PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3268
___________
UNITED STATES OF AMERICA
v.
VAUGHN JOHNSON, a/k/a Andrew Smith,
a/k/a Glenroy King
Vaughn Johnson,
Appellant
____________________________________
On Appeal from the District Court of the Virgin Islands
(D.V.I. No. 1:11-cr-00021-001)
District Judge: Honorable Wilma A. Lewis
____________________________________
Argued on May 4, 2017
Before: GREENAWAY, JR., SHWARTZ, and FUENTES,
Circuit Judges.
(Opinion filed: June 30, 2017)
Omodare B. Jupiter [Argued]
Office of Federal Public Defender
1115 Strand Street, Second Floor
Christiansted, VI 00820
Counsel for Appellant
Alphonso G. Andrews, Jr.
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, VI 00820
David W. White [Argued]
Office of United States Attorney
5500 Veterans Drive, Suite 260
United States Courthouse
St. Thomas, VI 00802
Counsel for Appellee
_________
OPINION OF THE COURT
_________
FUENTES, Circuit Judge.
Appellant Vaughn Johnson challenges a judgment
revoking his term of supervised release and resentencing him
to 18 months in prison (with credit for time served). He
contends, among other things, that the District Court of the
Virgin Islands lacked jurisdiction over the term of supervised
release, because 1) he was subject to a previous revocation
order, entered by a different district court, on an unrelated
concurrent supervised release term; and 2) the Virgin Islands
Probation Office failed to actually supervise him or attempt to
2
do so. As we find that the District Court was not deprived of
jurisdiction, we will affirm.
I.
In the early 2010s, Johnson was twice convicted of
federal crimes. The first conviction, in the Middle District of
Florida, arose from a charge of lying on a passport
application. The second, in the District of the Virgin Islands,
arose from wire fraud charges. In both instances, Johnson
received a custodial sentence followed by three years of
supervised release, the conditions of which would be violated
if he committed another crime.1 Because Johnson was
already imprisoned on the first charge when he was indicted,
convicted, and sentenced on the second, he effectively served
one aggregate prison term in connection with both
convictions.
After Johnson was released from prison in January
2014, he settled in the Middle District of Florida, and the
Middle District’s Probation Office took charge of his
supervision. Aside from a brief status phone call in June
2014 that he initiated, Johnson had no contact with the Virgin
Islands Probation Office, which otherwise took no action to
supervise or keep tabs on him.
In January 2015, Johnson was again indicted in Florida
federal court for lying on a passport application—a charge to
1
See 18 U.S.C. § 3583(d) (“The court shall order, as an
explicit condition of supervised release, that the defendant not
commit another Federal, State, or local crime during the term
of supervision . . . .”).
3
which he would eventually plead guilty, but which also
violated the no-new-crime condition of his supervised release
terms. As a result, the Middle District of Florida began
taking steps to revoke the Florida term of supervised release
by issuing an order of detention. Johnson eventually admitted
the Middle District revocation charge and, in April 2016, the
district court entered a judgment of revocation sentencing him
to time served.
Although the new Florida federal indictment had been
handed down in January 2015, the Virgin Islands Probation
Office took no action until March 2016, when it was belatedly
informed by its Middle District of Florida counterpart of
Johnson’s new indictment and, by extension, of his violation
of the conditions of the Virgin Islands term of supervised
release. After inquiring into whether the Middle District of
Florida Probation Office would accept a formal transfer of
jurisdiction (Florida declined), the Virgin Islands Probation
Office notified the Virgin Islands District Court of Johnson’s
violation. The Court then began the formal process of
revoking Johnson’s Virgin Islands term of supervised release.
This time, however, Johnson decided to challenge the
revocation proceedings. He did so partly on jurisdictional
grounds, arguing that the Florida district court’s judgment of
revocation had eliminated the Virgin Islands term of
supervised release, leaving nothing left to supervise or
revoke. He claimed also that the Virgin Islands Probation
Office’s abdication of its supervisory responsibility—as
demonstrated by its failure to supervise or attempt to
supervise between his release from prison and March 2016—
otherwise deprived the District Court of jurisdiction.
4
After conducting a revocation hearing,2 the District
Court overruled Johnson’s challenges, denied his oral motion
to dismiss, revoked his supervised release, and sentenced him
to 18 months in prison (with credit for time served) and 18
additional months of supervised release. Johnson appealed.
