Charles W. RAMSEY, Jr., Appellant v. UNITED STATES PAROLE COMMISSION, Appellee
No. 15-5121
United States Court of Appeals, District of Columbia Circuit.
Argued September 22, 2016. Decided November 4, 2016
840 F.3d 853
Having failed to challenge its successor obligation at any earlier stage of this litigation, RJR now finds itself trapped between this circuit‘s narrow construction of
V.
For the foregoing reasons, we affirm.
So ordered.
Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for the appellant. A.J. Kramer, Federal Public Defender, was with her on the briefs.
Daniel J. Lenerz, Assistant United States Attorney, argued the cause for the appellee. Elizabeth Trosman and John P. Mannarino, Assistant United States Attorneys, were with him on the brief.
Before: HENDERSON and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge.
“The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But what if the parolee breaks the rules? More specifically, what happens if he commits a new offense? In the federal system, the United States Parole Commission (Commission) can revoke the offender‘s parole and order that he serve all or some of the remaining sentence in prison. The Commission can also retrospectively deny him credit for the time he has served on parole—his “street time“—so that his remaining sentence is the same as it was when he was released on parole.
These general principles guide our resolution of Charles Ramsey‘s appeal. In the 1970s, Ramsey was convicted of drug and firearm offenses for which he was sentenced to a total of 32 years in federal prison. In the 1980s, he was paroled and released from prison. In the 1990s, he violated the conditions of his parole by committing a new drug offense. He pleaded guilty to the 1990s offense pursuant to
I. BACKGROUND
A. THE FEDERAL PAROLE SYSTEM
The Congress abolished parole for federal offenders in 1984, effective November 1, 1987.
As relevant here, section 4203 gives the Commission the power to “grant or deny an application or recommendation to parole any eligible prisoner[,]”
The Commission‘s regulations are codified in 28 C.F.R. Part 2.
Finally,
if a parolee has been convicted of a new offense committed subsequent to his release on parole, which is punishable by any term of imprisonment, detention, or incarceration in any penal facility, forfeiture of time from the date of such release to the date of execution of the warrant is an automatic statutory penalty, and such time shall not be credited to the service of the sentence.
B. RAMSEY‘S PAROLE
With the foregoing provisions in mind, we recap Ramsey‘s odyssey through the parole system.
1. Ramsey‘s 1970s offenses and 32-year sentence
In February 1975, Ramsey began serving a maximum aggregate prison sentence of 32 years for importation of a controlled substance, unlawful possession of firearms and related offenses of which he was convicted in three federal cases in the District of Columbia (D.C.) and the Southern District of New York. His 32-year term was to be followed by six years of “special parole,” the pre-Sentencing Reform Act equivalent of supervised release.
In May 1989, Ramsey was released on parole with about 17 years and nine months left of his 32-year term. Consistent with
2. Ramsey‘s 1995 cocaine offense and 2004 plea agreement
In November 1995, while on parole for the 1970s offenses, Ramsey was charged in D.C. district court with a new federal offense: possessing with intent to distribute cocaine. He was immediately detained pending trial. Based on the cocaine charge, the Commission issued a warrant alleging that Ramsey had violated his parole. The U.S. Marshals Service lodged the warrant as a detainer to be executed once he was released from custody on the cocaine charge. In May 1996, following a six-day trial, a jury convicted him of the cocaine
For nine years and one month, Ramsey was in prison for the 1995 cocaine offense. In 2004, the district court concluded that the lawyer who had represented Ramsey during the trial on the cocaine offense had rendered ineffective assistance. United States v. Ramsey, 323 F.Supp.2d 27, 35-44 (D.D.C. 2004). The court ordered a new trial. Id. at 44.
Foregoing an appeal or retrial, the D.C. United States Attorney‘s Office entered a plea agreement with Ramsey. The agreement provided that Ramsey was to plead guilty to the cocaine offense and receive a prison sentence of time served, to be followed by eight years of supervised release. Plea Agreement ¶¶ 1, 6.1 Under paragraph 3 of the agreement, “[t]he parties agree[d] to accept” the PSR that had been prepared in August 1996. Paragraph 5 of the agreement provided:
The United States Attorney‘s Office for the District of Columbia will not prosecute [Ramsey] for any other charges arising out of the transactions and events that are the subject of the [1995] indictment and this guilty plea.
And paragraph 6 stated in pertinent part:
Since the sentence is to be time served, the parties contemplate that [Ramsey] will be processed for release by the U.S. Marshals Service in the cell block of the U.S. Courthouse and will be released to commence his period of supervised release from there without being returned to any other prison facility.
