U.S. v. Morales, 345

• Decision Date: 25 January 1995
• Docket Number: No. 345,D,345
• Citation: 45 F.3d 693
• Parties: UNITED STATES of America, Appellee, v. Charles MORALES, Defendant-Appellant. ocket 94-1150.
• Court: U.S. Court of Appeals — Second Circuit

Page 693

45 F.3d 693

UNITED STATES of America, Appellee, v. Charles MORALES, Defendant-Appellant.

No. 345, Docket 94-1150.

United States Court of Appeals Second Circuit.

Argued Nov. 7, 1994.

Decided Jan. 25, 1995.

Gary D. Weinberger, Hartford, CT, Asst. Federal Public Defender (Thomas G. Dennis, Federal Public Defender, of counsel), for defendant-appellant.

Theodore B. Heinrich, New Haven, CT, Asst. U.S. Atty. for the D. of Connecticut (Christopher F. Droney, U.S. Atty., for the D. of Connecticut, of counsel), for appellee.

Before: FEINBERG, KEARSE and CARDAMONE, Circuit Judges.

FEINBERG, Circuit Judge:

Charles Morales appeals from an order of the United States District Court for the District of Connecticut, Alan H. Nevas, J., holding that it retained jurisdiction to extend and modify his term of supervised release. Morales had pled guilty to a violation of the narcotics laws, and had received a prison sentence followed by a period of supervised release. During that period, the district court issued a summons and order to show cause why the supervised release should not be revoked. Although the summons was issued during the period of Morales's supervised release, a hearing was not held until after the date on which the supervisory period was due to expire. Morales moved to dismiss, asserting that the district court no longer had jurisdiction pursuant to 18 U.S.C. Sec. 3583(e). The district court denied Morales's motion, extended his supervised release period by 22 months and added various conditions. Morales is currently subject to this extended term of supervised release. He appeals on the jurisdictional issue. We affirm.

I. Background

In December 1988, Morales pled guilty to conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. Morales was sentenced to 24 months in prison, followed by three years of supervised release. His supervised release term began on December 21, 1990 and was to end on December 20, 1993. In August 1993, Morales's Probation Officer discovered that Morales had violated the conditions of his supervision by failing to report several arrests to the Probation Officer within 72 hours. On December 13, 1993, seven days before the end of the supervisory period, the Probation Officer informed the district court of these and other violations and petitioned the court to order Morales to show cause why his supervised release should not be revoked.

The same day, the district court issued a summons directing Morales to appear on December 30, 1993, 10 days after his supervised release was to end, for a hearing on the order to show cause. The court purported to extend its jurisdiction over the defendant, stating that the Probation Officer's petition would "serve as a summons tolling the period of supervision...." The hearing was further postponed until February 1994, apparently to allow thorough briefing.

During the hearing, appellant stipulated that he had violated the terms of his supervision but moved to dismiss the petition, arguing that the court lost jurisdiction over him on December 20, 1993, the day his supervised release was to expire. The district court, relying on the Ninth Circuit's decision in United States v. Neville, 985 F.2d 992 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2425, 124 L.Ed.2d 646 (1993), denied appellant's motion to dismiss and retained jurisdiction. Although the court considered revoking appellant's supervised release and imposing a prison sentence, it chose not to. Instead, it extended the period of supervision by 22 months and added several new conditions. This appeal followed.

II. Discussion

This is a case of first impression in this circuit. The question before us is whether the district court had jurisdiction to rule upon Morales's alleged violations after his supervised release period was supposed to end. This is a question of law subject to de novo review. New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 996 F.2d 21, 23 (2d Cir.1993); Neville, 985 F.2d at 994.

The court's authority to impose a term of supervised release as part of a sentence is governed by 18 U.S.C. Sec. 3583. ¹ Subsection (e) addresses the court's power to modify and extend the conditions of release or to revoke supervised release and subject the defendant to further imprisonment. After considering various factors a court may, among other things,

(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision; [or]

(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation....

