United States v. Mandarelli

Opinion

USCA1 Opinion

December 22, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-1637

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                               SAMUEL MANDARELLI, III,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
                                          ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                              and Selya, Circuit Judge.
                                         _____________

                                 ____________________

            Stephen H. Mackenzie for appellant.
            ____________________
            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with
            _______________________
        whom  Richard S. Cohen, United States Attorney, and Michael M. DuBose,
              ________________                              _________________
        Assistant United States Attorney, were on brief for appellee.

____________________

____________________

BREYER,  Chief   Judge.     In   1989  Samuel   J.
                                _____________

             Mandarelli,  III pled guilty to a charge of possessing a gun

             unlawfully (as a previously convicted  felon).  18 U.S.C.   

             922(g), 924(a)(2).  The  district court, following the then-

             current Sentencing Guidelines, imposed a  sentence of twelve

             months   in  prison,  followed   by  twenty-four  months  of

             supervised  release.  In 1992,  after completing his term in

             prison, Mandarelli violated an important  condition attached

             to  his supervised  release, namely,  the condition  that he

             "not  commit another . . . crime."  Mandarelli violated this

             condition  1) by  assaulting an  acquaintance, see  Me. Rev.
                                                            ___

             Stat. Ann. tit. 17-A,   207,  and 2) by giving his probation

             officer   a   false  address,   see   18   U.S.C.      1001.
                                             ___

             Consequently,  the  district   court  revoked   Mandarelli's

             supervised  release  and,  again following  the  Guidelines,

             sentenced   him  to   serve  eighteen   months   in  prison.

             Mandarelli appeals, claiming that  the law forbids the court

             to sentence him (for  his "supervised release" violation) to

             more than fourteen additional  months in prison, the maximum

             he could have received under the Guidelines for his original

             (felon  in  possession  of  a firearm)  offense.    We  find

             Mandarelli's argument unconvincing  and affirm the  district

             court's judgment.

The relevant sentencing  statute and the  relevant

             Sentencing Guidelines give the district court adequate legal

             power to impose an eighteen month sentence.  The statute, 18

             U.S.C.     3583,  is  entitled  "Inclusion  of  a  term   of

             supervised  release  after  imprisonment."     It  says,  in

             relevant  part, that, if the  sentencing court "finds  . . .

             that the person violated a condition of supervised release,"

             then the court

                       may  .   .  .   revoke  [the]  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 .  . . .  except
                       that [the person] may not be required to
                                             ___
                       serve more than  . . . 2 years in prison
                             _________        _______
                       if the [original] offense was a  Class C
                       __                               _______
                       . . . felony . . . . 

             18  U.S.C.    3583(e)(emphasis added).   Since  Mandarelli's

             initial  crime  was   a  Class  C  felony,  see   18  U.S.C.
                                                         ___

                924(a)(2), 3559(a)(3), and the initial term of supervised

             release was twenty-four months, his eighteen month  sentence

             satisfies both these requirements.

                       The   same   statutory   provision  adds   another

             requirement, namely  that the  new sentence be  "pursuant to

             the . . . provisions of applicable  policy statements issued

             by the Sentencing Commission . .  . ."  18 U.S.C.   3583(e).

             Guidelines  Chapter 7B,  entitled "Probation  and Supervised

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Release  Violations"  contains  these  "policy  statements."

             Guidelines   (policy   statement)   section  7B1.1   divides

             violations of  conditions of  supervised release  into three

             categories, according to the  seriousness of the "violating"

             conduct.  It describes as  "Grade B Violations" conduct that

             does not involve drugs, guns, or serious violence, but which

             constitutes an "offense punishable by a term of imprisonment

             exceeding  one year."  Guidelines (policy statement) section

             7B1.3(a)(1) says that  "[u]pon a finding of a Grade  . . . B

             violation, the court shall revoke . . . supervised release."

             And, Guidelines  (policy  statement) section  7B1.4(a)  says

             that  in the  case of  a Grade  B violation  committed by  a

             person  in  Criminal  History  Category IV,  the  "range  of

             imprisonment" is twelve to eighteen months.  

                       The  district  court  followed   these  Guidelines

             policy statements.   It  found that Mandarelli's  condition-

             violating  conduct fell within Grade B, see 18 U.S.C.   1001
                                                     ___

             (five year maximum), and  that Mandarelli's Criminal History

             placed  him  in  Category IV.    The  court  then noted  the

             Guidelines  conclusion, namely, a  prison sentence of twelve

             to  eighteen  months.   And,  the  court chose  a  sentence,

             eighteen months, at the top of this range.  The court, then,

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would  seem to  have  followed both  the Guidelines  "policy

             statements" and the statute that requires it to do so. 

