United States v. Flynn

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 94-1547

UNITED STATES,

Appellee,

v.

JOHN P. FLYNN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Stahl, Circuit Judges.

George F. Gormley with whom John D. Colucci was on brief for

appellant.
Jean L. Ryan, Assistant United States Attorney, with whom Paul M.

Gagnon, United States Attorney, was on brief for appellee.

March 1, 1995

--------------------

STAHL, Circuit Judge. Defendant-appellant John P.
STAHL, Circuit Judge.

Flynn challenges the district court's revocation of his

probation and imposition of a five-year prison sentence on

the grounds that his probation had already expired and the

district court therefore lacked jurisdiction. Flynn also

attacks on due process grounds the district court's findings

respecting two of his alleged thirteen probation violations.

We affirm.

I.
I.

BACKGROUND
BACKGROUND

Flynn pled guilty in 1983 to one count of

conspiracy to commit mail fraud ("Count I") and two counts of

mail fraud ("Counts II/III"). On August 8, 1983, the

district court imposed a five-year prison sentence for Count

I and another five years for Counts II/III. The district

court suspended the prison sentence for Counts II/III,

however, and placed Flynn on probation for five years. At

the sentencing hearing, the district court stated that "[t]he

sentences herewith imposed on Counts II and III are ordered

to run concurrently with one another, but consecutively to

the sentence imposed for Count I." Similarly, the district

court wrote in its Judgment and Probation/Commitment Order

("Sentencing Judgment") filed on August 8, 1983, that "[t]he

sentences for Counts II and III are ordered to run

concurrently with one another but consecutively to Count I."

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Flynn began serving his five-year Count I prison

term on August 29, 1983. He was released on parole on June

27, 1986. On August 16, 1993 -- just shy of ten years from

the date Flynn began serving his Count I sentence, and more

than six years after he was released on parole -- Flynn's

probation officer, Vincent Frost, filed a petition to revoke

Flynn's probation, alleging that Flynn had committed thirteen

probation violations since his release in 1986. The petition

alleged in detail that Flynn had committed the crimes of

threats of violence, forgery, theft, theft by deception, wire

fraud, insurance fraud, bank fraud, and false statements to

the Probation Office. It also alleged that Flynn had

violated his probation by traveling to Colorado on a ski

vacation and associating with a convicted felon, one of his

former co-conspirators.1

Flynn's probation revocation hearing began on

February 2, 1994, and lasted six days. On February 24, 1994,

the district court issued its Memorandum Opinion, finding

that the government had proved by a preponderance of the

evidence that Flynn had committed forgery, theft by

1. The details of Flynn's violations are amply described in
the district court's Memorandum Opinion. See United States

v. Flynn, 844 F. Supp. 856, 860-75 (D.N.H. 1994). Because

our decision is limited to a jurisdictional issue wholly
separate from the probation violations themselves, we do not
describe them in any detail.

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deception, credit card fraud,2 bank fraud, and making false

statements, and had also violated probation by leaving the

judicial district without permission and by associating with

a convicted felon. On April 6, 1994, the district court

imposed on Flynn the full five-year prison sentence it had

earlier suspended -- the maximum sentence the court could

impose under 18 U.S.C. 3565(a)(2) (limiting term of

sentence upon revocation of probation to sentence available

at time of initial sentencing).

On appeal, Flynn asserts that his five-year

probation term began to run upon his release from prison on

June 27, 1986 and expired no later than June 27, 1991.

Therefore, Flynn argues, the district court lacked

jurisdiction to revoke his probation in 1993. The government

contends that Flynn's probation did not commence until August

28, 1988, when Flynn completed his parole, and thus the

2. Although the crime of credit card fraud was not
specifically alleged in the probation revocation petition,
the government claimed in its hearing brief filed on the day
the final revocation proceeding began that the same behavior
that constituted wire fraud also constituted credit card
fraud and theft by deception. The court found that the
government had failed to prove an element of the crime of
wire fraud, but that it had proved credit card fraud and
theft by deception. See 844 F. Supp. at 865-68. Flynn

claims that because the government amended the charges
against him on the day of his hearing, he did not have
adequate notice and was therefore deprived of due process.
We discuss this claim infra at Part II.B.

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probation revocation proceedings were initiated before

Flynn's probation term expired.3

II.
II.

DISCUSSION
DISCUSSION

A. The District Court's Jurisdiction

"The intent of the sentencing court must guide any

retrospective inquiry into the term and nature of a

sentence." United States v. Einspahr, 35 F.3d 505, 506 (10th

Cir.), cert. denied, 115 S. Ct. 531 (1994). See also United

States v. King, 990 F.2d 190, 192 (5th Cir.) (stating that

sentencing court's intention is "controlling consideration"

in determining commencement date of probation, as expressed

3. At oral argument, counsel for Flynn raised the novel
argument that even under the government's interpretation of
the consecutive sentences, Flynn's parole could have ended,
and his probation could have commenced, no later than 180
days prior to August 28, 1988. This, counsel argued, is

because of 18 U.S.C. 4164, which states:

A prisoner having served his term or
terms less good-time deductions shall,
upon release, be deemed as if released on
parole until the expiration of the
maximum term or terms for which he was
sentenced less one hundred and eighty
days.