18 U.S.C. Sec. 3583(e)(2) & (3).

Morales raises a number of objections to the district court's jurisdiction. First, the express language of Sec. 3583(e)(2) gives the court discretion to extend a term of supervised release only so long as it acts "prior to the expiration or termination of the term of supervised release." Second, the absence of an express provision allowing the court to extend its jurisdiction reveals Congress' intent to terminate jurisdiction at the end of the supervised release term. Morales refers to two other statutes (18 U.S.C. Sec. 3565(c) and 18 U.S.C. Sec. 3624(e)) as evidence that Congress knew how to provide for tolling and extension of the court's jurisdiction, but deliberately chose not to in Sec. 3583(e). In addition, he points to the recent amendment of Sec. 3583, see note 1 above, which explicitly confers upon the court power to extend its jurisdiction to revoke supervised release upon issuance of a warrant or summons, as indicating that the court lacked this power prior to the amendment. Finally, he suggests that we should apply the rule of lenity and give the statute a restrictive interpretation. See United States v. Koehler, 973 F.2d 132, 135 (2d Cir.1992).

We believe that the language and structure of the statute support the government's contention that the court had jurisdiction to extend and modify the terms of Morales's supervised release. It is true that neither subsection (e)(2) nor (e)(3) of 18 U.S.C. Sec. 3583 expressly states that the court may retain jurisdiction to affect a term of supervised release after that term would otherwise have expired. Those subsections do provide, however, that the court is to exercise its authority in accordance with certain provisions of the Federal Rules of Criminal Procedure. Those provisions permit a degree of temporal flexibility. Because the court's original purpose in holding the disputed hearing was to give the defendant an opportunity to show cause why his supervised release should not be revoked, we turn first to Sec. 3583(e)(3), which governs revocation hearings.

A. Section 3583(e)(3)

As the government points out, 18 U.S.C. Sec. 3583(e)(3) requires the sentencing court to act "pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation." Rule 32.1(a) establishes procedures for revocation of probation and supervised release. That Rule requires in relevant part that "[t]he revocation hearing, unless waived by the person, shall be held within a reasonable time in the district of jurisdiction." Fed.R.Crim.P. Rule 32.1(a)(2) (emphasis added). Thus, we believe that the language of Sec. 3583(e)(3), through its reference to this Rule, authorizes a court to conduct a revocation hearing within a reasonable time from the date a petition is filed by the Probation Officer, at least where a petition is filed before the term of supervised release has expired.

This was the view taken by the Ninth Circuit in Neville, which the district court relied on here. In Neville, a warrant based on an alleged violation issued seven days before the end of a term of supervised release, but the hearing was not held until shortly after the end of that term. The Ninth Circuit carefully examined the language, legislative history and structure of the statute and concluded that the district court retained jurisdiction to revoke the defendant's supervised release and impose a new prison term pursuant to Sec. 3583(e)(3) after the date when the supervised release term had been scheduled to expire. In a similar situation, the Fourth Circuit subsequently adopted the reasoning of Neville in United States v. Barton, 26 F.3d 490, 492 (4th Cir.1994).

As the court stated in Barton, "If a petition [to revoke supervised release] is filed near the end of the supervisory period, the only logical construction of 'within a reasonable time' is that a hearing may be held shortly after the supervisory period expires." Barton, 26 F.3d at 491-92. Furthermore, the reference in Sec. 3583(e)(3) to the procedural rules governing probation revocation makes clear that Congress expected that those who violate the conditions of their supervised release would be afforded a revocation hearing before supervised release is revoked. "The logical inference is that Congress expected some time to pass between the time a supervised release violation is discovered and the time supervised release is actually revoked. Congress must have intended the court's jurisdiction to continue throughout this period." Neville, 985 F.2d at 996.

This case differs somewhat from Neville and Barton because the district court...