Yorie Von Kahl v. M. Segal

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3026
YORIE VON KAHL,
Petitioner-Appellant,

v.

MICHAEL SEGAL, Warden, FCI Pekin,
Respondent-Appellee.
____________________

Appeal from the United States District Court
for the Central District of Illinois.
No. 18-cv-1245-JES — James E. Shadid, Judge.
____________________

SUBMITTED NOVEMBER 18, 2021 — DECIDED DECEMBER 6, 2021
____________________

Before EASTERBROOK, WOOD, and SCUDDER, Circuit Judges.
EASTERBROOK, Circuit Judge. Yorie Von Kahl is serving a life
sentence, plus consecutive terms of ten and five years’ impris-
onment, for murdering two deputy United States Marshals
and commiTing related crimes.* The judgment was affirmed

* To be precise, he is serving two concurrent life sentences, four 10-
year sentences that are concurrent with each other but consecutive to the
life sentences, one five-year sentence that runs concurrently with the life
and ten-year sentences, and one five-year sentence that is consecutive to
2 No. 19-3026

on direct appeal, and a collateral aTack under 28 U.S.C. §2255
failed. United States v. Faul, 748 F.2d 1204 (8th Cir. 1984); Von
Kahl v. United States, 242 F.3d 783 (8th Cir. 2001). A debate
about the length of his custody is the principal issue in Von
Kahl’s petition under 28 U.S.C. §2241.
Von Kahl also wants to relitigate the issues presented in
his collateral aTack, but §2241 allows review of a conviction
or sentence only when §2255 is inadequate, see §2255(e), and
we know that §2255 is adequate to resolve these issues be-
cause they were resolved under that statute. Section 2241 is not
a means to get a second opinion in a different circuit. See Vi-
alva v. Watson, 975 F.3d 664 (7th Cir. 2020); Lee v. Watson, 964
F.3d 663 (7th Cir. 2020); Roundtree v. Krueger, 910 F.3d 312 (7th
Cir. 2018); Harris v. Warden, 425 F.3d 386 (7th Cir. 2005). No
more need be said on this subject.
Section 2241 is, however, the appropriate means to contest
the Bureau of Prisons’ calculation of the date on which a pris-
oner must be released. See United States v. Wilson, 503 U.S. 329,
335 (1992) (implication); United States v. Jones, 34 F.3d 495, 499
(7th Cir. 1994). For Von Kahl, whose crime predates the Sen-
tencing Reform Act of 1984, release depends on the Parole
Commission and Reorganization Act of 1976, 18 U.S.C.
§§ 4201–28. That statute was repealed by the 1984 Act but re-
mains in force for persons whose crimes occurred before No-
vember 1, 1987. See 98 Stat. 2027, 2032. Only persons who re-
ceived long sentences are subject to the 1976 Act today. For
those serving the very longest sentences—life plus a substan-
tial consecutive term of years—some questions are arising for

all other sentences. For simplicity we treat this package as three sentences:
life + ten years + five years.
No. 19-3026 3

the first time. We have been unable to find any precedential
decision covering the statutory language that governs Von
Kahl’s arguments. There are a few recent nonprecedential de-
cisions in other circuits, but nothing else. We issue a prece-
dential decision in this case to reduce the scope of uncertainty.
Von Kahl was eligible for release on parole as soon as he
was sentenced, because the district judge opted to allow im-
mediate eligibility under 18 U.S.C. §4205(b)(2), but the Parole
Commission decided that his crimes were too serious to make
swift release appropriate. He contends in this proceeding that
he is entitled to mandatory release under §4206(d), which sets
a presumptive cap on how long anyone must serve:
Any prisoner, serving a sentence of five years or longer, who is
not earlier released under this section or any other applicable pro-
vision of law, shall be released on parole after having served two-
thirds of each consecutive term or terms, or after serving thirty
years of each consecutive term or terms of more than forty-five
years including any life term, whichever is earlier: Provided, how-
ever, That the Commission shall not release such prisoner if it de-
termines that he has seriously or frequently violated institution
rules and regulations or that there is a reasonable probability that
he will commit any Federal, State, or local crime.

