United States v. Tsui , 531 F.3d 977 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30467
Plaintiff-Appellee,
v.  D.C. No.
CR-07-00432-MO-1
FRANK TSUI,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted June 2, 2008
Seattle, Washington*
Filed June 25, 2008
Before: Warren J. Ferguson, Consuelo M. Callahan and
Otis D. Wright, II,** District Judge.
Opinion by Judge Callahan
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Otis D. Wright, II, United States District Judge for the
Central District of California, sitting by designation.
7445
UNITED STATES v. TSUI 7447
COUNSEL
Sean K. Kennedy, Federal Public Defender, and Brianna J.
Fuller, Deputy Federal Public Defender, Los Angeles, Cali-
fornia, for the petitioner-appellant.
Rockne Chickinell, General Counsel, U.S. Parole Commis-
sion, and Helen H. Krapels, Assistant General Counsel,
Chevy Chase, Maryland, for the respondent-apppellee.
7448 UNITED STATES v. TSUI
OPINION
CALLAHAN, Circuit Judge:
Frank Tsui asserts that the United States Parole Commis-
sion improperly ruled that his supervised release on his South
Korean conviction and sentence would continue through the
expiration of his 60-month sentence, to December 8, 2008.
Because the Parole Commission’s ruling is not inconsistent
with any plain language in the relevant treaty and statute, and
is consistent with its regulation, we defer to the Parole Com-
mission and affirm its determination of Tsui’s sentence.
A. Background
Frank Tsui, a naturalized U.S. citizen, was arrested on
December 4, 2003, in Los Angeles and extradited to South
Korea. On September 24, 2004, Tsui was convicted by a
South Korean court of conspiracy to traffic in narcotics, sen-
tenced to five years of imprisonment with labor, and impris-
oned in the Daejon Prison in South Korea.
In December 2005, the United States approved a request by
Tsui to be transferred to the United States to serve the balance
of his sentence. South Korea approved Tsui’s request in
November 2006, and Tsui eventually arrived in Los Angeles
on April 18, 2007, and was detained.
South Korea and the United States are parties to the Coun-
cil of Europe Convention on the Transfer of Sentenced Per-
sons (“Treaty”), 35 U.S.T. 2867, T.I.A.S. No. 10824 (July 1,
1985). The Treaty provides that a country that receives a
transferred prisoner may continue to enforce the foreign sen-
tence. Article 10 of the Treaty states that “[i]n the case of con-
tinued enforcement, the administering State shall be bound by
the legal nature and duration of the sentence as determined by
the sentencing State.” The United States has elected to con-
tinue to enforce Tsui’s original sentence.
UNITED STATES v. TSUI 7449
The United States Probation Office for the Central District
of California prepared a Treaty Transfer Report. The report
found that the South Korean offense of “conspiracy to traffic
narcotics” was most similar to the federal offense of “conspir-
acy to possess with intent to distribute a controlled sub-
stance,” 21 U.S.C. § 841. It further calculated a guideline
range for Tsui of 87 to 108 months, but noted that “the com-
bined period of imprisonment and supervised release cannot
exceed 60 months, the length of the foreign sentence.”
Tsui filed objections to the report urging that he be released
immediately so that the Probation Office could have a sub-
stantial period of community monitoring. He noted that if the
Parole Commission sentenced him to serve the entire five
years of his sentence, the Parole Commission would be with-
out authority to impose any term of supervised release. Tsui
objected that the Parole Commission could not increase his
“sentence by subtracting from the full-term prison sentence it
imposed the good conduct time he will likely receive from the
Bureau of Prisons, and then add it back to his sentence as
supervised release time.”
On October 19, 2007, the Parole Commission issued a
Transfer Treaty Determination (“TTD”). The Commission
first found that Tsui’s total offense level was 29, his criminal
history category was I, and the resulting guideline range was
87 to 108 months. The TTD then set a release date “after ser-
vice of 52 months,” noting that foreign labor credits and good
conduct time, if any, would be deducted from this release date
under Bureau of Prison procedures.1 The TTD also provided
that Tsui was “subject to a maximum period of supervised
1
The TTD explained that the release date departed from the applicable
guideline range “because 1) the combined period of imprisonment and
supervised release cannot exceed the foreign 60 month sentence. A depar-
ture will allow for a period of supervision to assist your transition from
incarceration. 2) You endured extremely harsh conditions in the foreign
prison.”
