U.S. v. King

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 22, 1993
• Docket: 92-3486
• Status: Published

Opinion

1 IN THE UNITED STATES COURT OF APPEALS

2 FOR THE FIFTH CIRCUIT

3 _______________

4 No. 92-3486 5 _______________

6 UNITED STATES OF AMERICA,

7 Plaintiff-Appellee,

8 VERSUS

9 MICHAEL ALAN KING,

10 Defendant-Appellant.

11 _________________________

12 Appeal from the United States District Court 13 for the Eastern District of Louisiana 14 _________________________

15 (April 22, 1993) 16 Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

17 JERRY E. SMITH, Circuit Judge:

18 Michael Alan King appeals the district court's order revoking

19 his sentence of probation and sentencing him to five years' im-

20 prisonment. The district court determined that King had committed

21 violations of probation terms and conditions while serving a pa-

22 role term for a prior offense. Finding no error, we affirm.

23 I.

24 In April and May 1985, King robbed five banks and pleaded

25 guilty to a superseding bill of information charging five counts

26 of bank robbery. On August 7, 1985, the district court sentenced

27 King to a term of eight years' imprisonment for each of counts one 28 through four, the sentences to run concurrently. The court sus-

29 pended King's sentence on count five and placed him on "active

30 probation for a period of five (5) years, to commence upon defen-

31 dant's release from custody."

32 On September 18, 1990, King was released on parole from fed-

33 eral prison in Alabama and thereafter reported to his probation

34 officer. In February 1991, King changed his residence and failed

35 to submit a monthly supervision report, in violation of the terms

36 and conditions of his probation. The government filed a rule to

37 revoke King's probation. On May 1, 1991, a Florida grand jury

38 returned a seven count indictment charging King with bank robbery.

39 Accordingly, the United States amended its rule to revoke, in

40 order to incorporate King's additional violation.

41 The district court held a hearing and found that King had

42 violated the terms and conditions of his probation, as alleged in

43 the government's rule to revoke. The court revoked King's sen-

44 tence of probation on count five of the original indictment and

45 sentenced him to five years' imprisonment. King appeals, arguing

46 that because his term of probation had not commenced when he com-

47 mitted the violation, the district court improperly revoked his

48 probation under United States v. Wright, 744 F.2d 1127 (5th Cir.

49 1984).

50 II.

51 The threshold question is whether King's term of probation

52 had commenced when he was released on parole. King contends that

2 53 his period of probation could not have begun before termination of

54 his parole. He asserts that he could not have completed his first

55 sentence until his parole term had expired and that when a court

56 imposes a probationary term "consecutively to any other

57 sentences," probation does not begin until expiration of the first

58 sentence.

59 In Sanford v. King, 136 F.2d 106, 108 (5th Cir. 1943), this

60 court stated that "[t]he controlling consideration [in

61 interpreting when a probation period commences] is the intention

62 of the Court imposing the sentence, to be found in the language

63 employed to create the probationary status."1 The district

64 judge's Judgment and Probation/Commitment Order issued in the

65 instant case provides as follows:

66 The defendant is hereby committed to the 67 custody of the Attorney General or his 68 authorized representative for imprisonment 69 for a period of eight (8) years as to each of 70 counts 1 through 4. Sentences imposed on 71 counts 2, 3, and 4 are to run concurrently 72 with sentence imposed on count 1. Imposition 73 of sentence is suspended on count 5 and the 74 defendant is placed on active probation for a 75 period of five (5) years, to commence upon 76 defendant's release from custody.

77 The order contains no language indicating that "defendant's

78 release from custody" means anything other than the defendant's

1 Title 18 U.S.C. § 3564 provides for concurrent terms of probation and parole. "A term of probation commences on the day that the sentence of probation is imposed, unless otherwise ordered by the court." 18 U.S.C. § 3564(a)(1985). "A term of probation runs concurrently with any Federal, State, or local term of probation, or supervised release, or parole for another offense to which the defendant is subject or becomes subject during the term of probation . . . ." 18 U.S.C. § 3564(b) (1985 & Supp. 1992) (effective Nov. 1, 1987). This subsection does not apply in this case, however, because King committed his offense prior to its effective date.

3 79 release from physical custody in federal prison. The court did

80 not use any language indicating that the term of probation would

81 run consecutively to the concurrent prison sentences on counts one

82 through four. Additionally, when the district judge reviewed the

83 order at the revocation hearing, he stated that the order "could

84 not be clearer" in its direction that the term of probation

85 commence when King was released from prison on parole.

86 The plain language of the order, taken together with the

87 court's comments at the hearing, indicates that the intention of

88 the sentencing court was that the term of probation commence on

89 September 18, 1990, when King was released from prison on parole.2

90 Therefore, we find no error in the district court's determination

91 that King was on probation when he committed the violations

92 alleged in the rule to revoke.

