No. 98-1696
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
ROY LEE JOHNSON
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPLY BRIEF FOR THE PETITIONER
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 98-1696
UNITED STATES OF AMERICA, PETITIONER
v.
ROY LEE JOHNSON
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPLY BRIEF FOR THE PETITIONER
The United States seeks the Court's review to resolve a circuit conflict
over whether a term of supervised release begins on the date of a federal
prisoner's actual release from prison or on the earlier date on which he
should have been released in accordance with a retroactively applied interpretation
of the law. The Sixth Circuit, consistent with the Ninth Circuit, concluded
that the date of a prisoner's release from prison under federal law is the
date on which "he was entitled to be released rather than the day he
walked out the prison door." Pet. App. 5a. The effect is to credit
any excess time that the prisoner served in prison against the time that
he is to serve on supervised release. The First, Fifth, and Eighth Circuits
have reached the contrary conclusion. See Pet. 6-8 (citing cases).
Respondent does not dispute that the question presented in the petition
is an important and recurring one that has divided the courts of appeals.
Nor does respondent identify any reason why this is not an appropriate case
in which to resolve that question definitively. Respondent argues only that
the decision below is correct on the merits. Even if true, that would be
no reason to withhold review of a question of such significance to the federal
criminal justice system. In any event, respondent's defense of the decision
below is unavailing.
1. Respondent acknowledges (Br. in Opp. 3) that Congress has expressly provided
that "supervised release begins on the defendant's release from prison."
See 18 U.S.C. 3624(e) ("The term of supervised release commences on
the day the person is released from imprisonment * * * . A term of supervised
release does not run during any period in which the person is imprisoned
in connection with a conviction for a Federal, State, or local crime unless
the imprisonment is for a period of less than 30 consecutive days.").1
Respondent nonetheless argues (Br. in Opp. 4) that this clear, straightforward,
and unequivocal statutory text is "ambiguous," and thus that the
rule of lenity should apply, because Congress "fail[ed] to consider
this scenario [i.e., a vacated sentence]" when enacting supervised
release. As this Court has recognized, however, "[t]he fact that [a
criminal statute] has been applied in situations not expressly anticipated
by Congress does not demonstrate ambiguity. It demonstrates breadth."
National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994) (quoting
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985)); see also Beecham
v. United States, 511 U.S. 368, 374 (1994) (In deciding whether a statute
is so ambiguous as to warrant the application of the rule of lenity, "our
task is not the hopeless one of ascertaining what the legislators who passed
the law would have decided had they reconvened to consider petitioners'
particular cases. Rather, it is to determine whether the language the legislators
actually enacted has a plain, unambiguous meaning.").
2. Respondent further contends (Br. in Opp. 5) that the supervised release
provisions should not be given "[a] literal reading," but instead
should be construed to mean that a defendant's term of supervised release
may be deemed to have begun before his release from prison, because that
is "[t]he only way to give some effect" to Congress's "inten[t]
that the Bureau of Prisons not hold a defendant longer than his lawful sentence."
The statute from which respondent discerns Congress's intent, 18 U.S.C.
3624(a), provides, in pertinent part, that "[a] prisoner shall be released
by the Bureau of Prisons on the date of the expiration of the prisoner's
term of imprisonment." It does not address the situation of a defendant,
such as respondent, who was, in fact, "released by the Bureau of Prisons
on the date of the expiration of [his] term of imprisonment," albeit
on a later date than if the retroactively applied understanding of the law
prevailed at the time of his original sentencing. Equally important, and
contrary to respondent's assertion, Congress has already provided a remedy
for defendants who serve excess time in prison: under 18 U.S.C. 3583(e)(1),
after a defendant has served one year of supervised release, the district
court may terminate the remainder of his supervised release term if "satisfied
that such action is warranted by the conduct of the defendant released and
the interest of justice." A defendant's service of excess time in prison
is a factor that a court may be consider in determining whether early termination
of supervised release is "in the interest of justice." See Sentencing
Guidelines § 1B1.10, Application Note 5. It is thus unnecessary to
strain the text of 18 U.S.C. 3624(e), or any other statutory provision,
to create a remedy for defendants such as respondent.
3. Finally, respondent argues (Br. in Opp. 5) that crediting a defendant's
excess prison time against his supervised release time is "equitable"
because, "although supervised release and imprisonment do have some
divergent goals, they both still carry punishment as an overriding factor."
But this Court does not create exceptions not warranted by the plain text
of a statute, or by other tools of statutory construction, simply to achieve
a result that is arguably more "equitable." See, e.g., Brogan
v. United States, 522 U.S. 398 (1998). As noted in the petition (at 11-13),
moreover, Congress expressly stated that supervised release was not designed
to serve "the sentencing purposes of incapacitation and punishment."
S. Rep. No. 225, 98th Cong., 1st Sess. 124 (1983). Rather, Congress explained
that "the primary goal of such a term [of supervised release] is to
ease the defendant's transition into the community after the service of
a long prison term for a particularly serious offense, or to provide rehabilitation
to a defendant who has spent a fairly short period in prison for punishment
or other purposes but still needs supervision and training programs after
release." Ibid. Congress thus intended that incarceration and supervised
release be distinct, rather than interchangeable, components of a defendant's
sentence.
* * * * *
For the reasons stated above and in the petition for a writ of certiorari,
the petition should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JUNE 1999
1 Respondent mistakenly cites 18 U.S.C. 3583(e) for the quoted statement.
Section 3583(e), as discussed subsequently in the text, provides a district
court with authority, among other things, to terminate a term of supervised
release after one year.