(1989)). Absent persuasive evidence to the contrary, the term "revoke" should be given the same meaning in both statutes.
Although the Second Circuit has yet to construe Section 841(c), it has interpreted Section 3583, holding that a district court may not impose a new term of supervised release after an initial term is revoked: "'Revoke' generally means to cancel or rescind. Once a term of supervised release has been revoked under § 3583(e)(3), there is nothing left to extend, modify, reduce, or enlarge . . . The term of release no longer exists.'" United States v. Koehler, 973 F.2d 132, 135 (2d Cir. 1992)(quoting United States v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992)) (certain internal quotations omitted).
Given the persuasiveness of the analogy between the supervised release and special parole statutes, the Second Circuit's treatment of the issue in the supervised release context presages the result for special parole. This Court agrees with Judge Scheindlin, the only judge in this district to have addressed the issue, that Koehler's definition of "revoke" in Section 3583 requires the conclusion that Section 841(c) does not permit imposition of a second term of special parole once the initial term is revoked. Strong v. United States Parole Comm'n, 952 F. Supp. 172, 176 (S.D.N.Y. 1997). This view is most consistent with the language of Section 841, which nowhere grants the Parole Commission the power to reimpose special parole, Fowler, 94 F.3d at 840 ("clear absence of statutory authorization").
The government understandably relies on the D.C. Circuit's contrary conclusion in United States Parole Comm'n v. Williams, 311 U.S. App. D.C. 416, 54 F.3d 820; accord, Billis v. United States, 83 F.3d at 211. The Williams court reasoned that (i) the language in Sections 841(c) and 3583 is more different than similar, and (ii) it was clear when Section 841(c) was enacted that "'non-detentive monitoring could follow a prison sentence imposed in consequence of the revocation of a term of parole or special parole.'" Williams, 54 F.3d at 823-24 (quoting United States v. O'Neil, 11 F.3d 292, 298 (1st Cir. 1993)).
To begin with, neither the D.C. Circuit in Williams nor the Eighth Circuit in Billis "was bound by a previous interpretation of the word 'revoke' in the § 3583 context." Robinson, 106 F.3d at 613; accord, Whitney v. Booker, 962 F. Supp. 1354, 1355 (D. Colo. 1997). Here, in contrast, the Second Circuit already has held, and this Court therefore must accept, that Section 3583 does not permit imposition of a new term of supervised release after revocation of an initial term, a holding which is highly instructive if not absolutely conclusive. Moreover, the specific arguments advanced by the Williams court are unpersuasive.
First, this Court agrees with the Third and Fourth Circuits that the similarities in the language of Sections 841 and 3583 outweigh the differences -- the statutes concern revocation of very similar punitive measures.
Second, Williams' assertion that "it was widely understood that any of the existing forms of non-detentive monitoring [including parole] could follow a post-revocation sentence of imprisonment," 54 F.3d at 823, is not helpful. As the Fowler court pointed out, this begs the question of whether special parole -- as distinguished from regular parole -- is available as an option to the Parole Commission. 94 F.3d at 840.
Respondent argues also that, despite the similarity of language, there is "a crucial structural difference between the special parole statue [ sic ] and the supervised release statute." (Resp. Mem. 16) He contends that "a reparole does not amount to the imposition of a 'second term of special parole' . . . but a reinstatement to supervision on the initial special parole term imposed by the sentencing judge." (Resp. Mem. 21) This argument in essence challenges Koehler's definition of "revoke," any criticism of which properly is directed to the Court of Appeals.
Finally, the government argues that the Parole Commission's interpretation of Section 841(c), codified at 28 C.F.R. § 2.57(c), is reasonable and thus entitled to deference under Chevron, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). As the Fowler court explained, however, "we owe no deference . . . to administrative interpretations or regulations that are based upon an impermissible construction of the statute. Indeed, such a regulation or interpretation is invalid." 94 F.3d at 841 (citations omitted).
Accordingly, this Court holds that petitioner's special parole was terminated when it was revoked on November 4, 1994. The Parole Commission lacked authority to impose special parole on petitioner when he was released in 1995.
The petition is granted to the extent that the Court holds that the imposition of special parole on petitioner in 1995 was unauthorized. As it appears that petitioner still is properly in custody, the Court will not order his release. The matter is remanded to the Parole Commission for such further proceedings as may be consistent with this decision.
Dated: August 21, 1997
Lewis A. Kaplan
United States District Judge