Cafi, Iljas v. US Parole Commission

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.