States v. Koehler, 973 F.2d 132
(2d Cir. 1992), abrogated by Johnson, 529 U.S. at 713; United
States v. Cooper, 962 F.2d 339 (4th Cir. 1992), abrogated by
Johnson, 529 U.S. at 713; United States v. Holmes, 954 F.2d 270
(5th Cir. 1992), abrogated by Johnson, 529 U.S. at 713; United
States v. Behnezhad, 907 F.2d 896 (9th Cir. 1990), abrogated by
Johnson, 529 U.S. at 713; but see United States v. O’Neil, 11 F.3d
292 (1st Cir. 1993) (concluding that courts do have power to
reimpose supervised release); United States v. Schrader, 973 F.2d
623 (8th Cir. 1992) (same).
In McGee, we confronted the question of whether district
courts could reimpose supervised release after revoking it
under § 3583(e). McGee predated the addition of subsection (h)
in 1994, which gives courts express authority to revoke
supervised release and impose another term of supervised
release following reimprisonment. See § 3583(h) (“When a term
of supervised release is revoked and the defendant is required
to serve a term of imprisonment, the court may include a
requirement that the defendant be placed on a term of super-
vised release after imprisonment.”). Under § 3583(e), upon
finding a supervised release violation, a district court was
authorized to (1) terminate a term of supervised release and
discharge the person released; (2) “extend a term of supervised
release if less than the maximum authorized term was previ-
ously imposed, and … modify, reduce, or enlarge the condi-
tions of supervised release … “; or “(3) 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 … [.]”
12 No. 14-2205
Looking at the text of § 3583(e) and surveying other circuits’
analyses, we agreed in McGee with the Fifth Circuit and
concluded that the word “revoke” generally means cancel or
rescind, and that once a term of supervised release had been
“revoked” under § 3583(e)(3) it no longer existed and could not
be extended, modified, reduced, or enlarged under
§ 3583(e)(2). McGee, 981 F.2d at 274-75 (citing Holmes, 954 F.2d
at 272). We also noted that interpreting subsection (e)(3) to
allow the district court to replace each revoked term of
supervised release with a new combined term of prison and
supervised release would open the door to repeated breaches
of supervised release and reimprisonment—a scenario we
believed created problematic due process concerns. Id. at 275.
We thus rejected the more “flexible reading” of § 3583(e)(3)
that had been adopted by other circuits that would have
allowed a district court to “revoke” a term of supervised
release and sentence a defendant to “part of” that
term—apportioning the sentence between prison and the
remaining supervised release. See United States v. Boling,
947 F.2d 1461 (10th Cir. 1991), overruled by Rockwell, 984 F.2d at
1115-17, (noting that since Boling, seven circuits had explicitly
or implicitly concluded that a district court could not impose
further supervised release after reincarceration under
§ 3583(e)); Schrader, 973 F.2d at 624-25, superseded by statute,
§ 3583(h). We concluded that such an approach would amount
to interpreting “revoke” more like “suspend” and would also
“create a grave structural flaw in the statute.” McGee, 981 F.3d
at 275-76. Accordingly, we held that “[o]nce a court revokes a
defendant’s supervised release and imprisons him under
§ 3583(e)(3), no residual term of supervised release survives
No. 14-2205 13
revocation.” McGee, 981 F.2d at 272, abrogated by Johnson,
529 U.S. at 713.
Several years later, we confronted the somewhat related
question of whether a term of special parole revoked under
§ 841(c) could be reimposed after imprisonment in Evans v.
U.S. Parole Comm’n, 78 F.3d 262 (1996). Although we discuss
Evans in more detail below, we note here that we concluded in
Evans that a term of special parole, once revoked, could not be
reimposed. Id. Like Edwards, the petitioner in Evans had
repeatedly had his special parole revoked, and argued that
once revoked, it could not be reimposed. Relying in part on
McGee and in part on the language of § 841(c), we agreed and
concluded that when special parole is revoked it becomes a
regular term of imprisonment, “release from which is normal
parole.” Evans, 78 F.3d at 264. In other words, “once special
parole has been revoked, any further release-and-revocation
cycle uses the rules for ordinary parole.” Id. at 266.
Under our holding in Evans then, Edwards should now be
serving a term of regular, not special, parole. But Evans’
continued viability was called into question by the Supreme
Court’s decision in Johnson v. United States. As explained above,
in Johnson the Court rejected McGee’s interpretation of
§ 3583(e)(3).3 Specifically, the Court in Johnson confronted the
3
Johnson actually involved an Ex Post Facto clause challenge to the
application of 18 U.S.C. § 3583(h), which explicitly authorizes a district
court to impose an additional term of supervised release following the
reimprisonment of those who violate the conditions of an initial term, but
had not yet been added to the statute when the defendant was originally
(continued...)
14 No. 14-2205
question, resolved in McGee, of whether § 3583(e)(3) permitted
imposition of supervised release following a recommitment.
