UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-4340 Summary Calendar

KARL L. CANNON, Petitioner,

versus

U.S. DEPARTMENT OF JUSTICE, UNITED STATES PAROLE COMMISSION, Respondent.

Appeal from the Determination of the United States Parole Commission

(September 17, 1992)

On Petition for Rehearing

(Opinion May 19, 1992, 5th Cir. 1992_____F.2d____) Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit Judges.

POLITZ, Chief Judge:

The United States Parole Commission seeks a rehearing, urging

that our panel decision erred in two separate respects: (1) in

holding that the Commission rather than the Bureau of Prisons must

take into account foreign good-time credits in computing a release

date, and (2) in holding that U.S.S.G. § 5G1.1(b) applies when the foreign-court-imposed sentence exceeds the guideline range.

Discussion

Although we deny the relief requested in the petition for

rehearing, we believe that this infrequently visited area of the

law would benefit from an explication of the interaction between

the Constitution,1 Prisoner Transfer Treaty (Treaty),2 the

Treaty-related legislation,3 other relevant legislation,4 federal

regulations for the Parole Commission and the Bureau of Prisons,5

other secondary interpretive sources,6 Treaty-prisoner case law,7

1 U.S. Const. art. VI, cl. 2.

2 Treaty on the Execution of Penal Sentences, November 26, 1976, United States -- Mexico 20 UST 7399; T.I.A.S. No. 8718.

3

, 4100-4115.

4

(a) (release of prisoners),

(b) (satisfactory behavior credits),

(good time credits) (repealed), and

(parole) (repealed).

5

, 500-572 (Bureau of Prisons),

(United States Parole Commission), and 28 C.R.R. §§ 2.1-2.66 (Parole Regulations).

6 H.R. Rep. 95-720, 95th Cong., lst Sess. 1977 reprinted in 1977 U.S.C.C.A.N. 3146 (although the Report discusses the pre-SRA version of the Treaty-related legislation, it is nonetheless highly persuasive).

7 Malin v. U.S. Parole Com'n,

(5th Cir. 1990) (table) (unpublished opinion); Thorpe v. U.S. Parole Com'n,

(5th Cir.), cert. denied, _____ U.S. _____,

,

(1990); Hansen v. U.S. Parole Com'n,

2 and the distinction between pre-Sentencing Reform Act8 (SRA) parole

and post-SRA supervised release.

Treaty Provisions as the Supreme Law of the Land

Relevant Treaty provisions include:

Sentences imposed in the United Mexican States on nationals of the United States of America may be served in penal institutions or subject to the supervision of the authorities of the United States of America in accordance with the provisions of this Treaty.9

The Transferring State shall furnish the Receiving State a statement showing the offense of which the offender was convicted, the duration of the sentence, the length of time already served by the prisoner and any credits to which the offender is entitled, such as, but not limited to, work done, good behavior or pretrial detainment.10

Each Party . . . shall establish adequate procedures, to give for the purposes of this Treaty, legal effect, within its territory to sentences pronounced by the courts of the other Party.11

The Transferring State shall afford an opportunity to the Receiving State . . . to verify, prior to transfer, that the offender's consent to the transfer is given voluntarily and with full knowledge of the

(5th Cir. 1990), cert. denied, _____ U.S. _____,

,

(1991).

8 The Sentencing Reform Act of 1984, Title II of the Comprehensive Crime Control Act of 1984, codified at

et seq.

9 Treaty, Article I(2) (emphasis ours).

10

Article IV(7) (emphasis ours).

11

Article IV(9).

3 consequences thereof. . . .12

Except as otherwise provided in this Treaty, the completion of a transferred offender's sentence shall be carried out according to the laws and procedures of the Receiving State, including the application of any provisions for the reduction of the term of confinement by parole, conditional release or otherwise.13

The Transferring State shall have exclusive jurisdiction over any proceedings, regardless of their form, intended to challenge, modify, or set aside sentences handed down by its courts.14

Article VI of the United States Constitution provides in

pertinent part that a treaty shall be the supreme law of the land.

