United States v. Hurley

• Court: Court of Appeals for the First Circuit
• Decided: August 3, 1993
• Docket: 93-1235
• Status: Published

Opinion

USCA1 Opinion

          August 2, 1993        [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1235 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  EDMUND M. HURLEY,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Edmund M. Hurley on brief pro se.
            ________________
            Robert L. Ullmann,  Assistant United States Attorney, on Motion to
            _________________
        Remand Case for Resentencing, for appellee.

                                 ____________________

____________________

Per Curiam.  Pro se probationer Edmund Hurley
                      __________   ___ __

            appeals from a district court order that denied his motion to

            be released from  a probation term he  is presently serving.1

            The government has  filed a  motion which asks  us to  remand

            Hurley's  case  for  resentencing  while  retaining appellate

            jurisdiction.    For the reasons discussed below, we deny the

            government's motion  and summarily affirm the  district court

            order denying  Hurley's motion to further  amend his judgment

            of conviction. 

                      Hurley, a Boston lawyer, was convicted of one count

            of  conspiring to  defraud  the Internal  Revenue Service  by

            participating in a money laundering scheme in violation of 18

            U.S.C.  371.2   He was sentenced to  two years' imprisonment,

            the first eight months of which  were to be served in prison,

            the  sixteen month balance of which was suspended in favor of

            probation.   Hurley was also  required to pay  a $10,000 fine

            and a $50 special assessment.   This court affirmed  Hurley's

            conviction on  direct appeal.   See United States  v. Hurley,
                                            ___ _____________     ______

            957  F.2d  1  (1st  Cir.),  cert. denied,  60  U.S.L.W.  3801
                                        _____ ______

            (October  5, 1992).  Hurley began serving his prison sentence

            on May 14, 1992. 

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            1.  Hurley's motion  was  titled, "Motion  to  Further  Amend
            Judgment of Conviction." 

            2.  Persons convicted under this  statute "shall be fined not
            more  than $10,000 or imprisoned not more than five years, or
            both."  See 18 U.S.C.  371. 
                    ___

On August 5, 1992, Hurley filed a motion to correct

            his  sentence.    That  motion  correctly  pointed  out  that

            Hurley's sentence  was an  illegal "split sentence"  under 18

            U.S.C.  3651  (repealed effective  November 1, 1987).3   That

            statute provided that:

                      Upon entering a judgment of conviction of
                      any  offense not  punishable by  death or
                      life   imprisonment,   if   the   maximum
                      punishment provided for  such offense  is
                      more  than six  months, 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 impose a sentence
                                          _____________________
                      in  excess of six months and provide that
                      _________________________________________
                      the  defendant be confined in a jail-type
                      _________________________________________
                      institution  or  a treatment  institution
                      ___________
                      for a period not exceeding six months and
                      _____________________________________
                      that  the execution  of the  remainder of
                      the   sentence   be  suspended   and  the
                      defendant  placed  on probation  for such
                      period and upon such terms and conditions
                      as  the  court   deems  best.   (emphasis
                      supplied).

                      Thus, a "split sentence"  under 18 U.S.C.  3651 may

            not impose  a prison term  of more than  six months.   Hurley

            argued that  the district court  should have confined  him to

            prison  only for six months, a term that, with deductions for

            good time credits, would  have allowed him to be  released on

            September  29, 1992.    The district  court summarily  denied

            Hurley's  motion and  Hurley appealed.   On October  2, 1992,

____________________

            3.  As Hurley's  crime was committed before  this statute was
            repealed, it continues to govern his sentencing.  See Pub. L.
                                                              ___
            98-473 (effective Nov. 1, 1987).

                                         -3-

Hurley filed a motion for bail pending appeal and to expedite

            his  appeal.   The government  opposed bail,  contending that

            although Hurley's  split sentence was  improper, the district

            court could  still  impose  an  eight-month  prison  sentence

            followed by  a sixteen-month probation term.   The government

            later conceded  that Hurley had  served six months  (or, more

            correctly, all the time he legally had to serve under a  six-

            month sentence) in jail.  

                      On October 14, 1992, this court  summarily reversed

            the  district court's  order.   We  determined that  Hurley's

            sentence  was illegal  because  it required  Hurley to  serve

            eight months in prison.   We further ruled that  since Hurley

            had  served  the  maximum  amount  of  prison  time  he could

            lawfully  be required to serve under 18 U.S.C.  3651 he could

            not be resentenced to a term requiring further incarceration.

            We  instructed the district court  "to order that [Hurley] be

            released from custody forthwith."   The district court issued

            such an  order and  Hurley was  released  from the  Allenwood

            Federal Prison Camp  on October  15, 1992.   Hurley was  also

            instructed  to report to  the U.S. Probation  Office to begin

            serving his  probation term.   Although our October  14, 1992

            order  implicitly  required that  Hurley's split  sentence be

            amended  to impose a six-month  prison term   and the balance

            probation, an amended judgment has yet to issue.

