any good time deductions. See Fowler, 94 F.3d at 839 n.5.
B. The Reimposition of Special Parole
These conclusions are dictated by the terms of the statute. The novel issue Petitioner asks the Court to resolve is whether section 841(c) authorizes the Parole Commission to reparole a special parole violator to a new term of special parole after revocation and reimprisonment. This issue is one of first impression in this Circuit, and there is a split among the other Circuits that have recently addressed it. See Fowler, 94 F.3d 835 (finding that Parole Commission lacks authority to reparole special parolee to special parole); Billis v. United States, 83 F.3d 209 (8th Cir.) (finding that Parole Commission has authority to reparole special parolee to successive terms of special parole), cert. denied, 136 L. Ed. 2d 179, 117 S. Ct. 252 (1996); Evans, 78 F.3d 262 (Commission lacks authority); Artuso v. Hall, 74 F.3d 68 (5th Cir. 1996) (Commission lacks authority); United States Parole Commission v. Williams, 311 U.S. App. D.C. 416, 54 F.3d 820 (D.C. Cir. 1995) (Commission has authority). Because I find the reasoning of Fowler persuasive, I hold that the Commission lacks the authority to reparole Petitioner to special parole, but that it has the authority to reparole him to traditional parole.
The Fowler court, as well as the courts in Evans and Artuso, relied on the interpretation of 18 U.S.C. § 3583(e)(3), a provision that governed supervised release,
in concluding that a new term of special parole is not authorized by § 841(c). Fowler, 94 F.3d at 837-38. Similar case law exists in this Circuit; the Court of Appeals has held that § 3583(e)(3) does not permit a court to sentence a violator of supervised release to a second term of supervised release after reimprisonment.
United States v. Koehler, 973 F.2d 132 (2d Cir. 1992). At the outset of its § 3583(e)(3) analysis, the court noted that the "'starting point in every case involving construction of a statute is the language itself.'" Id. at 134 (quoting Kelly v. Robinson, 479 U.S. 36, 43, 93 L. Ed. 2d 216, 107 S. Ct. 353 (1986) (citation omitted)). Emphasizing that only an "'extraordinary showing' of a contrary intention from the legislative history would justify interpretive departure from a statute's plain meaning," id. (quoting Garcia v. United States, 469 U.S. 70, 75, 83 L. Ed. 2d 472, 105 S. Ct. 479 (1984)), the court concluded that the plain meaning of § 3583 precluded the imposition of a new term of supervised release after an initial term of supervised release is revoked. Citing the Fifth Circuit with approval, the court found that "revoke" means to cancel or to rescind, and that after revocation, "the term of release no longer exists." 973 F.2d at 134-35 (quoting United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992)). The Ninth Circuit arrived at the same conclusion, and stated that regardless of the government's argument that it would be logical for a court to reimpose a new term of supervised release after revocation of the initial term, "Congress has enacted an unambiguous statute that does not provide courts with that option. We would exceed our authority were we to judicially rewrite that legislation." United States v. Behnezhad, 907 F.2d 896, 899 (9th Cir. 1990).
Based on a similar decision within its own Circuit, the Fowler court concluded that the language of § 841(c) dictates the same result. Both § 3583(e)(3) and § 841(c) provide for revocation, but neither grants any authority to reimpose the revoked sanction. Congress later amended § 3583 to allow for the reimposition of successive terms of supervised release. See 18 U.S.C. 3583(h). The Parole Commission argues here that because Congress thus amended the supervised release statute, that amendment evinces Congress' comparable intent that successive terms of special parole be permitted by § 841(c). This assertion -- that the amendment of one statute suggests Congress' intent in drafting another statute several years prior -- is dubious at best. Moreover, Congress could just as easily have drafted parallel legislation that would have explicitly permitted the Parole Commission to reparole to special parole those persons who remained under its purview subject to then-repealed § 841(c). This Congress did not do, and the plain meaning of § 841(c) does not provide for the reimposition of special parole. The amendment of § 3583 cannot compel such a construction of § 841(c).
Because the Court finds that the Parole Commission lacked the authority under § 841(c) to impose a new term of special parole on Petitioner after the revocation of the initial term of special parole, Petitioner's request for a writ of habeas corpus is granted. This matter is remanded to the Parole Commission for further proceedings consistent with this Opinion. If the Commission determines that Petitioner's period of supervision has not expired, the Commission has the option of imposing a term of traditional parole on Petitioner. If Petitioner violates the terms of his traditional parole and is remanded to prison, his credit for time spent on parole after February 23, 1996 shall be determined by reference to 18 U.S.C. §§ 4210(b)(2) and (c). Should the Commission determine either that the term of supervision has expired, or that it does not wish to impose a term of traditional parole, Petitioner shall be discharged from the supervision of the Parole Commission.
Shira A. Scheindlin
Dated: New York, New York
January 16, 1997