No. 98-1696
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
ROY LEE JOHNSON
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
RICHARD A. FRIEDMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a federal criminal defendant's term of supervised release commences
on the date of his actual release from prison or on the earlier date on
which he would have been released in accordance with a subsequent change
in the law that is retroactively applied.
In the Supreme Court of the United States
No. 98-1696
UNITED STATES OF AMERICA, PETITIONER
v.
ROY LEE JOHNSON
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-8a) is reported at 154
F.3d 569. The opinion of the district court (Pet. App. 9a-17a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 26, 1998. A petition
for rehearing was denied on January 21, 1999 (Pet. App. 18a). The petition
for a writ of certiorari was filed on April 21, 1999, and was granted on
September 10, 1999. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant provisions of Title 18 of the United States Code, Sections
3553(a), 3583, and 3624(a) and (e), are reproduced in an appendix to this
brief (App., infra, 1a-10a).
STATEMENT
1. In the Comprehensive Crime Control Act of 1984, Congress adopted an array
of sentencing reform provisions, which were designed to achieve greater
consistency, coherence, and certainty in federal criminal sentencing. Pub.
L. No. 98-473, Title II, 98 Stat. 1976; see S. Rep. No. 225, 98th Cong.,
1st Sess. 37, 39 (1983). One of those reforms was supervised release.1 Congress,
for the first time, authorized the district courts, in sentencing a defendant
to a term of imprisonment for any felony or misdemeanor, to "include
as a part of the sentence a requirement that the defendant be placed on
a term of supervised release after imprisonment." § 212(a)(2),
98 Stat. 1999 (18 U.S.C. 3583(a)).2 Congress directed the district courts
to consider, in determining the duration and conditions of any term of supervised
release, "the nature and circumstances of the offense," "the
history and characteristics of the defendant," "the need * * *
to afford adequate deterrence to criminal conduct," and "the need
* * * to provide the defendant with needed educational or vocational train-
ing medical care, or other correctional treatment." § 212(a)(2),
98 Stat. 1989-1999 (18 U.S.C. 3553(a), 3583(c) and (d)).
Congress has mandated that a term of supervised release be imposed for particular
offenses, such as manufacturing, distributing, or possessing with the intent
to manufacture or distribute controlled substances, in violation of 21 U.S.C.
841(a). See 21 U.S.C. 841(b)(1) and (2) (requiring minimum terms of supervised
release ranging from one year to ten years depending upon the nature of
the offense, the quantity of drugs involved, and the defendant's criminal
history). The Sentencing Guidelines provide that the district courts also
should impose a term of supervised release in any other case in which the
defendant is sentenced to a term of imprisonment for more than one year.
Sentencing Guidelines § 5D1.1(a), comment. (n.1) (noting circumstances
in which a court may depart from that Guideline).
2. In 1990, after a jury trial in the United States District Court for the
Eastern District of Michigan, respondent was convicted on five counts: two
counts of possession of drugs with intent to distribute them, in violation
of 21 U.S.C. 841(a); two counts of use of a firearm during and in relation
to a drug trafficking offense, in violation of 18 U.S.C. 924(c); and one
count of possession of a firearm after having previously been convicted
of a felony, in violation of 18 U.S.C. 922(g). He was sentenced to a total
of 171 months' imprisonment, consisting of three concurrent 51-month terms
on the Section 841(a) and Section 922(g) counts, to be followed by two consecutive
60-month terms on the Section 924(c) counts. Pet. App. 1a-2a.
The district court also imposed a three-year term of supervised release,
the minimum term mandated by Congress for a violation of Section 841(a)
involving the quantity of drugs attributable to respondent. See 21 U.S.C.
841(b)(1)(C). In addition to the standard conditions of supervised release
set forth in Section 3583(d) and Sentencing Guidelines § 5D1.3, the
court imposed two special conditions of supervised release on respondent:
that he "not possess, receive, or transport any firearm or dangerous
weapons" and that he "participate in a program approved by the
United States Probation Office for treatment of narcotic addiction or drug
dependency." Judgment 3 (Jan. 25, 1991).
The court of appeals, while otherwise affirming respondent's convictions
and sentence, held that the district court erred in imposing consecutive
terms of imprisonment on the two Section 924(c) counts. See 25 F.3d 1335
(6th Cir. 1994) (en banc). On remand, the district court vacated the sentence
on one of the Section 924(c) counts, thereby reducing respondent's total
term of imprisonment to 111 months. Judgment 2 (Aug. 30, 1994).