Courts construe Treaties just as they do statutes.15 These Treaty

provisions clearly and unequivocally direct that the total time

imposed in the foreign-court-imposed sentence shall be the sentence

of the Treaty prisoner upon transfer.16 A Commission proceeding

which sets a release date varying the total foreign-court-imposed

sentence would be a proceeding, albeit in the form of a release

12

Article V(1), second sentence (emphasis ours). See

(b)(1) (verifying officer shall inquire as to transferee's understanding and agreement that "only the [sentencing court] may modify or set aside the conviction or sentence."). See, also, Report at 25-26, 37, 41-44, reprinted in 1977 U.S.C.C.A.N. at 3148, 3159-3160, 3164-3166.

13

Article V(2) (emphasis ours).

14

Article VI, first sentence (emphasis ours).

15 See United States v. Alvarez-Machain, _____ U.S. _____,

(1992).

16 Report at at 41-43, reprinted in 1977 U.S.C.C.A.N. at 3164-3166.

4 date determination, which "modif[ies a] sentence handed down by

[the Mexican] courts," contrary to Article VI and

(1).17 Consistent therewith, the Commission may not authorize

a release date which results in the total period of incarceration,

plus the period of supervised release, being less than or greater

than the total foreign-court-imposed sentence.

In discussing the constitutionality of

,

Congress recognized the sovereignty issue inherent in such

determinations:

[N]either the United States nor any other country . . . would have acquiesced to a [Treaty] provision which would permit the courts of the Receiving State to set aside or modify a sentence imposed by the courts of the Transferring State. Otherwise the fundamental sovereignty of a nation over crimes committed within its territorial boundaries would be impaired. Report at 42, reprinted in 1977 U.S.C.C.A.N. at 3164-3165.

Treaty Article V(2) reinforces this conclusion, deeming applicable

the laws of the United States which provide for a "reduction of the

term of confinement by parole, conditional release or otherwise."

The in pari materia meaning of Articles V(2) and VI is clear and

unambiguous -- the term of confinement may be determined as

17

is entitled "Jurisdiction of proceedings relating to transferred offenders."

When a treaty is in effect between the United States and a foreign country providing for the transfer of convicted offenders --

(1) the country in which the offender was convicted shall have exclusive jurisdiction and competence over proceedings seeking to challenge, modify, or set aside convictions or sentences handed down by a court of such country; . . .

5 permitted by United States law; therefore, only the sentencing

court may change the total sentence imposed, i.e. confinement plus

any conditional release.18 The prohibition against direct or

collateral attacks upon the sentence in any court except the

foreign sentencing court, however, does not otherwise preclude or

suspend the transferee's right to seek a writ of habeas corpus on

other matters related to the manner of execution of the sentence.19

Treaty-related Legislation20

Absent clear and express congressional intent to the contrary,

Treaty-related legislation and regulations must be construed in

harmony with their source, the Treaty. Other general legislation

and regulations which operate in tandem with the Treaty must also

be construed in light of and consistently with the Treaty. The

relevant statutes and regulations include:

Except as provided elsewhere in this section, an offender serving a sentence of imprisonment in a foreign country transferred to the custody of the Attorney General shall remain in the custody of the Attorney General under the same conditions and for the same period of time as an offender who has been committed to the custody of the Attorney General by a court of the United States for the period of time imposed by the sentencing

