United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 21, 1999 Decided November 5, 1999
No. 99-5009
Matthew Noble,
Appellant
v.
United States Parole Commission,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00188)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Wilma A. Lewis,
U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr., and
Robert D. Okun, Assistant U.S. Attorneys. Mary-Patrice
Brown, Assistant U.S. Attorney, entered an appearance.
Before: Silberman, Sentelle, and Rogers, Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: Matthew Noble, a District of Columbia pris-
oner who was held in federal custody, appeals the district
court's denial of a writ of habeas corpus. He argues that he
has been deprived of equal protection because other prisoners
were erroneously released earlier than they should have been.
We affirm.
I.
The District of Columbia is responsible for the custody of
most prisoners who have been convicted of offenses under
D.C. law, but some D.C. offenders are held in the custody of
the federal government. This case arises from a disparity
between the policies of the U.S. Parole Commission, which
administers parole for prisoners in federal custody, and those
of the D.C. Board of Parole, which administers parole for
convicts in D.C. prisons.1
Section 24-206(a) of the District of Columbia Code provides
that prisoners whose parole is revoked shall not receive credit
against their sentences for "street time," that is, the time
they spent on parole. In 1987, the District of Columbia
enacted D.C. Code s 24-431(a); without mentioning parole
revocation, it established a general rule that street time shall
be treated the same as time spent in physical custody. The
U.S. Parole Commission concluded that this new statute did
not affect s 24-206(a). By contrast, the D.C. Department of
Corrections determined that s 24-431(a) had impliedly re-
pealed the section, and consequently the Board of Parole
began to give prisoners credit for street time even when their
__________
1 Congress has since transferred the authority of the D.C. Board
of Parole to the U.S. Parole Commission. See National Capital
Revitalization and Self-Government Act of 1997, Pub. L. No.
105-33, s 11231(a)(1), 111 Stat. 712, 745; Franklin v. District of
Columbia, 163 F.3d 625, 632 (D.C. Cir. 1998).
parole was revoked. The new D.C. policy was based on a
misreading of the law, as the D.C. Court of Appeals held in
1997. After that opinion the Department of Corrections
changed its policy, but it did not make the change retroactive
to people whose sentences had already expired--that is, it did
not attempt to rearrest former inmates whose releases had
been predicated on credit for street time prior to parole
revocation.
In 1985, having already compiled a long record of drug
offenses, Noble was convicted in D.C. Superior Court of
distribution of a controlled substance. At the time, he was a
federal parolee, and the Bureau of Prisons aggregated his
sentences to yield a term of just over nine years, to be served
in federal custody. He was paroled again in 1988, but in 1993
his parole was revoked. Pursuant to D.C. Code s 24-206(a),
the Parole Commission refused to credit Noble's street time
against his sentence. In 1995, Noble petitioned for a writ of
habeas corpus, claiming that the Commission had violated
D.C. law by failing to credit him for his street time. The writ
was granted, see Noble v. United States Parole Comm'n, 887
F. Supp. 11 (D.D.C. 1995), but on appeal, we certified to the
D.C. Court of Appeals the question of whether the Parole
Commission had properly interpreted the D.C. statute. No-
ble v. United States Parole Comm'n, 82 F.3d 1108 (D.C. Cir.
1996). After that court confirmed that the Commission's
interpretation was correct, see United States Parole Comm'n
v. Noble, 693 A.2d 1084 (D.C. 1997), aff'd, 711 A.2d 85 (D.C.
1998) (en banc), we remanded to the district court for further
proceedings. The district court denied the writ, see Noble v.
United States Parole Comm'n, 32 F. Supp. 2d 11 (D.D.C.
1998), and Noble appealed.
II.
Obviously no longer able to maintain that the Parole Com-
mission has misread the law, Noble instead argues that the
disparity between his treatment and that of prisoners in the
custody of the D.C. Department of Corrections constitutes a
deprivation of the equal protection of the laws. The difficulty
with this argument is that Equal Protection Clause--to be
precise, the equal protection component of the Fifth Amend-
ment's Due Process Clause, cf. Bolling v. Sharpe, 347 U.S.
497 (1954)--does not require that all persons everywhere be
treated alike. Instead, it imposes the rather more modest
requirement that government not treat similarly situated
individuals differently without a rational basis. See Cleburne
v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985).
Noble cannot show that he has been treated differently from
prisoners under the supervision of the U.S. Parole Commis-
sion because all have been treated in exactly the same way.
Noble would instead compare himself to prisoners who
were in the custody of the D.C. Department of Corrections
whose parole was revoked but who nevertheless received
credit for street time because their sentences expired before
the D.C. Court of Appeals issued its decision in 1997. Yet he
is not similarly situated to those prisoners, because he is in
the custody of a different agency of government. Seeking to
avoid this problem, he asserts "a constitutional right to equal
treatment under law by the government, even where that
treatment is imposed by two different agencies." We think
that assertion is groundless. If such a right existed, it would
mean that it is unconstitutional for some D.C. criminal cases
to be brought in D.C. courts, while others are brought in
federal court, where harsher sentences may be available.
But cf. Hutcherson v. United States, 345 F.2d 964 (D.C. Cir.
1965). For that matter, it would suggest that every circuit
split is a violation of equal protection. Both of these proposi-
tions are obviously erroneous, and so is Noble's premise.
In any event, even if Noble were to be compared to
prisoners in D.C. custody who received credit for street time,
he could not prevail, because the difficulty of rearresting
inmates who have already been released would provide a
rational basis for the disparate treatment. Neither authority
nor common sense support the proposition that if the govern-
ment erroneously confers a benefit on some people, then
other people have a constitutional right to receive the same
windfall. See Tyler v. United States, 929 F.2d 451, 457 (9th
Cir. 1991) ("We cannot seriously entertain the argument that
an erroneous statutory interpretation should be perpetuated
simply because it would favor a prisoner who has not yet
benefitted from it.").
* * * *
The judgment of the district court is affirmed.
So ordered.