Cafi, Iljas v. US Parole Commission ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3830
Iljas Cafi,
Petitioner,
v.
United States Parole Commission,
Respondent.
Appeal from the United States Parole Commission
Argued May 9, 2001--Decided September 28, 2001
Before Ripple, Manion, and Kanne, Circuit
Judges.
Manion, Circuit Judge. Iljas Cafi was
convicted in Mexico of possession of
cocaine with intent to transport, and he
was sentenced to ten years’ imprisonment
in Mexico City. About one year later
Cafi, who is an American citizen, was
transferred to the United States (and a
federal prison) pursuant to the Treaty on
Execution of Penal Sentences, Nov. 25,
1976, U.S.-Mexico, 28 U.S.T. 7399
("Prisoner Transfer Treaty" or "Treaty").
After his transfer, the Parole Commission
held a hearing to determine Cafi’s
release date. Cafi appealed the
Commission’s initial determination, but
the Fifth Circuit remanded the case based
on the Commission’s request. More
hearings took place, at the conclusion of
which the Commission set a release date
following 108 months in prison and a term
of 36 months of supervised release, or
until the full term of Cafi’s foreign
sentence expired, whichever came first.
Cafi appeals the Commission’s
determination, arguing that the
Commission erred in setting his release
date and term of supervised release. We
affirm.
I.
On April 9, 1997, Mexican police
arrested Iljas Cafi at the International
Airport in Mexico City, Mexico, after
discovering 17 one-kilogram packets of
cocaine hidden in a black bag later
determined to be owned by Cafi./1 That
same day, Mexican police arrested Claudio
Codognotto who also possessed a black bag
containing approximately 17 kilograms of
cocaine. Codognotto told the Mexican
authorities that he and Cafi had met with
another man named "Brin" or "Brian" who
had provided them with the cocaine. While
it is unclear from the record what
happened to Codognotto, a Mexican court
convicted Cafi of possession of cocaine
with intent to transport and he was
sentenced to ten years’ imprisonment in
Mexico City.
Fortunately for Cafi he is a United
States citizen,/2 and thus under the
Prisoner Transfer Treaty could be
transferred to a United States prison.
Cafi’s transfer was accomplished on June
22, 1998. Following his transfer to the
United States, the Parole Commission
initiated proceedings pursuant to 18
U.S.C. sec. 4106A(b)(1)(A). Section
4106A(b) (1)(A) requires the Commission
to "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." Basically,
this requires the Commission to determine
what Cafi’s sentence would have been
under United States law and the
Sentencing Guidelines, and then to set a
release date based on its determination.
However, in setting a release date and
term of supervised release, the
Commission is constrained by Section
4106A(b)(1)(C), which provides that
"[t]he 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." 18
U.S.C. sec. 4106A(b)(1)(C).
The process began with the United States
Probation Office, which reviewed the
records surrounding Cafi’s conviction in
Mexico and then prepared a "Postsentence
Investigation Report" ("PIR"). The PIR
recommended that Cafi be assigned an
offense level of 31 with a Guidelines
range of 108 to 135 months in prison.
Cafi’s attorney objected to the PIR,
arguing that Cafi was entitled to a two-
level downward adjustment for acceptance
of responsibility and a two-level
downward adjustment for his minor role in
the offense.
Because Cafi objected to the PIR, the
Commission held a hearing to address his
objections. At the conclusion of the
hearing, the hearing examiner recommended
that Cafi receive downward departures for
both acceptance of responsibility and for
his minor role in the offense. Based on
these reductions, the examiner
recommended a sentencing range of 97-121
months and suggested that Cafi’s release
date be set at the lower end, and then be
further reduced by ten months because of
the abuse Cafi had suffered while in the
Mexican prison. Thus, the examiner
recommended a release date for Cafi
following 87 months’ imprisonment.
