IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30619
VINCENT ARTUSO,
Petitioner-Appellant,
versus
KEITH HALL, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
January 22, 1996
Before HIGGINBOTHAM AND DUHÉ, Circuit Judges, and SCHWARZER*,
District Judge.
HIGGINBOTHAM, Circuit Judge:
In this case, a federal prisoner alleges that regulations of
the United States Parole Commission (USPC) are inconsistent with a
congressional statute. We agree and grant the prisoner’s petition
for a writ of habeas corpus under 28 U.S.C. § 2255.
I
This case concerns a type of post-release supervision,
special parole, that did not survive the advent of the sentencing
guidelines. Under pre-guidelines law, certain offenses triggered
*
District Judge of the Northern District of California,
sitting by designation.
a requirement that the defendant receive a term of special parole.
This special parole term followed any imprisonment or normal parole
and included conditions similar to normal parole conditions. If a
defendant violated a special parole condition, the USPC could
return the parolee to prison for a time period less than or equal
to the length of the special parole term calculated without credit
for street time already served. For example, suppose a defendant
received a sentence of 15 years imprisonment, 7 years normal
parole, and 5 years special parole. After 22 years, the defendant
would begin serving his special parole time on the street. If at
year 26 month 11 the defendant violated a condition of special
parole, the USPC could reimprison the defendant for up to five
years. In such a case, the USPC could grant the defendant no
credit for the four years 11 months of special parole time spent on
the street.
The issue in this case is whether the USPC, after re-
incarcerating a defendant for a violation of a condition of special
parole for a time less than the full length of the special parole
term, may impose a second term of special parole. In the example
outlined above, suppose the felon violated his special parole term
at year 26 month 11, and the USPC decided to impose only three
years re-incarceration instead of the maximum five-year term. The
issue is whether the USPC also may impose a two-year term of
special parole to begin upon the release from the second period of
incarceration.
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II
The facts in this case are not in dispute. A jury in the
district court for the Southern District of New York convicted
Vincent Artuso of certain drug-related offenses. Artuso received
three separate sentences of 5 years imprisonment plus 5 years of
special parole, such sentences to run concurrently. The Second
Circuit affirmed Artuso’s conviction.
In March, 1980, Artuso began serving his sentence. After
spending 20 months in prison, the USPC released Artuso to normal
parole, and Artuso served the remaining 40 months of his five-year
term of “imprisonment” on the streets without incident. In March,
1985, Artuso began serving his five-year term of special parole;
Artuso was scheduled to be released from the jurisdiction of the
USPC in 1990.
In November, 1988, the USPC issued a parole violation warrant
alleging that Artuso had violated the conditions of his special
parole by associating with various persons involved in criminal
activity, including Genovese crime family head John Gotti. The
USPC revoked Artuso’s special parole, ordered him to spend 18
months in prison, credited none of his previously served special
parole time, and imposed a second special parole term of 42 months
to begin upon completion of the 18 months incarceration. In May of
1990, Artuso was released from prison and began serving his second
special parole term on the streets.
In October, 1993, a grand jury returned an indictment charging
Artuso with extortion and with association with persons engaged in
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criminal activity. The FBI arrested Artuso, and shortly thereafter
the USPC issued a detainer based upon the indictment. Artuso and
the United States plea bargained. Artuso agreed to waive his right
to a hearing before the USPC and to admit to the USPC that he had
associated with persons engaged in criminal activity. The
agreement recited that the USPC’s Guidelines provided for a
sentence of 12-16 months for a violation of this nature, but made
no mention of an additional term of special parole. In return, the
United States successfully moved to dismiss the indictment against
Artuso with prejudice.
The USPC revoked Artuso’s second special parole term, ordered
that he remain incarcerated until December of 1995, credited none
of his previous special parole time spent on the street, and
imposed a third term of special parole scheduled to terminate in
May, 1997.
In March of 1995, Artuso filed a petition for a writ of habeas
corpus seeking release on the ground that the USPC lacked statutory
authority to impose a second term of special parole after revoking
a first special parole term. A magistrate judge recommended that
the application be denied, and the district court adopted the
recommendation.
From the record it appears that Artuso has been released from
incarceration and is currently serving his third term of special
parole.
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III
The United States’ first argument is that we need not reach
the merits of this case because Artuso agreed to abide by the
USPC’s choice of punishment in his plea agreement. Citing United
States v. Bethany, 489 F.2d 91, 93 (5th Cir. 1974), the government
argues that the plea agreement is binding upon Artuso, that he
received the benefit of the bargain in the form of a dismissal with
prejudice of the second indictment, and that he cannot now be heard
to challenge the USPC’s authority to revoke his second term of
special parole.
While we agree with the United States that the plea agreement
is binding on Artuso, we find no statement in that agreement that
Artuso waived his ability to challenge the USPC’s authority to
impose multiple terms of special parole in a habeas proceeding.
Artuso did agree to waive his right to a hearing before the USPC
and to admit that he had violated the condition of his parole
prohibiting him from associating with persons engaged in criminal
activity. But the agreement makes no mention of Artuso’s right to
challenge the USPC’s authority to impose a third special parole
term after revoking a second.
