United States v. Joseph

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]

Before

Cyr, Circuit Judge,

Aldrich and Campbell, Senior Circuit Judges.

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

appellant.
Margaret E. Curran, Assistant United States Attorney, and Sheldon

Whitehouse, United States Attorney, were on brief for appellee.

March 20, 1997

CAMPBELL, Senior Circuit Judge. This is an appeal

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

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

1. In Bailey, the Supreme Court explained that the "use" of

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

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

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

retroactively to "use" cases on collateral review, we now

2. Several courts have ruled that Bailey applies

retroactively. See, e.g., Guzman-Rivera v. United States,

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

v. Barnhardt, 93 F.3d 706, 708-09 (10th Cir. 1996); United

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.

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

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

measuring the duration of the three year terms of supervised

release. See Id. at 825.

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

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

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

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

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

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

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

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