The examiner’s recommendation was
forwarded to the Parole Commission’s
legal office for review. The legal office
concurred in the examiner’s
recommendation, except that it
recommended that Cafi not receive a two-
level adjustment for a minor role in the
offense because the amount of cocaine was
very large and did not take into account
the cocaine transported by Codognotto.
The legal office then recommended a
release date following 111 months’
imprisonment.
At no time was Cafi informed of, or
given an opportunity to respond to, the
legal office’s recommendation. Rather,
Cafi’s case was forwarded to the
Commission where it was reviewed by two
Commissioners. The Commissioners
apparently decided to follow the legal
office’s recommendation because the
Commission set a release date for Cafi
following 111 months’ imprisonment, to be
followed by a term of supervised release
of the earlier of 36 months or until the
expiration of Cafi’s ten-year Mexican
sentence./3
We say "apparently" because the
Commission did not issue any explanation
for its calculation, nor did the official
"Worksheet for Transfer Treaty
Determination" address the "minor role"
issue. However, the legal office later
issued an Addendum to the Worksheet which
described the rationale behind the
Commission’s decision, stating that the
Commission had decided against the minor-
role adjustment because Cafi "had
possessed a very large amount of cocaine
(17 kilograms) and . . . had direct
contact with the identified organizer of
the crime in which only three
personsparticipated."
Cafi appealed the Commission’s
determination of his release date to the
Fifth Circuit./4 After Cafi filed his
appeal, on July 19, 1999, the legal
office sent a memorandum to the
Commissioners about Cafi’s appeal,
stating that it was persuaded that Cafi
and his attorney should have had some
sort of opportunity to be heard on
whether Cafi was entitled to a "minor
participant" reduction because of "the
particular context of this case," namely
the conflict between the original
examiner’s recommendation and the legal
office’s recommendation, the latter of
which the Commission adopted. The legal
office recommended that the Commission
seek remand of Cafi’s case from the Fifth
Circuit. In response, the next day the
Commission voted to vacate its original
determination and remand Cafi’s case for
rehearing to address the minor-
participant issue. The Commission then
filed a motion to remand with the Fifth
Circuit, noting that Cafi’s counsel had
no objection to the remand. The Fifth
Circuit remanded, putting Cafi’s case
back before the Commission.
Following remand from the Fifth Circuit,
Cafi was transferred to a federal
correctional institution in Greenville,
Illinois. After his transfer, the
Commission held a new hearing concerning
Cafi’s release date, focusing solely on
Cafi’s request for a minor-participant
reduction. A new examiner presided over
the hearing and heard testimony from Cafi
as to his role in the offense, and
argument by Cafi’s attorney as to why
Cafi deserved a reduction for being a
minor participant. At the conclusion of
the hearing, the examiner recommended
that Cafi not get that reduction,
explaining that because Cafi was not from
the Mexico City area, "there would have
had to have been some prior meetings
between [Cafi] and this organizer,
leader, this Mr. Brin, prior to the
actual date in April of 1997 when all
this transpired." The examiner continued,
"So despite the fact that I do find that
that there was someone who was probably
manager or leader . . . I don’t find that
you played a minor role in this offense.
. . ."
The Commission’s legal office once again
reviewed the examiner’s recommendation.
The legal office recommended that the
examiner’s recommendation be adopted and
that Cafi not receive a minor-participant
reduction. The Commission followed the
examiner and the legal office’s
recommendations, setting a 108-month
period of incarceration and a release
date of April 18, 2006./5 The
Commission further required that
"immediately upon release from
imprisonment, [Cafi] commence serving a
36-month period of supervised release, or
until the full term date of your foreign
sentence . . . whichever is earlier . .
. ." Because Cafi’s ten-year foreign
sentence will end on April 18, 2007,
practically that meant that Cafi would
serve only 12 months on supervised
release.
II.
Cafi appeals the Commission’s
determination of his release date.
