Statutory Interpretation--Transfer Treaties Calling for Inconsistent Interpretation?--Bender v. U.S. Parole Comm'n, 802 F.3d 690 (5th Cir. 2015).

AuthorNovelli, Chelsea S.

Transfer treaties are given authority under the U.S. Constitution's Supremacy Clause. (1) These treaties are in place to allow prisoners serving sentences in foreign countries the opportunity to serve the remainder of their sentence in their home country. (2) In Bender v. United States Parole Commission, (3) the United States Court of Appeals for the Fifth Circuit was pressed with the issue of examining whether the release date, on its face, illegally exceeded the statutory allowance under 18 U.S.C.A. [section] 4106A ([section] 4106A), which states, the release date "shall not exceed the term of imprisonment imposed by the foreign court on that offender." (4) The Court held that a release date provided by the United States Parole Commission (the Commission) is permissible under the statutory language and is in accordance with the purpose of the Council of Europe Convention on the Transfer of Sentenced Persons (the European Transfer Treaty), to which Costa Rica is a party. (5)

On July 25, 2005, Anthony Bender (Bender), a U.S. citizen, invited M.J. (the Victim), a twenty-four-year-old student, to take a ride with him to downtown Puerto Jiminez, Costa Rica. (6) He met the Victim earlier that day and invited her to an establishment called Juanita. (7) Instead of driving to Juanita, Bender raced home, grabbed the Victim and forced her into the house, where he violently beat and raped her. (8) Eventually, the Victim escaped and hid in a swamp area until a guard found her. (9)

In 2006, a Costa Rican Tribunal convicted Bender of three counts of rape and sentenced him to thirty years in prison. (10) In 2012, Bender applied for a transfer pursuant to the European Transfer Treaty to serve the remainder of his sentence in the United States. (11) After transferring Bender, the Commission assigned a probation officer to conduct a Post-Sentence Investigation Report (PSR) to calculate his offender level based on the details of the crime and history of the offender; Bender's level was determined to be forty-three. (12) In an effort to recommend a release date, the probation officer conducting the PSR was responsible for looking to the United States Sentencing Guidelines Manual (Sentencing Guidelines) and recommending a sentencing period based on Bender's offender level. (13) The probation officer's determination also included any sentence reducetion Bender may have received because of the severe abuse he experienced while imprisoned in Costa Rica. (14)

After receiving the PSR recommendation, the Commission held a hearing to determine the Bender's release date. (15) The Hearing Examiner noted Bender might be eligible for an earlier release date based on the severe abuse he received in prison. (16) The Commission, however, held, in light of the details of the offense, Bender would be released after serving 360 months in prison and a period of supervised release for five years, or until the expiration of Bender's Costa Rican sentence, whichever happened first. (17) Bender appealed the Commission's determination of release, arguing the "five years of supervised release or until the expiration of the foreign sentence" exceeded the statutory maximum that the European Transfer Treaty and [section] 4106A(b)(l)(A) allows. (18)

Transfer treaties, like the European Transfer Treaty, unify countries by providing prisoners convicted abroad the opportunity to serve their remaining sentence in their home country. (19) The United States has entered into these treaties for purposes of protecting its citizens. (20) In an effort to maintain foreign relations, the United States agrees to be bound by the nature and duration of the sentence that the original sentencing country imposed. (21) Not every person sentenced abroad can transfer; in order to do so, they must meet conditions such as giving consent to transfer, the sentence they are serving must be final, and six months of their sentence has already been served. (22) Once the prisoner is transferred, the process for determining their release date requires a probation officer to conduct a PSR. (23) A hearing is then held to examine the results of the PSR, and the Commission accepts or denies the examiner's recommendation and makes a final determination of the time to be served and the period of supervised release. (24)