Emphasis in original. Section 4206(d) illustrates one of the
ways in which the 1987 Act changed federal sentencing. To-
day a person sentenced to life in prison serves life in prison,
unless clemency or compassionate release intervenes. But a
person sentenced to “life” under older law was eligible for pa-
role in ten years, §4205(a)—sooner if the judgment so pro-
vided under §4205(b)(2)—and is presumptively entitled to
parole after thirty, §4206(d).
Shortly after Von Kahl was sentenced, the Bureau of Pris-
ons calculated his release date as February 12, 2013, thirty
4 No. 19-3026

years after he entered federal custody. In 1994, however, the
Bureau recalculated his release date as February 12, 2023. The
second calculation took account of his consecutive terms: ten
years and five years. These add to fifteen, and two-thirds of
fifteen is ten. The Bureau concluded that 30 and 10 should be
combined. But in 2002 an employee of the Parole Commission
wrote that Von Kahl’s release date is February 12, 2013. The
employee did not explain why the extra ten years that the Bu-
reau thought appropriate had been subtracted. The 2013 date
came and went; the Bureau stands by its conclusion that Feb-
ruary 2023 is the presumptive release date.
Von Kahl contends that the Bureau got this right the first
time and is at all events stuck with the 2013 date even if it was
calculated in error. Yet no one is entitled to the benefit of an
administrative mistake. See GreenholD v. Inmates, 442 U.S. 1, 7
(1979). Our question is whether the Bureau is right today. And
we look to the Bureau’s decision, for it is the Bureau rather
than the Commission that administers Von Kahl’s sentence.
Wilson, 503 U.S. at 335; Manuel v. Terris, 803 F.3d 826, 828–29
(7th Cir. 2015). The Commission decides whether to release
someone on parole, but when making that decision it starts
with the Bureau’s calculations. 28 C.F.R. §2.55(a).
This leads to the question whether the Bureau has read
§4206(d) correctly, and it has. The statute says that a life term
is treated the same as a 45-year term, so anyone sentenced to
life is presumptively released after 30 years. But the statute
also says that, unless paroled earlier, a prisoner must serve
two-thirds or thirty years of “each consecutive term or terms”.
Von Kahl is serving three consecutive terms: life, ten years,
and five years. Thirty years for the life term, plus two-thirds
of each term of years, adds to 40 years, running through
No. 19-3026 5

February 2023, just as the Bureau concluded. Von Kahl wants
us to collapse his sentences, to say that life plus 15 years “re-
ally” is just life, so the limit must be 30 years. True, he won’t
serve time in prison after his death, but there remain three
distinct legal penalties, and the statute calls for the aggrega-
tion of limits under “each consecutive term or terms” (empha-
sis added). That comes to 40 years, no maTer how you do the
math.
Von Kahl also reads the statute as saying that his release
date may rest on the life term, or the terms of years, but not
the two together. That’s not what the statute says; “each”
means “each.” Von Kahl quotes from a legislative report that
“this section [§4206] provides more liberal criteria for release
on parole for prisoners with long sentences after they have
completed two-thirds of any sentence or thirty years, which-
ever occurs first.” H.R. Conf. Rep. No. 94-838 at 27 (1976). And
that’s true (the comparative “more liberal” refers to pre-1976
law). But the report does not say that the total time before pre-
sumptive release can’t exceed 30 years. Quite the contrary.
The very next sentence reads: “In calculating two-thirds of a
term, all sentences imposed consecutively should be consid-
ered separately and the time on each sentence added to-
gether.” Ibid. Far from contradicting the statutory text, the
conference report reinforces the text’s natural reading.
So Von Kahl’s presumptive release date is February 12,
2023. The Bureau must let him go then unless the Commission
acts under the statutory proviso and “determines that he has
seriously or frequently violated institution rules and regula-
tions or that there is a reasonable probability that he will com-
mit any Federal, State, or local crime.” The onus of making
such a finding is on the Commission. We mention the
6 No. 19-3026

possibility here only to clarify that February 12, 2023, is a pre-
sumptive parole release date, not an outer limit to his custody.
The outer limit is the end of his life.
AFFIRMED