Initially, Cafi argues that the
Commission erred in determining that he
should serve 108 months in prison with,
in effect, only 12 months of supervised
release, because sec. 5D1.2(a)(2) of the
Sentencing Guidelines requires that he
serve a minimum of 24 months on
supervised release./6 Cafi contends that
because sec. 5D1.2(a)(2) mandates a term
of at least 24 months of supervised
release, the Commission should have set
that term first, and then determined his
term of imprisonment. And because Section
4106A(C) provides that Cafi’s combined
period of imprisonment and supervised
release cannot exceed his foreign
sentence--which was ten years--Cafi
maintains that the Commission should have
set his prison term at 96 months.
Initially, we note that Cafi maintains
that his minimum supervised release term
is two years under Section 5D.1.2(a)(2)
because he was convicted of the
equivalent of a Class C felony. However,
in setting Cafi’s release date the
Commission determined that the most
similar United States offense "would be
the Class A felony offense of possession
with intent to distribute a quantity of
cocaine, a violation of 21 U.S.C. sec.
841(a)(1) and (b)(1)(A)." Thus, according
to the Commission, the minimum term of
supervised release for Cafi under
U.S.S.G. sec. 5D1.2(a) is three years.
Whether the appropriate guideline minimum
is two or three years, however, is
irrelevant as far as the Commission is
concerned, because according to the
Commission, the mandatory minimums for
supervised release set forth in the
United States Code and the Sentencing
Guidelines do not apply to its Section
4106A determination of a transferee’s
release date and terms and conditions of
supervised release./7 In support of its
position, the Commission cites 28 C.F.R.
sec. 2.68(a)(7):
It is the Commission’s interpretation of
18 U.S.C. 4106A that the U.S. Code
provisions for mandatory minimum terms of
imprisonment and supervised release, as
well as Sentencing Guideline provisions
implementing such U.S. Code requirements
(e.g., Section 5G1.1(b) of the Sentencing
Guidelines), . . . were not intended by
Congress to be applicable in an 18 U.S.C.
4106A(b)(1)(A) determination.
28 C.F.R. sec. 2.68(a)(7).
The Commission asserts that we should
defer to this regulation, citing Chevron
U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). See
Asare v. United States Parole Commission,
2 F.3d 540, 543 (4th Cir. 1993) ("When
statutes charge agencies with the
responsibility of administering a
statutory scheme, the agencies’
reasonable interpretations of the statute
that they are applying are entitled to
deference."); Trevino-Casares v. United
States Parole Commission, 992 F.2d 1068,
1072 (10th Cir. 1993) ("[T]he Commission
administers, in part, the statutory
scheme under review and, therefore, the
principles of deferential review
summarized in Chevron . . . are
implicated here.")/8 Under Chevron,
courts must engage in a two-prong
analysis. First, we must determine
whether a statute is silent or ambiguous
on the issue. City of Chicago v. Federal
Communications Commission, 199 F.3d 424,
428 (7th Cir. 1999). "If the statute is
silent or ambiguous, then under Chevron,
we decide whether the agency’s determina
tion is based on a permissible
construction of the statute." Id.
As to the first question, Congress has
not explicitly stated whether or not the
minimum terms of imprisonment and
supervised release set forth in the
United States Code and Sentencing
Guidelines apply to transferees.
Nonetheless, Cafi argues that because
Section 4106A provides that the
Commission shall determine a release date
and period of supervised release "as
though the offender were convicted in a
United States district court," Congress
was requiring the Commission to apply the
Sentencing Guideline provisions,
including the mandatory minimum periods
of supervised release set forth in
U.S.S.G. sec. 5D1.2(a).
To support this argument, Cafi cites
Trevino-Casares, 992 F.2d 1068, wherein
the Tenth Circuit stated that Section
4106A(b)(1)(a) "puts the Parole
Commission, with regard to a [transferred
prisoner] . . . in the position of a
United States district court relative to
a convicted defendant. Thus, the Parole
Commission must use the sentencing
guidelines and make the findings
necessary to determine the applicable
guideline range." Id. at 1069 n.3
(internal quotation omitted). The Tenth
Circuit further noted that the
Commission’s function under Section 4106A
is "in procedure, substance, and effect
tantamount to the imposition of a federal
sentence, and it should, for all
practical purposes be treated as such. .