After this Court's decision in Bailey v. United States, 516 U.S. 137 (1995),
respondent moved, pursuant to 28 U.S.C. 2255, to vacate his Section 924(c)
convictions.3 He contended that those convictions were predicated on a construction
of Section 924(c) that was rejected by this Court in Bailey. The United
States did not oppose the motion. The district court vacated the Section
924(c) convictions and, because respondent had served more than the 51 months'
imprisonment to which he had been sentenced on the remaining counts, ordered
his immediate release from prison. Pet. App. 2a, 12a.
Respondent then moved to vacate the remainder of his three-year term of
supervised release on the Section 841(a) counts. He argued that his term
of supervised release should be reduced to account for the two and one-half
years that he spent in prison as a result of the Sixth Circuit's erroneous
interpretation of Section 924(c). The district court denied the motion.
Pet. App. 15a-17a. The court relied on both the text and the purpose of
the statutory provisions governing supervised release. The court explained
that 18 U.S.C. 3624(e) provides that a "term of supervised release
commences on the day the person is released from imprisonment" and
"does not run during any period in which the person is imprisoned in
connection with a conviction for a Federal, State or local crime."
Pet. App. 15a (quoting 18 U.S.C. 3624(e)). The court also recognized that
"supervised release and imprisonment fulfill distinct purposes,"
because supervised release, unlike imprisonment, is designed "to aid
the defendant's transition from incarceration to life in the community."
Ibid.
3. A divided panel of the Sixth Circuit reversed. The panel held that respondent's
term of supervised release began on "the date he was entitled to be
released" from prison under a sentence that excluded the subsequently
vacated Section 924(c) convictions, "rather than the day he walked
out the prison door." Pet. App. 4a- 5a.
The panel acknowledged that the text of 18 U.S.C. 3624(e), if "[r]ead
in isolation," would support the district court's position that a person's
term of supervised release does not begin until he is actually released
from prison. Pet. App. 4a. But the panel concluded that such a reading would
be inconsistent with 18 U.S.C. 3624(a), another section of the same statute,
which states that "[a] prisoner shall be released by the Bureau of
Prisons on the date of the expiration of [his] term of imprisonment."
The panel viewed Section 3624(a) as "embod[ying] Congress's intent
that a prisoner not be held in prison following the expiration of a valid
prison term." Pet. App. 4a. "In light of th[at] policy,"
the panel held that respondent, whose Section 924(c) convictions were invalid,
should not be considered to have been "imprisoned in connection with
a conviction for a Federal * * * crime," within the meaning of Section
3624(e), during his final two and one-half years in prison. Ibid. (quoting
18 U.S.C. 3624(e)).
The panel rejected the argument that incarceration and supervised release
serve distinct purposes and, accordingly, that prison time cannot be credited
against time on supervised release. The panel, while acknowledging that
supervised release is primarily designed to serve rehabilitative purposes,
placed emphasis on the conclusion that supervised release "is also
punitive in nature." Pet. App. 5a.
Judge Gilman dissented. He argued that reducing a defendant's term of supervised
release to account for excess time served in prison "is contrary to
both the plain language and the purpose of 18 U.S.C. § 3624(e)."
Pet. App. 6a. He viewed the text of Section 3624(e) as "clear and unconditional
in its requirements" that a term of supervised release begin only when
"the person is released from imprisonment" and "not run during
any period in which the person is imprisoned." Id. at 6a-7a (quoting
18 U.S.C. 3624(e)). He also observed that the purpose of supervised release-"to
facilitate the integration of the violator into the community, while providing
the supervision designed to limit further criminal conduct"-is not
served until the violator is actually in the community. Pet. App. 7a (internal
quotation marks and citation omitted). Finally, he pointed out that 18 U.S.C.
3583(e), which permits a district court to cut short a term of supervised
release after one year if "warranted by the conduct of the defendant
released and the interest of justice," provides a means for persons
in respondent's position to be excused from a lengthy term of supervised
release. Pet. App. 8a.
SUMMARY OF ARGUMENT
Congress has provided that a term of supervised release begins on the date
that a federal prisoner is "released from imprisonment," 18 U.S.C.
3624(e), and not on an earlier date that, in retrospect, represents the
date on which he should have been released under a retroactively applied
change in the law. That conclusion follows from the statutory text and structure.
It also accords with Congress's purpose of providing a period of official
supervision for a defendant who is making the transition from prison into
society.
Congress has defined supervised release as a term of a defendant's sentence
that is to run "after imprisonment," 18 U.S.C. 3583(a), not concurrently
with imprisonment. Congress has further provided that a defendant's "term
of supervised release commences on the day [he] is released from imprisonment"
and "does not run during any period in which [he] is imprisoned [for
more than 30 days] in connection with a conviction for a Federal, State,
or local crime." 18 U.S.C. 3624(e). That clear statutory language means
that a term of supervised release begins only on the date that the defendant
is actually released from prison, not on the earlier date that the defendant
would have been released under a change in the law that had not yet been
announced or applied to his case.
