U.S. v. Dick
| Decision Date | 01 October 1985 |
| Docket Number | No. 84-2986,84-2986 |
| Citation | 773 F.2d 937 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Raymond DICK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Carol A. Brook, U.S. Fed. Defender Program, Chicago, Ill., for defendant-appellant.
Sidney M. Glazer, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and CAMPBELL, Senior District Judge. *
Defendant Raymond Dick appeals from the district court's revocation of his probation. On July 2, 1981, Dick was sentenced to one year's imprisonment for extortionate extension of credit, to be followed by five years' probation for extortionate collection of credit, in violation of 18 U.S.C. Secs. 892, 894. That sentence was stayed pending Mr. Dick's timely appeal of his conviction, and he was released on appeal bond. Mr. Dick lost his appeal to this Court, and he began serving his sentence on July 19, 1982. He was released the following May to begin his five-year term of probation.
While out on appeal bond, Mr. Dick was arrested on rape and kidnapping charges arising out of a February 8, 1982, fare dispute with a passenger of the cab he was driving at the time. He was tried in the Circuit Court of Cook County, Illinois, and convicted of these charges on November 14, 1983. Thereafter he began serving his state sentence of twelve years' imprisonment. 1 On June 27, 1984, the government filed a motion for a rule to show cause why probation should not be revoked. The district court held a hearing on November 16, 1984, after which the court granted the government's motion. It sentenced Mr. Dick to a twelve-year term of imprisonment, to run concurrently with his state sentence. The defendant filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We reverse.
The issue before us is whether a district court may revoke a probationer's probation for an event occurring before the defendant began serving the probationary term but having no relation to the court's decision to impose probation. Federal judicial power to grant, and by necessary implication to revoke, probation derives entirely from Congress. Affronti v. United States, 350 U.S. 79, 83, 76 S.Ct. 171, 173, 100 L.Ed. 62; Roberts v. United States, 320 U.S. 264, 265-266, 64 S.Ct. 113, 114, 88 L.Ed. 41. Therefore, reviewing the district court's order requires close attention to the Probation Act, codified at 18 U.S.C. Secs. 3651-3656. The authority to grant probation stems from 18 U.S.C. Sec. 3651, which provides in relevant part:
Suspension of sentence and probation
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
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The court may revoke or modify any condition of probation, or may change the period of probation.
The period of probation, together with any extension thereof, shall not exceed five years.
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Section 3653 of Title 18 authorizes the arrest of probationers and the revocation of their probation, and provides in pertinent part:
At any time within the probation period, the probation officer may for cause arrest the probationer wherever found, without a warrant. At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period. * * *
As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.
To be noted first is that Section 3651 does not authorize the revocation of probation. It authorizes a district court to revoke "any condition of probation" or to "change the period of probation," but it does not authorize a district court to revoke the probation and replace it with a sentence of imprisonment. The authority to do the latter derives exclusively from Section 3653, which by its terms authorizes the district court to issue an arrest warrant "for violation of probation occurring during the probation period." 2
The Comprehensive Crime Control Act of 1984 substantially altered the Probation Act, although the changes are not effective until November 1, 1986, and so are not at issue before us. The new legislation does, however, appear to solve the issue raised in this case for the future, although not for the reasons advanced by defendant's counsel.
Counsel for defendant argues that new Section 3606, which will replace the current Section 3653 and which extends to both "probationers" and those people "on supervised release," would extend the statute's reach to those on appeal bond (Br. 19). This contention is in error, for the new Act established a new type of sentencing option, called "supervised release," that is similar to probation but is intended to replace parole. See S.Rep. 225, 98th Cong., 2d Sess. 1, 122-125, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3305-3308 (discussing new Section 3583).
Nevertheless, the new legislation most likely cures the issue raised in this case. New Section 3606, entitled "Arrest and return of a probationer," does not contain the language present in old Section 3653 that restricted the authority of the district court to issue an arrest warrant for the probationer to only those violations that occurred during the probation period. Additionally, the authority to revoke probation, previously part of old Section 3653, is now contained in a separate section, new Section 3565, entitled "Revocation of probation." 3 This new Section 3565 explicitly states that if a "defendant violates a condition of probation at any time prior to the expiration of termination of the term of probation," the court may revoke his sentence of probation. Given these statutory changes, a district court would now be able to revoke a probationer's probation for an event occurring before the defendant began serving the probationary term.
The government insists that Section 3651 confers broad power on the district court to revoke probation. Yet that Section refers only to the trial court's power to grant probation to begin with, and its power to revoke or modify conditions of probation. To find the power to revoke the term of probation itself, a district court must look to Section 3653. Were we to accept the government's contention that Section 3651 or some inherent power of the court, permits trial courts to revoke probation and incarcerate a defendant, then those parts of Section 3653 conferring this authority would be rendered meaningless. This result is repugnant to statutory construction and contradicts repeated reminders by the Supreme Court that "federal courts had no such power [to grant probation] prior to passage" of the Probation Act, Roberts, 320 U.S. at 266, 64 S.Ct. at 114 (citations omitted), and so are especially limited in the powers available to them.
The Supreme Court's careful construction of the Probation Act on other occasions demonstrates the importance of insuring that federal courts not exceed the limits on their authority that Congress has established. See Affronti v. United States, 350 U.S. at 83-84, 76 S.Ct. at 173-174 (); Roberts v. United States, 320 U.S. at 272, 64 S.Ct. at 117 (). Repeatedly the Supreme Court has construed Sections 3651 and 3653 strictly in terms of the time frames during which a district court may exercise its power and the options available to the district court. For instance, a trial court may not suspend a sentence or authorize probation once a defendant has begun service of a prison term imposed on a separate count of an indictment. Affronti, supra. Nor can an event constituting a parole violation provide a basis for revoking probation. It could justify revoking parole, but not revoking probation, because the two forms of release are independent and Congress, by implication, intended no overlap between them. United States v. Wright, 744 F.2d 1127 (5th Cir.1984). Instead "the probationary power ceases with respect to all of the sentences composing a single cumulative sentence immediately upon imprisonment for any part of the cumulative sentence." Affronti, 350 U.S. at 83, 76 S.Ct. at 173. All that the statute authorizes is that once a defendant begins to serve a probationary term, the district court regains the power to revoke the probation for violations occurring during the probationary term. 4 The Supreme Court also refused to interpret Section 3653 broadly in Roberts, supra, a narrow interpretation that Congress made explicit five years later when it codified Title 18 in 1948. 18 U.S.C.A. Sec. 3653 (). These cases instruct courts to pay careful attention to the wording of the statute, because Congress intended to confer no more power on the federal courts than it explicitly authorized in the statute.
The government's reliance on Burns v. United States,...
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