In December 2004, the district court accepted the plea agreement and sentenced Ramsey to time served for the cocaine offense (nine years and one month), to be followed by eight years of supervised release. But Ramsey was not released from custody. Instead, the U.S. Marshals Service executed the parole violator warrant the Commission had issued back in 1995. In other words, Ramsey remained in prison but was now serving time on his 32-year sentence for the 1970s offenses, not on his sentence for the 1995 offense.
3. The Commission‘s 2005 decision to revoke parole and deny credit for street time
In February 2005, Ramsey appeared with counsel for a hearing on whether the Commission, in view of the 1995 cocaine offense, should revoke parole on his earlier 32-year sentence. So far as the record reflects, he did not argue that the plea agreement terminated his parole or precluded revocation. Nor did he argue that the plea agreement prohibited the Commission from using his 1995 offense to deny him credit for his street time from May 1989 to November 1995.
In March 2005, the Commission indeed revoked Ramsey‘s parole based on his 1995 cocaine offense. Partly because of the offense‘s severity—it involved up to 44 kilograms of cocaine—he faced the highest possible guidelines range of 180+ months of reimprisonment under
Later in March 2005, Ramsey appealed the decision to the Commission‘s National Appeals Board, again without invoking the plea agreement. The National Appeals Board affirmed the Commission‘s decision.
4. The 2007 decision in Felts
In August 2006, while serving time on his 32-year sentence at a federal prison in West Virginia, Ramsey filed a petition for writ of habeas corpus under
The case was referred to a magistrate judge who agreed that the Commission was in breach of the plea agreement and recommended that the district court grant Ramsey‘s habeas petition. Felts, Dkt. No. 30 at 1, 24-25. The magistrate concluded that, taken together, “paragraphs 5 and 6 contain very significant promises to [Ramsey], the benefit of which he has not received.” Id. at 21. She acknowledged that the parties to the agreement apparently “never gave the Parole Commission a thought” and that paragraph 5 expressly bound only the D.C. United States Attorney‘s Office. Id. at 23-24. Nonetheless she reasoned that paragraph 6, in promising that Ramsey would be released from his jail term for the 1995 cocaine offense without having to return to any prison facility, necessarily affected the Commission. Id. at 21-22. In the magistrate‘s view, the tension between paragraphs 5 and 6 produced an ambiguity that had to be resolved in favor of release because (inter alia) the government wrote the agreement and bore “responsibility ... for imprecision,” id.; Ramsey had relied on the promise of immediate release when he pleaded guilty, id. at 24-25; and the promise “ha[d] not been fulfilled,” calling into question the voluntariness of the plea and undermining “public confidence in the fair administration of justice,” id. at 24.
No one objected to the magistrate judge‘s findings and recommendation. In August 2007, the district court in Felts adopted them and ordered that Ramsey “be immediately released” from prison so that he could “commence his period of supervised release” on the 1995 cocaine offense. Felts, Dkt. No. 31 at 3. The Commission immediately paroled him and indicated that he had about 15 years remaining on his initial 32-year sentence. Consistent with
5. Ramsey‘s 2010 gambling conviction
Ramsey ran into new legal trouble in April 2010, when he was convicted in D.C. Superior Court for “maintaining a gambling premises.” United States’ Resp. to Def.‘s Mot. to Amend or Correct Sentence, Dkt. No. 3, Ex. 20 (capitalization altered). The Commission issued another parole violator warrant, this one based on the gam-
In September 2010, Ramsey appeared for a hearing on whether the Commission, in view of the gambling offense, should revoke parole on his earlier 32-year sentence. In November 2010, the Commission in fact revoked his parole. Pursuant to the guidelines in
Ramsey served his 12 months of additional prison time and the Commission reparoled him in April 2011. At that point he had about 14 years left to serve on his 32-year sentence. He has been on parole ever since and now has about eight and one-half years left: his anticipated completion date is July 16, 2025. After that, he must serve his six-year term of special parole.
