U.S. v. Flynn
Decision Date | 09 January 1995 |
Docket Number | No. 94-1547,94-1547 |
Citation | 49 F.3d 11 |
Parties | UNITED STATES, Appellee, v. John P. FLYNN, Defendant, Appellant. . Heard |
Court | U.S. Court of Appeals — First Circuit |
George F. Gormley with whom John D. Colucci, Cambridge, MA, was on brief, for appellant.
Jean L. Ryan, Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for appellee.
Before TORRUELLA, Chief Judge, SELYA and STAHL, Circuit Judges.
Defendant-appellant John P. Flynn challenges the district court's revocation of his probation and imposition of a five-year prison sentence on the grounds that his probation had already expired and the district court therefore lacked jurisdiction. Flynn also attacks on due process grounds the district court's findings respecting two of his alleged thirteen probation violations. We affirm.
Flynn pled guilty in 1983 to one count of conspiracy to commit mail fraud ("Count I") and two counts of mail fraud ("Counts II/III"). On August 8, 1983, the district court imposed a five-year prison sentence for Count I and another five years for Counts II/III. The district court suspended the prison sentence for Counts II/III, however, and placed Flynn on probation for five years. At the sentencing hearing, the district court stated that "[t]he sentences herewith imposed on Counts II and III are ordered to run concurrently with one another, but consecutively to the sentence imposed for Count I." Similarly, the district court wrote in its Judgment and Probation/Commitment Order ("Sentencing Judgment") filed on August 8, 1983, that "[t]he sentences for Counts II and III are ordered to run concurrently with one another but consecutively to Count I."
Flynn began serving his five-year Count I prison term on August 29, 1983. He was released on parole on June 27, 1986. On August 16, 1993--just shy of ten years from the date Flynn began serving his Count I sentence, and more than six years after he was released on parole--Flynn's probation officer, Vincent Frost, filed a petition to revoke Flynn's probation, alleging that Flynn had committed thirteen probation violations since his release in 1986. The petition alleged in detail that Flynn had committed the crimes of threats of violence, forgery, theft, theft by deception, wire fraud, insurance fraud, bank fraud, and false statements to the Probation Office. It also alleged that Flynn had violated his probation by traveling to Colorado on a ski vacation and associating with a convicted felon, one of his former co-conspirators. 1
Flynn's probation revocation hearing began on February 2, 1994, and lasted six days. On February 24, 1994, the district court issued its Memorandum Opinion, finding that the government had proved by a preponderance of the evidence that Flynn had committed forgery, theft by deception, credit card fraud, 2 bank fraud, and making false statements On appeal, Flynn asserts that his five-year probation term began to run upon his release from prison on June 27, 1986 and expired no later than June 27, 1991. Therefore, Flynn argues, the district court lacked jurisdiction to revoke his probation in 1993. The government contends that Flynn's probation did not commence until August 28, 1988, when Flynn completed his parole, and thus the probation revocation proceedings were initiated before Flynn's probation term expired. 3
and had also violated probation by leaving the judicial district without permission and by associating with a convicted felon. On April 6, 1994, the district court imposed on Flynn the full five-year prison sentence it had earlier suspended--the maximum sentence the court could impose under 18 U.S.C. Sec. 3565(a)(2) ( ).
"The intent of the sentencing court must guide any retrospective inquiry into the term and nature of a sentence." United States v. Einspahr, 35 F.3d 505, 506 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 531, 130 L.Ed.2d 434 (1994). See also United States v. King, 990 F.2d 190, 192 (5th Cir.) (court's intention is "controlling consideration" in determining commencement date of probation, as expressed in "the language employed to create the probationary status") that sentencing (quoting Sanford v. King, 136 F.2d 106, 108 (5th Cir.1943)), cert. denied, --- U.S. ----, 114 S.Ct. 223, 126 L.Ed.2d 179 (1993). At Flynn's 1983 sentencing hearing, the district court stated that the Count II/III sentence would run "consecutively to the sentence imposed for Count I." The Sentencing Judgment filed the same day ordered that the Count II/III sentence run "consecutively to Count I." The district court did not explicitly state that Flynn's probation term must run consecutively to any parole granted to Flynn on Count I. Flynn would have us hold that because of the district court's "silence" on this issue, the sentencing language is ambiguous, and that the ambiguity must be resolved in Flynn's favor. We are not persuaded.
It is true that the district court could have employed sentencing language that would have explicitly made Flynn's probation term consecutive to any parole served under Count I. The Ninth Circuit has urged courts to
state explicitly and precisely when probation is to commence. For example, a probationary sentence could specify that the period of probation shall be consecutive to the confinement portion of the sentence served on a remaining count or counts or that the period of probation shall be consecutive to the sentence imposed on a remaining count or counts including any parole or other supervision time.
United States v. Adair, 681 F.2d 1150, 1151 n. 3 (9th Cir.1982) (emphasis added). While The granting of parole to a prisoner does not terminate the sentence that he is serving. Rather, supervision in the prison setting is replaced with supervision by probation authorities. The confinement period and any subsequent period of parole supervision are best understood as two parts of a single indivisible sentence.
the use of such language by the district court probably would have obviated Flynn's appeal on this issue, we decline to convert the Ninth Circuit's suggested language into magic words a district court must utter to achieve its desired result. The district court "reveal[ed] with fair certainty" its intent and "exclude[d] any serious misapprehensions" about the nature of the sentence. United States v. Daugherty, 269 U.S. 360, 363, 46 S.Ct. 156, 157, 70 L.Ed. 309 (1926). Nothing in the district court's sentencing language suggested that the "sentence imposed for Count I"--to which the probation term was expressly made consecutive--did not include parole time. As the Tenth Circuit stated:
Einspahr, 35 F.3d at 507 (internal quotation omitted). Cf. Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) ( ); Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 44, 68 L.Ed. 247 (1923) ( ); United States v. Williams, 15 F.3d 1356, 1359 n. 3 (6th Cir.) ("A paroled convict is still, as a matter of law, 'in custody,' and continues to serve the 'custodial term' of his or her sentence."), cert. denied, --- U.S. ----, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994).
In Einspahr, the Tenth Circuit was presented with facts almost identical to those presented here. 4 The defendant in Einspahr received a forty-five month prison sentence on one count and four years probation on another count, which the district court stated was " 'to run consecutive to Count I.' " 35 F.3d at 505-06. The defendant was released after serving fifteen months in prison, leaving thirty months to serve on parole. At the conclusion of his parole, the Probation Department activated his four-year probation term on the second count. Two weeks before the defendant's probation term would have expired, the government initiated probation revocation proceedings. Just as Flynn argues now, the defendant in Einspahr claimed that his probation term commenced when he was released from prison, ran concurrently with his parole, and had long since expired. The court, however, found "no ambiguity in the district court's sentence," stating that it "clearly indicated the court's intent that the probation term not run concurrently with any period of parole supervision." Id. at 506. The court went on to state:
Unless the sentencing court specifically indicates that a consecutive sentence of probation begins at a prisoner's release from custody or confinement, the default assumption is that the full term of the earlier sentence must be completed before the probation period commences.
Id. at 507. See also Williams, 15 F.3d at 1358, 1359 n. 3 ( ); United States v. Chancey, 695 F.2d 1275, 1276-77 (11th Cir.1982) ().
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