18 Inclusio unius est exclusio alterius . Treaty, Article VI, first sentence.

19 Report at 25-26, 27, 41-43, reprinted in 1977 U.S.C.C.A.N. at 3148, 3149-50, 3164-3166.

20 See Report, passim.

6 court.21

(1) The transferred offender shall be entitled to all credits for good time, for labor, or any other credit toward the service of the sentence which had been given by the transferring country for the time served as of the time of transfer. Subsequent to the transfer, the offender shall in addition be entitled to credits toward service of sentence for satisfactory behavior, computed on the basis of the time remaining to be served at the time of the transfer and at the rate provided in section 3424(b) of this title for a sentence of the length of the total sentence imposed and certified by the foreign authorities. These credits shall be combined to provide a release date for the offender pursuant to section 3624(a) of this title.22

(1)(A) The United States Parole Commission shall, without unnecessary delay, determine a release date and a period and conditions of supervised release for an offender transferred to the United States to serve a sentence of imprisonment, as though the offender were convicted in a United States district court of a similar offense. (B) In making such determination, the United States Parole Commission shall consider -- (i) any recommendation of the United States Probation Service, including any recommenda- tion as to the applicable guideline range; and (ii) any documents provided by the transferring country; relating to that offender. (C) The combined periods of imprisonment and supervised release that result from such determination shall not exceed the term of imprisonment imposed by the foreign court on that offender.23

The Commission urges as controlling its interpretation of the

statutes relating to the respective roles of the Commission and the

21

(a).

22

(c)(1).

23 18 U.S.C. §§ 4106A(b)(1)(A)-(C).

7 Bureau of Prisons in the determination of a post-SRA

Treaty-prisoner's release date. The Commission suggests that

18 U.S.C. § 4106A only requires the Commission to determine a

discretionary release date and that it must do so without respect

to the

(b) satisfactory-behavior credit. The

Commission then posits that

requires the Bureau of

Prisons to establish a mandatory release date which takes into

account the section 3624(b) credits as provided by section 3624(a).

The Commission cites no controlling authority for this

purported division of authority respecting determination of release

dates for a Treaty prisoner. Contrary to the Commission's urging,

Malin is inapposite. In dictum the Malin court acknowledged the

Commission's position that "the computation of good time credits is

the responsibility of the U.S. Bureau of Prisons.

(h), 527.45(a)(2) (1989)." This dictum is correct but only

for a pre-SRA prisoner. The Malin dictum cites to parole and

good-time credit provisions which were repealed concurrently with

the enactment of the Sentencing Reform Act,24 none of which are

applicable to a post-SRA prisoner such as Malin. Malin, however,

was eligible both for foreign credits under the Treaty and for the

satisfactory behavior credit under section 3624(b).

Section 4106A(b)(1)(A) expressly obliges the Commission, and

24 Act of Oct. 12, 1984, P.L. 98-473, Title II, Ch. II, § 218(a)(4),

, effective on the first day of the first calendar month beginning 36 months after enactment as provided by § 235(a)(1) of such Act, as amended, which appears as

note.

8 not the Bureau of Prisons, to make the release date determination.

Section 4105(c)(1) requires that the release date include the

section 3624(b) satisfactory-behavior credits as computed in

section 3624(a) but does not delegate the determination of the

release date to the Bureau of Prisons. We conclude that the

Commission's argument that the release date referred to in

section 4106A is not the same release date referred to in

section 4105 lacks merit.25

We perceive that the Commission views its statutory

obligations toward Treaty prisoners as one similar to its pre-SRA

prisoner obligation to determine an initial, discretionary parole

date in conjunction with the Bureau of Prison's statutory

obligations to release a prisoner on his actual release date.26 If

we are correct in this perception, the Commission misapprehends its

statutory duty under the Treaty-related legislation. The

Treaty-related statute commits mandatory release date

determinations to the Commission. Consistent with that obligation,

the Commission has adopted a regulation for Treaty prisoners which

expressly provides for permanent retention of Commission

jurisdiction over release date determinations.

The jurisdiction of the Parole Commission to set a release date and periods and conditions of supervised release extends until the transferee is released from prison or the transferee's case is otherwise transferred to a district court pursuant to an order of the

25 See

(a)(2), (k) (1991), discussed infra.