Pursuant to transfer treaties, 28 C.F.R. [section] 2.68 ([section] 2.68) delegates the jurisdiction, applicability of Sentencing Guidelines, and the factors that should be considered when determining a release date and period of supervised release. (25) Section 2.68 states that the Commission shall have jurisdiction under [section] 4106A to determine the release date and period of supervised release as though the prisoner were sentenced in a U.S. district court. (26) This Section also provides that the Bureau of Prisons (the Bureau), which has authority over federal prisoners and institutions, is responsible for determining good time credit for an earlier release, subsequent to the Commission's initial determination. (27) There are differing opinions among jurisdictions on the interpretation of the authority, guidelines, and release dates established. (28)

Agencies, such as the Commission, are given deference in interpreting ambiguous statutes and such interpretation must not be "arbitrary, capricious, or manifestly contrary to the statute." (29) 30 The Supreme Court of the United States decided in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (30) that if a statute does not speak to a precise issue, then it is ambiguous. (31) Deference is then given to the agency as long as the agency has answered the issue within the construction of the statute. (32) The Commission has provided release dates in other cases where the defendants claimed they were arbitrary and courts have deferred to the Commission's interpretation because it was consistent with the purpose of the European Transfer Treaty. (33) In Molano-Garza v. United States Parole Commission, (34) the court deferred to the Commission's interpretation, which did not require them to impose a minimum supervised release period because the period imposed was not considered a "sentence" but merely transferring of a foreign sentence. (35) Moreover, in Cafi v. United States Parole Commission, (36) the Seventh Circuit furthered the decision of Molano-Garza and held that the Commission should attempt to apply the statutory guidelines, however, the United States Code (U.S.C.) or Sentencing Guidelines are not binding on mandatory minimums. (37)

In Bender v. United States Parole Commission, (38) the Court ultimately affirmed the Commission's imposed serving period and term of supervised release. (39) The Court acknowledged the responsibilities of both the Commission under [section] 4106A and the Bureau under [section] 4105. (40) Disagreeing with Bender, the Court found that the time served is relevant, not the time imposed. (41) Under [section] 2.68(a)(7), the Commission is given the authority to interpret [section] 4106A and therefore, the Court deferred to their interpretation of time imposed versus time served as being the only relevant matter regarding Bender's release determination. (42) The fact that Bender will not serve, either in prison or on supervised release, beyond his foreign sentence was consistent with the intent of the European Transfer Treaty and therefore, the Commission's determination was not arbitrary. (43)

The Court heavily relied on their own precedent, as well as other circuits' treatment of Commission decisions. (44) The Court recognized precedent that deferred to the Commission's release dates as long as it was consistent with the purpose of the European Transfer Treaty. (45) Furthermore, looking to Cafi, the Court acknowledged other language interpretations in [section] 4106A to be ambiguous and that deference was given to the Commission's interpretation because the release date was not arbitrary and was also in accordance with the European Transfer Treaty. (46) In Molano-Garza, the Court stated, "'[s]ince the Commission is only determining a release date and not sentencing the offender,' it need not strictly comply with federal sentencing law." (47) The Court held that the Commission's interpretation should be given deference because of this vibrant precedent, lending great deference to the Commission. (48)

The Fifth Circuit correctly applied the governing authority affirming the Commission's determination. (49) The Supreme Court's decision in Chevron made clear that the agency given authority by the statute is to interpret ambiguous terms. (50) Because of precedent, and the fact that Congress does not specifically require the Sentencing Guidelines or U.S.C. to apply to transferred prisoners, it is appropriate to have a prisoner serve the supervised release period until the expiration of their foreign sentence. (51) It follows that the Commission's time served and supervised release is not arbitrary because the transfer is not intended to benefit the prisoner with a reduction of sentence but only a safer prison time, as well as, the benefit of being surrounded by their family and community. (52) Despite the lack of specificity of Sentencing Guidelines strictly applying to transferred prisoners, Congress explicitly limited the Commission's authority, by not allowing their release determination to exceed the foreign sentence. (53) In the present case, Bender would never serve longer than the foreign sentence because of the Commission's limiting language and because the determination is not considered a sentence, therefore, the set release date and period of supervised release does not violate [section] 4106A and should be given deference. (54)

Furthermore, the Court accurately relied on the purposes of the European Transfer Treaty as well as government considerations. (55) The purposes of the European Transfer Treaty are to provide the option for citizens to return to their home...

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