Congress's principal purpose in authorizing supervised release-"to
ease the defendant's transition into the community," S. Rep. No. 225,
98th Cong., 1st Sess. 124 (1983)-would be frustrated if a defendant was
automatically excused from all, or some portion, of his term of supervised
release because his term of incarceration was reduced to less than time
served. Such defendants, as a class, are not in any less need of supervision
when they return to society than any other defendant. The additional time
that the defendant spent in prison was, in retrospect, unwarranted, but
that provides no per se assurance that his transition into the community
will be any less problematic. As this Court has recognized in another context,
community supervision (in that case, probation) and imprisonment "are
not fungible," because they are "fundamentally different in character."
United States v. Granderson, 511 U.S. 39, 46 (1994).
Congress has not left those in respondent's circumstances without any means
of seeking relief from a lengthy term of supervised release. Under 18 U.S.C.
3583(e)(1), a district court may "terminate a term of supervised release
and discharge the defendant released at any time after the expiration of
one year of supervised release * * * if it is satisfied that such action
is warranted by the conduct of the defendant released and the interest of
justice." In exercising that authority, a district court may take into
account that a defendant has served a period of incarceration for a subsequently
overturned conviction. In addition, a district court may "reduce"
or "modify" the particular conditions of a defendant's term of
supervised release "at any time." 18 U.S.C. 3583(e)(2). Especially
in view of those alternative remedies, the court of appeals had no warrant
to require that respondent's excess time in prison be credited against his
time on supervised release.
ARGUMENT
A DEFENDANT'S TERM OF SUPERVISED RELEASE BEGINS ON THE DATE OF HIS ACTUAL
RELEASE FROM PRISON, NOT ON AN EARLIER DATE ON WHICH HE SHOULD HAVE BEEN
RELEASED UNDER A RETROACTIVELY APPLIED CHANGE IN THE LAW
A federal criminal defendant's term of supervised release does not commence
until the date of his actual release from prison. It cannot be deemed to
have commenced on any earlier date on which the defendant would have been
released if a new judicial decision or other retroactively applied change
in the law affecting his sentence had been announced before that date. A
defendant thus is not entitled to credit the time that he spent in prison
serving a sentence that was subsequently vacated against the time that he
is still to spend on supervised release.
A. The Relevant Statutory Provisions Unambiguously Provide That A Term Of
Supervised Release Begins Only When A Defendant Is Actually Released From
Prison
Congress has spoken directly to the question presented in this case. In
18 U.S.C. 3624(e), a provision titled "Supervision after release,"
Congress stated that a "term of supervised release commences on the
day the person is released from imprisonment" and "does not run
during any period in which the person is imprisoned in connection with a
conviction for a Federal, State, or local crime." 4 See S. Rep. No.
225, 98th Cong., 1st Sess. 148 (1983) (noting that Section 3624(e) "specifies
that the term [of supervised release] begins on the date of release"
from prison). That language is clear, straightforward, and unambiguous.
It cannot sensibly be construed to mean that a term of supervised release
begins either on the date of a person's release from prison or on some earlier
date on which the person would have been released under a change in the
law that had not yet been announced. See United States v. Joseph, 109 F.3d
34, 38 (1st Cir. 1997) (recognizing that "the language in § 3624(e)
must be given its plain and literal meaning," i.e., that "a person's
term of supervised release does not begin until the peson has been released
from prison") (quoting Quinones v. United States, 936 F. Supp. 153,
155 (S.D.N.Y. 1996)).5
Other statutory provisions confirm that Congress intended that a term of
supervised release would begin only when the defendant actually walked out
the prison door. The provision authorizing the district courts to impose
supervised release as part of a defendant's sentence, 18 U.S.C. 3583, is
titled "Inclusion of a term of supervised release after imprisonment"
(emphasis added). The initial sentence of that provision states that "[t]he
court, in imposing a sentence to a term of imprisonment for a felony or
a misdemeanor, may include as a part of the sentence a requirement that
the defendant be placed on a term of supervised release after imprisonment."
18 U.S.C. 3583(a) (emphasis added).6 The Senate Report on Section 3583 is
in accord. See S. Rep. No. 225, supra, at 123 ("This section permits
the court, in imposing a term of imprisonment for a felony or a misdemeanor,
to include as part of the sentence a requirement that the defendant serve
a term of supervised release after he has served the term of imprisonment.")
(emphasis added).
