	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-50699

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL L. LEWIS,
Defendant-Appellant.
_______________________________
Appeal from the United States District Court
for the Western District of Texas
_______________________________
May 9, 2000
Before WIENER, BENAVIDES, and PARKER, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellant Michael L. Lewis ("Lewis") appeals from the
district court's revocation of his supervised release.
Specifically, Lewis contends that, because the Parole Commission
paroled him in 1998, his original sentence imposing supervised
release must be invalid because supervised release and parole are
mutually exclusive. Therefore, Lewis insists, the district court
lacked jurisdiction over him to revoke his supervised release.
Lewis's argument contains two foundational assumptions, both
flawed. The first is the notion that supervised release and
parole are mutually exclusive; the second is the assertion that

subsequent acts of the Parole Commission could render invalid a
prior, correct judgment. We address each in turn.
Between 1970 and 1986, Congress enacted four different
statutes1 that set forth the sentences for substance abuse
offenses. Lewis is correct when he argues that not one of these
statutes, standing alone, authorizes the imposition of both
parole and supervised release. But what Lewis ignores is that,
in the complex interplay between the statutes' effective and
repeal dates, some persons convicted of drug offenses, like
Lewis, will find themselves on both parole and supervised release
simultaneously. This occurs because з 1002 the Anti-Drug Abuse
Act of 1986 ("ADAA") mandates supervised release for all
individuals convicted of drug offenses after October 26, 1986.
See 21 U.S.C. з 841 (b)(1)(A) (containing the codification of з
1002); see also Gozlon-Peretz v. United States, 498 U.S. 395, 405
(1991) (holding that з 1002 took effect on the date of its
enactment, October 27, 1986). However, the "good conduct
statutes," 18 U.S.C. зз 4161-4164 (repealed 1987), according to
which the United States Parole Commission calculated pre-
guideline offenders' sentences, were not repealed until November
1, 1987. See Sentencing Reform Act, Pub. L. 98-473, Tit. II, з
1
See Controlled Substances Act, Pub. L. No. 91-513, Tit. II, 84
Stat. 1242 (1970); Controlled Substances Penalties Amendment Act, Pub. L. No.
98-473, Tit. II, ch. V, 98 Stat. 2068 (1984); Sentencing Reform Act, Pub. L.
98-473, Tit. II, ch. II, 98 Stat. 1987 (1984); Anti-Drug Abuse Act, Pub. L.
99-570, 100 Stat. 3207 (1986).
2

235(a)(1) (1984) (providing for the repeal of the good conduct
statutes, effective November 1, 1987). The good conduct statutes
provide for mandatory early release based upon good conduct
credits, and further posit that anyone so released shall be
"deemed as if on parole." 18 U.S.C. з 4164. Therefore, for
those individuals convicted of drug offenses that occurred during
the year and four days between October 26, 1986 and November 1,
1987, the Parole Commission will calculate their sentences
pursuant to the good conduct statutes--thereby allowing them to be
paroled--but the district court will also sentence them to
supervised release in accordance with the ADAA.2
We are cognizant of the fact that з 1002 of the ADAA also
contained the language: "No person sentenced under this
subparagraph shall be eligible for parole during the term of
imprisonment imposed therein." We are thus confronted with a
direct conflict between зз 4161-4164 and з 1002 for the time
period after October 26, 1996 and before November 1, 1997.
However, where two statutes directly conflict, the more specific
of the statutes controls. See In re Armstrong, -- F.3d -- (5th
Cir. 2000), available at 2000 WL 263426 (5th Cir. (Tex.)), at * 4
2
We emphasize that we are in no way implying that parole is
automatic or mandatory for those individuals convicted of drug offenses
occurring after October 26, 1986 and before November 1, 1987. The Parole
Commission's grant of parole depends entirely on whether the individual
incarcerated earned early parole through his good conduct. Our holding does
not impact in the slightest the Parole Commission's decision-making process as
to whether to grant parole; rather, we simply hold that the Parole
Commission's determination to grant parole in this instance can be construed
as being consistent with the law in effect at the time.
3

("One basic principle of statutory construction is that where two
statutes appear to conflict, the statute addressing the relevant
matter in more specific terms governs."). Here, we have general
(though absolute) language in з 1002 barring parole contrasted
with specific instructions for calculating sentence lengths,
including parole, in зз 4161-4164.3 Moreover, з 235(a)(1) of the
Sentencing Reform Act specifically mandated the repeal of зз
4161-4164 on November 1, 1987, thereby eliminating the
possibility that Congress intended implicitly to repeal зз 4161-
4164 with з 1002. See generally Jackson v. Stinnett, 102 F.3d
132, 135 (5th Cir. 1996) ("It is hornbook law that `repeals by
implication are not favored.'" (quoting Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987))). Therefore,
despite the conflict, we hold that, for persons convicted of drug
3
For instance, з 4161 states:
Each prisoner convicted of an offense against the United States
and confined in a penal or correctional institution for a definite
term other than for life, whose record of conduct shows that he
has faithfully observed all the rules and has not been subjected
to punishment, shall be entitled to a deduction from the term of
his sentence beginning with the day on which the sentence
commences to run, as follows:
Five days for each month, if the sentence is not less that six
months and not more than one year.
Six days for each month, if the sentence is more than one year and
less than three years.
Seven days for each month, if the sentence is not less than three
years and less than five years.
Eight days for each month, if the sentence is not less than five
years and less than ten years.
Ten days for each month, if the sentence is ten years or more.
When two or more consecutive sentences are to be served, the
aggregate of the several sentences shall be the basis upon which
the deduction shall be computed.
4

offenses occurring after October 26, 1986 and before November 1,
1987, the possibility exists--depending on the good conduct of the
individual incarcerated and the calculations of the Parole
Commission--that such individual might experience both parole and
supervised release concurrently. Because parole and supervised
release may coexist, we decline Lewis's invitation to infer error
in the district court's judgment from the fact of the
simultaneous presence of parole and supervised release in his
post-incarceration life.
More fundamentally, however, Lewis's novel attempt to
vitiate a valid district court judgment by means of his
subsequent parole derives from an old error of logic: post hoc,
ergo propter hoc. Lewis does not contest the validity of the
district court's judgment when issued, nor could he successfully:
supervised release was available and a valid condition on Lewis's
freedom from incarceration. How the subsequent actions of the
Parole Commission can transmogrify a valid district court
judgment into an unenforceable edict Lewis does not explain,
though this is the central premise of his argument. We need not
attempt to intuit his reasoning, however, because his conclusion
is plainly incorrect: no action of the Parole Commission's could
invalidate the valid district court's judgment. From this
perspective, even if parole and supervised release were mutually
exclusive, the district court's judgment would still be valid
because the separation of powers doctrine insulates the validity
5

of the district court's judgment from the subsequent acts of an
executive agency like the Parole Commission. See United States
v. Einspahr, 35 F.3d 505, 507 (10th Cir. 1994) ("Preserving this
delicate balance of authority requires that the power of
executive agencies with respect to parole not circumscribe the
ability of the courts to set specific sentences."). Therefore,
the fact of Lewis's parole in 1998 cannot cast doubt upon the
propriety of the imposition of supervised release by the district
court in 1993, and, once again, we reject Lewis's contention that
the district court's judgment is invalid.
Because the district court judgment imposing supervised
release is valid, the district court had jurisdiction over Lewis
to revoke his supervised release. We therefore affirm.
AFFIRMED
6