7450 UNITED STATES v. TSUI
release of 3 years” but then modified that provision by provid-
ing:
The Commission orders that transferee, immediately
upon release from imprisonment, begin serving a 36-
month period of supervised release, or until the full-
term date of transferee’s foreign sentence [currently
calculated to be 12/28/2008], whichever is earlier. If
the full-term date of transferee’s foreign sentence
occurs before completion of the period of supervised
release the Commission has imposed, transferee’s
period of supervised release shall end on the date
transferee’s foreign sentence expires.
On October 23, 2007, Tsui was released from custody and
began serving his supervised release. On November 27, 2007,
he filed a timely petition for review by this court pursuant to
18 U.S.C. § 4106A(b)(2)(A).
B. Standard of Review
In Ajala v. U.S. Parole Commission, 997 F.2d 651, 653 (9th
Cir. 1993), we recognized that 18 U.S.C. § 4106A(b)(2)(B)
provides that the court “shall decide and dispose of the appeal
in accordance with section 3742 of this title as though the
determination appealed had been a sentence imposed by a
United States district court.” In Kleeman v. U.S. Parole Com-
mission, 125 F.3d 725, 730 (9th Cir. 1997), we explained that:
Our appellate review of the transfer determination is
the functional equivalent of our review of a district
court’s sentencing decision. 18 U.S.C.
§ 4106A(b)(2)(A); Trevino-Casares v. United States
Parole Comm’n, 992 F.2d 1068, 1070 (10th Cir.
1993). Thus, we review the Commission’s interpre-
tations of law (including foreign law) de novo, see,
e.g., Brady v. Brown, 51 F.3d 810, 816 (9th Cir.
1995), and its factual findings for clear error. See,
UNITED STATES v. TSUI 7451
e.g., United States v. Buenrostro-Torres, 24 F.3d
1173, 1174 (9th Cir. 1994).
C. Tsui’s Contentions
Tsui raises a single issue on appeal: he argues that his
supervised release should end in June 2008, rather than in
December 2008. Tsui reasons as follows: (a) pursuant to 18
U.S.C. § 4106A(b)(1)(C) the combined periods of imprison-
ment and supervised release may not exceed the 60 months
imposed by the Korean court; and (b) because the Parole
Commission imposed a period of imprisonment of 52 months,
the period of supervised release cannot be greater than 8
months. In support of his approach, Tsui argues that the
Bureau of Prisons, not the Parole Commission is charged with
determining good time credits, citing Ajala, 997 F.2d at 655-
56. He also argues that the Parole Commission must establish
“a known period of supervised release” and may not set forth
“an end-date for supervision” because the Parole Commission
“is not in a position to determine the effect of good time credit
on the sentence.”
Tsui further argues that the Parole Commission’s regula-
tion, 28 C.F.R. § 2.68(a)(5), which he admits “purports to
authorize exactly what the Parole Commission did,” is not
entitled to deference under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984),
because the regulation conflicts with the language of the statute.2
2
28 C.F.R. § 2.68(a)(5) reads:
The release date that is determined by the Commission under 18
U.S.C. 4106A(b)(1)(A) is a prison release determination and does
not represent the imposition of a new sentence for the transferee.
However, the release date shall be treated by the Bureau of Pris-
ons as if it were the full term date of a sentence for the purpose
of establishing a release date pursuant to 18 U.S.C. 4105(c)(1).
The Bureau of Prisons release date shall supersede the release
date established by the Parole Commission under 18 U.S.C.
7452 UNITED STATES v. TSUI
In particular, Tsui asserts that the statute “ ‘contravenes the
structure and language of the statute as a whole,’ Nat’l R.R.
Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 417
(1992), because it imports calculation conducted under 18
U.S.C. § 4105 into the calculation conducted under section
4106A.” Tsui contends that “the period of imprisonment and
the period of supervised release imposed by the Parole Com-
mission should be used to determine whether the foreign sen-
tence has been exceeded.”
D. Analysis
[1] Tsui’s attempt to terminate his supervised release six
months early is not persuasive. Our review starts with the lan-
guage of the Treaty3 and the statute.4 Although the Parole
4106A and shall be the date upon which the transferee’s period
of supervised release commences. If the Commission has ordered
“continue to expiration,” the 4106A release date is the same as
the full term date of the foreign sentence. It is the Commission’s
interpretation of 18 U.S.C. 4105(c)(1) that the deduction of ser-
vice credits in either case does not operate to reduce the foreign
sentence or otherwise limit the Parole Commission’s authority to
establish a period of supervised release extending from the date
of actual release from prison to the full term date of the foreign
sentence.
