dissenting:
I dissent from the court’s judgment in this case, just as I have dissented from the court’s judgment in United States v. Camarata, 828 F.2d 974, also filed today. I do so essentially for the same reasons I expressed in my Camarata dissent. I would hold that the district court in this case did not have the authority to revoke William Davis’ probation. In my opinion, a district court does not possess the statutory authority to revoke a prisoner’s probation for events which occurred during the time that the defendant was in prison and, therefore, in the custody of the Bureau of Prisons.
I.
In the instant case, William Davis was sentenced to a split sentence: a 90-day term of incarceration in a Bureau of Pris*973ons facility1 followed by a term of probation. Davis was specifically directed to serve his 90-day term of incarceration at the Goodwill Treatment Center, a residence facility which would permit his continued employment. By the terms of the sentence imposed, the district court was to assume probationary jurisdiction at the end of Davis’ term of imprisonment.
Davis, however, did not obey the rules of the community treatment center. Davis was disciplined by the Center's disciplinary committee and ordered to undergo for a second time the Center’s orientation program. Despite Davis’ “reorientation,” he continued to have problems, and he appeared in a second hearing before the disciplinary committee. The committee decided not to punish Davis for his further infractions, because he was to be released in a few days. A day before Davis’ probationary sentence was to commence, however, the probation authorities sought to have his probation revoked by filing a petition with the district court. Davis’ infractions, committed while he was in custody, formed the basis for the petition. Thus, contrary to the argument made by Judge Becker in his concurring opinion, Davis was in custody at the time the infractions occurred and at the time that the probation authorities improperly invoked the jurisdiction of the district court — a jurisdiction that could not attach while Davis was still in custody.2 The district court, observing that it had held “jurisdiction” over Davis from the time of his original sentencing, revoked his probation and resentenced him to four years of imprisonment.
II.
This case, like United States v. Camarata, 828 F.2d 974 (3d Cir.1987), presents an example of a serious conflict between the powers and authority of the executive and judiciary branches. Here, Davis committed minor infractions during his residence in a Bureau of Prisons facility, and while he was under the control and authority of the executive branch to which he had been committed.
The first time the Bureau of Prisons took note of Davis’ infractions, it punished him by ordering that he again undergo the orientation phase of the Center’s program. The second time the Bureau of Prisons addressed Davis’ infractions, it chose not to punish him at all. The district court, however, giving more significance to the infractions than the Bureau of Prisons obviously thought was warranted, then used the same infractions committed by Davis as the basis for revoking his probation.
Thus Davis was found to have violated the conditions of his probation before his probationary term started and during the time that he was in the custody and under the charge of the executive branch, i.e., the Bureau of Prisons.3 The Fifth Circuit’s reasoning and analysis in United States v. Wright, 744 F.2d 1127 (5th Cir.1984), which I have discussed in the companion case filed today, United States v. Camarata, 828 F.2d 974 (3d Cir.1987), seems particularly apt in this situation. Here it is apparent that there was a clear conflict between the sentencing court and the Bureau of Prisons with regard to the appropriate pun*974ishment of Davis.4 This clash is precisely the sort of conflict that the Supreme Court, in Affronti v. United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed. 62 (1955), has directed us to avoid. Consequently, I would hold that the district court overstepped the boundaries of its probationary authority as delineated by the express language of the statute and Affronti. It is evident that the district court's revocation of Davis’ probation was improper.
Thus, in Camarata, where I detailed all of the reasons which led me to dissent from the court’s judgment, I concluded that the district court had no authority to revoke probation where the prisoner had not yet begun his probationary term, but was in the custody of the executive branch at the time an unrelated offense was committed. Here the result is a fortiori.
I respectfully dissent here as I dissented in United States v. Camarata, 828 F.2d 974.
. The district court, under 18 U.S.C. § 3651, could have required Davis’ residence in a community center for any or all of the period of probation. In such a case, however, the residence requirement would not be a sentence of incarceration, but a condition of probation.
. It is true that Davis was not in physical custody of the Attorney General at the time of his probation revocation hearing. But the date on which his hearing was held cannot change the fact that it was the Attorney General who had custody of Davis on November 6, 1986. Thus, no jurisdiction to revoke Davis’ probation existed in the district court at the time the petition was filed.
. I agree with Judge Sloviter’s opinion, at 970 n. 5, that the district court erred in suggesting that it retained jurisdiction over Davis while Davis was in the custody of the Goodwill Treatment Center. Davis’ custody was under the jurisdiction of the Attorney General and the fact that the probation authorities and the district court judge may have thought differently, see Judge Becker’s Concurring Opinion at 968 n. 1, cannot affect either the Attorney General’s jurisdiction over Davis or the illegality of Davis’ probation revocation.
. Judge Becker claims that the conflict here "simply does not exist,” and is illusory. See Judge Becker’s Concurring Opinion at 972. But the record clearly refutes Judge Becker’s characterization because the petition for revocation was filed with the court on November 6, 1986, a date which preceded the completion of Davis’ custody. Davis’ custodial term was not completed until November 7, 1986. Moreover, Judge Becker’s claim that the case presented no conflict between the executive and the judiciary ignores the fact that the probation authorities had to know that the Bureau of Prisons had not sanctioned Davis for the infractions committed while he was in custody. It was obviously for that reason that sanctions were sought (and obtained) from the district court.