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
REPLY BRIEF FOR THE UNITED STATES
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 WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
A. Congress Unambiguously Provided That A Defendant's Term Of Supervised
Release Commences Only When He Is Actually Released From Prison
Our submission in this case is that a term of supervised release commences
only when a defendant is actually released from prison, and not on an earlier
date when he should, in retrospect, have been released under a subsequent
judicial decision that clarified the law. Respondent argues (Br. 11) that
various provisions of federal sentencing law "are in conflict"
and thus create ambiguity on this issue. Respondent is incorrect.
In the statute governing "Supervision after release," Congress
provided that "[a] term of supervised release commences on the day
the person is released from imprisonment and runs concurrently with any
Federal, State, or local term of probation or supervised release or parole
for another offense to which the person is subject or becomes subject during
the term of supervised release." 18 U.S.C. 3624(e). Congress further
provided that "[a] term of supervised release does not run during any
period in which the person is imprisoned [for 30 or more consecutive days]
in connection with a conviction for a Federal, State, or local crime."
Ibid. Section 3624(e) thus makes clear that a term of supervised release
cannot commence before the day on which a person is actually released from
prison-or, in other words, that a term of supervised release cannot run
concurrently with a term of imprisonment (except a term, unlike respondent's
here, of less than 30 days).
Respondent contends (Br. 9-14) that Section 3624(e) is ambiguous in its
application to persons who served time in prison on a conviction that ultimately
was ruled invalid under a subsequent judicial decision clarifying the law.
Respondent locates (Br. 11) the source of that ambiguity in another subsection
of the same statute, 18 U.S.C. 3624(a), which states, 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," less
any time credited toward his sentence for satisfactory behavior.
Contrary to respondent's assertions, no such ambiguity exists. Section 3624(a)
says not a word about supervised release. And nothing in Section 3624(a)
implies that an individual who is not released by the Bureau of Prisons
on "the date of the expiration of [his] term of imprisonment"
is entitled as a remedy to a reduction in his term of supervised release
on a conviction that remains valid. Presumably, respondent would not contend
that a defendant may avoid other terms of his remaining sentence, such as
the payment of a fine, as a remedy for a violation of Section 3624(a). There
is no more support in Section 3624(a) for the remedy that respondent does
suggest.
Indeed, Section 3624(a) does not appear to have been intended to address
the situation of persons, such as respondent, who were released from prison
on the very date prescribed under a revised sentence imposed by the district
court.1 Under the natural reading of Section 3624(a), such prisoners are
released "on the date of the expiration of [their] term of imprisonment,"
notwithstanding that the date could have come earlier if the new judicial
decision had been announced or applied to their case earlier.2 Neither the
text nor the legislative history of Section 3624(a) suggests that Congress
intended the phrase "on the date of the expiration of the prisoner's
term of imprisonment" to have the more esoteric meaning assumed by
respondent and the court of appeals, i.e., as either the date that the prisoner's
term actually expired under the sentence imposed by the district court or
on the earlier date on which the prisoner's term could have expired under
a retroactively applied change in the law. To the contrary, as noted in
our opening brief (at 13 n.7), the provision of Section 3624(a) on which
respondent and the court of appeals rely was designed simply to provide
a single straightforward rule governing the date of a prisoner's release,
"replac[ing] a confusing array of statutes and administrative procedures
concerning the determination of the date of release of a prisoner."
S. Rep. No. 225, 98th Cong., 1st Sess. 144 (1983).3
B. Terms Of Supervised Release Should Not Be Shortened In Order To Preserve
Appeals That Would Otherwise Be Moot
Respondent also contends (Br. 14) that, if the Court concludes that Section
3624 unambiguously provides that a defendant's term of supervised release
commences only upon his release from prison, the Court should reject that
"literal interpretation" of Section 3624 as contrary to "Congress's
clear intent to allow appeals from [Sentencing] Guidelines determinations"
under 18 U.S.C. 3742. Respondent notes that a defendant's appeal challenging
the length of his term of imprisonment might become moot if the defendant
has completed his term of imprisonment before the appeal is decided. But
because the appeal would not be moot if the sentence still could have "collateral
legal consequences" for the defendant after his release, Sibron v.
New York, 392 U.S. 40, 57 (1968), respondent argues (Br. 15-19) that Section
3624 should be construed as creating such collateral legal consequences,
i.e., as providing that a reduction in a defendant's completed term of imprisonment
reduces his remaining term of supervised release.4
Respondent's argument is without support in the text or legislative history
of Section 3624, Section 3742, or any other provision of the Comprehensive
Crime Control Act of 1984. Respondent does not identify any congressional
expression of intent that supervised release serve as a mechanism to prevent
defendants' appeals of terms of imprisonment from becoming moot as a result
of the defendants' release from prison.