. ." Id. at 1069. Based on this language,
Cafi argues that in determining his
release date "as though he were sentenced
by a district court," the Commission must
apply the minimum period of supervised
release as set forth in U.S.S.G. sec.
5D1.2(a)(2).
However, in Trevino-Casares the Tenth
Circuit merely held that a transferee
qualified for good time credits after the
Commission had set a release date and a
period of supervised release, even though
the prisoner’s sentence and release date
were determined pursuant to Section
4106A(b)(1). 992 F.2d at 1071. The Tenth
Circuit in Trevino-Casares did not
consider whether Congress intended the
mandatory minimum for supervised release
to apply to a Section 4106A(b)(1)
determination.
The Fifth Circuit, however, did consider
this precise issue in Molano-Garza v.
United States Parole Commission, 965 F.2d
20 (5th Cir. 1992). In Molano-Garza, the
Fifth Circuit held that the Commission
did "not have to impose the three-year
statutory minimum period of supervised
release." The court reasoned that
mandatory minimums were inapplicable
because the Commission "is authorized to
determine a release date, not to sentence
the transferred prisoner." Id. at 25.
Molano-Garza thus demonstrates a second
way of reading Section 4106A. Under
Molano-Garza’s reading of the statute,
because the Commission is not actually
sentencing a transferee but is merely
determining a release date "as though the
defendant were sentenced in a district
court," the Commission should attempt to
apply the statutory and guideline
provisions, but it is not bound by the
mandatory minimums set forth in the
statutes or Guidelines.
Of course, that does not mean that
Cafi’s reading of the statutory and
guideline provisions is implausible--it
merely means that Congress has created an
ambiguity. As noted above, "[i]f the
statute is silent or ambiguous, then
under Chevron, we decide whether the
agency’s determination is based on a
permissible construction of the statute."
City of Chicago, 199 F.3d at 428. In
doing so, "[w]e may not substitute our
own construction of a statute when the
agency has interpreted it in a reasonable
fashion. In other words, so long as the
agency has set out a reasonable
interpretation, it does not matter
whether, in the first instance, we would
have come to the same conclusion." Id.
While the statutes could possibly be
read differently, we conclude that the
Commission’s reading of Section 4106A and
the Guidelines is a permissible
construction. First, Section 4106A
provides that the Commission is to deter
mine a release date and terms and
conditions of supervised release "as
though the defendant were sentenced in a
district court;" it does not provide that
a defendant is actually sentenced under
the federal statutory and guideline
provisions. Molano-Garza, 965 F.2d at 25.
Second, the Commission’s view that it is
not bound by the statutory and guideline
mandatory minimums when making a Section
4106A determination is eminently
reasonable when considered in light of
those provisions. For instance, if the
Commission were bound by the statutory
and guideline mandatory minimums, under
21 U.S.C. sec. 841(a)(1) and (b)(1)(A),
Cafi would be required to serve a
mandatory minimum term of imprisonment of
ten years and a mandatory minimum term of
supervised release of five years. But to
comply with the mandatory minimums set
forth in Section 841(a)(1) would require
the Commission to violate Section 4106A,
because under the latter provision,
Cafi’s combined term of imprisonment and
supervised release cannot exceed his
foreign ten-year sentence. That means
that either the mandatory minimum prison
term or the mandatory minimum supervised
release term must give way. It is
perfectly reasonable for the Commission
to have decided that it is more important
for a transferee to serve a prison
sentence first and then, if time remains
on his outstanding foreign sentence,
require that time to be served on
supervised release. This would best serve
the congressional goal of seeking equal
treatment of similarly situated Treaty
and non-Treaty prisoners with respect to
the term of incarceration. See Cannon v.