This Court has recognized that a term of supervised release is distinct
from, and consecutive to, a term of incarceration. See Granderson, 511 U.S.
at 50 (noting that "terms of supervised release * * * follow up prison
terms"); Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991) ("[s]upervised
release is a unique method of post-confinement supervision invented by the
Congress"). So, too, has the United States Sentencing Commission, which
is charged with "establish[ing] sentencing policies and practices for
the Federal criminal justice system." 28 U.S.C. 991(b)(1). The Sentencing
Commission has prescribed that district courts "shall order a term
of supervised release to follow imprisonment when a sentence of imprisonment
of more than one year is imposed, or when required by statute," and
"may order a term of supervised release to follow imprisonment in any
other case." Sentencing Guidelines § 5D1.1 (emphases added).
The ordinary meaning of the term "release" confirms that a term
of supervised release does not run while the defendant is still in prison.
The word "release" is an antonym of the words "detention"
and "imprisonment." See William D. Lutz, The Cambridge Thesaurus
of American English 387 (1994) (release/detention); The Penguin Dictionary
of English Synonyms and Antonyms 344 (1992) (release/imprisonment); see
also Webster's Dictionary of Synonyms 690 (1942) ("release" is
an antonym of "[d]etain (as a prisoner)"). In accordance with
common English usage, then, a defendant cannot be both imprisoned and released
(even with supervision) at the same time. Cf. Reno v. Koray, 515 U.S. 50,
57 (1995) (contrasting "release" and "detention" under
the bail reform provisions of the Comprehensive Crime Control Act of 1984);
Hinckley v. United States, 163 F.3d 647, 653 (D.C. Cir. 1999) (contrasting
"release" and "confine" under a provision of the District
of Columbia Code).
The court of appeals conceded (Pet. App. 4a) the force of the language of
Section 3624(e), but found a counterweight in Section 3624(a), which states
that "[a] prisoner shall be released by the Bureau of Prisons on the
date of the expiration of [his] term of imprisonment." Contrary to
the court of appeals' reasoning, Section 3624(a) does not speak to the issue
here. It does not suggest that a defendant's term of imprisonment should
be deemed to "expir[e]" on any date other than the one dictated
by the sentence imposed by the district court. The court of appeals' construction
of Section 3624(a) implies that the Bureau of Prisons must continually assess,
with respect to each prisoner in the federal system, whether the prisoner
is entitled to an early release as a result of a new judicial decision or
other change in the law. But Congress has left such determinations to the
district court that sentenced the prisoner. See 28 U.S.C. 2255; 18 U.S.C.
3582(c).7
Congress has explicitly provided in other circumstances for a defendant
to receive a "credit" against his sentence. For example, a prisoner
"may receive credit toward the service of [his] sentence" of up
to 54 days a year if the Bureau of Prisons determines that he "has
displayed exemplary compliance with institutional disciplinary regulations."
18 U.S.C. 3624(b) (1994 & Supp. III 1997); see also 18 U.S.C. 3585(b)
(providing that "[a] defendant shall be given credit toward the service
of a term of imprisonment" for certain "time he has spent in official
detention prior to the date the sentence commences"). Such provisions
demonstrate that, when Congress intends to allow a credit against a defendant's
sentence, Congress does so expressly. Congress did not do so with respect
to the terms of supervised release of defendants who served time in prison
under a sentence that is subsequently vacated. It would thus be particularly
unwarranted to construe Section 3624(a), or any other provision of the Criminal
Code, as implicitly authorizing a credit for such defendants.
B. Congress's Principal Purpose In Authorizing Supervised Release-"To
Ease The Defendant's Transition Into The Community"-Would Be Undermined
If A Defendant's Excess Prison Time Automatically Reduced His Time On Supervised
Release
The conclusion that a term of supervised release commences only when a defendant
is actually released from prison accords with Congress's principal purpose
in establishing supervised release as a distinct component of a defendant's
sentence. The Senate Report explained that "the primary goal of such
a term 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." S. Rep. No. 225, supra, at 124. The
Senate Report added that supervised release was not designed to serve "the
sentencing purposes of incapacitation and punishment." Ibid.; see also
id. at 125 ("The term of supervised release * * * follows a term of
imprisonment and may not be imposed for purposes of punishment or incapacitation
since those purposes will have been served to the extent necessary by the
term of imprisonment."). Congress perceived that the goal of assisting
a defendant's integration into the community was not adequately served under
the existing parole system, because a defendant was subject to supervision
only if he was released from prison early by the Parole Commission, but
not if he remained incarcerated for the full term imposed by the district
court. Id. at 122-124. Congress thus intended that "[t]he term of supervised
release would be a separate part of the defendant's sentence, rather than
being the end of the term of imprisonment," so that whether, and to
what extent, a defendant would be subject to supervision would turn on the
needs of the defendant and the community, rather than "on the almost
sheer accident of the amount of time that happens to remain of the term
of imprisonment when the defendant is released." Id. at 123, 124.