Instead, Congress chose a different, and more direct, mechanism to prevent
sentencing appeals from becoming moot. In another section of the Comprehensive
Crime Control Act, Congress specifically provided that a defendant may,
in certain circumstances, be allowed to remain free pending an appeal of
his conviction or sentence. 18 U.S.C. 3143(b). The district court must find
that the defendant "is not likely to flee or pose a danger to the safety
of any other person or the community," that the appeal "is not
for the purpose of delay," and that the appeal "raises a substantial
question" that is "likely to result" in reversal, a new trial,
a sentence that does not include imprisonment, or "a reduced sentence
to a term of imprisonment less than the total of the time already served
plus the expected duration of the appeal process." Ibid. In light of
Section 3143(b), which specifically addresses the concern that a defendant
may have served his entire term of imprisonment before his appeal is decided,
it is implausible that Congress also intended to address that concern through
a per se rule requiring that time erroneously served in prison be credited
against time on supervised release.
Respondent mistakenly asserts that two courts of appeals have "concluded
that in order to provide meaningful relief under 18 U.S.C. § 3742,
credit from a supervised release term is a valid exercise of judicial authority."
Br. 17-18 (citing United States v. Cottman, 142 F.3d 160 (3d Cir. 1998),
and United States v. Fadayani, 28 F.3d 1236 (D.C. Cir. 1994)). In those
cases, the courts held that the defendants' appeals of sentences of imprisonment
were not moot, even though the defendants had been released from prison,
because the courts could not conclude that there was "no possibility
that any collateral legal consequences will be imposed" on the defendants
as a result of the sentences. Fadayani, 28 F.3d at 1241 (quoting Sibron,
392 U.S. at 57); accord Cottman, 142 F.3d at 164.5 The courts identified
two such possible "collateral legal consequences": first, that
a reduction in the defendant's completed term of imprisonment could, under
the Sentencing Guidelines, affect the duration of any future term of imprisonment
that the defendant might receive, Cottman, 142 F.3d at 164-165; and, second,
that a reduction in the defendant's completed term of imprisonment "would
likely merit a credit against [his] period of supervised release,"
id. at 165. The courts did not definitively hold in either case that a defendant
is automatically entitled to credit against his time on supervised release
for any time that he erroneously spent in prison. The courts simply assumed
that such credit was a possible "collateral legal consequence"
of a reduction in the defendant's completed sentence of imprisonment. See
Fadayani, 28 F.3d at 1241 ("Although the government may be correct
that both of these contingencies are remote, Sibron requires only that they
be possible."). The courts' one-sentence discussion in each case of
whether a reduction in a defendant's term of imprisonment might affect his
term of supervised release-unaccompanied by any citation of authority, except
in Cottman to Fadayani-reflects no consideration of the statutes governing
supervised release or, by the time of Cottman, the conflicting appellate
decisions on the question presented here. And nothing in either case supports
respondent's assertion (Br. 27) that the courts actually concluded that
credit was necessary "in order to provide meaningful relief under 18
U.S.C. § 3742."6
Finally, contrary to respondent's assertions, the literal meaning of Section
3624(e)-that a person's term of supervised release does not begin until
he is actually released from prison-accords with Congress's intent in enacting
the supervised release provisions of the Comprehensive Crime Control Act.
As explained in our opening brief (at 14-18), Congress intended that supervised
release would serve purposes distinct from incarceration. Supervised release
was designed "to ease the defendant's transition into the community,"
"to provide rehabilitation" through "supervision and training
programs after release," and thereby to protect the community into
which the defendant is released. S. Rep. No. 225, supra, at 124; see also
18 U.S.C. 3553(a)(2)(B)-(D), 3583(c) (identifying the sentencing considerations
applicable to supervised release as including "to afford adequate deterrence
to criminal conduct," "to protect the public from further crimes
of the defendant," and "to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment").7
Supervised release, unlike incarceration, was not intended to serve "the
sentencing purposes of incapacitation and punishment." S. Rep. No.
225, supra, at 124; see also 18 U.S.C. 3553(a)(2)(A), 3583(c) (excluding
from the sentencing considerations applicable to supervised release "provid[ing]
just punishment for the offense"). The distinct purposes of supervised
release that Congress identified can be adequately served only when a person
has been discharged from prison into the community. See United States v.