6. The decision under review
In 2013, Ramsey filed a habeas petition in district court under
The district court rejected Ramsey‘s claims and denied his habeas petition. 82 F.Supp.3d 293 (D.D.C. 2015). First, the court concluded that the plea agreement and Felts “did not terminate ... [Ramsey‘s] parole from the 1970s cases.” Id. at 304; see id. at 303-05. The court pointed
Second, the district court concluded that nothing in the plea agreement, as construed in Felts, prevented the Commission from using the 1995 cocaine offense to deny Ramsey credit for street time or to calculate his salient factor score. 82 F.Supp.3d at 305-07. The court acknowledged that paragraph 5 of the agreement prohibited the D.C. United States Attorney‘s Office from “prosecuting” him based on the 1995 conduct that was the subject of his guilty plea. Id. at 306-07. It reasoned, however, that paragraph 5 “did not bind” the Commission, let alone in a way that foreclosed it from even “taking the [cocaine] conviction into account when calculating” street time or Ramsey‘s salient factor score. Id. at 307. Finally, the court emphasized that paragraph 6 of the agreement only “preclude[d] the Commission from reincarcerating Ramsey as a parole violator” “based directly on” the cocaine offense. Id. at 305-06. In the court‘s view, paragraph 6 did not displace “the applicable statutes, regulations, and case law” authorizing the Commission‘s “actions with respect to Ramsey‘s parole.” Id. at 306 (citing, inter alia,
II. ANALYSIS
On appeal, Ramsey renews essentially the same two claims he made in district court: (1) the plea agreement as construed in Felts terminated his parole or precluded revocation; or (2) at a minimum, it prohibited the Commission from using his 1995 cocaine offense to deny him credit for street time and to calculate his salient factor score. Our review is de novo. See United States v. Henry, 758 F.3d 427, 431 (D.C. Cir. 2014) (“We interpret the terms of a plea agreement de novo....“); cf. United States v. TDC Mgmt. Corp., 24 F.3d 292, 295 (D.C. Cir. 1994) (“[w]e review de novo” question of what issues were decided in prior case involving same parties). We reject Ramsey‘s claims as set forth below.
A. THE PLEA AGREEMENT DID NOT TERMINATE PAROLE OR PRECLUDE REVOCATION FOR FUTURE OFFENSES.
According to Ramsey, the plea agreement terminated his parole or at least prohibited the Commission from revoking it. “[W]e look to principles of contract law” to determine “the reasonable understanding of the parties.” Henry, 758 F.3d at 431. The leading indicator of their understanding is the agreement‘s “plain language.” See United States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995). But there are additional indicators. General customs of which the parties are aware, as well as the parties’ conduct in carrying out the agreement, can aid in discerning what the parties meant by the words they used. RESTATEMENT (SECOND) OF CONTRACTS § 203(b) (1981) (“usage of trade” and “course of performance” are relevant to “interpretation of a promise or agreement“).
Applying those precepts to Ramsey‘s case, we reject his interpretation of the plea agreement. If he were right, the agreement would not only preclude revocation based on his 1995 cocaine offense but
It is questionable whether the D.C. United States Attorney‘s Office, without the Commission‘s authorization, had the legal authority to bargain around the foregoing statutes to terminate parole or forbid revocation. But we need not decide that issue. What matters here is that nothing suggests it meant to do so: the plea agreement said nothing about the Commission, parole, Ramsey‘s 32-year sentence or the age-old offenses from which that sentence stemmed. It did not say his parole was terminated. And it did not say the Commission was forbidden from revoking parole for offenses subsequent to Ramsey‘s 1995 cocaine offense.3
Ramsey emphasizes the plea agreement‘s statement that he was not to “be[] returned to any other prison facility.” Plea Agreement ¶ 6. He reasons that the agreement thereby “prohibited incarceration,” leading him to believe that “it also prohibited revocation” based on any future offense because revocation would inevitably lead to incarceration. Appellant‘s Br. 25. But the agreement governed only ”United States v. Charles W. Ramsey, Cr. No. 95-0326(PLF),” Plea Agreement p. 1—and stated that “[t]here are no other agreements, promises, understandings or undertakings between” the parties, id. ¶ 7—so it could not be construed to prohibit incarceration for all time and any offense. Instead, we read it to forbid any further incarceration based directly on the 1995 offense. Id. ¶ 6 (manifesting that, because prison term for 1995 offense was “to be time served,” parties contemplated that Ramsey would be released from that term “without being returned to any other prison facility“).4
Undeterred, Ramsey contends that, because the plea agreement “ordered [his] release on supervised release ... with no mention of parole,” it did not “contemplate[] continuing parole.” Appellant‘s Br. 25 (citing Plea Agreement ¶ 6). He gets things backwards. Under the governing statutes, the default was that Ramsey‘s parole carried forward subject to revocation for a future violation. See RESTATEMENT (SECOND) OF CONTRACTS § 222(3) (“Unless otherwise agreed, a usage of trade ... of which [the parties] know or have reason to know gives meaning to their agreement.“) (emphasis added). The agreement‘s bare statement about supervised release did not reflect any intent to displace the statutory default: far from ruling out parole, supervised release based on a new offense ordinarily runs concurrently with a preexisting parole term.
