concurring in part and dissenting in part:

I concur in the court’s judgment affirming Gwaltney’s conviction. I disagree, however, with the majority’s conclusion that the district judge had statutory authority to render Gwaltney ineligible for parole for a term of 30 years. I believe that 18 U.S.C. § 4205 (a) reflects a clearly and firmly expressed Congressional mandate that, barring specific statutory exceptions, no federal prisoner shall remain locked up for longer than ten years without receiving a parole hearing.

A common sense reading of the statutory language and the legislative history refutes the majority’s interpretation of the statute. The language of section 4205(a) that “a prisoner shall be eligible for release on parole ... after serving ten years of a life sentence of over 30 years ...,” 1 expresses a clear Congressional intent that prisoners shall become eligible for parole after serving at most ten years. In other words, section 4205(a) provides a maximum minimum sentence of ten years. The language of section 4205(b) expresses an equally clear Congressional intent to give sentencing judges the option of setting parole eligibility dates earlier than those prescribed in section 4205(a), but not later. 2 This does not mean, of course, that the prisoner has a right to be released when he becomes eligible for parole; it means only that he will be considered for release by the Parole Commission.

I recognize that any interpretation of section 4205(a) must account for the limiting phrase “except to the extent otherwise provided by law.” The majority relies heavily on this “except” clause, reading into it a Congressional intent to refer to the very next subsection of the statute, 4205(b). In other words, the majority takes the position that in subsection (a) Congress mandated a ten-year limit on parole ineligibility, then turned around in subsection (b) and authorized individual judges to circumvent that limitation anytime they imposed a maximum sentence in excess of 30 years. Surely if Congress had intended to confer upon individual sentencing judges such unbridled discretion to disregard the command of section 4205(a), it would have said so explicitly. It strikes me as highly improbable that Congress, in using the unspe *1390 cific language, “except as otherwise provided by law”, intended to refer to the very next subsection of the statute. If that had been Congress’ intent, I would expect to find in subsection (b) language such as “notwithstanding section 4205(a).”

I submit that the import of the language, “except as otherwise provided by law,” is that Congress intended to refer to other statutes specifically precluding or restricting parole. For example, the exception phrase in section 4205(a) has been used to preclude parole for District of Columbia offenders when that federal jurisdiction had a specific statutory prohibition of parole eligibility for first degree murder. Bryant v. Civiletti, 663 F.2d 286, 292 (D.C.Cir.1981); Frady v. U.S. Bureau of Prisons, 570 F.2d 1027, 1029 (D.C.Cir.1978). Another example is 21 U.S.C. § 848 (c), which explicitly prohibits parole for certain drug offenders. See United States v. Valenzuela, 646 F.2d 352, 254 (9th Cir.1980).

Moreover, the majority’s expansive reading of the “except” clause produces a logical anomaly. Under the majority’s interpretation, a prisoner sentenced to a term longer than 30 years for a civil rights violation may, as in Gwaltney’s case, be required to serve a minimum sentence longer than ten years before becoming eligible for parole. Yet had Gwaltney been sentenced to a life term, he would automatically become eligible for parole after ten years. Section 4205(b)(1) empowers the sentencing judge to impose “a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but-shall not be more than one-third of the maximum sentence imposed by the court....” Because it is impossible to know when a prisoner will have served one-third of a life term, subsection (b) obviously cannot apply to a life term. Thus had Gwaltney been convicted under the federal murder statute and not sentenced to death, he would have received a mandatory life term ( 18 U.S.C. § 1111 (b) (1982); United States v. Fountain, 768 F.2d 790, 799 , amended, 777 F.2d 345 (7th Cir.1985)), and would have been automatically eligible for parole after ten years. Yet the majority’s quirky reading of the statute allows his conviction under the civil rights statute to result in a 30-year wait for a parole hearing. There are other bizarre ramifications to the majority’s reading of the statute. For example, while a first degree murderer who is not sentenced to death must be sentenced to a life term and become eligible for parole after ten years, a second degree murderer could be sentenced to a term greater than 30 years and be required to wait longer than ten years for a parole hearing. 18 U.S.C. § 1111 (b) (1982).