II.3
a) Jurisdictional Arguments
1) Merger of Concurrent Terms of Supervised
Release
Johnson’s first argument is that the two concurrent
2
See Fed. R. Crim. P. 32.1(b)(2).
3
We have jurisdiction under 28 U.S.C. § 1291 to determine,
among other things, whether the District Court properly
exercised its own jurisdiction under 18 U.S.C. §§ 3241 and
3583(e). Johnson has been released from prison, but as the
separate term of supervised release contained in the
revocation judgment is not “over, and can[] be undone” if he
prevails, this appeal is not moot. Spencer v. Kemna, 523 U.S.
1, 8 (1998). Our review of questions of law, jurisdictional or
otherwise, is plenary. See United States v. Merlino, 785 F.3d
79, 82 (3d Cir. 2015) (noting that, in a supervised release
appeal, “review of jurisdictional issues is plenary”); United
States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008); see also
United States v. Juarez, 601 F.3d 885, 888 (9th Cir. 2010)
(per curiam) (“We review de novo whether the district court
had jurisdiction to revoke a term of supervised release.”).
5
terms of supervised release, from Florida and the Virgin
Islands, were effectively terminated by the Middle District of
Florida’s single revocation judgment. He relies in part on 18
U.S.C. § 3624(e), the subsection of the “Release of a
prisoner” statute pertaining to “Supervision After Release.”
Johnson points out that from a logical standpoint, a single
Probation Office operating out of a single judicial district will
have the actual duty of supervision, as a person will not
generally reside in two separate districts at the same time.
Johnson therefore argues that “where multiple terms of
supervised release run concurrently, revocation of one such
term necessarily terminates the concurrent terms . . . because
Congress effectively determined that an offender should serve
only one term of post-release supervision.”4 In effect,
Johnson proposes a de facto merger of concurrent supervised
release terms, combining the practical reality of single-district
supervision with the legal consequences of committing a
violation. A single revocation judgment would, in this model,
wipe out all concurrent supervised release terms then
pending.
As Johnson seems to concede, however, the two
Courts of Appeals that have addressed an analogous argument
in their published decisions—the Second and Fifth Circuits,
in United States v. Gammarano and United States v.
Alvarado—have rejected it.5 Johnson did not explain either
4
Appellant’s Br. at 11.
5
See United States v. Gammarano, 321 F.3d 311, 314 (2d
Cir. 2003) (“Nothing in the text of § 3624(e), or any other
statute, indicates that the revocation of one term of supervised
release necessarily terminates another term of supervision
simply because it runs concurrently with the term being
6
in his brief or at oral argument why he thinks these cases
were wrongly decided. Our own case law, moreover, rejects
his argument by implication. In United States v. Dees, we
joined six other circuits in permitting consecutive prison
terms to be imposed when concurrent terms of supervised
release are revoked, even if the revocations are all based on
the same underlying violation conduct6—an outcome that
depends on the viability of multiple, independent terms of
supervised release.
Nevertheless, we begin with the language of the statute
upon which Johnson bases his argument, § 3624(e), which
addresses the mechanics of supervised release terms—setting
out when they begin, when they are tolled, and how
supervision is transferred between the Bureau of Prisons (a
part of the Department of Justice) and the Probation Office (a
part of the federal court system). Section 3624(e) says a term
revoked . . . . Accordingly, we hold that revocation of a term
of supervised release for one conviction does not terminate
supervised release imposed as a result of a separate
conviction.”); United States v. Alvarado, 201 F.3d 379, 381–
82 (5th Cir. 2000) (holding that the revocation of one term of
supervised release did not “automatically terminate” another);
see also United States v. Mittelstadt, 88 F. App’x 128, 129–
30 (7th Cir. 2004) (nonprecedential per curiam order) (“We
see no reason why the district court could not have revoked
one term of supervised release but not the other . . . .”);
McGaughey v. United States, 596 F.2d 796, 797–98 (8th Cir.
1979) (per curiam) (reaching a similar outcome in the context
of 28 U.S.C. § 2255 and via summary affirmance).
6
467 F.3d 847, 851–52 (3d Cir. 2006).
7
of supervised release “commences on the day the person is
released from imprisonment,” which is when a prisoner is
“released by the Bureau of Prisons to the supervision of a
probation officer who shall, during the term imposed,
supervise the person released to the degree warranted by the
conditions specified by the sentencing court.” The term of
supervised release then “runs concurrently with any Federal,
State, or local term of probation or supervised release or
parole for another offense to which the person is subject or
becomes subject during the term of supervised release.”