Congress's purposes for authorizing supervised release are further reflected
in 18 U.S.C. 3583(c), which provides that a district court, in determining
whether to impose a term of supervised release and the duration and conditions
of any such term, shall consider certain of the "factors to be considered
in imposing a sentence" enumerated in 18 U.S.C. 3553(a). Section 3583(c),
as originally enacted in 1984, identified six of those factors: "the
nature and circumstances of the offense and the history and characteristics
of the defendant," 18 U.S.C. 3553(a)(1); "the need * * * to afford
adequate deterrence to criminal conduct," 18 U.S.C. 3553(a)(2)(B);
"the need * * * to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the
most effective manner," 18 U.S.C. 3553(a)(2)(D); "the kinds of
sentences and the sentencing range established for * * * the applicable
category of offense committed by the applicable category of defendant as
set forth in the guidelines issued by the Sentencing Commission," 18
U.S.C. 3553(a)(4); "any pertinent policy statements issued by the Sentencing
Commission," 18 U.S.C. 3553(a)(5); and "the need to avoid unwarranted
sentence disparities," 18 U.S.C. 3553(a)(6). § 212(a)(2), 98 Stat.
1989-1990, 1999. Congress amended 18 U.S.C. 3585(c) in 1987 to require district
courts to consider a seventh factor in the supervised release determination:
"the need * * * to protect the public from further crimes of the defendant,"
18 U.S.C. 3553(a)(2)(C). Sentencing Act of 1987, Pub. L. No. 100-182, §
9, 101 Stat. 1267. Notably absent from the list of factors that Congress
has deemed relevant to the supervised release determination is 18 U.S.C.
3553(a)(2)(A), "the need * * * to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense."
See also Sentencing Guidelines § 5D1.1, comment. (n.1) (1998) (recognizing
that the purposes of supervised release include "to protect the public
welfare," "to provide drug or alcohol treatment or testing,"
and "to assist the reintegration of the defendant into the community").
Congress thus contemplated that supervised release would serve purposes
distinct from incarceration. It would aid a defendant in making his "transition
into the community" after his release from prison-for example, by assisting
him in obtaining vocational training, medical treatment, or substance abuse
counseling. See 18 U.S.C. 3553(a)(2)(D); Sentencing Guidelines § 5D1.3
(enumerating mandatory and discretionary conditions of supervised release).
It would at the same time provide a measure of security to the community
into which the defendant is released by enabling the United States Probation
Office to monitor him during the transition period. See 18 U.S.C. 3553(a)(2)(C).
Those purposes cannot effectively be served until the defendant is living
in the community.
The mere fact that a defendant has served more time in prison than he would
have served, if a judicial decision affecting the validity of a portion
of his sentence had been announced earlier, offers no assurance that his
transition into the community will be any less difficult. To the contrary,
as Congress recognized, a defendant who is returning to the community "after
the service of a long prison term" may be particularly in need of supervision.
S. Rep. No. 225, supra, at 124; cf. Harold B. Wooten, Violation of Supervised
Release, 6 Fed. Sentencing Rep. 183 (1993) ("With longer periods of
incarceration come greater difficulties in reintegrating into communities.
Social relationships must be built anew. Released offenders must find jobs
when market skills have passed them by for all but the most menial tasks.").
The court of appeals' position would recreate, with respect to defendants
in respondent's position, a defect that Congress identified in the parole
system and sought to eliminate with supervised release: that a defendant's
period of supervision after his release from prison turned "on the
almost sheer accident of the amount of time that happens to remain of the
term of imprisonment when the defendant is released," rather than on
the needs of the defendant and the community. S. Rep. No. 225, supra, at
124.
In sum, because Congress intended that incarceration and supervised release
would serve different purposes, prison time cannot properly be treated as
interchangeable with time on supervised release. As the First Circuit has
explained in reaching a result contrary to that of the Sixth Circuit in
this case:
[S]upervised release is intended to facilitate the integration of the violator
into the community, while providing the supervision designed to limit further
criminal conduct. Incarceration, to the contrary, does nothing to assist
a defendant's transition back into society and is not a reasonable substitute
for a portion of the supervised release term.
Joseph, 109 F.3d at 38-39 (internal quotation marks and citations omitted).
Indeed, this Court has reached a similar conclusion with respect to another
form of community supervision, observing that "probation and imprisonment
are not fungible; they are sentences fundamentally different in character."
Granderson, 511 U.S. at 46 (internal quotation marks omitted). So, too,
terms of supervised release and terms of incarceration "are not fungible"
because they are "fundamentally different in character."