The majority brushes off the legislative history of section 4205 as “inconclusive.” Supra at 1388. To the contrary, the legislative history strongly supports my reading of the statute. The parole eligibility provisions in the Parole Commission and Reorganization Act of 1976 essentially recodified the scheme set forth in the Federal Sentencing Act of 1958. See S.Rep. No. 369, 94th Cong., 1st Sess., 22, reprinted in 1976 U.S.Code Cong. & Ad.News 335, 343: “The statutory basis for eligibility for parole for federal prisoners ... remains unchanged.” Current section 4205(a) derives from former section 4202, which provided that a prisoner would be eligible for parole “after serving one-third of such term or terms or after serving fifteen years of a life sentence or of a sentence of over forty-five years.” Act of June 25, 1948, ch. 645, 62 Stat. 854 ; July 13,1951, ch. 277, 65 Stat. 150 (repealed 1976). Current section 4205(b) replicates former section 4208(a). Act of Aug. 25,1958, 72 Stat. 845 (repealed 1976). Sections 4202 and 4208(a) under the 1958 Act were combined into current section 4205 by the 1976 Act.

The legislative history of the 1958 Act shows that Congress intended to provide for flexible parole options by authorizing sentencing judges to set a parole hearing date earlier than the lesser of one-third of the term or 15 years:

S.Rep. No. 2013, 85th Cong., 2d Sess. 2, reprinted in 1958 U.S.Code Cong. & Ad. News 3891, 3896-97 (emphasis added).

This same language was carried into the House Conference Report on the amendments made by the Senate concerning former section 4208, the predecessor of section 4205(b):

Conference Report, Statement of the Managers on the part of the House on H.R.J. Res. 424, reprinted in 1958 U.S.Code Cong. & Ad.News 3891, 3905 (emphasis added). 3 Thus, Congress intended that a sentencing judge could increase the Parole Commission’s latitude by advancing, not postponing, the parole eligibility date. Contrary to this intent, the majority’s interpretation of the statute allows judges to reduce the Commission’s latitude by postponing the statutory eligibility date.

In enacting the 1976 Act, Congress incorporated the sentencing alternatives of the 1958 Act, merely reducing the maximum possible parole ineligibility term from 15 to ten years. The ten-year limit on parole ineligibility seems to have been a clearly understood feature of the legislation. For example, Representative Danielson, a member of the House Judiciary Committee and one of the bill’s floor managers, said:

121 Cong.Rec. 15,703 (1975). Thus, the majority’s interpretation of section 4205 not only derives no support from the legislative history, it is antithetical to Congress’ intent as expressed in that, legislative history.

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). Moreover, in United States v. Addonizio, 442 U.S. 178 , 99 S.Ct. 2235 , 60 L.Ed.2d 805 (1979), the Supreme Court recognized that in both the 1976 Act and the 1958 Act, Congress allowed judges to accelerate parole eligibility, while placing the ultimate power of release with the parole authority:

442 U.S. at 188-89 (footnotes omitted) (emphasis added).

The majority seems oblivious to the system of checks and balances that Congress built into the parole process. Though the judiciary is responsible for imposing sentences, the executive branch — through the Parole Commission — takes a second look at a prisoner and makes the “final determination of precisely how much time an offender must serve....” S.Rep. No. 369, 94th Cong., 1st Sess. 16, reprinted in 1976 U.S. Code Cong. & Ad.News 335, 337. The Parole Commission must weigh a number of complex factors in making its decision, not the least of which is “the likelihood that an offender will refrain from future acts.” Id. The Parole Commission’s exercise of hindsight is necessary because, at the time of sentencing, a judge cannot lay claim to complete prescience. Thus, “parole provides a means of releasing those inmates who are ready to be responsible citizens, and when continued incarceration, in terms of the needs of law enforcement, represents a misapplication of tax dollars.” S.Rep. No. 369, 94th Cong., 1st Sess. 16, reprinted in 1976 U.S.Code Cong. & Ad. News 335, 338. Of equal importance, the Parole Commission is engaged in “balancing differences in sentencing policies and practices between judges and courts in a system that is as wide and diverse as the Federal criminal justice system.” S.Rep. No. 369, 94th Cong., 1st Sess. 16, reprinted in 1976 U.S.Code Cong. & Ad.News 335, 337. Congress patently intended to reduce the wide variations in sentencing that will inevitably result from the exercise of discretion by hundreds of individualistic federal district judges.

