Before Farrell, Associate Judge, and Mack and Belson, Senior
The opinion of the court was delivered by: Belson, Senior Judge
Appeal from the Superior Court of the District of Columbia (Hon. Iraline Green Barnes, Trial Judge)
Submitted September 1, 1999
Dequan Bogan appeals the Superior Court's denial of his petition for a writ of habeas corpus. The District of Columbia's motion for summary affirmance was denied by a motions panel of this court which requested that the District brief an argument appellant had not raised - whether Bogan was entitled under 28 DCMR § 233.1 (1987) to be released at least two years before his mandatory release date because he had never been given a conditional release. We affirm.
Appellant was convicted of assault with a deadly weapon, and sentenced on June 6, 1996, under the D.C. Youth Rehabilitation Act of 1985 ("D.C. Youth Act"), D.C. Code §§ 24-801 et seq. (1996 Repl.), to fifty-four months of incarceration. In October 1996, the District of Columbia Board of Parole denied Bogan parole. The order listed five programs that Bogan was required to complete before being reconsidered for parole. The Board held a hearing on July 8, 1997, and again denied Bogan parole. The Board stated that Bogan would not be reconsidered for release on parole until his mandatory release date, August 13, 2000.*fn1
Bogan appeals from the Superior Court's denial of his petition for a writ habeas corpus, contending that the Board abused its discretion in denying him parole. But for the possible application of 28 DCMR § 233.1 (1987) to this case, Bogan's contentions on appeal are wholly without merit. On its face and standing alone, the language of that subsection of § 233 can be read to require that a committed youthful offender who has been denied conditional release throughout his or her stay in a facility be released at least two years before his or her mandatory release date.
After reviewing § 233.1 in context, and considering the youth offender sentencing scheme in effect in the District of Columbia, we are satisfied that § 233.1 is not applicable to one sentenced under the D.C. Youth Act, like Bogan.*fn2 It provides:
When a committed youth offender has been denied conditional release to supervision by action of the Board throughout his or her stay in a facility or institution, that offender shall be mandatorily released no later than two (2) years prior to the full term expiration date of his or her sentence. 28 DCMR § 233.1.
It is significant that a "committed youth offender" is defined as "an individual committed pursuant to the provisions of 18 U.S.C. § 5010 (b) or 5010 (c) of the Federal Youth Corrections Act for training and treatment." 28 DCMR § 199.1. Subsections 233.2 and 233.3 discuss application to youth offenders committed pursuant to 18 U.S.C. § 5010 (b) and 5010 (c), respectively, while subsection 233.4 describes the procedure for mandatory release pursuant to the "Youth Corrections Act." Accordingly, it is clear that § 233.1 was adopted for application to persons sentenced pursuant to 18 U.S.C. § 5010 (b),(c) (1982).
A brief review of the recent history of legislative and regulatory provisions regarding the sentencing of youth supports the conclusion that § 233.1 does not apply to a person sentenced under the D.C. Youth Act. Prior to 1984, youth offenders in the District of Columbia were eligible for consideration for sentencing under the Federal Youth Corrections Act ("FYCA"), 18 U.S.C. §§ 5005-5026 (1982). The FYCA, however, was repealed by Congress in 1984 by the Comprehensive Crime Control Act of 1984. Pub. L. No. 98-473, § 218 (a)(8), 98 Stat. 1837, 2027 (effective date Oct. 12, 1984). In 1985, the D.C. Youth Act replaced the FYCA. See Smith v. United States, 597 A.2d 377, 380 n.2 (D.C. 1991). The Board has been replaced by the U.S. Parole Commission which has the authority formerly vested in the Board to grant, deny, or revoke parole to youth offenders who were sentenced under the FYCA prior to its repeal.*fn3
Under the FYCA, all offenders were sentenced to six years of incarceration unless a longer sentence was specified by the court. 18 U.S.C. §§ 5010 (b),(c). If the court did not impose a longer sentence, the youth offender was entitled to release under supervision within four years of conviction, and unconditional discharge within six years. 18 U.S.C. §§ 5010 (b), 5017 (c). If the court imposed a longer sentence under the FYCA, the youthful offender was entitled to supervised release two years prior to the expiration of the specified term. 18 U.S.C. §§ 5010 (c), 5017 (d).
The D.C. Board of Parole implemented the FYCA commencing in 1972. The regulation, currently codified at 28 DCMR §§ 233 et seq., was initially promulgated as Title 9 DCRR Ch. III, § 106 (1972). The regulation has been renumbered, but remains in effect to guide the implementation of the FYCA. The regulation was obviously patterned to implement the FYCA. Two of the four subsections of § 233 contain specific references to the FYCA, §§ 233.2 and 233.3, although subsection 233.1 and 233.4 do not, and the definitions section, § 199.1, defines "committed youth offender" as one committed under the FYCA.
Bogan was sentenced under the D.C. Youth Act rather than the FYCA. Under the D.C. Youth Act, youth offenders are sentenced to an indeterminate sentence, up to a maximum commitment. The D.C. Youth Act, however, unlike the FYCA, provides that a youth offender "shall serve the sentence of the court unless sooner released" by the United States Parole Commission. D.C. Code § 24-803 (b) (1996 Repl.). Thus, while the FYCA created a scheme whereby youth offenders were mandatorily released on parole two years prior to the expiration of their sentence, the D.C. Youth Act does not use that scheme but provides that youth offenders are to serve their term in confinement unless released on parole at the discretion of the Board. The plain texts of 28 DCMR §§ 199.1 and 233.1 apply only to youth ...