U.S. v. Joseph

• Decision Date: 04 December 1996
• Docket Number: No. 96-1507,96-1507
• Citation: 109 F.3d 34
• Parties: UNITED STATES, Appellee, v. Edwin P. JOSEPH, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 34

109 F.3d 34

UNITED STATES, Appellee, v. Edwin P. JOSEPH, Defendant, Appellant.

No. 96-1507.

United States Court of Appeals, First Circuit.

Heard Dec. 4, 1996.

Decided March 20, 1997.

Louis F. Robbio, Providence, RI, with whom Robbio & Nottie, Ltd. was on brief, for appellant.

Margaret E. Curran, Assistant United States Attorney, and Sheldon Whitehouse, United States Attorney, were on brief, for appellee.

Before CYR, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

This is an appeal from the district court's partial denial of defendant-appellant Edwin P. Joseph's 28 U.S.C. § 2255 motion. The district court, applying the Supreme Court's recent decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), dismissed Joseph's 1991 conviction under 18 U.S.C. § 924(c) (use of a firearm during and in relation to a drug trafficking crime), and vacated his sixty month sentence for that offense, of which Joseph had already served over half. Noting that Joseph had long since completed serving the sentences on two other charges to which--along with the § 924(c) charge--he had pleaded guilty in 1991, the district court ordered his release. However, the court also directed that the concurrent three and five year supervised release terms stemming from the two other charges begin operating.

Joseph argues on appeal, as he did in his 28 U.S.C. § 2255 motion, that the court erred in not ordering the terms of supervised release to have begun on the date the two served sentences had ended, to wit on December 22, 1992, rather than on the date of his actual release in 1996. Under this theory, Joseph's supervised release terms would be reduced by the time he spent in prison under the now-dismissed § 924(c) conviction. Alternatively, Joseph asks that the supervised release terms be eliminated altogether to compensate him for the deprivation of his freedom, resulting from the wrongful conviction and sentence under § 924(c). We do not accept Joseph's contention and affirm the district court's direction that the supervisory release terms commence on the actual release date.

I.

On June 27, 1991, agents of the Bureau of Alcohol, Tobacco and Firearms arrived at Joseph's residence to execute arrest and search warrants. While searching the residence for weapons, the agents found several weapons, along with a small quantity of cocaine and a scale. The weapons were located in a closet in the living room, under a couch and under a mattress in the bedroom. Joseph was arrested.

On July 31, 1991, Joseph pleaded guilty to a three-count information charging him with illegal sale of firearms, in violation of 18 U.S.C. § 922(a)(5) (count one); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (count two); and use of a firearm during and in relation to a drug crime, in violation of 18 U.S.C. § 924(c) (count three).

On October 10, 1991, the district court sentenced Joseph to concurrent twenty-one month terms of imprisonment on counts one and two, and a consecutive sixty month term on count three, as mandated by the statute. See 18 U.S.C. § 924(c)(1) (West Supp.1996). The district court also imposed a supervised release term of three years on count one, and a concurrent supervised release term of five years on count two.

On or about March 31, 1993, Joseph filed his first 28 U.S.C. § 2255 motion. He alleged, among other things, that he had been deprived of his right to appeal because of counsel's ineffective assistance. The district court reduced the amount of the fine imposed to $20,000 from the original amount of $70,000. But all the other sentencing provisions of the original judgment remained unchanged.

On or about January 16, 1996, Joseph filed his second 28 U.S.C. § 2255 motion. Invoking Bailey ¹, he argued that his 18 U.S.C. § 924(c) conviction (count three) should be vacated. He also contended that his supervised release terms under the other counts should "be reduced to adequately reflect the excessive time [he] has served in prison." The government, in a response to Joseph's motion, said that it did not oppose vacation of his conviction under § 924(c).

On March 27, 1996, the district court announced that it vacated Joseph's conviction and sentence on count three, and dismissed that count. It noted that, as a consequence (Joseph having long since completed the twenty-one month concurrent sentences on counts one and two), he would be released from custody. The court stated that the supervised release terms under counts one and two would commence to operate. A conforming amended judgment was entered the next day.

II.