Joseph, 109 F.3d 34, 38-39 (1st Cir. 1997) ("Incarceration * * * 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.").8
C. Congress Has Provided An Avenue Of Meaningful Relief For Defendants Who
Have Been Incarcerated On A Conviction That Is Subsequently Vacated
Respondent finally contends (Br. 24) that 18 U.S.C. 3583(e)(1) "does
not provide meaningful relief" for persons in his circumstances for
two reasons: first, Section 3583(e)(1) allows a district court to terminate
a term of supervised release only after the defendant has served at least
one year of that term, and, second, a district court has discretion under
Section 3583(e)(1) whether to terminate a term of supervised release. Because
Congress believed that supervised release serves important purposes that
are overcome only where there are specific and sufficient countervailing
interests, Section 3583(e)(1) does not afford an individual the identical
relief-an automatic credit-that would be available under the court of appeals'
decision. Section 3583(e)(1) nonetheless provides an avenue of "meaningful
relief" that, in contrast to the court of appeals' approach, accords
with the congressional purposes underlying supervised release.
Contrary to respondent's assertions (Br. 24-25), there is a significant
benefit for an individual who, after serving a one-year term of supervised
release, obtains early termination of supervised release under Section 3583(e)(1)
based in part on the "interest of justice" reflected in his service
of time in prison on a convic- tion later set aside.9 And, even before a
defendant has served one year of supervised release, Section 3583(e)(2)
permits the district court to modify the conditions of his supervised release.
Nor does the district courts' discretion over Section 3583(e)(1) motions
for early termination of supervised release render that avenue of relief
meaningless. District courts exercise that discretion frequently in favor
of defendants. During the year ending September 30, 1998, for example, 1462
former federal prisoners were granted early termination of supervised release.
Administrative Office of the United States Courts, Judicial Business of
the United States Courts 275 (1998).
Moreover, Section 3583(e)(1) requires the district courts to consider whether
early termination of supervised release is "warranted by the conduct
of the defendant released and the interest of justice," and thus is
no longer necessary to achieve the congressionally identified purposes of
easing the defendant's transition into society and protecting the community
from a recurrence of his criminal behavior. See S. Rep. No. 225, supra,
at 124. The court of appeals' remedy- automatic early termination of supervised
release for defendants in respondent's position-gives no consideration to
those purposes. It would instead reinstate for such defendants the sort
of regime that Congress sought to eliminate with supervised release, in
which a defendant's period of supervision 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. Ibid.10
* * * * *
For the foregoing reasons and those stated in our opening brief, the judgment
of the court of appeals should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DECEMBER 1999
1 After the hearing on respondent's unopposed motion to vacate his Section
924(c) convictions under Bailey v. United States, 516 U.S. 137 (1995), the
district court imposed a revised sentence directing that respondent be released
from prison immediately. Judgment 2 (May 2, 1996). The Bureau of Prisons
complied with that directive.
2 Such a prisoner would not automatically be entitled to release on the
day that his original term of imprisonment on any surviving counts would
expire. For example, many district courts, after invalidating a defendant's
sentence on a Section 924(c) count under Bailey, resentenced the defendant
to an enhanced term of imprisonment on a surviving drug count based on his
possession of a firearm. See Sentencing Guidelines § 2D1.1(b)(1). The
courts of appeals have uniformly upheld such resentencings. See, e.g., United
States v. Gordils, 117 F.3d 99 (2d Cir.) (47-month and 37- month enhancements),
cert. denied, 522 U.S. 975 (1997); United States v. Morris, 116 F.3d 501
(D.C. Cir.) (37-month and 17-month enhancements), cert. denied, 522 U.S.
975 (1997); United States v. Davis, 112 F.3d 118 (3d Cir.) (32-month enhancement),
cert. denied, 522 U.S. 888 (1997); United States v. Smith, 103 F.3d 531
(7th Cir. 1996) (17-month enhancement), cert. denied, 520 U.S. 1248 (1997).
The government did not seek such resentencing in this case.
3 Amici National Association of Criminal Defense Lawyers, et al., while
not joining in respondent's statutory ambiguity argument, urge an extension
of the common law doctrine of constructive parole, which permits a defendant
to receive credit against his term of imprisonment for time erroneously
spent at liberty through no fault of his own. See, e.g., White v. Pearlman,
42 F.2d 788, 789 (10th Cir. 1930). Amici's argument is foreclosed by the
plain language of Section 3624(e), which provides, inter alia, that "[a]
term of supervised release does not run during any period [of 30 days or
more] in which the person is imprisoned." Amici cite only one case
that applied the constructive parole doctrine to credit time erroneously
spent in prison against time to be spent on parole. United States ex rel.