Unfortunately for Flynn, the section only applies to
"mandatory releasees," i.e., prisoners who must be released
because they have served their entire term less time accrued
for good conduct. See, e.g., Clay v. Henderson, 524 F.2d

921, 922-23 (5th Cir. 1975), cert. denied, 425 U.S. 995

(1976). Flynn was not a "mandatory releasee"; he was
released on parole well before his mandatory release date,
and thus he remained on parole for the full remainder of his
entire five-year term. Id.

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in "the language employed to create the probationary

status")(quoting Sanford v. King, 136 F.2d 106, 108 (5th Cir.

1943)), cert. denied, 114 S. Ct. 223 (1993). At Flynn's 1983

sentencing hearing, the district court stated that the Count

II/III sentence would run "consecutively to the sentence

imposed for Count I." The Sentencing Judgment filed the same

day ordered that the Count II/III sentence run "consecutively

to Count I." The district court did not explicitly state

that Flynn's probation term must run consecutively to any

parole granted to Flynn on Count I. Flynn would have us hold

that because of the district court's "silence" on this issue,

the sentencing language is ambiguous, and that the ambiguity

must be resolved in Flynn's favor. We are not persuaded.

It is true that the district court could have

employed sentencing language that would have explicitly made

Flynn's probation term consecutive to any parole served under

Count I. The Ninth Circuit has urged courts to

state explicitly and precisely when
probation is to commence. For example, a
probationary sentence could specify that
the period of probation shall be
consecutive to the confinement portion of
the sentence served on a remaining count
or counts or that the period of probation
shall be consecutive to the sentence
imposed on a remaining count or counts
including any parole or other supervision

time.

United States v. Adair, 681 F.2d 1150, 1151 n.3 (9th Cir.

1982) (emphasis added). While the use of such language by

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the district court probably would have obviated Flynn's

appeal on this issue, we decline to convert the Ninth

Circuit's suggested language into magic words a district

court must utter to achieve its desired result. The district

court "reveal[ed] with fair certainty" its intent and

"exclude[d] any serious misapprehensions" about the nature of

the sentence. United States v. Daugherty, 269 U.S. 360, 363

(1926). Nothing in the district court's sentencing language

suggested that the "sentence imposed for Count I" -- to which

the probation term was expressly made consecutive -- did not

include parole time. As the Tenth Circuit stated:

The granting of parole to a prisoner does
not terminate the sentence that he is
serving. Rather, supervision in the
prison setting is replaced with
supervision by probation authorities.
The confinement period and any subsequent
period of parole supervision are best
understood as two parts of a single
indivisible sentence.

Einspahr, 35 F.3d at 507 (internal quotation omitted). Cf.

Jones v. Cunningham, 371 U.S. 236, 243 (1963) (holding that

parole "significantly confine[d] and restrain[ed]"

petitioner's freedom and therefore constituted "custody"

amenable to habeas corpus relief); Anderson v. Corall, 263

U.S. 193, 196 (1923) (stating that release on parole with

restrictions on freedom is "in legal effect imprisonment");

United States v. Williams, 15 F.3d 1356, 1359 n.3 (6th Cir.)

("A paroled convict is still, as a matter of law, `in

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custody,' and continues to serve the `custodial term' of his

or her sentence."), cert. denied, 115 S. Ct. 431 (1994).

In Einspahr, the Tenth Circuit was presented with

facts almost identical to those presented here.4 The

defendant in Einspahr received a forty-five month prison

sentence on one count and four years probation on another

count, which the district court stated was "`to run

consecutive to Count I.'" 35 F.3d at 505-06. The defendant

was released after serving fifteen months in prison, leaving

thirty months to serve on parole. At the conclusion of his

parole, the Probation Department activated his four-year

probation term on the second count. Two weeks before the

defendant's probation term would have expired, the government

initiated probation revocation proceedings. Just as Flynn

argues now, the defendant in Einspahr claimed that his

probation term commenced when he was released from prison,

ran concurrently with his parole, and had long since expired.

The court, however, found "no ambiguity in the district

court's sentence," stating that it "clearly indicated the

court's intent that the probation term not run concurrently

with any period of parole supervision." Id. at 506. The

court went on to state:

4. Indeed, we are surprised that neither party, and
particularly the government, cited this case to us while
directing our attention to a number of cases only
tangentially relevant to the central issue.

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Unless the sentencing court specifically
indicates that a consecutive sentence of
probation begins at a prisoner's release
from custody or confinement, the default
assumption is that the full term of the
earlier sentence must be completed before
the probation period commences.