The instant case illustrates the point. At the sentencing hearing Judge Rymer stated:

Reporter’s Transcript at 4051-52. Thus Judge Rymer interpreted section 4205(b)(1) as vesting in her the authority to by-pass the ten-year limitation of section 4205(a) by imposing a maximum sentence of 90 years and requiring Gwaltney to serve a minimum term of 30 years. I do not question Judge Rymer’s considered judgment that Gwaltney is unsuitable for parole. What I do question is her interpretation of the statute. I believe that Congress intended that the Parole Commission would review Gwaltney’s suitability for parole after he serves ten years in prison. To empower sentencing judges to warehouse prisoners for 30 years or longer without possibility of parole is to empower them to render the Parole Commission impotent to play its statutory role of “balancing differences in sentencing policies and practices.” See page 1385, supra.

Instead of following Congress’ intent, the majority follows United States v. O’Driscoll, 761 F.2d 589 (10th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1207 , 89 L.Ed.2d 320 (1986). In that case, the Tenth Circuit decided that section 4205(b)(1) allows a sentencing judge to ignore section 4205(a) and “bypass the Parole Commission if the ‘ends of justice and the best interest of the public’ so require.” 761 F.2d at 596 . Ironically, the piece of legislative history primarily relied upon by the Tenth Circuit is the phrase from the 1958 Senate Report concerning “the sharing of power” by the sentencing judge and the executive branch. Id. The sentence in O’Driscoll — 300 years, with parole eligibility after 99 years — is inimical to such “sharing” because it nullified the role of the Parole Commission in that case. 4 In my view, the Tenth Circuit did not interpret section 4205; it amended it.

At most, section 4205 is ambiguous, which would bring into play the rule of lenity. That rule provides that courts will not resolve ambiguities in statutes in favor of increasing criminal penalties absent clear support for such an interpretation in the legislative history. Bifulco v. United States, 447 U.S. 381, 387 , 100 S.Ct. 2247, 2252 , 65 L.Ed.2d 205 (1980). But I do not believe that there is any need to invoke the rule of lenity in this case because the legislative history of section 4205 and its antecedents manifests a clear Congressional intent to provide sentencing judges with the option of fixing an early parole eligibility date, not to postpone that date beyond the statutory limit.

The interpretation of section 4205 espoused by the majority here, and by the Tenth Circuit in O’Driscoll , eviscerates the Congressional scheme of shared authority in making parole decisions. Apparently, the majority misperceives what is at stake in this case. Parole eligibility does not equal release, and views expressed by sentencing judges are given consideration and respect by the Parole Commission. Williams v. U.S. Parole Commission, 707 F.2d 1060, 1065 (9th Cir.1983). The judiciary should afford similar respect to the role of the *1394 Parole Commission as envisioned by Congress.

I would vacate Gwaltney’s sentence and remand the case to the district court for resentencing.

. Section 4205 provides in pertinent part as follows:

. This interpretation of the current parole eligibility provisions is hardly novel. See Federal Judicial Center, The Sentencing Options of Federal District Judges 3 (1983):

. In a letter to Senator James Eastland of the Senate Judiciary Committee on July 25, 1958, the Justice Department informed the Senator that section 4208 should be added to relieve the harshness of the parole eligibility standard in former section 4202:

1958 U.S.Code Cong, and Ad.News 3891, 3904-05.

. There is no question that the crime in O'Driscoll was particularly heinous and merited strict punishment. There is every reason to believe that, even had the Tenth Circuit correctly interpreted section 4205 to provide for parole eligibility after ten years, the defendant would not actually have been paroled until long after that point, if ever. O’Driscoll shows that sometimes easy cases make bad law.