C. Congress Has Provided A Different Avenue Of Relief For A Defendant Who
Has Been Incarcerated On A Subsequently Vacated Conviction
A person in respondent's position is not without a means of seeking relief
from a lengthy term of supervised release. Under 18 U.S.C. 3583(e)(1), a
district court may "terminate a term of supervised release and discharge
the defendant released at any time after the expiration of one year of supervised
release * * * if it is satisfied that such action is warranted by the conduct
of the defendant released and the interest of justice." As the Fifth
Circuit has suggested, in assessing whether a defendant's supervised release
should be terminated early in "the interest of justice," a district
court "may take into account the fact that a defendant served time
under a wrongful conviction and sentence." United States v. Jeanes,
150 F.3d 483, 485 (1998); accord Joseph, 109 F.3d at 39; cf. United States
v. Spinelle, 41 F.3d 1056, 1060-1061 (6th Cir. 1994) (statute requiring
a minimum term of supervised release does not preclude a district court
from exercising its authority under Section 3583(e)). A district court may
also "modify" or "reduce" any condition of supervised
release "at any time prior to the expiration or termination of the
term of supervised release." 18 U.S.C. 3583(e)(2).
In a related context, the Sentencing Commission has indicated that discretionary
reduction of a term of supervised release under Section 3583(e), rather
than automatic reduction or elimination of that term, is the proper response
when a defendant's term of imprisonment is reduced because of a retroactively
applied change in the law. The Sentencing Commission has provided that,
in cases where a defendant has served more time in prison than would be
required under an amendment to the Sentencing Guidelines, the district court
cannot reduce the defendant's sentence to less than time served. Sentencing
Guidelines § 1B1.10(b). The court may, however, take the defendant's
excess prison time into account as part of the totality of circumstances
bearing on whether to grant a motion for early termination of supervised
release under Section 3583(e)(1). Sentencing Guidelines § 1B1.10, comment.
(n.5). The Sentencing Commission also made clear that "the fact that
a defendant may have served a longer term of imprisonment than the court
determines would have been appropriate in view of the amended guideline
range shall not, without more, provide a basis for early termination of
supervised release." Ibid.8
Although a defendant who has spent excess time in prison in connection with
an invalidated sentence is not entitled to a credit against the time that
he still must serve on supervised release, he would be entitled to a credit
against the time that he still must serve in prison in connection with another
sentence that was to run consecutively to the invalidated sentence. That
is because "[m]ultiple terms of imprisonment ordered to run consecutively
or concurrently shall be treated for administrative purposes as a single,
aggregate term of imprisonment." 18 U.S.C. 3584(c). Respondent was
unable to take advantage of that mechanism because he had no additional
federal prison time to serve. But that is no reason to undermine the function
of supervised release by automatically excusing those in respondent's circumstances
from all, or some portion, of their terms of supervised release.9
In sum, given that a defendant who has served excess time in prison as a
result of a subsequently invalidated conviction may obtain a reduction in
his term of supervised release, if the district court determines that such
a reduction is justified by the defendant's conduct and "the interest
of justice," there is little equitable force to the court of appeals'
position that such a defendant must receive a reduction in his term of supervised
release without regard for the needs of the defendant and the community
into which he is released. No reason therefore exists to depart from the
plain language of the statute, which states that a term of supervised release
begins when the defendant is released from prison, and not while he remains
in federal, state, or local custody. 18 U.S.C. 3624(e).
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
RICHARD A. FRIEDMAN
Attorney
OCTOBER 1999
1 The same statute established the United States Sentencing Commission and
the sentencing guidelines system. See, e.g., § 217(a), 98 Stat. 2017-2019
(28 U.S.C. 991-994); § 212(a)(2), 98 Stat. 1989 (18 U.S.C. 3553).
2 Congress has since amended Section 3583(a) to provide that the district
courts must impose a term of supervised release if the statute under which
the defendant was convicted so requires, see, e.g., 21 U.S.C. 841(b), or
if the defendant was convicted for the first time of a crime involving domestic
violence.
3 In Bailey, the Court held that, to establish "use" of a firearm
under Section 924(c), "the Government must show active employment of
the firearm," and not "mere possession." 516 U.S. at 144.
The Sixth Circuit, consistent with the rule widely applied in the lower
courts, had previously permitted conviction without a showing of "active"
use. See, e.g., United States v. Acosta-Cazares, 878 F.2d 945, 952 (6th
Cir.), cert. denied, 493 U.S. 899 (1989).
4 The statute contains a limited exception applicable where "the imprisonment
is for a period of less than 30 consecutive days." 18 U.S.C. 3624(e).
