U.S. v. Van Riper
| Decision Date | 29 November 1993 |
| Citation | 982 F.2d 530 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before LOGAN, Circuit Judge, BARRETT, Senior Circuit Judge, and EBEL, Circuit Judge. *
This is a direct appeal from the district court's revocation of the appellant's probation under 18 U.S.C. § 3565. On February 2, 1987, the appellant plead guilty in the United States District Court for the District of Wyoming to the interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312 (Count I), and to the uttering of a forged U.S. treasury check in violation of 18 U.S.C. § 310(a)(2) (Count II). On Count I, he was sentenced to three years of incarceration and ordered to pay $3,000 in restitution within five years from his release from prison. On Count II, he was given a ten-year suspended prison sentence and three years of probation to begin upon his release from prison on Count I. In addition he was ordered to pay restitution in the amount of $1,636.16 within five years of his release from prison. 1
On November 10, 1988, the appellant was released from prison on Count I pursuant to 18 U.S.C. § 4164, which deemed such early release to be the equivalent of parole. In addition, on November 14, 1988, appellant signed an agreement acknowledging that he had begun his term of probation on Count II and recognizing the conditions thereof. From the date of his release on November 10, 1988 until March 13, 1989, appellant was concurrently on parole under Count I and probation on Count II. Following March 13, 1989 the term of parole was satisfied but probation continued under Count II. Among other conditions of the probation, appellant was required to make periodic reports to his probation officer and he was forbidden to leave the judicial district without permission from his probation officer. In February 1989 he stopped making his periodic reports. Appellant was suspected of having left the district without permission, and thus, on April 10, 1989, the district court in Wyoming issued a warrant for his arrest. On December 21, 1991, appellant was arrested in Florida for evading a police officer and he was subsequently returned to Wyoming for probation revocation proceedings on Count II.
On March 26, 1992, the district court revoked the appellant's probation, ordered him to serve a one-year prison sentence under Count II, and reimposed the restitution obligations. The appellant appeals claiming: (1) that his initial probation on Count II was invalid because it ran concurrently with parole on Count I, and (2) that the reimposition of his restitution obligation was improper. 2 We find these claims to be without merit and accordingly affirm the district court.
The appellant claims that the district court improperly imposed probation running concurrently with parole at the time he was first sentenced. 3 Thus appellant claims that probation on Count II should not start to run until after the term of parole on Count I had expired. Thus, he argues that because the alleged violations of probation occurred before the expiration of his parole term, such violations actually preceded the term of probation and hence can not be considered as violations of the probation. We disagree with the premise of appellant's argument and hence do not need to address the validity of the remainder of his argument. We hold that there is no inherent conflict in the concurrent application of parole and probation to separate counts. 4
United States v. Laughlin, 933 F.2d 786, 789 (9th Cir.1991).
The appellant's argument relies on the Supreme Court decision in Affronti v. United States, 350 U.S. 79 (1955), where the Court held that "the probationary power [of the court] ceases with respect to all of the sentences composing a single cumulative sentence immediately upon imprisonment for any part of the cumulative sentence." Id. at 83. In Affronti the Court did not hold that terms of probation and parole for different sentences could never be served concurrently. Rather, the Court simply held that a sentence of probation must be imposed at the time of sentencing and it can not be imposed later by the court on that part of a consecutive sentence which has not yet been served. Such a subsequent imposition of probation looks too much like parole to allow it absent clear legislative authority.
Affronti is inapposite to the instant case. Here, the probation was part of the original sentence and was imposed before the execution had begun on any portion of the combined sentence. Van Riper's sentences are therefore not subject to the restrictions set forth in Affronti.
The district court's revocation of Van Riper's probation on Count II pursuant to 18 U.S.C. § 3653 had no effect on the clemency or parole power of the executive. See United States v. Daly, 839 F.2d 598, 601 (9th Cir.1988) (); United States v. Bailey, 1991 U.S.Dist. Lexis 13378 (N.D.Ill.1991) () In the instant case, probation and parole attached to two different sentences. There was no overlap of power; the executive branch controlled the parole term arising out of Count I, and the judicial system controlled the probationary term that applied to Count II.
Because we hold that appellant was on probation at the time of the acts violating the conditions of his probation, the cases of United States v. Wright, 744 U.S. 1127 (5th Cir.1984), and United States v. Dick, 773 F.2d 937 (7th Cir.1985), 5 relied on by the appellant, are inapplicable. These cases addressed whether a crime committed before a term of probation had commenced could trigger revocation of the uncommenced probation. In neither case was the defendant on probation when he committed the act that violated his probation; in Dick, the defendant was free on bond awaiting appeal, and in Wright, the probationary sentence was conditioned upon the completion of an earlier sentence which was still extant at the time of the offense.
In the instant case, the record reveals that Van Riper was on probation when he violated the conditions of his probation. The Judgment and Commitment Order describing the appellant's sentence states that the probation for Count II was to begin "upon the defendants [sic] release from imprisonment." Van Riper had been released from prison before he committed the acts that violated his probation. Furthermore, on November 14, 1988, the appellant signed a document entitled "Conditions of Probation" which set forth that "PROBATION COMMENCED NOVEMBER 10, 1988." 6 Finally, the transcript from the probation revocation hearing indicates that Van Riper was aware of his probation and, for part of the term, was in regular contact with his probation officer in compliance with the conditions of his probation. Therefore, we need not address whether probation may be revoked for acts that occurred before the term of probation began.
Accordingly, we find that the appellant was properly subject to parole and probation simultaneously and that the district court properly revoked his probation.
At the probation revocation hearing, and again in its Order Clarifying Sentence, the district court reaffirmed the restitution that had been ordered at the appellant's initial sentencing. The appellant contends that the district court reimposed the restitution payments without considering his destitute financial situation. 7
The record does not support the appellant's contention that his financial situation was not considered. As this court noted in Rogat, "[a] restitution order will be upheld if the evidence indicates a defendant has some assets or earning potential and thus possibly may be able to pay the amount ordered." 924 F.2d at 985. The record in this case is sufficient to support such a conclusion. During the probation revocation hearing, the court was informed that the appellant: (1) had nearly $7,000 in an account that he was waiting "to be freed up"; (2) had employment prospects and was self-employed at the time of his arrest; and (3) had made partial restitution payments and satisfied the special assessments from prison. Contrary to the appellant's contention, "the judge need not specifically recite his findings regarding [the defendant's financial condition]." Rogat, 924 F.2d at 986.
The appellant raises two additional arguments regarding his restitution order for the first time in his reply brief. 8 The appellant first claims that his original restitution order was invalid because it provided for repayment beyond his term of probation in violation of 18 U.S.C. § 3579(f)(2)(A). 9 If the original term of restitution payment was in violation of the law, the appropriate remedy would be for this court to...
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...begins on the day they are released from imprisonment, not the day their parole period ends); see also United States v. Van Riper, 982 F.2d 530 (10th Cir. 1992) (unpublished) (finding that from date of prisoner's release under § 4164 until his term of parole was satisfied, he was concurrent......