Contrary to our conclusion in McGee (and that of nearly every
circuit that had confronted the question), the Court determined
that § 3583(e)(3) did authorize a district court to “revoke”
supervised release and then reimpose another term following
the reimprisonment. Although acknowledging that the
conventional understanding of “revoke” would suggest that a
revoked term of supervised release would not survive to be
reimposed, the Court determined that a number of reasons
supported an “unconventional” reading of the word. First, the
Court noted that subsection (e)(1) authorized a court to
“terminate” a term of supervised release, and observed that if
Congress had meant to likewise preclude any possibility of
imposing further supervised release under subsection (e)(3) it
could have drafted that subsection with like terms. Johnson,
529 U.S. at 704. It also pointed out that the text of § 3583(e)
authorized the court to revoke supervised release and require
“all or part of that term” to be served in prison. The Court
reasoned that if part of the term is served in prison, some part
continues in some sense after its revocation. Id. at 705-06.
The Court found further support for its “unconventional”
reading in a Webster’s dictionary definition of revoke meaning
“to call or summon back.” This secondary definition of revoke
suggested Congressional understanding that some of the
3
(...continued)
sentenced. The Court, however, concluded that such an additional term
could be imposed under § 3583(e)(3) without triggering Ex Post Facto
concerns that might arise by applying § 3583(e)(h) retroactively.
No. 14-2205 15
revoked term may remain after imprisonment. Id. at 706-07.
Finally, the Court observed that such a reading of revoke
served the evident Congressional purpose of providing
supervision to those who most needed it, chief among them,
according to the Court, being those who had “tried liberty and
failed.” Id. at 709.
The Court also drew on the pre-Guidelines parole regime
and its repeated use of the word revoke without any question
that a new term of parole could follow reimprisonment after
revocation of parole. Id. at 710-11. Indeed, the Court expressly
noted that the same was true of special parole. Noting in a
footnote our decision in Evans, the Court observed that some
courts had concluded that reimposition of special parole after
revocation of the initial term and reimprisonment was inconsis-
tent with § 841(c)(1982 ed.). The Court remained silent as to
whether such an interpretation remained good law, but simply
noted instead that such holdings did not “affect the backdrop
against which Congress legislated in 1984" when drafting
§ 3583(e)(3). Id. at 712 n.11.
According to the government, by overruling McGee’s
understanding of “revoke” in § 3583(e)(3), Johnson effectively
eviscerates the rationale for our similar holding in Evans that
a revoked term of special parole under § 841(c) turns special
parole into regular imprisonment, release from which is
normal parole. See Evans, 78 F.2d at 264. At least one court
confronting the question under similar circumstances has
concluded as much. See Rich v. Maranville, 369 F.3d 83 (2d Cir.
2004) (concluding that Johnson’s interpretation of § 3583(e)
undermined the Second Circuit’s previous interpretation of
16 No. 14-2205
§ 841(c) as forbidding a revoked special parole term from being
reimposed), overruling Strong v. U.S. Parole Comm’n, 141 F.3d
429 (2d Cir. 1998).
Although the Second Circuit’s approach is a defensible one,
we believe that it overlooks several important reasons why
Johnson’s interpretation of the word “revoke” in § 3583(e)(3)
does not necessarily undermine Evans’ understanding of that
word in § 841(c). First, the Court acknowledged in Johnson that
its interpretation of the word “revoke” as something short of
abolish or cancel was “unconventional.” 529 U.S. at 706-07.
And several of the reasons the Court provided to support its
unconventional reading are notably absent in the text or policy
considerations surrounding former § 841(c). First, the Court in
Johnson acknowledged that particular language in § 3583(e)
supported its use of an “unconventional” definition of revoke.
Foremost was the fact that § 3583(e)(1) used the word “termi-
nate” and subsection (e)(3) used “revoke,” a textual decision
which implied that revoke must mean something different than
the very final “terminate.” 529 U.S. at 704-05. No such contrast
exists in § 841(c), which speaks only in terms of the Commis-
sion’s power to “revoke” special parole. Thus, one of the key
reasons the Court in Johnson turned to the unconventional
definition of revoke does not exist within § 841(c). This
suggests that the ordinary understanding of the word revoke
applies, that is, “to officially cancel the power or effect of
(something, such as law, license agreement, etc.: to make
(something) not valid,” www.merriam-webster.com/dictio-
nary/revoke (last visited Sept. 1, 2015) or “to annul by recalling
or taking back.” Webster’s 3d New Int’l Dictionary 1944 (1981);
Johnson, 529 U.S. at 704.
No. 14-2205 17
The Court in Johnson also pointed to another textual reason
in support of its reading of revoke: § 3583(e)(3) authorizes a
district court to revoke a term of supervised release “and
require the person to serve in prison all or part of the term of
supervised release.” Johnson explained that “if ‘the term of
supervised release’ is being served, in whole or in part, in
prison, then something about the term of supervised release
survives the preceding order of revocation.” 529 U.S. at 705.
This language signaled to the Court that, unlike a “terminated”
order of supervised release, a “revoked” order continued to
have some effect. Id. at 705-06. In contrast, § 841(c) states that
when a special parole term is revoked, “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.”