Ramsey‘s contemporaneous conduct reinforces our analysis. In February 2005—barely two months after he signed the plea agreement—he appeared with counsel for a hearing on whether the Commission should revoke his parole because of his 1995 cocaine offense. He did not argue, either to the Commission or to the National Appeals Board thereafter, that the plea agreement terminated his parole or precluded revocation resulting from any future offenses. If he had thought it did, he would have said so. See RESTATEMENT (SECOND) OF CONTRACTS § 202(4) (“[A]ny course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.“).
Faced with dead ends in the statutes and the plea agreement, Ramsey turns to Felts but it does not aid him either. In Felts, the district court for the Southern District of West Virginia ordered Ramsey‘s immediate release because he could not be required to serve any additional jail time for the 1995 cocaine offense. Crucial to Felts‘s reasoning was that Ramsey had pleaded guilty in reliance on the prosecutor‘s promises (1) against “any other charges arising out of” the 1995 offense, Felts, Dkt. No. 30 at 23; and (2) that Ramsey was to be immediately “released to commence his period of supervised release” for the 1995 offense, id. at 14. Felts ensured that Ramsey received “the benefit of” those promises so that his “bargain” was “not frustrated.” Id. at 21, 25.
Felts did not address, however, whether parole could later be revoked because of some future offense not even mentioned in the plea agreement. To the contrary, Felts acknowledged that, when drafting and signing the agreement, the parties “never gave the Parole Commission a thought.” Felts, Dkt. No. 30 at 23-24. That acknowledgment forecloses any contention that Felts construed the agreement to terminate parole or precluded revocation for all time and any offense.
B. THE PLEA AGREEMENT DID NOT PROHIBIT USING RAMSEY‘S 1995 OFFENSE TO DENY CREDIT FOR STREET TIME OR TO CALCULATE HIS SALIENT FACTOR SCORE.
Alternatively, Ramsey urges that the plea agreement prohibited the Commission from using his 1995 cocaine offense (a) in the 2005 revocation proceeding to deny him credit for street time from May 1989 through November 1995; and (b) in the 2010 revocation proceeding to calcu-
Ramsey relies heavily on paragraph 5 of the plea agreement. To repeat, paragraph 5 stated that “[t]he United States Attorney‘s Office for the District of Columbia will not prosecute [Ramsey] for any other charges arising out of the 1995 cocaine offense.” As an initial matter, Ramsey suggests that Felts interpreted paragraph 5 to bind the Commission, not simply the D.C. United States Attorney‘s Office. That construction is far from clear: Felts acknowledged that “paragraph five identified the only prosecutorial agency bound not to prosecute [Ramsey],” namely, “the ‘Office of the United States Attorney for the District of Columbia.‘” Felts, Dkt. No. 30 at 23. But even assuming paragraph 5 bound the Commission, a prohibition against “prosecut[ing]” Ramsey for additional “charges” based on his 1995 conduct would not prevent the Commission from using the conduct to deny him credit for street time or to calculate his salient factor score. Nothing in the plea agreement suggests that the parties meant for the words “prosecute” and “charges” to have anything other than their ordinary meaning. And in the criminal context, the ordinary meaning of “prosecute” is “[t]o institute and pursue a criminal action....” BLACK‘S LAW DICTIONARY 1416 (10th ed. 2014). Similarly, a “charge” ordinarily connotes “[a] formal accusation of an offense as a preliminary step to prosecution....” Id. at 282. Denying credit for street time and calculating a parolee‘s salient factor score do not institute a criminal action. Indeed, the Supreme Court has long held that “revocation of parole is not part of a criminal prosecution....” Morrissey, 408 U.S. at 480. A fortiori, we cannot conclude that parole-related measures short of revocation are tantamount to “prosecution.”
We recognize, as Felts did, that paragraph 6 of the plea agreement—promising that Ramsey was to be released from his jail term for the 1995 cocaine offense “without being returned to any other prison facility“—could be read to prohibit the Commission from reincarcerating Ramsey based directly on his 1995 conduct. In our view, however, that promise did not foreclose forfeiture of street time, especially because the agreement did not mention
Finally, paragraph 6 did not prohibit the Commission from using Ramsey‘s 1995 cocaine offense to calculate his salient factor score in 2010. The Commission used the score to weigh the likelihood that he would violate his parole on the 1970s offenses. See
* * * * *
Nothing in the 2004 plea agreement or in Felts terminated Ramsey‘s parole, precluded revocation for future offenses or prohibited the Commission from using his 1995 cocaine offense to deny him credit for street time or to calculate his salient factor score. We therefore affirm the judgment of the district court denying Ramsey‘s petition for a writ of habeas corpus.
So ordered.