United States Parole Commission, 973 F.2d
1190, 1196 (5th Cir. 1992) (citing
H.R.Rep. 95-720, 95th Cong., 1st Sess.
1977, reprinted in 1977 U.S.C.C.A.N.
3159). Because the Commission’s reading
of Section 4106A is permissible,/9 we
conclude that it did not err in setting
Cafi’s term of imprisonment of 108 months
first, and then providing that he would
serve 36 months of supervised release or
"until the full term date of [his]
foreign sentence" were served./10
Cafi next argues that the Commission
erred in refusing to give him a reduction
for being a minor participant. Initially,
Cafi contends that the Commission erred
by failing to explain why it was denying
him a minor-participant reduction. It is
true that in setting Cafi’s release date
and term of supervised release, the
Commission did not mention any of the
offense level adjustments, including the
three-level adjustment Cafi received for
acceptance of responsibility, and the
two-level minor-participant adjustment
that Cafi did not receive.
Cafi argues on appeal that the
Commission was required to explain why it
denied his request for a minor-
participant reduction. In support of his
position, Cafi cites 28 C.F.R. sec.
2.68(i)(4)(iii): "Commission’s final
decision shall be supported by a
statement of reasons explaining: (iii)
The reason for making a release
determination above or below the
guideline range. If the release date is
within a guideline range that exceeds 24
months, the Commission shall identify the
reason for the release date selected." 28
C.F.R. sec. 2.68(i)(4)(iii).
Cafi’s reliance on Section
2.68(i)(4)(iii) is misplaced. That
regulation does not require the
Commission to explain its reasons for an
offense-level adjustment; rather, the
regulation requires an explanation for
departing from the guideline range. In
fact, the Commission in this case did
depart from the 121-151 month guideline
range (setting a release date following
108 months of imprisonment) and in doing
so, it complied with Section
2.68(i)(4)(iii) by explaining its reasons
for this departure, namely the abuse Cafi
suffered in a Mexican prison. But
contrary to Cafi’s position, this
regulation does not require the
Commission to explain offense-level
adjustments--only departures from the
guideline range. In fact, the
regulation’s requirement that the
Commission provide a statement of reasons
for guideline departures indicates that
in other circumstances the Commission
need not state its reasoning. Nor does
the "shall identify the reason for the
release date selected" language of
Section 2.68(i)(4)(iii) apply to the
Commission’s decision of offense-level
adjustments; rather, that clause merely
requires the Commission to explain why it
selected the release date within the
guideline range that it did.
Cafi also does not cite to any other
statutory or regulatory provision which
would require the Commission to set forth
its factual findings or the reasoning
supporting its offense-level
determinations. He has also not pointed
to any case law supporting his position.
Nor have we found anything on point.
Rather, most of the cases reviewing
Section 4106A(b)(1) determinations speak
of the hearing examiners’ findings of
fact and then review the Commission’s
determination in light of those findings.
See, e.g., Zecevic v. United States
Parole Commission, 163 F.3d 731, 733 (2d
Cir. 1998); James v. United States Parole
Commission, 159 F.3d 1200, 1203 (9th Cir.
1998); Kleeman v. United States Parole
Commission, 125 F.3d 725, 729-30, 732
(9th Cir. 1997); Tramel v. United States
Parole Commission, 100 F.3d 129, 131
(11th Cir. 1996); Navarrete v. United
States Parole Commission, 34 F.3d 316,
319 n.2 (5th Cir. 1994); Ajala v. United
States Parole Commission, 997 F.2d 651,
653 (9th Cir. 1993); Molano-Garza v.