In our view, nothing in the language of § 3624(e)
supports Johnson’s claim that Congress “effectively
determined” that a prisoner would be subject to only a single
de facto, amalgam term of supervised release. To the
contrary, the statute specifically acknowledges that a
supervised release term is to be concurrent with other federal
and state probationary or parole periods, including another
federal term of supervised release; or, as we said in Dees,
“[§] 3624(e) mandates that multiple terms of supervised
release run concurrently.”7 Section 3624(e) does use the
singular throughout—“the term,” not “the terms,” overseen
by “a” probation officer—but we think this is because it is
written to address individual terms of supervised release, in
line with other parts of the statutory framework.8 We do not
read that drafting choice, or the statute more broadly, to
bolster Johnson’s merger argument.
7
Id. at 851.
8
See, e.g., 18 U.S.C. § 3583(e) (setting forth how a court may
terminate, extend, or revoke “a term” of supervised release).
8
We gain further support for our decision by reference
to the relevant federal probation statute. In the federal
system, probation differs from supervised release in that it is
imposed as an alternative to prison rather than in addition to
prison.9 Otherwise, federal probation is governed by the
same basic mechanics as supervised release and is subject to
the same logistical realities regarding multiple terms of
supervision that Johnson has identified.10 The analogous
probation statute is § 3564, which is entitled “Running of a
term of probation.” Its subsection (b) specifically
acknowledges “[m]ultiple terms of probation,” which
“whether imposed at the same time or at different times” are
to “run concurrently with each other.” Thus, far from
demonstrating a congressional intent to bring about a merger
of probation terms, § 3564(b) indicates the opposite. It is
therefore unlikely that probation and supervised release were
intended to function differently from each other on such a
basic level.
More broadly, in cases such as this one where multiple
terms of supervised release arise out of judgments entered in
different judicial districts, Johnson’s merger argument would
9
See United States v. Weikert, 504 F.3d 1, 7 n.4 (1st Cir.
2007); United States v. Copley, 978 F.2d 829, 831 n.* (4th
Cir. 1992) (“Supervised release and probation differ only in
that the former follows a prison term and the latter is in lieu
of a prison term.”).
10
See United States v. Kissinger, 309 F.3d 179, 181 (3d Cir.
2002) (discussing similarities between probation and
supervised release); see also Fed. R. Crim. P. 32.1
(“Revoking or Modifying Probation or Supervised Release.”).
9
violate the general modern rule that a court lacks jurisdiction
to modify a criminal judgment from another district.11 And as
§ 3583(a) establishes, supervised release is as much a “part of
the sentence” as a term of imprisonment or a fine. We see no
reason, and Johnson does not advance any, to treat the power
to modify or revoke a term of supervised release any
differently than we would the power to modify any other
aspects of a criminal judgment. This is especially so in light
of 1) the inclusion in the statutory framework of an explicit
mechanism for transferring supervised release jurisdiction
among judicial districts, and which allows the transferee
district to step into the shoes of the original sentencing
court12; and 2) the plentiful jurisdictional language in Fed. R.
Crim. P. 32.1, such as its distinction between “Appearance in
the District With Jurisdiction” and the same in “a District
Lacking Jurisdiction.”13 Were Johnson correct, this clear
jurisdictional language would be rendered superfluous when,
as here, a person was subject to more than one term of
11
For instance, federal law generally directs that filings
attacking the validity or length of a conviction or sentence be
made in the sentencing court. See, e.g., In re Nwanze, 242
F.3d 521, 525 (3d Cir. 2001) (“[O]rdinarily a petitioner
should present [an attack on a conviction] to the sentencing
court rather than the court in the district in which he is
confined.”).
12
See 18 U.S.C. § 3605; cf. United States v. Adams, 723 F.3d
687, 689 (6th Cir. 2013) (holding that Ҥ 3605 authorizes a
transferee court to revoke a term of a defendant’s supervised
release for violations committed prior to the transfer of
jurisdiction”).
13
Fed. R. Crim. P. 32.1(a)(4), (5).
10
supervised release from more than one judicial district.