5 In addition to the First Circuit in Joseph, two other courts of appeals
have held that a term of supervised release commences on the defendant's
actual release date, not the date on which he should have been released
under a revised sentence. See United States v. Jeanes, 150 F.3d 483, 485
(5th Cir. 1998); United States v. Douglas, 88 F.3d 533, 534 (8th Cir. 1996)
(per curiam); see also United States v. Jaramillo, No. 98-2005, 1998 WL
536387 (10th Cir. Aug. 18, 1998) (unpublished disposition noted at 156 F.3d
1245), cert. denied, 119 S. Ct. 832 (1999). The Ninth Circuit, like the
Sixth Circuit in this case, has held that a defendant's term of supervised
release must be deemed to have commenced on the date that he should have
been released from prison according to his revised sentence, not on the
date that he was actually released after the revised sentence was imposed.
See United States v. Blake, 88 F.3d 824, 825 (1996). The court in Blake
reached that conclusion in the context of a sentence that was modified in
light of a retroactively applied change in the Sentencing Guidelines. See
18 U.S.C. 3582(c)(2); Sentencing Guidelines § 1B1.10(b). The Sentencing
Commission responded to Blake by prohibiting a reduction in a term of imprisonment
to less than time served as a result of such a change in the Guidelines.
The effect of that amendment is to prohibit a shortening of a term of supervised
release in the circumstances involved in Blake. See pages 19-20, infra.
6 Section 3583 is part of chapter 227 of the Criminal Code, titled "Sentences,"
and is primarily concerned with the district courts' role at the time of
sentencing with respect to supervised release. Section 3624(e) is part of
chapter 229 of the Criminal Code, titled "Postsentence Administration,"
and is concerned with the implementation of a sentencing term imposing supervised
release. Both provisions contemplate that the term of supervised release
begins after completion of the term of imprisonment.
7 The Senate Report confirms that Section 3624(a) was not intended to address
the situation presented in this case. Section 3624(a) was instead designed
to "replace[] a confusing array of statutes and administrative procedures
concerning the determination of the date of release of a prisoner,"
which had, among other things, required the Bureau of Prisons and the Parole
Commission to engage in duplicative recordkeeping and "constant evaluation
of prisoner eligibility for release." S. Rep. No. 225, supra, at 144.
8 The Sentencing Commission adopted that approach to prevent a defendant
from circumventing the supervised-release process by obtaining a retroactive
reduction of his sentence to less than time served. See note 5, supra (discussing
Blake).
9 In some circumstances, a person who has served time in prison in connection
with a federal conviction that is subsequently invalidated may be entitled
to compensation from the United States. See 28 U.S.C. 1495 (authorizing
damages action in the Court of Federal Claims "by any person unjustly
convicted of an offense against the United States and imprisoned");
28 U.S.C. 2513 (setting forth the conditions under which damages may be
obtained under Section 1495 and limiting such damages to $5000). The courts
of appeals have agreed that Section 1495 provides a remedy only to "those
who can show that they are innocent of any criminal offense." Betts
v. United States, 10 F.3d 1278, 1283 (7th Cir. 1993); see Osborn v. United
States, 322 F.2d 835, 840 (5th Cir. 1963) ("[T]he claimant must be
innocent of the particular charge and of any other crime or offense that
any of his acts might constitute.") (quoting H.R. Rep. No. 2299, 75th
Cong., 3d Sess. 2 (1938)); United States v. Brunner, 200 F.2d 276, 280 (6th
Cir. 1952) ("Innocence of the [claimant] must be affirmatively established
and neither a dismissal nor a judgment of not guilty on technical grounds
is enough.").
APPENDIX
STATUORY PROVISONS INVOLVED
Section 3553(a) of Title 18 of the United States Code provides as follows:
Factors To Be Considered In Imposing A Sentence.- The court shall impose
a sentence sufficient, but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this subsection. The court, in determining
the particular sentence to be imposed, shall consider-
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for-
(A) the applicable category of offense committed by the applicable category
of defendant as set forth in the guidelines issued by the Sentencing Commission
pursuant to section 994(a)(1) of title 28, United States Code, and that
are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable
guidelines or policy statements issued by the Sentencing Commission pursuant
to section 994(a)(3) of title 28, United States Code;
(5) any pertinent policy statement issued by the Sentencing Commission pursuant
to 28 U.S.C. 994(a)(2) that is in effect on the date the defendant is sentenced;
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
Section 3583 of Title 18 of the United States Code provides as follows:
Inclusion Of A Term Of Supervised Release After Imprisonment
(a) In General.-The court, in imposing a sentence to a term of imprisonment
for a felony or a misdemeanor, may include as a part of the sentence a requirement
that the defendant be placed on a term of supervised release after imprisonment,
except that the court shall include as a part of the sentence a requirement
that the defendant be placed on a term of supervised release if such a term
is required by statute or if the defendant has been convicted for the first
time of a domestic violence crime as defined in section 3561(b).
