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CALDWELL v. SPEARS

August 21, 1997

TED CALDWELL, Petitioner, against PHILIP SPEARS, Respondent.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Petitioner was sentenced to a term of special parole under 21 U.S.C. § 841(c), since repealed. *fn1" Upon revocation, he was sentenced to a new term of imprisonment. Subsequently, the Parole Commission imposed a new term of special parole. Petitioner contends that Section 841(c) did not empower the Commission to impose the new term of special parole. He seeks a writ of habeas corpus vacating the additional term.

 The question raised here is one that has divided the circuits that have ruled upon it. The Second Circuit has not yet addressed the issue.

 Facts

 Petitioner's relevant criminal history began on March 12, 1980, when he was sentenced to five years in prison and three years of special parole. He was released and his special parole term began on July 24, 1984.

 Petitioner then was arrested by the New York City police in January 1985. Upon his release, the United States Marshal took him into custody. He then pleaded guilty in federal court on May 17, 1985 to possession with intent to distribute heroin and was sentenced to six years in prison followed by five years of special parole. On March 6, 1986, the Parole Commission revoked Caldwell's special parole under the 1980 sentence.

 Petitioner was released from his incarceration under the 1985 sentence on December 15, 1991 and began serving the five-year special parole from the 1985 sentence on October 31, 1992. Petitioner was arrested again on August 3, 1994 for violating the terms of the 1985 special parole. That parole was revoked on November 4, 1994. Petitioner was released on December 1, 1995, subject to another term of special parole not to expire until 1999.

 On June 6, 1996, plaintiff was arrested for violating his 1985 special parole, which was revoked on November 12, 1996. He remains incarcerated until the earlier of December 6, 1998 or the accrual of five years imprisonment under the 1995 special parole sentence.

 Discussion

 The sole question presented here is whether Section 841(c) permitted the Parole Commission to impose a term of special parole in 1995 when petitioner was released from incarceration which itself had been imposed for his violation of the terms of the special parole pursuant to the 1985 sentence. The pertinent statute reads in relevant part:

 
"A special parole term . . . 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 has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term . . . shall be in addition to, and not in lieu of, any other parole provided for by law."

 The circuits that have addressed this question have divided. *fn2" Those which have resolved the question as petitioner urges here have found the analogy between Section 841(c), the special parole statute, and 18 U.S.C. § 3583(e)(3), which deals with the revocation of supervised release, highly persuasive. Reasoning from prior decisions in their circuits, which had held that Section 3583(e)(3) does not authorize district courts to impose a subsequent term of supervised release after an offender violates a condition of an initial term of supervised release, each held that Section 841(c) should be construed in a similar manner.

 The argument for parallel construction of the two statutes is compelling. The language of both is similar. *fn3" Moreover, the similarity ...


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