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June 7, 1993

JANET RENO, in her capacity as Attorney General of the United States, and the UNITED STATES PAROLE COMMISSION, Defendants.

The opinion of the court was delivered by: LOUIS L. STANTON

 Douglas LaChance petitions for a writ of habeas corpus, arguing that the United States Parole Commission improperly forfeited the time he served on parole.


 In 1981, LaChance commenced service of a 12-year term for extortion, racketeering and tax evasion. At the time of his sentencing, LaChance denied alcohol or opiate abuse. (Declaration of United States Probation Officer Eileen Kelly P 4). After serving nearly five years, on December 20, 1985 he was released to parole supervision.

 While on parole LaChance pleaded guilty in Cape May, New Jersey in 1988 to careless driving and refusing to take a breath test. Although he could have been jailed for 15 days, he was fined $ 300. Believing this incident was "an isolated one of poor judgment," the United States Parole Commission (the "Commission") did not revoke LaChance's parole, but instead sent him a letter of reprimand. *fn1" (Kelly Decl. P 8).

 In December 1991, New York State law enforcement agents advised LaChance's probation officer that LaChance had been identified by a confidential informant as a cocaine supplier and possible user. When confronted with news of the informant's tip, LaChance denied any involvement in drug purchases or drug use. On July 9th, July 28th, August 18th and September 2nd of 1992, however, LaChance tested positive for cocaine use. He agreed to seek drug treatment, but failed to keep required appointments.

 In October 1992, LaChance was served with a summons to appear at a hearing concerning charges that he violated the terms of his parole. LaChance, who had in the meantime entered Conifer Park Mediplex, a detoxification and long-term treatment agency in Conifer Park, New York, failed to appear at the hearing. Later that month, his probation officer received information that LaChance had left the Conifer Park facility: on October 22, he was arrested and was re-imprisoned for violating the conditions of his parole. According to LaChance's probation officer, at his subsequent revocation hearing LaChance acknowledged that he had been using cocaine for fifteen years. (Kelly Decl. P 11). In papers on this application, LaChance acknowledges that during the 1970s and while on parole he used cocaine "occasionally." (Reply Affidavit of Douglas LaChance sworn to June 3, 1993 P 1).

 On January 7, 1993, the Commission adopted a hearing officer's recommendations to revoke LaChance's parole, forfeit the entire time he had spent on parole, and thus extend his release date from February 18, 1993 to the year 2000. The Commission's action imposes eight months of imprisonment to be followed by parole supervision with a special drug aftercare condition. *fn2" On February 18, 1993, the expiration of his original maximum term, this court directed that LaChance be released on bail pending the outcome of his administrative appeal. LaChance v. Barr, 812 F. Supp. 436 (S.D.N.Y. 1993). On March 3, 1993, the Commission affirmed its prior decision. This application for a writ of habeas corpus, more fully briefed and factually supported than the application for bail, followed.

 The Commission charges LaChance with his positive test for cocaine, refusal to participate in a drug program, failure to appear at a hearing/interview, and leaving the district without permission (all of which occurred in 1992) and the 1988 conviction described above. Of those violations, only the 1988 conviction could serve as a basis for forfeiting LaChance's whole time of almost seven years on parole, see 18 U.S.C. § 4210(b)(2). LaChance asserts that this forfeiture violates due process.


 LaChance argues that the Commission has no power to extend its jurisdiction over him past his original maximum term on the basis of the 1988 conviction. He contends that under 18 U.S.C. § 4210(b) *fn3" the Commission has only the power to determine whether an unexpired parole term should run concurrently or consecutively with the sentence imposed for a new offense. He argues that because he was not imprisoned for his 1988 conviction, the Commission may not hold him past his maximum term. He claims that the regulation codified in 28 C.F.R. § 2.52(c)(2), *fn4" which does not require an "actual term of confinement or imprisonment" before a conviction may be used to forfeit parole time, is inconsistent with the statute.

 In order for the Commission's interpretation of the statute to be valid, "it need only be shown that it is 'sufficiently reasonable.'" Weeks v. Quinlan, 838 F.2d 41, 44 (2d Cir. 1988) (citations omitted). The interpretation does not have to be "the only reasonable one, or even the one the court would have adopted if the question had initially arisen in a judicial proceeding." Id. In United States ex rel. Del Genio v. United States Bureau of Prisons, 644 F.2d 585, 588 (7th Cir. 1980), cert. denied, 449 U.S. 1084, 101 S. Ct. 870, 66 L. Ed. 2d 808 (1981), the Court of Appeals for the Seventh Circuit found that § 4210(b) was ambiguous, and that the Commission's interpretation was consistent with the intent of Congress. There are strong indications, in fact, that the drafters intended to treat parole violations punishable by imprisonment, detention or incarceration in any penal facility *fn5" as grounds for the forfeiture of street time, regardless of whether such a sentence is actually imposed. According to the Conference Report:

The phrase 'punishable by a term of imprisonment, detention or incarceration in a penal facility' is intended by the Conferees to mean any term of confinement which may be levied upon adjudication of guilt or delinquency and does not include detention prior to adjudication. For example, a person convicted of any offense punishable by even one day of imprisonment would not automatically receive credit toward service of his sentence, even if no sentence of imprisonment was imposed.

 H.R.Rep. No. 94-838, 94th Cong., 2d Sess. 31-32 (1976) reprinted in U.S. Code Cong. & ...

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