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814 F.2d 320

Docket No. 86-5775.

Miller v. Story

Sixth Circuit Court of Appeals

Argued Jan. 30, 1987.

Decided March 23, 1987.

Sixth Circuit Court of Appeals · decided 1987-03-23

Cited by 13 later decisions — most recently September 2002

13 federal appellate ·

2 counsel of record

Key passage — most relied on by later courts

“(a) It is the Commission’s interpretation of Section 235(b)(3) of the Sentencing Reform Act of 1984 (Chapter 2 of the Comprehensive Crime Control Act of 1984) as originally enacted, that persons who will be incarcerated at the expiration of five years after the effective date of the Sentencing Reform Act, and whose sentences provide for parole eligibility, shall, before the expiration of that five-year period, be given release dates by the Commission within the guideline ranges found by the Commission to be appropriate for their cases. (b) The release dates required by Section 235(b)(3) need not be set any earlier than the time required to allow an administrative appeal within the five-year period; i.e., three to six months before the end of that period. Thus, the Commis sion may continue to make decisions outside of its guideline ranges, with such decisions being subject to a de novo review and modification by the Commission to conform to the guideline ranges before the end of the five-year period. (c) Section 235(b)(3) does not apply to person who will be on parole or mandatory release supervision at the expiration of the five-year period.”

quoted by 1 later decision, including Hackett v. United States Parole Commission

Applies 18 U.S.C. § 4201

Relies on Morton v. Mancari

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1987-03-23

View the full empirical analysis of this case →

¶1Eldon L. Webb (argued), Ashland, Ky., for petitioner-appellant.

¶2Louis DeFalaise, U.S. Atty., Lexington, Ky., Monica Wheatley, Robert E. Rawlins, Michael A. Stover (argued), U.S. Parole Com’n, Chevy Chase, Md., for respondentsappellees.

¶3Before ENGEL and NORRIS, Circuit Judges and PECK, Senior Circuit Judge.

¶4PER CURIAM.

¶5Petitioner-appellant, Gregory R. Miller, instituted this habeas corpus proceeding seeking an order directing the United States Parole Commission and the Warden at the Federal Correctional Institution, Ashland, Kentucky, to grant him a release date, in accordance with the provisions of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 235(b)(3), 98 Stat. 1837, 2032 (1984). Miller is currently serving a twenty-year sentence, imposed on March 22,1985, following his conviction for unarmed bank robbery. The United States Parole Commission, on February 11, 1986, after reviewing a variety of factors relevant to Miller’s incarceration, entered an order providing for presumptive parole after service of eighty months, the minimum statutorily required incarceration. See 18 U.S.C. § 4205(a).

¶6Miller contends on appeal, as he did below, that, by virtue of the enactment of the Comprehensive Crime Control Act, most provisions of which became effective on October 12,1984, he no longer is subject to the minimum requirement of Section 4205(a). He argues that because the Act abolishes the parole commission five years after the effective date of the Act, and requires it to set release dates early enough to permit it to consider administrative appeals before going out of business, *321the Act necessarily overrides the longer release date that had been set for him pursuant to Section 4205(a).

¶7The problem with this argument is that the section of the Act upon which petitioner relies, Section 235(b)(3), is not effective until November 1, 1987. See § 235(a)(1), amended by Pub.L. 99-217, § 4, 99 Stat. 1728, 1728 (1985). Until that time, all sentencing is controlled by 18 U.S.C. § 4201et seq. The five-year transitional phase does not begin until November 1, 1987. Thus, there is no transitional problem since appellant is eligible for parole prior to November 1, 1992.

¶8Miller argues that Congress, by passing Section 235(b)(3), meant to implicitly repeal 18 U.S.C. § 4205(a). Repeal by implication, however, occurs only when statutory provisions are irreconcilable. See Morton v. Mancan, 417 U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). Section 235(a)(3) and 18 U.S.C. § 4205(a) are not irreconcilable because Congress has manifested the intent that Section 235(b)(3) will not be effective until November 1, 1987, the same date Section 4205(a) is repealed.

¶9Accordingly, the judgment of the district court, dismissing the petition for habeas corpus, is affirmed.

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