93 III.

94 Title 18 U.S.C. § 3651 states that "[t]he court may revoke or

95 modify any condition of probation, or may change the period of

96 probation." 18 U.S.C. § 3651 (1985). Section 3653 provides in

97 pertinent part,

2 King asserts that a prisoner released on parole remains in the custody of the Attorney General until the parole term has expired. See 18 U.S.C. § 4210(a). He contends that, therefore, he was not released from "custody" when he was released from prison, as the district court contemplated that term in its probation order. King's reliance upon this provision is misplaced. Courts have distinguished actual custody from the constructive custody under which a defendant is placed while on parole status. See Zerbst v. Kidwell, 304 U.S. 359, 361 (1938); United States v. Harrison, 461 F.2d 1127, 1130 (5th Cir.), cert. denied, 409 U.S. 884 (1972). We need not reach this issue, however, as sufficient evidence of the sentencing court's intent exists in the plain language of the order and in the court's comments at the revocation hearing. Once we have determined the sentencing court's intent, we need look no further.

4 98 At any time within the probation period, 99 [the probationer may be arrested, either by 100 the probation officer, with cause, or by the 101 United States marshal, with a warrant]. . . .

102 As speedily as possible after arrest the 103 probationer shall be taken before the court 104 for the district having jurisdiction over 105 him. Thereupon the court may revoke the 106 probation and require him to serve the 107 sentence imposed, or any lesser sentence, 108 and, if imposition of sentence was suspended, 109 may impose any sentence which might 110 originally have been imposed.

111 18 U.S.C. § 3653 (1985).3

112 We review the district court's revocation of King's probation

113 under an abuse of discretion standard. United States v. Fryar,

114 920 F.2d 252, 258 (5th Cir. 1990) ("To secure a reversal of a

115 revocation order, a probationer must present clear evidence that

116 the district court abused its discretion by ordering the

117 revocation.") (quoting United States v. Ramirez, 675 F.2d 707, 709

118 (5th Cir. 1982)), cert. denied, 111 S. Ct. 1635 (1991). King

119 argues that the revocation of his probation was improper under

120 United States v. Wright, 744 F.2d 1127 (5th Cir. 1984).

121 In Affronti v. United States, 350 U.S. 79 (1955), the Court

122 considered whether a district court has the power to suspend

123 sentence and place a defendant on probation after he has begun to

124 serve a cumulative prison sentence composed of two or more

3 Sections 3651 and 3653 were repealed by the Comprehensive Crime Control Act of 1984, effective November 1, 1987, and replaced by 18 U.S.C. §§ 3561-3566 (1988). Because King committed his offense prior to the effective date of the new statute, the former statutory provisions apply. See United States v. Balboa, 893 F.2d 703, 706 (5th Cir. 1990) (stating that since revocation of probation under § 3653 was part of sentencing procedure for offense that occurred before effective date of new statute, old provision continues to apply).

5 125 consecutive sentences. Concluding that "the probationary power

126 ceases with respect to all of the sentences composing a single

127 cumulative sentence immediately upon imprisonment for any part of

128 the cumulative sentence," id. at 83, the Court commented upon the

129 relationship between the power of the courts to place a defendant

130 on probation and the clemency and parole powers vested in the

131 executive branch.

132 Citing United States v. Murray, 275 U.S. 347 (1928), holding

133 that a district court has no power under the Probation Act to

134 place a defendant on probation after he has begun execution of a

135 single general sentence, the Court in Affronti stated that "in

136 view of the existence of provisions for parole and executive

137 clemency, it would seem unlikely that Congress would have intended

138 to make the probation provisions applicable during the same period

139 of time." 350 U.S. at 81 (citing Murray, 275 U.S. at 356).

140 Pointing out that "it is unlikely that Congress would have found

141 it wise to make probation apply in such a way as to unnecessarily

142 overlap the parole and executive-clemency provisions of the law,"

143 id. at 83, the Court therefore chose to "adhere to the Murray

144 interpretation to avoid interference with the parole and clemency

145 powers vested in the Executive Branch." Id. The Court concluded

146 that "the provisions for probation should be interpreted to avoid,

147 so far as possible, duplicating other existing provisions for the

148 mitigation of criminal sentences." Id. at 84.

149 In Wright, we echoed the Supreme Court's concern about

150 unnecessary overlap between the probation and parole powers.

6 151 There, the district court had sentenced the defendant to five

152 years' imprisonment on the first count of a two-count indictment

153 and had suspended sentence on count two and placed Wright on

154 probation for a period of five years. The district court

155 specifically provided that count two was "to run consecutive to

156 the sentence as to Count 1." 744 F.2d at 1128. During his parole

157 from the sentence of imprisonment on the first count, Wright

158 committed a violation of a parole condition by committing a state

159 offense for which he was sentenced to imprisonment in the state

160 penitentiary. The government sought to have his probation revoked

161 based upon the same conduct, which also constituted a violation of

162 a probation condition.