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On  November 13,  1992,  Hurley filed  a motion  to

            further amend his judgment of conviction.  In contrast to his

            first motion,  which challenged only  the eight-month  prison

            term,  Hurley's  motion  to  further amend  his  judgment  of

            conviction  attacked  the  probation  portion  of  his  split

            sentence.    Hurley's probation  is  scheduled  to expire  on

            February 15, 1994.  Relying on cases cited in our October 14,

            1992  order,  Hurley  argued  that any  period  of  probation

            imposed by  the original  judgment of conviction  was illegal

            because  that judgment imposed a  jail term of  more than six

            months.  See United States v. Addonizio, 442 U.S. 178, 189 n.
                     ___ _____________    _________

            15  (1979)(citing 18  U.S.C.  3651  for the  proposition that

            "probation  may not  be  combined with  a sentence  entailing

            incarceration  of more  than six  months"); United  States v.
                                                        ______________

            Martin,  938 F.2d  883,  884-85 (8th  Cir. 1991)(per  curiam)
            ______

            ("Under   3651, a court could not order probation to follow a

            period  of confinement that  exceeded six months.")    Hurley

            further  argued  that this  court's  October  14, 1992  order

            required that Hurley be  released from all forms  of custody,
                                                   ___

            including  probation.   The district  court summarily  denied

            Hurley's motion and this appeal followed.

                      On  appeal,  Hurley argues  that the  United States

            Probation Office's  continuing  supervision of  him  violates

            this court's October 14, 1992 order and the  district court's

            ensuing October 15, 1992  order because these orders required

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that  he  be released  from  all forms  of  custody including
                                         ___

            probation.  Hurley  further argues that probation may  not be

            combined with a sentence which includes incarceration of more

            than six months under 18 U.S.C.  3651.  He contends that this

            is the holding of United States v. Addonizio, supra, and that
                              _____________    _________  _____

            it  requires the  elimination  of the  probation part  of his

            sentence.  Hurley  served sixteen days  beyond the amount  of

            prison  time that would  have been required  had he initially

            received a six-month prison  term and all potential statutory

            and discretionary  good time  credits under 18  U.S.C.   4161

            and  4162 (repealed).4   He contends that  these sixteen days

            are the equivalent of sixteen months of probation and that he

            should be freed from the latter.

                      Contrary  to Hurley's  contention, our  October 14,

            1992 order  and the district  court's October 15,  1992 order

            did not purport  to release Hurley from the probation portion
                ___

            of his  split sentence.  While it is true that probation is a

            form of "custody,"   Hurley did not  ask to be released  from

____________________

            4.  These  statutes remained  effective  through November  1,
            1992 for  persons who  committed offenses before  November 1,
            1987, thus they continue to apply to  Hurley. See Pub. L. 98-
                                                          ___
            473,   235(b)(1)(B).   18 U.S.C.   4161 authorized  good time
            deductions of five days per  month for sentences between  six
            months  and one  year,  while  18  U.S.C.  4162  allowed  the
            Attorney General to deduct an additional three days per month
            of employment  in a  prison industry.   Had  Hurley initially
            received a split sentence  embodying a six-month prison term,
            he would have been eligible for 30 days of good  time credits
            under 18  U.S.C.  4161  and approximately 18  additional days
            under 18 U.S.C.  4162.   

                                         -6-

probation  in the context of his previous appeal, thus we had

            no  occasion to consider the validity of his probation term. 

            And while United States v. Addonizio, supra, notes that under
                      _____________    _________  _____

            18  U.S.C.   3651  "probation  may  not  be  combined  with a

            sentence entailing  incarceration of  more than six  months,"

            this case does not hold that a probation term that is part of

            an illegal  split sentence is automatically  void or invalid.

            Indeed,  Addonizio did not  concern the  validity of  a split
                     _________

            sentence,  thus  the  quotation  cited  above   is  obviously

            dictum.5

                      A defendant may not receive a greater sentence than

            the legislature has authorized. United States v. DiFrancesco,
                                            _____________    ___________

            449 U.S. 117, 139  (1980).   The split-sentence  provision of

            18 U.S.C.  3651  was enacted  to "allow[] judges  to grant  a

            short sentence (six months or less) followed by  probation on

            a one count  indictment."  United  States v. Wertheimer,  474
                                       ______________    __________

            F.2d 1004, 1006 (2nd  Cir. 1970), cert. denied, 414  U.S. 833
                                              _____ ______

            (1973).6   Although  Hurley was  not released until   October

            15,  1992, he  did not  receive a  greater sentence  than the

            legislature  authorized in  18  U.S.C.  3651  because he  was

____________________

            5.  Similarly,  United  States  v.  Martin, supra,  does  not
                            ______________      ______  _____
            require that we hold Hurley's probation term invalid.  

            6.  Before this provision was enacted, district courts had no
            means to impose  probation and prison time on  a single-count
            conviction.  Id.
                         ___

                                         -7-

actually incarcerated for only  five months.  Thus,  there is

            nothing unlawful about his present term of probation.

                      Accordingly, the government's  motion to remand for

            resentencing is denied.  The judgment denying Hurley's motion
                            ______

            to  further amend his judgment of conviction is affirmed.  In
                                                            ________

            accordance  with this  court's  October 14,  1992 order,  the

            district court shall amend Hurley's judgment of conviction to

            impose a six-month prison term and an  eighteen-month term of

            probation.

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