United States Parole Commission, 965 F.2d
20, 22 (5th Cir. 1992); Hansen v. United
States Parole Commission, 904 F.2d 306,
310 (5th Cir. 1990). In other words, the
courts seem to assume that when the
Commission adopts the examiner’s release-
date recommendations, it is also
impliedly adopting the factual findings
and rationale underlying those
recommendations. See, e.g., Hansen, 904
F.2d at 310 ("the Parole Commission
apparently adopted the recommendation of
the panel examiners . . . ."); James, 159
F.3d at 1204 (holding that Commission did
not clearly err in finding that the
transferee did not qualify for an
acceptance of responsibility reduction,
but citing to the legal office’s
reasoning); Kleeman, 125 F.3d at 730-32
(stating that the "Commission found,"
while summarizing the legal office’s
findings and recommendations); Zecevic,
163 F.3d 736-37 (upholding Commission’s
denial of downward departure based on the
record, including the hearing transcript
and the Postsentence Investigation
Report); Ajala, 997 F.2d at 656
(upholding Commission’s release date
determination and its refusal to granted
a minor-participant reduction based on
examiner’s credibility determination).
This approach seems appropriate where, as
here, the Commission sets forth an
offense level, criminal history category,
and guideline range identical to those
proposed by the examiner. Of course, it
would be prudent--and easy--for the
Commission to add an express statement
that it is adopting the Postsentence
Investigation Report, or the examiner’s
recommendation, or the legal office’s
recommendation, whichever the case may
be. But because in this case the
Commission adopted the examiner and the
legal office’s recommendations that Cafi
not receive a minor-participant
reduction, it seems clear that it
impliedly adopted theirreasoning as
well./11
The question remains as to whether the
Commission erred in denying Cafi a minor-
participant reduction. A minor-
participant reduction may be for either
four or two levels: A four-level
reduction is appropriate "[i]f the
defendant was a minimal participant in
any criminal activity," and a two-level
reduction is appropriate "[i]f the
defendant was a minor participant in any
criminal activity." A "minimal
participant" is one who is "plainly among
the least culpable of those involved in
the conduct of a group." U.S.S.G. sec.
3B1.2(a), Application Note 1. A "minor
participant" is one who "is less culpable
than most other participants, but whose
role could not be described as minimal."
U.S.S.G. sec. 3B1.2(a), Application Note
3.
Cafi argues that he was entitled to a
minor-participant reduction because the
record established that another
individual, Brian, organized the
operation, employed both Cafi and
Codognotto, provided the cocaine, and
provided the luggage in which to carry
it. That all may be true, but Cafi was
not convicted of conspiracy, nor was he
sentenced based on the larger criminal
activity at play, namely the additional
cocaine transported by Codognotto.
Rather, he was convicted in Mexico of
possession of cocaine with intent to
transport and the Commission determined
his release date based solely on the
cocaine he himself possessed. This court
has explained that where a defendant "was
sentenced only for drugs that he himself
handled, . . . it makes no sense to claim
that one is a minor participant in one’s
own conduct." United States v. Lampkins,
47 F.3d 175, 180 (7th Cir. 1995). Because
Cafi’s release date was based solely on
the drugs he possessed, the Commission
did not clearly err in denying Cafi’s
request for a reduction for being a minor
participant. See Lampkins, 47 F.3d at
180. See also, United States v. Almanza,
225 F.3d 845, 846-47 (7th Cir. 2000).
III.
Pursuant to its authority under Section
4106A, the Commission set Cafi’s release
date following 108 months in prison, and
provided for 36 months of supervised
release or until the full term date of
Cafi’s foreign sentence, whichever came
earlier. Because Cafi’s foreign sentence
was for ten years, that meant his
supervised release would terminate before
36 months. While the Sentencing
Guidelines provide a minimum of 36 months
of supervised release, we conclude that
mandatory minimums do not apply to
Section 4106A determinations.
Accordingly, the Commission did not err
in setting Cafi’s release date or the
terms and conditions of supervised
release. The Commission also did not err
in failing to state its reasons for
denying Cafi a minor-participant
reduction. And given that Cafi was
sentenced only for his own conduct, such
a reduction was not appropriate. For
these and the foregoing reasons, we
AFFIRM.