163 On appeal, we considered whether the district court was

164 authorized to revoke the probation for a violation of a probation

165 condition that had occurred while Wright was on parole from the

166 sentence of imprisonment on the first count but before the

167 consecutive period of probation had commenced. We recognized that

168 in a series of cases beginning with United States v. Ross, 503

169 F.2d 940 (5th Cir. 1974), we had held that a district court may

170 revoke probation when a defendant commits an illegal act prior his

171 commencement of service of any sentence imposed at the time the

172 probationary sentence was imposed. Wright, however, had committed

173 the violation of a probation condition while on parole from his

174 first sentence.

175 Relying upon Affronti, we observed that overlap certainly

176 would occur if the same pre-probation violation could serve to

7 177 revoke parole on a prior sentence and to revoke the uncommenced

178 probation on a consecutive sentence. 744 F.2d at 1131. We held

179 that once Wright had commenced serving the prior sentence, the

180 district court had no authority to revoke the probation on the

181 second count for a violation that had occurred before he had begun

182 serving his probationary sentence.

183 Because we observe that King was serving his parole and

184 probation terms concurrently at the time he committed the

185 violations, we conclude that the district court properly exercised

186 its authority in revoking King's probation. In Fryar, we

187 reaffirmed the holding in Ross and extended that holding to allow

188 revocation of probation for violation of a probation condition

189 when the violation occurred after sentencing but before the

190 commencement of the probation term, regardless of whether the

191 defendant had begun serving his term of incarceration.4

192 No issue of overlap between parole and probation was involved

193 in Fryar, and we observed that the Wright holding therefore was

4 Title 18 U.S.C. § 3565, enacted by the Comprehensive Crime Control Act of 1984, see supra note 3, provides in pertinent part, (a) Continuation or revocation. )) If the defendant violates a condition of probation at any time prior to the expiration or termination of the term of probation, the court may, after a hearing pursuant to Rule 32.1 of the Federal Rules of Criminal Procedure . . . * * * (2) 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 (1988). The court in Fryar agreed with other circuits that this amendment was intended to clarify, rather than change, existing law. The court therefore considered the amendment as evidence of what Congress intended under the previous statute, § 3653, which controlled in Fryar and in the case before us.

8 194 inapplicable. We commented, however, upon the policy

195 considerations underlying Wright and concluded that "Wright is an

196 exception to the Ross rationale which holds that the act which

197 forms the basis for a probation revocation cannot be one that

198 occurred while the defendant was on parole from a sentence on

199 another count." 920 F.2d at 258.

200 In King's case, the same misconduct relied upon by the

201 government in its rule to revoke probation also constituted a

202 parole violation. Although King's case appears to fit within the

203 Fryar court's description of the holding in Wright, that

204 description is not complete, as the court in Wright emphasized

205 that the conduct relied upon by the district court in that case

206 could not be used to revoke an uncommenced probation.

207 The proper focus here is on the power and authority of the

208 district court, not on the conduct that constitutes the parole

209 and/or probation violations. In Wright, relying upon the Affronti

210 Court's rationale, we observed that the district court's power to

211 revoke probation may interfere with the parole powers of the

212 executive branch if the district court sought to exercise its

213 power to revoke probation before the probation period had

214 commenced. No question arises, however, about the district

215 court's power to revoke probation once a defendant has begun his

216 probationary term.5

5 Moreover, even if the focus here were on the same conduct constituting both parole and probation violations, the overlap concerns of the Affronti Court are not implicated. In Affronti, a jury found the defendant guilty on counts two through ten of a ten-count indictment charging him with illegal sales of narcotics. The court imposed a five-year prison sentence on each count, to be served consecutively. At sentencing, the court suspended

9 217 IV.

218 The district court intended King's probation to commence on

219 September 18, 1990, when he was released from custody. Because

220 King's term of probation had commenced when he committed

221 violations of probation terms and conditions, the district court

222 properly exercised its authority in revoking his probation. The

223 order appealed from is AFFIRMED.

sentence on counts six through ten and granted probation to commence at the expiration of the sentences on counts two through five. While serving his sentence on count two, the prisoner sought suspension of sentence and probation on counts three, four, and five. The Court therefore was concerned about the effect that suspension of the three consecutive sentences would have on the parole and clemency powers of the executive branch. The Court addressed the overlap created by suspension of a prison sentence once service of the first of several consecutive sentences had begun, and the conflict that would be created by the executive and judicial branches' working at cross-purposes. King's argument that overlapping conduct, or indeed, overlapping terms of probation and parole, bring the Affronti Court's reasoning into play misses the mark, as the district court's revocation of King's probation in no way interferes with the parole power of the executive branch.