United States v. Johnson

• Decision Date: 30 June 2017
• Docket Number: No. 16-3268,16-3268
• Parties: UNITED STATES of America v. Vaughn JOHNSON, a/k/a Andrew Smith, a/k/a Glenroy King Vaughn Johnson, Appellant
• Court: U.S. Court of Appeals — Third Circuit

861 F.3d 474

UNITED STATES of America

v.Vaughn JOHNSON, a/k/a Andrew Smith, a/k/a Glenroy King Vaughn Johnson, Appellant

No. 16-3268

United States Court of Appeals, Third Circuit.

Argued on May 4, 2017

Opinion filed: June 30, 2017

Omodare B. Jupiter, [Argued], Office of Federal Public Defender, 1115 Strand Street, Second Floor, Christiansted, VI 00820, Counsel for Appellant

Alphonso G. Andrews, Jr., Office of United States Attorney, 1108 King Street, Suite 201, Christiansted, VI 00820, David W. White, [Argued], Office of United States Attorney, 5500 Veterans Drive, Suite 260, United States Courthouse, St. Thomas, VI 00802, Counsel for Appellee

Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

Appellant Vaughn Johnson challenges a judgment revoking his term of supervised release and resentencing him to 18 months in prison (with credit for time served). He contends, among other things, that the District Court of the Virgin Islands lacked jurisdiction over the term of supervised release, because 1) he was subject to a previous revocation order, entered by a different district court, on an unrelated concurrent supervised release term; and 2) the Virgin Islands Probation Office failed to actually supervise him or attempt to do so. As we find that the District Court was not deprived of jurisdiction, we will affirm.

I.

In the early 2010s, Johnson was twice convicted of federal crimes. The first conviction, in the Middle District of Florida, arose from a charge of lying on a passport application. The second, in the District of the Virgin Islands, arose from wire fraud charges. In both instances, Johnson received a custodial sentence followed by three years of supervised release, the conditions of which would be violated if he committed another crime.¹ Because Johnson was already imprisoned on the first charge when he was indicted, convicted, and sentenced on the second, he effectively served one aggregate prison term in connection with both convictions.

After Johnson was released from prison in January 2014, he settled in the Middle District of Florida, and the Middle District's Probation Office took charge of his supervision. Aside from a brief status phone call in June 2014 that he initiated, Johnson had no contact with the Virgin Islands Probation Office, which otherwise took no action to supervise or keep tabs on him.

In January 2015, Johnson was again indicted in Florida federal court for lying on a passport application—a charge to which he would eventually plead guilty, but which also violated the no-new-crime condition of his supervised release terms. As a result, the Middle District of Florida began taking steps to revoke the Florida term of supervised release by issuing an order of detention. Johnson eventually admitted the Middle District revocation charge and, in April 2016, the district court entered a judgment of revocation sentencing him to time served.

Although the new Florida federal indictment had been handed down in January 2015, the Virgin Islands Probation Office took no action until March 2016, when it was belatedly informed by its Middle District of Florida counterpart of Johnson's new indictment and, by extension, of his violation of the conditions of the Virgin Islands term of supervised release. After inquiring into whether the Middle District of Florida Probation Office would accept a formal transfer of jurisdiction (Florida declined),the Virgin Islands Probation Office notified the Virgin Islands District Court of Johnson's violation. The Court then began the formal process of revoking Johnson's Virgin Islands term of supervised release.

This time, however, Johnson decided to challenge the revocation proceedings. He did so partly on jurisdictional grounds, arguing that the Florida district court's judgment of revocation had eliminated the Virgin Islands term of supervised release, leaving nothing left to supervise or revoke. He claimed also that the Virgin Islands Probation Office's abdication of its supervisory responsibility—as demonstrated by its failure to supervise or attempt to supervise between his release from prison and March 2016—otherwise deprived the District Court of jurisdiction.

After conducting a revocation hearing,² the District Court overruled Johnson's challenges, denied his oral motion to dismiss, revoked his supervised release, and sentenced him to 18 months in prison (with credit for time served) and 18 additional months of supervised release. Johnson appealed.