26 See

.96b (1991).

9 Commission.

(a)(2).

Consistent with the Commission's retention of jurisdiction,

(k) provides for reopening or modification of a

determination prior to transfer or termination of jurisdiction.

The Commission's argument that the Bureau of Prisons has authority

to make a release date determination for a Treaty prisoner is

inconsistent with its own regulation. We accordingly reject it.

The Commission states in its petition for rehearing that it

has recently adopted an interpretive regulation to which we should

defer. This revision would add a sentence to

(a)(1) providing that "U.S. Code provisions requiring

mandatory minimum terms or minimum periods of supervised release

shall not apply to prisoners transferred pursuant to treaty who are

serving terms of imprisonment imposed by foreign courts for

violating foreign law."27 Although we are very dubitante that this

substantive regulation amending the guidelines as applied to Treaty

prisoners would withstand judicial scrutiny under our holding

herein, we need not reach that question. Our research has revealed

that the Commission did not promulgate this regulation in

accordance with the law, and, hence, it has no legal effect.28

We hold that section 4106A(b) requires the Commission to make

27 Memorandum from the Office of the Chairman of the U.S. Parole Commission, dated May 29, 1992, subject matter -- Minutes - U.S. Parole Commission's Open Business Meeting, April 28-30.

28

(6) (Substantive Commission regulations shall be promulgated pursuant to

and

).

10 a timely, mandatory release date determination and that the

jurisdiction to make a redetermination in light of changed

circumstances remains exclusively with the Commission.29 Any

perceived inconvenience or difficulty with this scheme is more

appropriately addressed to the Congress.

Total Sentence Less than Foreign-Court-Imposed Sentence

The Commission urges that the language of 18 U.S.C.

§ 4106A(b)(1)(C) which provides that "[t]he combined periods of

imprisonment and supervised release that result from [the

Commission's] determination shall not exceed the term of

imprisonment imposed by the foreign court on that offender"

authorizes a release date determination that results in a total

sentence which is less than the foreign-court-imposed sentence.

While we agree that the statute may be susceptible of such a

reading, when construed in light of the Treaty it becomes apparent

that section 4106A(b)(1)(C) is merely a codification of Treaty

Article V(3). The statute does not address the issue of variation

of foreign-court-imposed sentence because Treaty Article VI and

(1)30 otherwise foreclose that issue and we cannot

29 Accord,

(a)(2). See discussion infra at note 25 and following.

30 Report at 41-44, reprinted in 1977 U.S.C.C.A.N. at 3164-3166.

11 construe the statute as contrary to the Treaty.31

In Thorpe and Malin we affirmed Commission release date

computations which resulted in total sentences slightly less than

the total foreign-court-imposed sentence. In doing so we

inadvertently erred in affirming inappropriate applications of

section 4106A(b)(a)(C). In neither case, however, did the

appellant challenge the Commission's legal authority to deviate

from the total sentence imposed by the Mexican courts.32 Those

cases are therefore inapposite and not controlling herein.

Will Cannon Now Spend an Extra Three Months in Prison?

The Commission also suggests in its rehearing petition that

"as a result of this decision, [Cannon will] spend an extra three

months in federal prison." In reaching this conclusion the

Commission evidences a fundamental misunderstanding of the meaning

of a guidelines range determination for a Treaty prisoner. A

guideline range determination is a starting point. The Commission

has the power and the authority under the Treaty, Treaty-related

legislation, and the guidelines to set any release date from

incarceration as long as adequate reasons33 support the decision to

31 Lem Moon Sing v. United States,

,

,

(1895).

32 In

we affirmed a Commission release date computation that exactly matched the 84-month total sentence imposed by the Mexican courts.

33 Williams v. United States,

,

,

(1991).

12 depart from the guideline range34 on the record, and the total of

the term of incarceration and supervised release equals the

foreign-court-imposed sentence. Therefore, contrary to the

Commission's assertion, our panel decision need not increase by a

single day the term of incarceration served by Cannon or any other

Treaty prisoner. That determination is and remains the

responsibility of the Commission.

