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Romano v. Luther

decided: April 3, 1987.

CARMINE ROMANO, PLAINTIFF-APPELLANT,
v.
DENNIS LUTHER, WARDEN, AND BENJAMIN F. BAER, CHAIRMAN, DEFENDANTS-APPELLEES



Appeal from a judgment of the District Court for the District of Connecticut (T.F. Gilroy Daly, Chief Judge) denying plaintiff's petition for a writ of habeas corpus, challenging failure of the United States Parole Commission to apply parole guidelines pursuant to subsection 235(b)(3) of the Comprehensive Crime Control Act of 1984. Affirmed.

Author: Newman

Before: NEWMAN, CARDAMONE, and WINTER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

The Comprehensive Crime Control Act of 1984 ("CCCA" or "Crime Control Act") introduced a number of changes into the administration of federal criminal justice, including a sweeping revision of sentencing law and process. The current system whereby judges exercise broad discretion to impose a indeterminate sentences and the United States Parole Commission determines how much of the sentence will be served in prison will be replaced by a new system under which judges will impose determinate sentences under guidelines to be issued by the United States Sentencing Commission and parole will be abolished. This appeal concerns the duties of the Parole Commission under the transition provisions of the CCCA governing the shift from indeterminate sentences with parole to fixed sentences without parole. Specifically, the appeal concerns the scope and timing of the obligation imposed by subsection 235(b)(3) of the CCCA upon the Parole Commission to set a parole release date for certain federal prisoners that falls within their applicable parole guideline ranges. The appeal is brought by Carmine Romano from a judgment of the District Court for the District of Connecticut (T.F. Gilroy Daly, Chief Judge) denying his petition for a writ of habeas corpus. Romano contended that he is currently entitled to the benefit of subsection 235(b)(3). The District Court rejected this contention. For reasons that follow, we affirm the judgment of the District Court, although we do not entirely share the District Court's interpretation of subsection 235(b)(3).

Background

Romano has been in custody since his arrest in October 1981. On February 5, 1982, Romano received a twelve-year sentence for violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (1982); conspiring to violate RICO, 18 U.S.C. § 1962(d); aiding and abetting violations of the Taft-Hartley Act, 29 U.S.C. § 186(b)(1) (1982), and 18 U.S.C. § 2 (1982); and misusing union funds in violation of 18 U.S.C. § 1954(1) & (2) (1982) and 18 U.S.C. § 2. United States v. Romano, 684 F.2d 1057 (2d Cir.), cert. denied, 459 U.S. 1016, 74 L. Ed. 2d 509, 103 S. Ct. 375, 103 S. Ct. 376 (1982). Present federal parole guidelines indicate a period of incarceration of 40-52 months for persons with Romano's "offense characteristics" and "offender characteristics." 28 C.F.R. § 2.20 (1986); Romano v. Baer, 805 F.2d 268, 269 (7th Cir. 1986). Nonetheless, the Parole Commission has chosen to continue Romano to the expiration of his sentence because of aggravating factors of his offense. See id. at 271 (rejecting Romano's claim that the Parole Commission impermissibly double-counted "aggravating factors" of the crime in continuing Romano beyond the guideline period). Absent forfeiture of good-time credits, Romano is scheduled for mandatory release on November 27, 1988.

On February 28, 1986, Romano brought before the Parole Commission a claim that subsection 235(b)(3) of the CCCA requires the Commission immediately to set release dates for all federal prisoners within the applicable parole guidelines. The Commission rejected this view of subsection 235(b)(3). After exhausting his administrative remedies, Romano petitioned the District Court for a writ of habeas corpus. The Government opposed the petition, contending that subsection 235(b)(3) will not become effective until November 1, 1987. Chief Judge Daly rejected that argument but nonetheless denied Romano's petition on the merits, holding that "the section only requires the Commission to set a release date early enough so that an inmate can appeal before October 12, 1989," Memorandum of Decision of the District Court at 5 (Sept. 23, 1986). The District Court also ruled that subsection 235(b)(3) does not violate equal protection requirements.

Discussion

The issues presented by this appeal require understanding of the statutory framework of the CCCA. Unfortunately, the understanding is obscured by the nomenclature used by Congress in the text of the CCCA and in the legislative history, especially the terminology used to describe the various components of the statute. Because the statute is an amalgamation of various bills originally drafted in the expectation of being enacted independently of other bills, some ambiguity was created when the components were consolidated in the CCCA.

