§ 2114 provides: "Whoever assaults any person having * * * custody of any mail matter * * * of the United States, with intent to rob, steal, or purloin such mail matter * * * or robs any such person of mail matter * * * shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail * * * or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years." Employing that decision as a central authority, the Eighth Circuit, two months after Kleinzahler, in an opinion by Judge Blackmun, ruled squarely in favor of the position urged by the defendant before us. Jones v. United States, 8 Cir., 419 F.2d 593 (1969). The question was whether a favorable parole provision pursuant to 18 U.S.C. § 4208(a)(1) was available with respect to a sentence under the 25-year portion of 18 U.S.C. § 2114.
On the other hand, there is nothing in the history indicating as clearly an intent also to provide the sentencing court with the opposite authority to postpone the date. By the same token, two courts of appeals characterized § 4208(a)(1) as an early parole eligibility provision, United States v. Price, 474 F.2d 1223, 1228 (9th Cir. 1973); Jones v. United States, 419 F.2d 593, 595 (8th Cir. 1969), and it appears that no court of appeals construed § 4208(a)(1) as authorizing postponement of the eligibility period. In 1976, as we have said, the Parole Commission and Reorganization Act brought prior §§ 4202 and 4208(a)(1) together in subsections (a) and (b)(1) of § 4205 here under review.
We have found no case so holding. In Jones v. United States, 419 F.2d 593, 594 (8th Cir. 1969), Judge (now Mr. Justice) Blackmun articulated the same issue which now confronts us: We are concerned here with the meaning of the words "mandatory penalty" as employed in a federal criminal statute.
Id. For the results, compare, e.g., United States v. Hardaway, 350 F.2d 1021 (6th Cir. 1965) (parole unavailable after mail robbery conviction) with Jones v. United States, 419 F.2d 593 (8th Cir. 1969) (parole available after armed mail robbery conviction).
This question arose because of the provisions of Section 7, P.L. 85-752, 72 Stat. 845 (1958) and the decisions holding that 18 U.S.C. § 4208(a)(2) was not applicable to an offense for which there is provided a "mandatory penalty". See: Section 7, P.L. No. 85-752, 72 Stat. 845 (Aug. 25, 1958) (not coded in U.S.C.); Jones v. United States, 419 F.2d 593 (8th Cir. 1969); Vaughn v. United States, 359 F.2d 809 (7th Cir. 1966); see also United States v. Kleinzahler, 306 F. Supp. 311 (E.D.N.Y. 1969); Senate Report No. 2013, P.L. No. 85-752, July 29, 1958: 1958 U.S. Code Cong. Admin.News, p. 3891. The Court has reviewed the provisions of Title 21 U.S.C. § 841 and Title 18 U.S.C. § 4208(a)(2), together with the legislative history of those statutes.
Section 3147 is no different from many other federal statutes requiring minimum sentences, which have uniformly been held to be subject to the suspension authority of § 3651. See, e. g., Andrews v. United States, 373 U.S. 334, 340 (1963) (dictum); United States v. Davis, 560 F.2d 144, 148, n. 6 (CA3), cert. denied sub nom. Hazzard v. United States, 434 U.S. 839 (1977); United States v. Wilson, 506 F.2d 521, 522 (CA9 1974) (per curiam); Jones v. United States, 419 F.2d 593, 597-598 (CA8 1969); United States v. Cameron, 351 F.2d 448, 449 (CA7 1965); United States v. Hardaway, 350 F.2d 1021, 1022 (CA6 1965); Smith v. United States, 284 F.2d 789, 791, n. 2 (CA5 1960); United States v. Donovan, 242 F.2d 61, 64 (CA2 1957). The Court of Appeals rested its conclusion in part on the legislative history of the CCCA, noting that various Senate and House Reports referred to § 3147 as establishing a "mandatory" sentence, as prescribing a "term of imprisonment of at least two years and not more than ten," and as "requir[ing] that the individual be imprisoned for an additional period of time."
In the 1970's, several courts reflected on the matter in passing and assumed that 18 U.S.C. § 4205(b)(1) was an "early parole" eligibility provision. For example, in Jones v. United States, 419 F.2d 593, 595 (8th Cir. 1969), Justice (then Judge) Blackmun referred to the predecessor of this section as authorizing "the sentencing court to set an earlier time for parole eligibility than would otherwise be the case under the one-third-of-the-term measure established by § 4202 [now § 4205(a)]." This thought was endorsed by the Ninth Circuit in United States v. Price, 474 F.2d 1223, 1228 (9th Cir. 1973).
The anomaly of allowing probation but excluding early parole is obvious, and our research has revealed no cases following the approach of Cameron and Hardaway. In Jones v. United States, 419 F.2d 593 (8th Cir. 1969), the court carefully evaluated and rejected their analysis. In finding parole available in the face of § 2114's superficially inflexible language, Justice (then Judge) Blackmun observed, "It makes no sense to go all the way on suspension and probation and yet be unable to go part of the way on incarceration for a time and then parole."
Courts interpreting the parole eligibility scheme of the 1958 Act repeatedly observed that former section 4208 was intended strictly as an early parole option for sentencing judges. See United States v. Price, 474 F.2d 1223, 1228 (9th Cir. 1973) (referring to former sections 4208 and 4209 as "early parole provisions"). As then Circuit Judge Blackmun stated in United States v. Jones, 419 F.2d 593, 595 (8th Cir. 1969): "Section 4208(a)(1) [now 4205(b)(1)] ... authorizes the sentencing court to set an earlier time for parole eligibility than would otherwise be the case under the one-third-of-the-term measure established by section 4202 [now 4205(a)]." (Emphasis added).
The court in Woods only mentioned the prohibition in Section 3651 to illustrate that it was not met with the problem which troubled the court in Jones v. United States, 419 F.2d 593 (8 Cir. 1969); namely, that if the sentence for armed robbery of a post office under 18 U.S.C.A. § 2114 were deemed mandatory, a defendant found guilty could be placed on probation or given a suspended sentence but could not be made eligible for parole prior to service of one-third of the twenty-five year sentence. 484 F.2d at 139.