Application of Pre-Transfer Credits

We expressly hold, for sake of clarity, that any pre-transfer

credits applicable to a Treaty prisoner's term of incarceration,

including but not limited to work done, good behavior, or pretrial

confinement,35 shall be applied only to the original foreign-court-

imposed sentence by the Commission when making a release date

determination. Having done this, the Commission is free to

determine a release date as discussed above.

Harmless Error and Commission Release Date Determinations

The guidelines apply to Treaty prisoners whose offense of

34 See U.S.S.G. § 5K2.0 (p.s.). See, also, U.S.S.G, Chapter One - Introduction and General Principles, Part A, § 4(b) Departures.

35 Treaty, Article IV(7).

13 conviction occurred after November 1, 1987.36 In Williams v. United

States the Supreme Court held that an error in the application of

the guidelines need not result in a remand to the sentencing court

if the court of appeals determines that the same sentence would

have been imposed absent the error.

We have not previously considered the applicability of

Williams to a Commission release date determination. We now hold

that the analysis of the Williams decision applies directly to a

Commission release date determination and, therefore, the

Commission release date determination may be reviewed for harmless

error. In the case at bar, however, because we cannot ascertain

from the record whether the Commission properly determined Cannon's

release date in light of his potential section 3624(b) satisfactory

behavior credits, we cannot conclude that the error was harmless.

That precipitated our remand order for a redetermination of

Cannon's release date.

Application of U.S.S.G. § 5G1.1(b) to Commission Determination

We begin this part of our discussion by recognizing that the

congressional decision to use the sentencing guidelines to direct

a Commission release date determination creates an imperfect fit at

best. Nonetheless, Congress so chose and it is our constitutional

task to apply the guidelines in the manner which best comports with

that choice.

36 18 U.S.C. § 4106A(c); Hansen,

.

14 In our original consideration of the application of U.S.S.G.

§ 5G1.1(b), we did not write on a tabula rasa. Rather, we began by

considering our circuit precedent in Thorpe, and found it binding

and persuasive. The Thorpe court held that in an instance in which

a Treaty prisoner had a foreign-court-imposed sentence of 84

months, where the guideline range computed to 151-188 months, the

Mexican court sentence would be deemed the statutory maximum

sentence under U.S.S.G. § 5G1.1(a). Uniformity and stability

require that each panel of our court be bound by the decisions of

prior panels, absent an intervening en banc or Supreme Court

decision, or relevant legislation.37

In the case at bar Cannon had a foreign-court-imposed sentence

of 84 months. Were this an offense committed in the United States,

his guideline range would have been 51-63 months. Following the

lead in Thorpe, we applied U.S.S.G. § 5G1.1(b) and deemed the

foreign-court-imposed sentence to be the statutory minimum. On

rehearing, the Commission laments the fact that our holding will

require a prisoner whose guideline range "is less than the foreign

sentence . . . to serve their entire full sentence less good

time."38 This argument underscores the Commission's confusion about

its role under the Treaty and related legislation and the concept

of departure under the guidelines.

37 See Johnson v. McCotter,

(5th Cir. 1986), cert. denied,

,

,

(1987).

38 Emphasis ours.

15 The Commission, consistent with Article V(2) of the Treaty,

may establish any release date that it deems appropriate under the

guidelines.39 The Commission's statutory mandate -- to employ the

guidelines to establish the release date "as though the offender

were convicted of a similar offense" --40 evinces the congressional

intent to assure the equal treatment of similarly situated Treaty

and non-Treaty prisoners with respect to the term of

incarceration.41 Nonetheless, the express terms of the Treaty limit

this congressional intent and the Commission is not free to vary

the total sentence of a Treaty prisoner.42

Applying U.S.S.G. § 5G1.1(a) or (b) to establish the guideline

range is consonant with international comity considerations of

giving respect to the foreign-court-imposed sentence as expressly

provided for in the Treaty. If the Commission determines that a

downward departure is warranted, the very fact that the guidelines

were not designed with Commission release date determinations for

Treaty prisoners in mind may, without more, support a departure.43

We also observe that by applying U.S.S.G. § 5G1.1(b), we avoid the

39 18 U.S.C. § 4106A(b)(1)(A); Hansen,

.