(b) Authorized Terms Of Supervised Release.- Except as otherwise provided,
the authorized terms of supervised release are-
(1) for a Class A or Class B felony, not more than five years;
(2) for a Class C or Class D felony, not more than three years; and
(3) for a Class E felony, or for a misdemeanor (other than a petty offense),
not more than one year.
(c) Factors To Be Considered In Including A Term Of Supervised Release.-The
court, in determining whether to include a term of supervised release, and,
if a term of supervised release is to be included, in determining the length
of the term and the conditions of supervised release, shall consider the
factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),
(a)(4), (a)(5), and (a)(6).
(d) Conditions Of Supervised Release.-The court shall order, as an explicit
condition of supervised release, that the defendant not commit another Federal,
State, or local crime during the term of supervision and that the defendant
not unlawfully possess a controlled substance. The court shall order as
an explicit condition of supervised release for a defendant convicted for
the first time of a domestic violence crime as defined in section 3561(b)
that the defendant attend a public, private, or private nonprofit offender
rehabilitation program that has been approved by the court, in consultation
with a State Coalition Against Domestic Violence or other appropriate experts,
if an approved program is readily available within a 50-mile radius of the
legal residence of the defendant. The court shall order, as an explicit
condition of supervised release for a person described in section 4042(c)(4),
that the person report the address where the person will reside and any
subsequent change of residence to the probation officer responsible for
supervision, and that the person register in any State where the person
resides, is employed, carries on a vocation, or is a student (as such terms
are defined under section 170101(a)(3) of the Violent Crime Control and
Law Enforcement Act of 1994). The court shall also order, as an explicit
condition of supervised release, that the defendant refrain from any unlawful
use of a controlled substance and submit to a drug test within 15 days of
release on supervised release and at least 2 periodic drug tests thereafter
(as determined by the court) for use of a controlled substance. The condition
stated in the preceding sentence may be ameliorated or suspended by the
court as provided in section 3563(a)(4). The results of a drug test administered
in accordance with the preceding subsection shall be subject to confirmation
only if the results are positive, the defendant is subject to possible imprisonment
for such failure, and either the defendant denies the accuracy of such test
or there is some other reason to question the results of the test. A drug
test confirmation shall be a urine drug test confirmed using gas chromatography/mass
spectrometry techniques or such test as the Director of the Administrative
Office of the United States Courts after consultation with the Secretary
of Health and Human Services may determine to be of equivalent accuracy.
The court shall consider whether the availability of appropriate substance
abuse treatment programs, or an individual's current or past participation
in such programs, warrants an exception in accordance with United States
Sentencing Commission guidelines from the rule of section 3583(g) when considering
any action against a defendant who fails a drug test. The court may order,
as a further condition of supervised release, to the extent that such condition-
(1) is reasonably related to the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary
for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D);
and
(3) is consistent with any pertinent policy statements issued by the Sentencing
Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in section
3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition
it considers to be appropriate. If an alien defendant is subject to deportation,
the court may provide, as a condition of supervised release, that he be
deported and remain outside the United States, and may order that he be
delivered to a duly authorized immigration official for such deportation.
(e) Modification Of Conditions Or Revocation.-The court may, after considering
the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),
(a)(4), (a)(5), and (a)(6)-
(1) terminate a term of supervised release and discharge the defendant released
at any time after the expiration of one year of supervised release, pursuant
to the provisions of the Federal Rules of Criminal Procedure relating to
the modification of probation, if it is satisfied that such action is warranted
by the conduct of the defendant released and the interest of justice;
(2) extend a term of supervised release if less than the maximum authorized
term was previously imposed, and may modify, reduce, or enlarge the conditions
of supervised release, at any time prior to the expiration or termination
of the term of supervised release, pursuant to the provisions of the Federal
Rules of Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and conditions
of post-release supervision;
(3) revoke a term of supervised release, and require the defendant to serve
in prison all or part of the term of supervised release authorized by statute
for the offense that resulted in such term of supervised release without
credit for time previously served on post-release supervision, if the court,
pursuant to the Federal Rules of Criminal Procedure applicable to revocation
of probation or supervised release, finds by a preponderance of the evidence
that the defendant violated a condition of supervised release, except that
a defendant whose term is revoked under this paragraph may not be required
to serve more than 5 years in prison if the offense that resulted in the
term of supervised release is a class A felony, more than 3 years in prison
if such offense is a class B felony, more than 2 years in prison if such
offense is a class C or D felony, or more than one year in any other case;
or
(4) order the defendant to remain at his place of residence during nonworking
hours and, if the court so