II.³

a) Jurisdictional Arguments

1) Merger of Concurrent Terms of Supervised Release

Johnson's first argument is that the two concurrent terms of supervised release, from Florida and the Virgin Islands, were effectively terminated by the Middle District of Florida's single revocation judgment. He relies in part on 18 U.S.C. § 3624(e), the subsection of the "Release of a prisoner" statute pertaining to "Supervision After Release." Johnson points out that from a logical standpoint, a single Probation Office operating out of a single judicial district will have the actual duty of supervision, as a person will not generally reside in two separate districts at the same time. Johnson therefore argues that "where multiple terms of supervised release run concurrently, revocation of one such term necessarily terminates the concurrent terms ... because Congress effectively determined that an offender should serve only one term of post-release supervision."⁴ In effect, Johnson proposes a de facto merger of concurrent supervised release terms, combining the practical reality of single-district supervision with the legal consequences of committing a violation. A single revocation judgment would, in this model, wipe out all concurrent supervised release terms then pending.

As Johnson seems to concede, however, the two Courts of Appeals that have addressed an analogous argument in their published decisions—the Second and Fifth Circuits, in United States v. Gammarano and United States v. Alvarado —have rejected it.⁵ Johnson did not explain either in his brief or at oral argument why he thinks these cases were wrongly decided. Our own case law, moreover, rejects his argument by implication. In United States v. Dees , we joined six other circuits in permitting consecutive prison terms to be imposed when concurrent terms of supervised release are revoked, even if the revocations are all based on the same underlying violation conduct⁶ —an outcome that depends on the viability of multiple, independent terms of supervised release.

Nevertheless, we begin with the language of the statute upon which Johnson bases his argument, § 3624(e), which addresses the mechanics of supervised release terms—setting out when they begin, when they are tolled, and how supervision is transferred between the Bureau of Prisons (a part of the Department of Justice) and the Probation Office (a part of the federal court system). Section 3624(e) says a term of supervised release "commences on the day the person is released from imprisonment," which is when a prisoner is "released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court." The term of supervised release then "runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release."

In our view, nothing in the language of § 3624(e) supports Johnson's claim that Congress "effectively determined" that a prisoner would be subject to only a single de facto , amalgam term of supervised release. To the contrary, the statute specifically acknowledges that a supervised release term is to be concurrent with other federal and state probationary or parole periods, including another federal term of supervised release; or, as we said in Dees , "[§] 3624(e) mandates that multiple terms of supervised release run concurrently."⁷ Section 3624(e) does use the singular throughout—"the term," not "the terms," overseen by "a" probation officer—but we think this is because it is written to address individual terms of supervised release, in line with other parts of the statutory framework.⁸ We do not read that drafting choice, or the statute more broadly, to bolster Johnson's merger argument.

We gain further support for our decision by reference to the relevant federal probation statute. In the federal system, probation differs from supervised release in that it is imposed as an alternative to prison rather than in addition to prison.⁹ Otherwise, federal probation is governed by the same basic mechanics as supervised release and is subject to the same logistical realities regarding multiple terms of supervision that Johnson has identified.¹⁰ The analogous probation statute is § 3564, which is entitled "Running of a term of probation." Its subsection (b) specifically acknowledges "[m]ultiple terms of probation," which "whether imposed at the same time or at different times" are to "run concurrently with each other." Thus, far from demonstrating a congressional intent to bring about a merger of probation terms, § 3564(b) indicates the opposite. It is therefore unlikely that probation and supervised release were intended to function differently from each other on such a basic level.

More broadly, in cases such as this one where multiple terms of supervised release arise out of judgments entered in different judicial districts, Johnson's merger argument would violate the general modern rule that a court lacks jurisdiction to modify a criminal judgment from another district.¹¹ And as § 3583(a) establishes, supervised release is as much a "part of the sentence" as a term of imprisonment or a fine. We see no reason, and Johnson does not advance any, to treat the power to modify or revoke a term of...