                       Mandarelli does  not challenge the  court's "Grade

             B" or "Category IV" findings.  But, he nonetheless makes two

             arguments challenging its conclusion.  First, he points to a

             different statute, 18 U.S.C.   3565, entitled "Revocation of

             probation."   That statute, in relevant part, says that if a

             "defendant  violates a  condition of probation,"  then, "the

             court may"

                       revoke  the  sentence  of probation  and
                       impose  any  other  sentence   that  was
                       available under Subchapter A at the time
                       of the initial sentencing.

             18 U.S.C.    3565.   Mandarelli adds that  Subchapter A,  18

             U.S.C.   3553(a)(4),(b), describes the Sentencing Guidelines

             and  instructs  courts   (normally)  to  impose   Guidelines

             sentences.   He says  that the Guidelines  applicable to his

             original (felon in possession) crime generated  a sentencing

             range  of eight to fourteen  months.  He  concludes that the

             statute  prohibits the  court  from imposing  a sentence  of

             greater than fourteen months.

                       The fairly  obvious flaw in this  argument is that

             the statute  to which Mandarelli points  is about probation,
                                                               _________

             not about  supervised release.  Under  the Sentencing Reform
                        __________________

             Act  of  1984, "probation"  is an  alternative to  prison; a
                                                ___________

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defendant may not be sentenced both to probation and "at the
                           ___              ____

             same time to a term of imprisonment."  18 U.S.C.    3561(a).

             "Supervised release" is  "part of" a prison  sentence, to be

             served  after imprisonment.    18  U.S.C.    3583(a).    The
                     _____

             statutes  treat  the  two  similarly, but  not  identically.

             Compare  18   U.S.C.    3565(a)(2)  (maximum   sentence  for
             _______

             probation  violation is  maximum for  underlying conviction)

             with 18  U.S.C.    3583(e) (maximum sentence  for supervised
             ____

             release violation depends on  seriousness of violation,  not

             on  underlying conviction).   Nothing  in the  statute books

             suggests that  the "probation," rather than  the "supervised

             release," statute governs this supervised release case.

                       Mandarelli  also  points  to  a  sentence  in  the

             Guidelines'  "Introductory Commentary" to  Chapter 7B, which

             says,

                            Because  these  policy   statements
                       focus  on the  violation  of the  court-
                       ordered  supervision,  this chapter,  to
                       the  extent  permitted  by  law,  treats
                       violations   of    the   conditions   of
                       probation  and   supervised  release  as
                       functionally equivalent. 

             He  argues that  this sentence  means the  Guidelines policy

             statements  automatically  make  applicable   to  supervised

             release the statutes that  govern probation.  We do  not see

             how this  could be so.   For one thing, the  quoted language

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purports to  be a  general description about  the Guidelines

             that follow.    It  does  not  purport  to  supersede  those

             following Guidelines;  nor does it guarantee  that, in every

             lawful   respect,  the   Guidelines  will   treat  probation

             violations  and  supervised release  violations identically.

             For another thing, it  contains a qualification, namely, "to

             the extent permitted by law," and, as we have just seen, the

             statutes treat  violations of the two  separately.  Finally,

             the  sentence  appears  in  "commentary,"  i.e.,  Commission

             language that advises  courts how to  interpret or to  apply

             the  Guidelines themselves.    See, e.g.,  United States  v.
                                            ___  ____   _____________

             Fiore, No. 92-1601,  slip op. at 4 (1st Cir.  Dec. 9, 1992).
             _____

             Such  language  does  not  control  the  courts'  subsequent

             actions to the same degree  as do the Guidelines themselves,

             or  as do the Guidelines "policy  statements" that, as here,

             are  statutorily vested  with legal  authority.   Thus, were

             there a conflict between the introductory commentary and the

             Guidelines (policy  statements) themselves, the  latter, not

             the former, would govern.

                       We   note  a   final,  non-legal,   argument  that

             Mandarelli makes.  He  points out that, normally, supervised

             release  will be  imposed  after fairly  long prison  terms;

             hence,  the   statutory  and   Guidelines  rules  will   not

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ordinarily  give courts  the power  to impose  longer prison

             terms  for   supervised  release  violations  than  for  the

             original  crime  itself.   His  case  (where the  supervised

             release  term is  longer than his  initial prison  term), he

             says, is an anomaly.

                       We  are  not certain  about  the  extent to  which

             Mandarelli's  case  is  anomalous.    The  court  apparently

             sentenced  him to a top-of-the-range eighteen months because

             it  believed his  conduct  while on  supervised release,  as

             revealed by the  Presentence Report, showed  he "was on  the

             way  to a course of  conduct that ultimately  would have had

             much more serious [criminal] consequences."  Regardless, the

             Sentencing  Commission,  not  this  court,  would  seem  the

             appropriate body to determine whether any anomaly exists and

             whether, or how, it might be corrected.

                       The judgment of the district court is

                       Affirmed.
                       _________

***

                       See  Slip  Opinion  for  Appendix  (excerpts  from

             Sentencing Guidelines).

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