Unpublished Disposition, 888 F.2d 130 (9th Cir. 1993)

MEMORANDUM^*

Martin Allen Johnson appeals the district court's denial of his petition for habeas corpus. We affirm.

FACTS AND PROCEEDINGS

On October 10, 1986, the United States District Court for the District of Oregon sentenced Johnson to a twenty-two year term of imprisonment and a six-year special parole term for possession with intent to distribute cocaine, possession with intent to distribute marijuana, and possession of a firearm by a convicted felon. Johnson is ineligible for parole until August 28, 1993. After reviewing his case, the United States Parole Commission ("Commission") issued a notice of action that Johnson was to be continued to a presumptive parole after the service of eighty-eight months, as soon as he was eligible for parole. The notice of action also stated that this decision was not appealable to the Commission's National Appeal Board since Johnson would be paroled on his eligibility date.

Johnson subsequently filed this petition for habeas corpus, claiming that the Commission unlawfully refused to set his release date within the guidelines set by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837. These guidelines would authorize Johnson's parole within fifty-two to sixty-four months, rather than the eighty-eight months set by the Commission. The magistrate assigned to the case recommended that Johnson's petition be denied. The district court adopted this recommendation, denied Johnson's petition, and dismissed the case.

ANALYSIS

The Sentencing Reform Act of 1984 (the "Act") became effective on November 1, 1987. See id. at 761. The Act provided that the Commission would be abolished five years from the Act's effective date and that those sections which constituted the Commission's statutory framework would be repealed. See Sentencing Reform Act of 1984, Title II, Secs. 218(a) (5), 235(b) (2), 98 Stat. at 2027, 2032. Section 235(b) (3) of the Act, as amended, provides that during its "winding up" phase, the "Commission shall set a release date, for an individual who will be in its jurisdiction the day before the expiration of five years after the effective date of this Act, pursuant to section 4206 of Title 18, United States Code." Id., Sec. 235(b) (3), 98 Stat. at 2032, amended by Sentencing Act of 1987, Pub. L. No. 100-182, Sec. 2, 101 Stat. 1266. Section 4206, in turn, grants the Commission the authority to disregard the guidelines for "good cause." 18 U.S.C. § 4206(c); see Tripati v. United States Parole Commission, 872 F.2d 328, 329-30 (9th Cir. 1989).

In its notice of action to Johnson, the Commission exercised its discretion under section 4206 to exceed the guidelines. It did so because Johnson was subject to a minimum sentence before parole pursuant to 18 U.S.C. § 4205(a). This provision states in relevant part that:

Whenever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence over thirty years, except to the extent otherwise provided by law.

18 U.S.C. § 4205(a).

Johnson argues that when the Act repealed section 4205 on November 1, 1987, the minimum sentence requirement lost all force and effect as to him and that he is now covered by the sentencing guidelines in effect pursuant to the Act. He further contends that despite the discretion section 4206 vests in the Commission to exceed the guidelines, the Commission is bound by the guidelines and must accord Johnson parole within fifty-two to sixty-four months. We disagree.

Johnson's contention that the Commission is bound by the guidelines contradicts both the plain language of the statute and this court's decision in Tripati. In that case, the appellant argued that the repeal of section 4206 "eliminated the [Commission's] authority to exceed the guide-lines." Tripati, 872 F.2d at 330. We held, however, that "Sec. 4206 remains in effect for individuals convicted before November 1, 1987." Id. Johnson was sentenced in 1986. Thus, section 4206, with the discretion it vests in the Commission to exceed the guidelines, is fully applicable to him.

As to Johnson's argument that the repeal of section 4205 relieves him of having to serve a minimum of one-third of his sentence, this contention lacks any merit. As we stated in United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987), "the Savings Clause [in 1 U.S.C. § 109] bars retroactive application of statutes where such application would extinguish a penalty."¹  And, as we stated in Stange, "the Act's savings clause expressly provides that Chapter 311 of Title 18, which includes section 4205(a), shall remain in force for the five-year transition period covered by [section 235(b) (3) of the Act]." Stange, 875 F.2d at 762.

Because the Commission had the authority to exceed its guidelines and because section 4205(a) requires Johnson to serve at least one-third of his sentence, he is not eligible for parole until August 28, 1993. The district court's denial of Johnson's petition for a writ of habeas corpus is AFFIRMED.²