United States v. Joseph

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-1507



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   EDWIN P. JOSEPH,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                    [Hon. Ronald R. Lagueux, U.S. District Judge]
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                                 ____________________



                                        Before



                                  Cyr, Circuit Judge,
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                     Aldrich and Campbell, Senior Circuit Judges.
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                                 ____________________


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

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



                                    March 20, 1997

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CAMPBELL, Senior Circuit Judge.   This is an appeal
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            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, 116 S. Ct. 501 (1995), dismissed
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            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


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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.
                                          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


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a supervised release term of three years on count  one, and a



            concurrentsupervised 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 Bailey1, 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



                                
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            1.   In Bailey, the Supreme Court explained that the "use" of
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            firearms,  for    924(c)(1) purposes,  includes "brandishing,

            displaying,  bartering, striking  with,  and most  obviously,

            firing, or  attempting to  fire, a firearm",  but not  merely

            storing a gun near drugs.  Bailey, 116 S. Ct. at 508.
                                       ______



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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.
                                         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
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            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
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            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.
                                         III.



                      Assuming  without  deciding  that   Bailey  applies
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            retroactively  to "use"  cases on  collateral review,  we now



                                
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            2.    Several   courts  have   ruled   that  Bailey   applies
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            retroactively.  See,  e.g., Guzman-Rivera  v. United  States,
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            933  F. Supp.  138,  143 (D.P.R.  1996);  Sanabria v.  United
                                                      ________     ______

            States, 916 F. Supp. 106, 112-13 (D.P.R. 1996); United States
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            v. Barnhardt,  93 F.3d 706,  708-09 (10th Cir.  1996); United
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            States  v. Cota-Loaiza,  936  F. Supp.  751, 753-54  (D.Colo.
            ______     ___________

            1996).



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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.
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                      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


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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 late in 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
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            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
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            measuring the duration of the  three year terms of supervised



            release.  See Id. at 825.
                      ___ ___


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            3.    This  circuit, like  many at  the  time, had  adopted a

            broader definition of  the term "use" than the  Supreme Court

            held was acceptable in its 1995 Bailey decision.
                                            ______



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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
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            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
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            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
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            case leads  to the inevitable conclusion  that his supervised



            release  terms should be deemed to have begun on December 22,


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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
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            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  identify as the  beginning of  his terms of



            supervised release and  was, under  the plain  language of   



            3624(e), ineligible for supervised release then.  



                      To be sure, an equitable argument can be made that,



            while  Joseph could not in  any real sense  have expected his



            terms of supervised release to start on December 22, 1992, he



            should be  given credit for incarceration  now found improper



            by  offsetting the excess time he spent in prison against the



            terms  of supervised release.   However,  while we  have some



            sympathy  for this argument, we  reject it for  much the same



            reasons the Court of Appeals for  the Eighth Circuit rejected



            a similar argument in  United States v. Douglas, 88  F.3d 533
                                   _____________    _______



            (8th Cir. 1996).   In Douglas, the  defendant was resentenced
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            to a substantially lower prison term pursuant to a clarifying



            amendment to the Sentencing Guidelines.  Since he had already



            served several months beyond  his newly imposed sentence, the



            defendant sought credit  against his supervised  release term


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for  the  excess time  spent in  prison.   The  Douglas Court
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            refused  to grant  such  credit, noting  that "[t]he  statute



            dealing with  the release of  a prisoner plainly  states that



            supervised  release  'commences  on  the day  the  person  is



            released  from imprisonment,'  and 'does  not run  during any



            period in which the person is imprisoned in connection with a



            conviction  for   a  Federal  . . . crime.'"     Id.  at  534
                                                             ___



            (citations omitted).  The court went on to note "that this is



            consistent   with  the   distinctly  different   purposes  of



            imprisonment  and  supervised   release."    Id.   (citations
                                                         ___



            omitted).



                      Joseph attempts  to distinguish Douglas  by arguing
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            that  the defendant in that case never claimed that he should



            not have been  convicted of  the particular crime.   He  also



            considers relevant the fact that no change in the substantive



            law or  application of  a guideline amendment  eliminated the



            conviction previously  entered by the district  court in that



            case.   These  distinctions,  however,  do  not  seem  to  us



            dispositive.   The bottom line  is that both  cases deal with



            changes  yielding the same result: a reduction in the term of



            imprisonment beyond the time already served.



                      Even so,  Joseph maintains  that he could  not have



            been  imprisoned for a federal crime that he, as the district



            court's  ruling recognized,  could not  have committed.   He,



            thus, contends that, even applying the language of   3624(e),


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his supervised release terms  should revert back to  the date



            of release for the valid convictions, since he could not have



            been  imprisoned for  the  use of  a  firearm during  and  in



            relation to a drug crime.  But, as already noted, when Joseph



            pleaded guilty  and was sentenced  in 1991, the  sentence for



            his  18 U.S.C.     924(c)(1) conviction  was appropriate  and



            "legal", being in accordance  with a statutory interpretation



            then enforced, and of  course believed to be correct,  by the



            courts having jurisdiction over his case.  It was only in the



            wake of the Bailey  decision in 1995 that his  conviction and
                        ______



            sentence under  count three  of the original  indictment were



            recognized  as being contrary to  the law, at  which point he



            was immediately  relieved of the remaining  sentence for that



            count and  released from prison.   It was at this  point that



            his supervised  release terms,  in accordance with  the plain



            language of   3624(e), began to operate.  



                      Lastly,  Joseph asserts  that the  statutory scheme



            codified in   3624  did not contemplate a situation  like the



            one  presented in  this case.   He  argues that  a reasonable



            reading  of    3624 would  imply  the unwritten  language "or



            should have been released."  Congress, however, did not place



            such language in    3624, and,  given the entirely  different



            purposes  served by imprisonment  and supervised  release, we



            see  no clear  basis for implying  it now.   Rather, like the



            Eighth  Circuit in Douglas, we believe that the language in  
                               _______


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3624(e) must be