The Comprehensive Crime Control Act was enacted as Title II of House Joint Resolution 648, 98th Cong., 2d Sess. Pub. L. No. 98-473, 98 Stat. 1837 (1984).*fn1 The preamble of Title II states that the title may be cited as the "Comprehensive Crime Control Act of 1984." The CCCA contains 23 chapters, each making changes in a different area of federal criminal law. Chapter II of the CCCA creates the new system of determinate sentences to be imposed under sentencing guidelines, CCCA § 212, and abolishes parole, id. § 218(a)(5). Section 211, the first section of Chapter II states that the chapter may be cited as the "Sentencing Reform Act of 1984." Chapter II was originally drafted as a separate bill. S. 668, 98th Cong., 1st Sess. (1983). Thus, the statute at issue contains more than one component that may correctly be referred to as an "act": the Crime Control Act and the Sentencing Reform Act.*fn2

Section 235 of the Crime Control Act is headed "EFFECTIVE DATE." it establishes a uniform effective date for most provisions of Chapter II (the Sentencing Reform Act), provides for certain exceptions to the uniform effective date, and contains special provisions related to the transition from the current system of sentencing to the new system. Subsection 235(a)(1), as originally enacted, provides that "This chapter," i.e., Chapter II, the Sentencing Reform Act, "shall take effect on the first day of the first calendar month beginning twenty-four months after the date of enactment" with some exceptions. Congress subsequently extended the twenty-four month period to thirty-six months. Pub. L. No. 99-217, § 4, 99 Stat. 1728 (1985). Since H.R.J. Res. 648, containing the entirety of the Crime Control Act, was enacted on October 12, 1984, the effective date prescribed in subsection 235(a)(1) for most of the Sentencing Reform Act is now November 1, 1987.

One of the exceptions to the effective date provision of subsection 235(a)(1) concerns the timetable for the issuance and effectiveness of the sentencing guidelines, the keystone of the new sentencing system. Subsection 235(a)(1)(B)(i) provides that Chapter 58 of Title 28, United States Code, which creates the Sentencing Commission, see CCCA, § 217(a), shall take effect "on the date of enactment of this Act or October 1, 1983, whichever occurs later." Whether "this Act" in the quoted phrase refers to the Crime Control Act as a whole or its component, the Sentencing Reform Act, makes no difference, since both were simultaneously enacted on October 12, 1984. The legislative history makes clear that Congress wanted the Sentencing Commission to begin its work promptly. See S. Rep. No. 225, 98th Cong., 1st Sess. 188, reprinted in 1984 U.S. Code & Admin. News 3182, 3371 ("Senate Report"). Thus, the Sentencing Commission was established as of October 12, 1984. Subsection 235(a)(1)(B)(i), as originally enacted, further provides that the Sentencing Commission shall submit the initial sentencing guidelines "within eighteen months of the effective date of the chapter." Congress subsequently extended the eighteen-month period to thirty months, Pub. L. No. 99-217, supra, § 2(a), and more recently amended the phrase "the chapter" to read "such chapter 58," Pub. L. No. 99-646, § 35(1), Stat. (1986). Since Chapter 58 became effective on October 12, 1984 (the enactment date of the Crime Control Act and its component, the Sentencing Reform Act), the current deadline for submission of the sentencing guidelines would be April 12, 1987; however, that date is a Sunday, and the submission date is therefore April 13, 1987.*fn3

The effective date of the sentencing guidelines is governed by subsection 235(a)(1)(B)(ii). As enacted, this subsection provided that the guidelines shall go into effect the day after the completion of three events: the submission of the guidelines to Congress; the completion of a study of the guidelines by the General Accounting Office, which must be sent to Congress within 150 days of the submission of the guidelines; and the elapse of six months from the submission of the guidelines to afford Congress an opportunity to study them. See CCCA § 235(a)(1)(B)(ii) (I), (II), (III). Thus, the latest date the guidelines originally would have become effective was October 13, 1987. In the most recent amendment of the Crime Control Act, Congress synchronized the effective dates for the sentencing guidelines and the effective date of the Sentencing Reform Act by amending subsection 235(a)(1)(B)(ii) to provide that the initial set of guidelines shall not go into effect until November 1, 1987. Pub. L. No. 99-646, supra, § 35(2).*fn4

Having established the timetable for the submission and effective date of the guidelines, Congress then included in subsection 235(b) several provisions concerning the transition from the current to the new sentencing system. For example, with respect to those sentenced under the current system, subsection 235(b)(1) continues in effect for a five year transition period various provisions of existing law, including Chapter 311 of Title 18 of the United States Code, the chapter establishing the United States Parole Commission and defining its duties. See CCCA, § 235(b)(1)(A). And subsection 235(b)(3), set out in the margin,*fn5 the provision at issue on this appeal, requires the Parole Commission, prior to its abolition, to set a parole release date for certain prisoners within their applicable guideline ranges; the category of affected prisoners is defined with reference ...


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