United States v. LaPlante

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 94-1090

                        UNITED STATES,

                          Appellee,

                              v.

                       RANDY LAPLANTE,

                    Defendant, Appellant.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. A. David Mazzone, U.S. District Judge]
                                                    

                            Before

                   Selya, Cyr, and Boudin,
                       Circuit Judges.
                                     

                                        

   Martin D. Boudreau on brief for appellant
                     
   Donald  K.  Stern,  United  States  Attorney,  and  Mark  W.
                                                               
Pearlstein,  Assistant  United  States  Attorney,  on  brief  for
        
appellee.

                                        
                        July 15, 1994
                                        

          Per  Curiam.      Defendant  appeals  the  sentence
                     

imposed upon him following revocation of a term of supervised

release.       Defendant  was  initially  sentenced   to  six

months  imprisonment  and  thirty-six  months  on  supervised

release following his  guilty plea  to one count  of using  a

false social  security number, in  violation of  42 U.S.C.   

408(a)(7)(B). 

          Defendant  conceded that shortly  after his release

from  prison,  he  violated  two special  conditions  of  his

supervised release.  The  district court granted the petition

for  revocation and resentenced defendant to a term of eleven

months  imprisonment,  followed   by  twenty-four  months  on

supervised release. 

          Defendant's  only argument  on appeal  is that  the

supervised  release  revocation   provision  ("SRR")  of  the

Sentencing  Reform Act of 1984,  18 U.S.C.   3583(e)(3), does

not  authorize  the  district  court  to  impose  a  term  of

supervised release in  conjunction with an  additional prison

term.    This court  recently  considered,  and rejected,  an

identical  contention in United States v. O'Neil, 11 F.3d 292
                                                

(1st Cir. 1993).  We held in O'Neil,  
                                   

     [T]he SRR provision . . . permits a district court,
     upon revocation of a term of supervised release, to
     impose  a  prison sentence  combining incarceration
     with a further term  of supervised release, so long
     as (1)  the incarcerative portion  of the  sentence
     does not exceed the time limit specified in the SRR
     provision  itself, and  (2) the combined  length of
     the new prison  sentence cum supervision term  does
                                 

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     not  exceed the  duration of  the original  term of
     supervised release.

O'Neil, 11 F.3d at 302.
      

          As defendant acknowledges, the sentence  imposed by

the district court here  comports with O'Neil.  The  combined
                                             

limit of the three  years matches the length of  the original

term  of supervision,  and the  included eleven  month prison

term  is well below the time limit of two years incarceration

for the underlying Class D felony.

          Defendant urges, however, that the  Supreme Court's

opinion  in United  States  v. Granderson,  114  S. Ct.  1259
                                         

(1994), "has substantially undermined the reasoning and basis

of O'Neil."  We disagree.  Granderson  involved the statutory
                                     

interpretation  of  a  different  section  of  the Sentencing

Reform Act, the probation revocation section.   See 18 U.S.C.
                                                   

  3565.  The interpretive issue in Granderson was the meaning
                                             

of the  benchmark term  "original sentence,"  as used  in the

provision  requiring imposition  of a  sentence of  "not less

than one-third of the  original sentence," when a probationer

is  found  in  possession of  illegal  drugs.    18 U.S.C.   

3565(a).   Granderson did not  address the O'Neil question --
                                                 

the power of a sentencing court to  impose combined sentences

-- but focused  on the  correct measure  of the  length of  a

sentence to be imposed.       Granderson   and   O'Neil  thus
                                                       

involved  different  substantive  and   interpretive  issues,

discrete  texts,  statutory structures,  and histories.   See
                                                             

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Granderson,  114  S.  Ct.  at 1266  (stating  that  different
          

functions  of supervised release  and probation weigh heavily

against an in  pari materia reading of  the separately worded
                           

revocation provisions); O'Neil,  11 F.3d at  298-300 (tracing
                              

differences in the design of the current sentencing regime to

historical differences  between probation  and parole).   The

differences which defendant observes  in the two opinions are

a function of the  lack of common issues, not  of differences

in analytic method or statutory construction.

          As  the  dispositive  issue  on  appeal  has   been

recently  and  authoritatively decided  by  a  panel of  this

court, and  no other  substantial question is  presented, the

decision below is summarily affirmed.  See Loc. R. 27.1.
                                          

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