40 18 U.S.C. § 4106A(b)(1)(A).

41 See Report at 36, reprinted in 1977 U.S.C.C.A.N. at 3159.

42 "Total" in the sense of time of incarceration and supervised release.

43 U.S.S.G. § 5K2.0.

16 potential confusion that might arise if we did not follow the lead

of the Thorpe court.

The Commission also complains in its petition for rehearing

that we implicitly modified U.S.S.G. § 5G1.1(b) to equate a

foreign-court-imposed sentence with a "sentence required by

statute." It is well settled that a Treaty which operates of

itself without aid of legislation is the equivalent of an Act of

Congress.44 Treaty Article X(2) provides that the "treaty shall

enter into force thirty days after the exchange of ratifications.

. . ."45 Generally speaking, the Treaty-related legislation merely

provides a convenient codification of the already effective Treaty

provisions.46 Aside from the ministerial task of appointing an

"Authority" to receive transferred prisoners, the Treaty required

no legislative action other than ratification.47 Procedural

legislation which makes operation of a Treaty more convenient

cannot amend or abrogate a self-executing Treaty.48 Accordingly,

with respect to U.S.S.G. § 5G1.1, a foreign-court-imposed sentence

44 Fellows v. Blacksmith,

,

(1857).

45 Treaty, Article X(2) (emphasis ours).

46 Accord,

Article IV(9).

47 Report at 25-26, reprinted in 1977 U.S.C.C.A.N. at 3147-3148.

48 Cook v. United States,

,

,

(1933); Chew Heong v. United States,

,

,

(1884).

17 is in fact one imposed by the equivalent of an Act of Congress.

The Parade of Horribles

Like Congress,49 we are mindful of the theoretical possibility

that a foreign court might impose a sentence upon a prisoner more

onerous than that imposed by our courts for the same or a similar

offense. For example, a foreign court might impose a 50-year

sentence for an offense that would reap a five-year sentence under

our law. If the offender were then transferred under the Treaty,

the Commission could set any guideline-supported release date for

that prisoner, including immediate supervised release if

appropriate. The Treaty, however, would require that the offender

serve the remainder of the 50-year sentence on supervised release.

This result reflects a Treaty-imposed limitation upon the

congressionally-created fiction that the Commission should treat a

Treaty prisoner's foreign sentence as one imposed by an American

court for the same or similar offense. In the instance of this

theoretical "horrible," a true guideline sentence and a Treaty-

guideline sentence would undoubtedly differ.

We observe that Cannon is not a victim of this theoretical

"horrible." His similar offense of conviction,

(b)(1)(B)(vii), with an offense level of 24, and a criminal

history category I, yielded a guideline range of 51-63 months of

incarceration. Guideline section 5D1.1(a) requires 36-60 months of

49 Report at 36, reprinted in 1977 U.S.C.C.A.N. at 3159.

18 supervised release. It is readily apparent, therefore, that the

Commission could fashion a release date determination and

supervised release period so that Cannon's total foreign-court-

imposed sentence is served as a combination of a term of

incarceration and a term of supervised release.

Regardless of what may be said of the result in the extreme

theoretical case which we have suggested above, as a court of law

we are bound by the Treaty. If this theoretical "horror" is

perceived to be intolerable, it is a matter more appropriately

committed to our coequal branches to correct.

Conclusion

For the reasons stated herein, the petition for rehearing is

DENIED.

19