To the extent that Artuso’s habeas action sought relief from
the USPC’s latest order that Artuso be incarcerated until December
of 1995, the United States’ position might have had merit. The
plea agreement recited that “[a]ccording to the [USPC’s]
guidelines, the defendant may be sentenced to a range of
imprisonment of 12-16 months,” suggesting that the parties to this
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contract contemplated that Artuso would spend some additional time
in prison. The difficulty is that Artuso’s third term of
incarceration has now expired, and thus the only issue remaining
before this court is the validity of the USPC’s imposition of a
third term of special parole. Nothing in the plea agreement
suggests that Artuso and the United States had any understanding
regarding a second special parole term. Accordingly, we hold that
Artuso has not bargained away his right to seek habeas relief in
this action.
IV
Relying on United States v. Holmes, 954 F.2d 270 (5th Cir.
1992), Artuso argues that the USPC lacked statutory authority to
impose a second period of special parole after it had revoked a
first special parole term. We agree.
Chevron v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-43 (1984), governs our decision in this case. 21 U.S.C.
§ 841(c), repealed, Pub. L. 98-473, Title II, § 224(a)(2), granted
the USPC the authority to impose special parole. The USPC
promulgated regulations under this statute allowing it to impose a
second term of special parole after revoking a parolee’s first term
of special parole and requiring the parolee to spend additional
time incarcerated. 28 C.F.R. §§ 2.52(b), 2.57(c). The USPC is the
agency charged with administering former section 841(c). Under
Chevron, this court may only inquire whether Congress’s intent in
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passing former section 841(c) was clear and, if not, whether the
USPC’s interpretation was reasonable.
We faced a nearly identical question in the context of a
nearly identical statute in United States v. Holmes, 954 F.2d 270
(5th Cir. 1992). The dispute in Holmes centered on whether 18
U.S.C. § 3583(e)(3) allowed courts to impose a second term of
supervised release after revoking an initial term of supervised
release. Section 3583(e)(3) provided that a court could “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 post-release supervision.” In
Holmes, we held that the word “revoke” meant to “cancel or
rescind,” and therefore that section 3583(e)(3) provided courts
with no authority to impose a second period of supervised release
after revoking a first term of supervised release. Since Holmes,
the text of section 3853(e)(3) has remained unchanged, but Congress
has reversed Holmes by enacting 18 U.S.C. § 3583(h), which
clarifies that a court may impose another term of supervised
release after each violation of a condition of supervised release.
The reasoning of Holmes controls our decision in this case.
Former section 841(c) provided,
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 imprisonment shall not
be diminished by the time which was spent on special
parole. A person whose special parole term has been
revoked may be required to serve all or part of the new
term of imprisonment.
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The language of former section 841(c) is nearly identical to that
of section 3583(e)(3). See United States v. O’Neil, 11 F.3d 292,
299 (1st Cir. 1993) (noting “the obvious similarities in language,
structure, and substance between section 841(c) and section
3583(e)(3)” in a decision disagreeing with Holmes). In particular,
former section 841(c) and section 3853(e)(3) both used the term
“revoke” in identical contexts to mean cancel or rescind.
Accordingly, when the USPC cancels or rescinds a term of special
parole, nothing in former section 841(c) provides it with
additional authority to impose a second term. We hold that Holmes
governs this case and compels the conclusion that the USPC’s
regulations contradict the plain language of former section 841(c),
our “first and best resort” in the search for congressional intent.
Holmes, 954 F.2d at 272.
We acknowledge that our decision today creates a circuit
split. In USPC v. Williams, 54 F.3d 820 (D.C. Cir. 1995), the
court upheld 28 C.F.R. §§ 2.52(b), 2.57(c) as a reasonable
interpretation of former section 841(c). The D.C. Circuit found
the phrase “new term of imprisonment” in former section 841(c)
sufficiently ambiguous to allow the USPC to interpret these words
as allowing a term of actual incarceration plus time spent on the
street in the form of special parole. The Williams court also
relied on the presumption that parole is available unless expressly
precluded. Williams is inconsistent with Holmes. Section
3853(e)(3) includes the phrase “to serve in prison,” and in Holmes
we found no ambiguity in this phrase sufficient to alter our
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decision. No relevant difference distinguishes the phrase “to
serve in prison” and “new term of imprisonment” for purposes of
whether either contemplates a second period of conditional liberty.
While we agree that the presumption in favor of parole can be
useful in construing an ambiguous statute, we find nothing
ambiguous in former section 841(c).
Two other circuits have addressed in dictum the permissibility
of imposing a second special parole term after an initial
revocation; both foreshadowed the result reached in Williams. See
O’Neil, 11 F.3d at 299; United States v. Gozlon-Peretz, 894 F.2d
1402, 1405 n.5 (3d Cir. 1990), amended, 910 F.2d 1152 (3d Cir.
1990), aff’d, 498 U.S. 395 (1991). These cases have no
authoritative value. The O’Neil court used the existence of the
USPC special parole regulations, together with the similarity of
section 841(c) to 3853(e)(3), to support a disagreement with Holmes
and a conclusion that section 3853(e)(3) allowed reimposition of
supervised release. The O’Neil court did not consider the
possibility that the USPC regulations might themselves be invalid
under step one of Chevron. Gozlon-Peretz’s discussion of the issue
consisted of a bald single-sentence dictum supported by no
citation.
Finally, we find no conflict between our decision today and
that in Munguia v. USPC, 871 F.2d 517, 521 (5th Cir. 1989), cert.
denied, 493 U.S. 856 (1989). In Munguia, we relied on the USPC
regulations at issue in this case only to show that they
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“channel[ed] special parolees through” an alternative regulation.
871 F.2d 521.
The district court’s opinion is reversed, and this case is
remanded with instructions that the district court order that
Artuso be released from his third term of special parole.
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