The government expressly stated that it did not oppose vacation of Joseph's § 924(c) conviction for using a firearm. In its brief, the government states that it "agreed that the Petitioner's § 924(c) conviction could not survive Bailey." We agree that the evidence of firearm "use" here was insufficient to pass muster under Bailey. A further question might be whether Bailey has retroactive application to prior cases like this on collateral review. However, the government's concession that Joseph's conviction "could not survive Bailey " waives any contest over that point. ² We accordingly proceed to the sole question in this appeal, the timing and operation of the supervisory release provisions from the sentences on the two valid counts.

III.

Assuming without deciding that Bailey applies retroactively to "use" cases on collateral review, we now consider Joseph's appellate challenges to his supervised release terms. After completing service of the terms of imprisonment under counts one and two, Joseph spent more than thirty-nine additional months in prison under the consecutive sentence imposed on the 18 U.S.C. § 924(c)(1) count before that conviction was dismissed, and the sentence vacated, by the district court. Joseph contends he is entitled to, at least, a thirty-nine month credit against his supervised release terms on the other two counts. His arguments, however, are contrary to the language of 18 U.S.C. § 3624 and they also run counter to the purposes of supervised release terms, which are not alternative forms of punishment but rather are designed to ease a prisoner's return to civilian life. Joseph's arguments also fail to take into account the availability of relief under 18 U.S.C. § 3583(e).

(1) The Language of 18 U.S.C. § 3624.

Section 3624 provides that a person's "term of supervised release commences on the day the person is released from imprisonment ... ", and that "[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime...." 18 U.S.C. § 3624(e) (West Supp.1996) (Supervision after Release). These provisions are, on their face, contrary to Joseph's argument that his supervised release terms should be deemed to have begun on the day that his concurrent sentences under count one and count two expired, since he was in prison then, serving what, at the time, was a valid sentence for violation of § 924(c)(1). ³ Joseph points out, however, that § 3624 also provides that "[a] prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment...." 18 U.S.C. § 3624(a) (West Supp.1996) (Date of Release). He argues that he should have been released latein 1992, as that was when his terms of imprisonment for the other two counts expired, they being the only valid counts (as now but not then known), given the holding in Bailey.

In so arguing, Joseph relies on the Court of Appeals for the Ninth Circuit's decision in United States v. Blake, 88 F.3d 824 (9th Cir.1996). In Blake, the defendants' custodial sentences were reduced below the time they had already served in prison by the retroactive application of a clarifying amendment to the United States Sentencing Guidelines. The government, nonetheless, used the defendants' actual release dates as the starting dates for measuring the duration of the three year terms of supervised release. See Id. at 825.

The court of appeals held that the defendants' terms of supervised release should be deemed to have started on the day that they should have been released under the reduced sentences. The Blake Court read the language of 18 U.S.C. § 3624(a) to set "the date of release, and consequently the commencement of a supervised release term, at the time a prisoner's term expires." Blake, 88 F.3d at 825. Furthermore, the Blake Court stated that its ruling was dictated by the circuit precedent of United States v. Montenegro-Rojo, 908 F.2d 425, 431 n. 8 (9th Cir.1990) ("If the district court decides to shorten the extent of its departure [from the Sentencing Guidelines], the extra time Montenegro-Rojo spent in jail should, in fairness, be counted towards the year of supervised release."). Thus, the Blake Court concluded that, in view of the language of § 3624(a), and "the obvious purpose of leniency in applying the revised sentencing guidelines retroactively", Blake, 88 F.3d at 825, it was bound to follow Montenegro-Rojo, and to direct the district court to modify the commencement dates of defendants' supervised release terms.

According to Joseph, his situation is analogous to Blake. Joseph contends that the application of Blake to this case leads to the inevitable conclusion that his supervised release terms should be deemed to have begun on December 22, 1992, the date on which he should have finished his terms of imprisonment.

We are not persuaded by Joseph's arguments, nor by the rationale of Blake and Montenegro-Rojo. The fact remains that § 3624(e) ties the beginning of a term of supervised release to release from imprisonment. It forbids the running of the term of supervised release during any period in which the person is imprisoned. Joseph was in prison at the time he now seeks to...