(emphasis added). Thus, there is no corollary to the idea that
after a revocation under § 3583(e) all or part of the supervised
release term was served in prison and some of the term
survived to be served after imprisonment. Instead, under
§ 841(c) the original term of imprisonment is increased by the
special parole term and a “new term of imprisonment” is
imposed. In Evans, we reasoned that an “‘original’ term can be
augmented only once; after that, it is not original.” Evans, 78
F.3d at 265. This rationale remains intact in the wake of Johnson.
There is yet another textual reason that the unconventional
interpretation of “revoke” in § 3583(e) does not translate to the
use of the same word in § 841(c). Section 841(c) refers to
revoking a special parole term “imposed under this sec-
tion”—that is to say, imposed by a judge at sentencing, not
created by regulation when the “original” special parole term
18 No. 14-2205
is revoked. As we explained in Evans, “[t]he Parole Commis-
sion cannot ‘impose’ a term of special parole any more than it
can ‘sentence’ a defendant to prison.” Id. at 265. Because
supervised release is imposed by the district court and the
revocation and reimposition of “the term of supervised
release” under § 3583(e) is also overseen by the court, the
impossibility noted above regarding the Parole Commission’s
authority does not arise with the unconventional interpretation
of “revoke” the Court applied to § 3583(e) in Johnson—it is the
district court that imposes an additional term of supervised
release, not, as is the case under § 841(c), the Parole Commis-
sion. In sum, although the rationale in the now defunct McGee
was persuasive to our interpretation of the same word appear-
ing in § 841(c), there are independent textual reasons unique to
§ 841(c) that provide continued support for the conventional
reading of “revoke” that we adopted in Evans.
We are also unconvinced that the same policy concerns that
animated the Court’s interpretation in Johnson apply to
§ 841(c). Under our previous interpretation of § 3583(e) in
McGee, once a district court revoked supervised release,
reimprisonment could not be followed by another term of
supervision of any kind. McGee, 981 F.2d at 274. As the Court
noted in Johnson, this result ran afoul of evident Congressional
policy favoring post-release supervision—particularly of those
individuals who demonstrated a need for ongoing supervision
by their inability to comply with the terms of their supervised
release. 529 U.S. at 709-10. But our interpretation of § 841(c) as
forbidding reimposition of special parole after revocation and
reimprisonment does not produce this same result: although
the court may not reimpose a term of special parole, release
No. 14-2205 19
from imprisonment is still followed by normal parole. Evans,
78 F.3d at 264 (“[T]he first revocation turns special parole into
regular imprisonment, release from which is normal parole.”)
Thus our interpretation of “revoke” in § 841(c) to mean
extinguish does not necessarily create the perverse result
Johnson believed ran afoul of Congresssional intent when
considering that same word in § 3583(e). Edwards’ case
illustrates the point. If we agree with Edwards that, as we held
in Evans, the Parole Commission lacks the authority to reim-
pose special parole, Edwards is currently serving a term of
regular parole that will conclude in February 2017. Concluding
that Johnson overturned Evans by implication would leave
Edwards serving a term of special parole that will not end until
approximately three years later, in March 2020. Under either
scenario, Edwards will receive some post-release supervision,
thus avoiding the dilemma the Court believed our interpreta-
tion of § 3583(e) in McGee created.
And finally, if Johnson leaves us still uncertain as to the
meaning of “revoke” in § 841(c), the rule of lenity supports the
interpretation we adopted in Evans. See Barber v. Thomas, 560
U.S. 474, (2010) (“[T]he rule of lenity only applies if, after
considering text, structure, history, and purpose, there remains
a ‘grievous ambiguity or uncertainty in the statute,’ … ‘such
that the Court must simply guess as to what Congress in-
tended.’” (internal quotations and citations omitted)). Under
the Commission’s view, the reimposition of special parole after
revocation is automatic, and no credit is ever given for street
time. There is thus no discretion as to whether a particular
offender receives more or less post-release supervision after a
revocation: it will always be more, and the reimposed term of
20 No. 14-2205
special parole will always be augmented by the length of the
lost “street time” preceding the revocation. This is yet another
distinction between § 841(c) and § 3583(e)(3), under which the
district court’s reimposition of supervised release may
lengthen or shorten the overall period of supervision. The
Johnson Court noted as much, observing that the rule of lenity
(which anyway did not apply in that case) would not demand
a contrary result because it would be “Delphic” given the
impossibility of predicting whether courts would be more or
less lenient when imposing another term of supervised release
after reimprisonment. Johnson, 529 U.S. at 713 n.13. Here, in
contrast, the rule of lenity is yet one more consideration that
supports our conclusion that Evans remains good law.
III.
Admittedly, our conclusion in Evans was “[i]mpelled in part
by United States v. McGee,” Evans, 78 F.2d at 264 (emphasis
added). But our decision in Evans was also driven by the
language of the former § 841(c) and several policy consider-
ations that remain valid notwithstanding the fact that McGee is
no longer viable. We thus conclude that Evans’ interpretation
of § 841(c) remains good law, and a special parole term
revoked under that section becomes a term of imprisonment
that is followed by regular, not special parole. Accordingly, we
vacate the decision of the district court denying the petition for
a writ of habeas corpus and remand for the issuance of an
order directing that Edwards’ term of special parole be
converted to regular parole.