FOOTNOTES
/1 While Cafi originally claimed that the bag and
the drugs were not his, he later admitted to his
criminal activities.
/2 We say this because the evidence indicates that
during his imprisonment in Mexico he was severely
beaten by prison guards and denied medical treat-
ment, leaving him near death on two occasions.
/3 While this phraseology may seem strange, the
Commission included the "or until the expiration
of" language to assure that Cafi’s combined term
of imprisonment and supervised release did not
exceed his 10-year Mexican sentence. See 18
U.S.C. sec. 4106A(b)(1)(C).
/4 Section 4106A(b)(2)(A) provides that "a determi-
nation by the United States Parole Commission .
. . may be appealed to the United States court of
appeals for the circuit in which the offender is
imprisoned at the time of the determination of
such Commission."
/5 Originally, the Commission set a release date
following a term of 111 months’ imprisonment, but
on remand it set a release date following 108
months’ imprisonment. It appears from the record
that on remand the Commission decided to increase
the downward departure it awarded Cafi for the
abuse he suffered while in the Mexico City pris-
on.
/6 United States Sentencing Guideline sec. 5D1.2(a)
provides:
Subject to subsection (b), if a term of super-
vised release is ordered, the length of the term
shall be: (1) at least three years but not more
than five years for a defendant convicted of a
Class A or B felony; (2) at least two years but
not more than three years for a defendant con-
victed of a Class C or D felony; (3) one year for
a defendant convicted of a Class E felony or a
Class A misdemeanor.
/7 Even if Cafi’s offense should have been equated
with a Class C felony, the Commission could still
order a term of three years of supervised re-
lease. See U.S.S.G. sec. 5D1.2(a) providing that
a defendant convicted of a Class C or D felony
shall have a supervised release term of "at least
two years but not more than three years . . . ."
/8 In Cannon v. United States Parole Commission, 973
F.2d 1190, 1194-95 (5th Cir. 1992), the Fifth
Circuit noted that the Commission had informed it
of a recently adopted interpretive regulation
which would add the following language to 28
C.F.R. sec. 2.62(a)(1): "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." The Fifth
Circuit concluded that Section 2.62(a)(1) was not
promulgated in accordance with the law, and hence
was owed no deference. Id. Cafi does not claim
that the Commission failed to properly promulgate
28 C.F.R. sec. 2.68(a)(7), which differs in
language from Section 2.62(a)(1). Accordingly, we
will review the Commission’s position with defer-
ence.
/9 In fact, for the same reasons, we believe that
the Commission’s reading of Section 4106A is the
better view. Therefore, even if we decided that
no deference were owed the Commission’s view as
stated in 28 C.F.R. sec. 2.68(i)(4)(iii), we
would nonetheless follow the Fifth Circuit in
Molano-Garza and hold that the mandatory minimums
are inapplicable to Section 4106A transferees.
/10 As noted above, the Commission set Cafi’s release
date for 108 months, or on April 18, 2006,
leaving only 12 months of supervised release.
Since then, Cafi has earned good time credits
which result in his release on January 3, 2006.
This means that Cafi can now serve approximately
15 months on supervised release without exceeding
his ten-year foreign sentence (assuming, of
course, that he has not earned or lost any good
time credit).
/11 Cafi also argues that the Commission should have
explained its reasons for denying him a minor-
participant reduction because the Fifth Circuit
had remanded the case for that purpose. However,
contrary to his position, the Fifth Circuit did
not remand Cafi’s case for the purpose of requir-
ing the Commission to state its reasoning. Rath-
er, Cafi’s case was remanded to the Commission at
the Commission’s request. The Commission request-
ed remand because it believed that Cafi should
have had the opportunity to respond to the legal
office’s recommendation that he not receive a
minor-participant reduction. The Commission
afforded him a new hearing and an opportunity to
justify a minor-participant reduction, and the
examiner explained its rationale for his recom-
mendation against the reduction, thus serving the
purpose of remand.