Id. at 507. See also Williams, 15 F.3d at 1358, 1359 n.3

(stating in dictum that "a convict's probationary sentence

begins not with parole" but only after completion of parole);

United States v. Chancey, 695 F.2d 1275, 1276-77 (11th Cir.

1982) ("This consecutive sentencing evinces the court's

intent . . . that there be no overlap between the end of the

first sentence and the beginning of probation.").

We find the Tenth Circuit's reasoning persuasive

and directly applicable to the facts of this case.5 The

5. The Tenth Circuit's interpretation of consecutive
sentencing is supported by two other Circuit Court decisions
that employ, without discussion, the identical
interpretation. See Williams, 15 F.3d at 1358 (probation

term ordered to run consecutive to prison sentence did not
commence until parole completed); United States v. Wright,

744 F.2d 1127, 1128 (5th Cir. 1984) (same). Other courts
have held that probation terms imposed consecutively to
another sentence begin upon release from prison if the
sentencing courts clearly indicate such an intent. See,

e.g., United States v. Laughlin, 933 F.2d 786, 788 (9th Cir.

1991) (rejecting defendant's argument that probation term did
not begin until parole had terminated; sentencing court
ordered probation "to commence upon his release from
prison"); King, 990 F.2d 190, 191 (5th Cir. 1993) (holding

that probation term ran concurrent with parole where
sentencing order stated that probation term would "commence
upon defendant's release from custody"). The King holding

appears to be inconsistent with authority cited above holding
that parole is in fact custody. Both King and Laughlin,

however, complement Williams and Wright in underscoring the

central principle of Einspahr: that the most natural reading

of unadorned language imposing a probation term consecutive

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district court's sentencing language unambiguously expressed

the court's intent to impose consecutive sentences. That all

parties, including Flynn, understood that Flynn's probation

would not commence until he had served his entire sentence on

Count I is borne out by the fact that Flynn submitted without

argument to supervision by the Probation Department during

the years 1991-93, when he claims that he was by law a free

man. Indeed, the lack-of-jurisdiction argument that Flynn --

a disbarred and, judging from some of his pro se petitions

contained in the record, not unskilled lawyer -- now advances

apparently did not even occur to him until after his

probation was revoked by the district court. Of course,

Flynn did not waive his jurisdictional argument by not

raising it below, but his failure to do so undercuts his

argument that there was any serious ambiguity in the district

court's original sentence.6

to a sentence on another count delays the commencement of
probation until the entire previous sentence, including any

parole, has been completed.

6. In support of his argument, Flynn directs our attention
to the Ninth Circuit's rulings in United States v. Adair, 681

F.2d 1150 (9th Cir. 1982), and United States v. Carter, 827

F.2d 546 (9th Cir. 1987). Both cases are unavailing. Adair

held that a defendant's probation term ran concurrently with
his prison term on other counts because the sentencing court
was utterly silent as to when the probation term should

commence. Adair, 681 F.2d at 1151. In such cases, the court

held, "there is a strong presumption that the term starts on
the date sentence is imposed and runs concurrently with any
period of imprisonment imposed on any remaining count or
counts." Id. The Carter court then relied on this

presumption in holding that probation began with the

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B. Due Process Challenges

Flynn also challenges on due process grounds two of

the court's findings of probation violations. Flynn does not

argue that the district court would not have revoked his

probation or resentenced him to five years imprisonment in

the absence of the challenged violations; indeed, the

district court expressly stated that each of Flynn's

violations warranted the revocation of his probation. Flynn,

844 F. Supp. at 875. Nevertheless, Flynn urges us to

consider his due process argument because, he claims, the

challenged violations could affect his eligibility for parole

under the Parole Commission guidelines found at 28 C.F.R.

2.20-21. This, however, is sheer speculation; it is far from

clear exactly what information the Parole Commission will use

in determining Flynn's parole eligibility date, much less

that the district court's findings as to the challenged

violations will have a determinative impact on that date.

Furthermore, we are not persuaded that the Parole Commission

may not legitimately use this information, and, since we do

not know if it will even enter the calculation of Flynn's

commencement of the defendant's twenty-day prison sentence on

the same count and thereafter ran concurrently with a parole

term on other convictions. Carter, 827 F.2d 546, 548. Even

if we were to adopt the Ninth Circuit's presumption, Flynn
could not reap its benefit, because the district court, far
from being silent as to when Flynn's probation term should
commence, expressly made the probation term consecutive to
his Count I sentence.

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parole date, this issue is not before us. See Dye v. United

States Parole Comm'n, 558 F.2d 1376, 1379 (10th Cir. 1977)

("the Commission is entitled to take into account factors

which could not, for constitutional reasons, be considered by

a court of law"). Thus, we need not decide the due process

issues Flynn raises.

III.
III.

CONCLUSION
CONCLUSION

For the foregoing reasons, the decision of the

district court is

Affirmed.
Affirmed

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