Shuster v. Vincent, 524 F.2d 153 (2d Cir. 1975). Shuster is distinguishable
from this case not only because the state law in that case contained no
provision similar to Section 3624(e), which would have barred a person's
term of parole from running during his term of incarceration, but also because
of its "appalling" facts "reminiscent of Solzhenitsyn's treatise"
The Gulag Archipelago that persuaded the court of appeals to create an equitable
remedy. 524 F.2d at 154 (noting that the petitioner was wrongfully confined
in a mental institution and a prison for "44 years after conviction
of a crime for which the average time of imprisonment before parole is 15
years").
4 Respondent similarly contends (Br. 19-20) that a literal construction
of Section 3624 "would also be in contradiction to Congress's intent
under 28 U.S.C. § 2255" to allow defendants to seek post-conviction
review of their sentences of imprisonment. That argument fails for the same
reasons as does respondent's argument based on 18 U.S.C. 3742.
5 An application of the Sibron rule in the sentencing context can be found
in Mabry v. Johnson, 467 U.S. 504 (1984), which respondent erroneously claims
(Br. 20) to be "[i]n [c]ontravention [t]o" the government's position
in this case. In Mabry, a state prisoner sought by a petition for habeas
corpus to enforce a proposed plea agreement that would have allowed his
term of imprisonment on a new conviction to run concurrently with his terms
of imprisonment on earlier convictions. In a footnote, this Court observed
that the case was not mooted by the prisoner's release on parole because
"whether [he] must serve the sentence now under attack consecutively
to his prior sentences will affect the date at which his parole will expire
under state law." 467 U.S. at 507 n.3. As respondent concedes (Br.
21), Mabry "was based on Arkansas parole law." Mabry thus has
no relevance to the construction of the federal statutory provisions at
issue in this case.
6 In any event, Cottman and Fadayani appear to involve defendants who were
seeking to have their sentences of imprisonment reduced to one year or less.
See Cottman, 142 F.3d at 165; Fadayani, 28 F.3d at 1241. Such a reduction
could potentially affect a defendant's sentence of supervised release because
the Sentencing Guidelines prescribe supervised release only when a defendant
is sentenced to imprisonment for more than one year (or when required by
statute). See Sentencing Guidelines § 5D1.1(a) and (b). A reduction
in the defendants' sentences in Cottman and Fadayani could thus have enabled
the district courts to reconsider whether to impose any term of supervised
release. See United States v. Eske, 925 F.2d 205, 206 n.2 (7th Cir. 1991)
(holding that an appeal of a completed term of imprisonment was not moot
in such circumstances).
7 As noted in our opening brief (at 16), although the Comprehensive Crime
Control Act did not identify "protect[ing] the public from further
crimes of the defendant" as a sentencing consideration relevant to
supervised release, Congress subsequently amended Section 3583(c) to include
a reference to that sentencing consideration.
8 It makes no difference whether, as respondent observes (Br. 22), supervised
release may, for some purposes, be viewed as punishment. See, e.g., United
States v. Dozier, 119 F.3d 239, 242 (3d Cir. 1997) (concluding that "[s]upervised
release is punishment" for ex post facto purposes). Our point is that
Congress intended imprisonment and supervised release to serve different
purposes. That intent supports construing Section 3624, in accordance with
its plain language, as providing that a person's term of supervised release
begins only upon his actual release from prison.
9 Congress recognized the significance of the difference between one-year
and three-year terms of supervised release in Section 3583(b), which authorizes
a term of supervised release of "not more than three years" for
a Class C or Class D felony, but a term of supervised release of "not
more than one year" for a Class E felony or a misdemeanor (other than
a petty offense). 18 U.S.C. 3583(b)(2) and (3); see also, e.g., 21 U.S.C.
841(b)(1)(D) (requiring a term of supervised release for a particular category
of drug offense of "at least 4 years" if the defendant has a criminal
record and of "at least 2 years" if the defendant has no criminal
record).
10 Respondent also contends (Br. 23) that requiring him to serve the remaining
nine months of his term of supervised release "would not serve any
purpose" because he "has been fully and successfully re-integrated
into society." The legal issue in this case, however, does not turn
on respondent's individual response to release. Respondent's arguments concerning
his allegedly "full[] and successful[]" rehabilitation may be
presented to the district court on remand in a motion for early termination
of supervised release under Section 3583(e)(1).