3
Article 10 is entitled “Continued enforcement” and reads:
1. In the case of continued enforcement, the administering State
shall be bound by the legal nature and duration of the sentence
as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompat-
ible with the law of the administering State, or its law so requires,
that State may, by a court or administrative order, adapt the sanc-
tion to the punishment or measure prescribed by its own law for
a similar offense. As to its nature, the punishment or measure
shall, as far as possible, correspond with that imposed by the sen-
tence to be enforced. It shall not aggravate, by its nature or dura-
tion, the sanction imposed in the sentencing State, nor exceed the
maximum prescribed by the law of the administering State.
UNITED STATES v. TSUI 7453
Commission could have adopted Tsui’s perspective, and it
appears that at one time it did,5 the Parole Commission was
35 U.S.T. 2867, Article 10.
4
18 U.S.C. § 4106A reads, in relevant part:
Transfer of offenders on parole; parole of offenders transferred
(a) Upon the receipt of an offender who is on parole from the
authorities of a foreign country, the Attorney General shall assign
the offender to the United States Parole Commission for supervi-
sion.
(b)(1)(A) The United States Parole Commission shall, without
unnecessary delay, determine a release date and a period and con-
ditions 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 sim-
ilar offense.
(B) In making such determination, the United States Parole
Commission shall consider—
(i) any recommendation of the United States Probation
Service, including any recommendation as to the applica-
ble 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.
(D) The duties conferred on a United States probation officer
with respect to a defendant by section 3552 of this title shall,
with respect to an offender so transferred, be carried out by
the United States Probation Service.
5
See, e.g., Ajala, 997 F.3d at 653 (Parole Commission imposed 51
months imprisonment and 21 months supervised release on a 72-month
English sentence); Trevino-Casares, 992 F.2d at 1069 (Parole Commis-
sion imposed 71 months imprisonment and 37 months supervised release
on 108-month Mexican sentence); and Asare v. U.S. Parole Comm’n, 2
F.3d 540, 543 (4th Cir. 1993) (Parole Commission imposed 60 months
imprisonment and 12 months supervised release on a 72-month English
sentence).
7454 UNITED STATES v. TSUI
not compelled to do so. The language in the Treaty and
§ 4106A does not clearly support Tsui’s position. The Treaty
states that the sentence “shall not be aggravated, by its nature
or duration.” 35 U.S.T. 2867, Art. 10 (2). The treaty does not
appear to distinguish between imprisonment and supervised
release. The statute, § 4106A(b)(1)(C), simply provides that
“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.” We do not see anything in the Treaty or the statute
that compels the Parole Commission to apportion a transfer-
ee’s remaining sentence between imprisonment and super-
vised release. Certainly, we do not see anything in the Treaty
or the statute that compels the Parole Commission to calculate
a transferee’s sentence so that the period of imprisonment (not
counting any good time credit) and the period of supervised
release equal the remaining duration of the original sentence.
[2] Instead, we read § 4106A(b)(1) as delegating to the
Parole Commission the responsibility for determining a trans-
feree’s sentence consistent with the requirement that “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 offend-
er.” 18 U.S.C. § 4106A(b)(1)(C). Because responsibility for
determining the sentence has been delegated to the Parole
Commission and the language of the Treaty and statute does
not direct the Parole Commission on how it is to calculate the
sentence, its perspective is entitled to deference. Chevron, 467
U.S. at 843-44 (“if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible con-
struction of the statute,” and in reviewing the agency’s action
“a court may not substitute its own construction of a statutory
provision for a reasonable interpretation made by the adminis-
trator of an agency”).6
6
Tsui’s only challenge to deference under Chevron is that the regulation
is inconsistent with the statute.
UNITED STATES v. TSUI 7455
[3] The Parole Commission is the agency charged with
implementing the statute. See Bishop v. Reno, 210 F.3d 1295,
1302 n.11 (11th Cir. 2000). Its regulation, 28 C.F.R.
§ 268(a)(5), specifically states “[i]t is the Commission’s inter-
pretation of 18 U.S.C. § 4105(c)(1) that the deduction of ser-
vice credits in either case does not operate to reduce the
foreign sentence or otherwise limit the Parole Commission’s
authority to establish a period of supervised release extending
from the date of actual release from prison to the full term
date of the foreign sentence.” (emphasis added). We are
required to defer to the Parole Commission unless its
approach is “arbitrary, capricious, or manifestly contrary to
the statute.” Chevron, 467 U.S. at 843-44.
[4] The regulation is not arbitrary, capricious, or manifestly
contrary to the statute. It is consistent with the purposes of the
Treaty and the statute because it prevents a transferred prison-
er’s sentence from being longer than his original sentence and
allows the prisoner the benefit of an earlier release from
imprisonment, but also ensures that the sentence is not shorter
in duration than the original sentence. It does not deny a trans-
feree the benefit of good time credit, but at the same time
does not allow good time credit to reduce “the duration of the
sentence as determined by the sentencing State.” 35 U.S.T.
2867, Art. 10(1). Furthermore, the Parole Commission’s posi-
tion makes sure that the remaining sentence is not greater than
the original sentence by providing that where the period of
supervised release would otherwise exceed the duration of the
original sentence, supervised release terminates when the full
term of the original sentence is completed.
Although the Parole Commission appears to have changed
its approach, its current position is not contrary to our opinion
in Ajala, 997 F.2d at 657. In Ajala, the Parole Commission
had “ordered that Ajala serve 51 months imprisonment and 21
months supervised release, which equaled the 72 months sen-
tence imposed by the English court.” Id. at 653. On appeal,
Ajala contended that the Parole Commission had failed to
7456 UNITED STATES v. TSUI
take into consideration the good time credit she had earned in
a British prison. Id. at 654. We held that the calculation of
credit was committed to the Bureau of Prisons and was not
part of the Parole Commission’s § 4106A determination, and
accordingly was not within the court’s jurisdiction when
reviewing the Parole Commission’s decision. Id. at 655-56.
[5] Our recognition in Ajala of the separate responsibilities
of the Parole Commission and the Bureau of Prisons implies
that the relative periods of time for incarceration and super-
vised release are not critical to the calculation of a sentence
under § 4106A(b)(1)(A). If the Parole Commission had
directed that Tsui be incarcerated for the full 60 months, he
would have no claim against the Parole Commission, but
arguably could challenge the Bureau of Prisons if it did not
honor any good time credit he claimed to have earned.7 Fur-
thermore, Ajala suggests that whether a transferred prisoner
had earned good time credit while serving his sentence in a
foreign prison is a question for the Bureau of Prisons, not the
Parole Commission. Id. at 656. Accordingly, nothing in Ajala
prohibits the Parole Commission from imposing a period of
supervised release that lasts as long as the transferred prison-
er’s foreign sentence.
[6] Finally, Tsui’s argument that the Parole Commission
must establish a “known period of supervised release” rather
than “an end date for supervision,” does not support a grant
of any relief. First, the Parole Commission did set a “known
period of supervised release” when it imposed a three-year
period of supervised release. It then followed the restraints
established by the Treaty and the statute by ordering that, in
any event, the period of supervised release would conclude on
December 28, 2008. Second, there is nothing in the Treaty or
the statute that compels the approach urged by Tsui, and,
7
Title 18 U.S.C. § 4105(c)(1) and (2) provides that a transferred
offender is entitled to credits for good time unless the country from which
the offender is transferred does not give credit for good time.
UNITED STATES v. TSUI 7457
accordingly, we must defer to the Parole Commission’s posi-
tion as set forth in 28 C.F.R. § 2.68(a)(5). Certainly, Tsui
would prefer that the Parole Commission had continued its
apparent practice of computing the terms of imprisonment and
supervised release to total the length of the foreign sentence,
but he has failed to show that such a practice is compelled by
the Treaty, the statute, or otherwise.8
E. Conclusion
The Treaty and the applicable statutes provide that Tsui’s
sentence in the United States not exceed his sentence in South
Korea. The Parole Commission’s determination that his
supervised release will run throughout his 60-month original
sentence conforms to that requirement. Tsui has shown that
the Parole Commission could have calculated his sentence in
such a way that his supervised release might have ended
sooner. However, Tsui has not shown that the Treaty or the
statutes compel such a result, or that 28 C.F.R. § 2.68(a)(5),
which authorizes the extension of supervised release to the
full term of the foreign sentence, is inconsistent with the stat-
utes. Accordingly, even if the Parole Commission’s position
were not as reasonable as it appears to be, it would be entitled
to deference under Chevron. The Parole Commission’s deter-
mination of Tsui’s sentence is AFFIRMED.
8
Tsui’s argument that the Parole Commission may not add back good
time credit as part of the period of supervised release mischaracterizes
what the Parole Commission did, and fails to recognize the great differ-
ence between imprisonment and supervised release. The Parole Commis-
sion did not “add back good time credit.” Rather it simply recognized that
the period of supervised release that it had otherwise ordered was limited
by the Treaty and the statute. Moreover, most prisoners would gladly
accept an extension of supervised release in return for release from con-
finement.