For the above reasons, we join the Second and Fifth
Circuits in rejecting the model of merged terms of supervised
release.14 As a result, we conclude that the Virgin Islands
term of supervised release was not constructively discharged
by the Middle District of Florida’s separate judgment of
revocation. In fact, even if the Middle District of Florida had
intended to act on Johnson’s Virgin Islands term of
supervised release—and there is no indication that it did—the
court would have been without jurisdiction to do so, absent a
formal § 3605 transfer of jurisdiction from the Virgin Islands.
2) Failure to Actually Supervise
Johnson’s second jurisdictional argument also relies on
§ 3624(e). Pointing to the mandatory language of the
statute—a Probation Officer “shall . . . supervise the person
released”—he alleges that the Virgin Islands District Court
lacked jurisdiction because its Probation Office “failed to
supervise or even attempt to supervise [him],” thereby
14
We are otherwise unconvinced by Johnson’s rule-of-lenity
and reliance arguments. The statutes are not ambiguous, see
United States v. Salahuddin, 765 F.3d 329, 340 (3d Cir.
2014), and Johnson does not explain how his “assumption”
that his supervision was transferred to Florida has any legal
significance. To the extent that Johnson intends to argue that
his incorrect assumption led him to take a legal stance in the
Florida revocation that would have prejudiced him on res
judicata grounds, we do not assign such an argument any
jurisdictional significance.
11
abdicating its statutory responsibility to do so.15
At the outset, we do not agree with Johnson that
§ 3624(e) conditions jurisdiction to revoke on actual
supervision by a particular Probation Office. Otherwise, a
court would be deprived of jurisdiction if a person committed
a violation after being released from prison but before
reporting, or while AWOL, or while traveling within another
judicial district.
Johnson suggests that the relevant distinction is
between action and inaction, but we are not so sure; § 3624(e)
does not otherwise speak in clear jurisdictional language16
and says nothing about “attempts” to supervise. And while
Probation Officers play an essential role in supervision, they
are not the ultimate decision-makers in the context of
supervised release. Rather, the judgment is overseen by the
district court itself.17 We will not cut short the district court’s
jurisdiction upon the Probation Office’s failure to fulfill its
statutory responsibilities.
Further, based on the logistical hurdles to actual multi-
district supervision previously mentioned, the Virgin Islands
Probation Office would have been functionally unable to
15
Appellant’s Br. at 15.
16
See Grp. Against Smog & Pollution, Inc. v. Shenango Inc.,
810 F.3d 116, 122 (3d Cir. 2016) (explaining the presumption
against interpreting statutory language as jurisdictional).
17
Cf. United States v. Hollins, 847 F.3d 535, 541 (7th Cir.
2017) (addressing the authority of Probation Officers to
render advice for the ultimate review of the district court).
12
supervise Johnson so long as he remained in Florida. As the
District Court observed during the revocation hearing, even if
the Virgin Islands Probation Office had “attempted” to
supervise Johnson, or had engaged in a semiformal “courtesy
supervision”18 arrangement with the Middle District of
18
Johnson argues, in part, that “courtesy supervision”—an
informal arrangement between Probation Offices that does
not transfer jurisdiction, but instead uses the supervising
office as the “eyes and ears” of another—is not authorized by
law. See Appellant’s Br. at 12. According to the Guide to
Judiciary Policy, however, courtesy supervision finds its
statutory basis in 18 U.S.C. § 3603(4), which instructs
probation officers to “be responsible for the supervision of
any probationer or a person on supervised release who is
known to be within the judicial district.” See 8E Guide to
Judiciary Policy § 375.10 (Apr. 17, 2014) (setting forth
statutory bases for short-term courtesy supervision and
longer-term “transfer of supervision” without transfer of
jurisdiction). While we need not determine whether courtesy
supervision for longer durations comports with the “brief
period[s] of time” set forth in the Guide, see id., we do note
that courtesy supervision exposes another flaw in Johnson’s
jurisdictional argument. If Johnson were instead serving a
Florida state term of supervised release or probation, a formal
transfer of jurisdiction to Florida would have been
impossible, as § 3605 authorizes transfer between federal
district courts only. As a result, if Johnson were correct about
the jurisdictional nature of actual or attempted supervision, a
federal term of probation or supervised release could become
a nullity whenever a state probationary term was actually
being served.
13
Florida, the result would have been the same: actual
supervision by the Middle District of Florida.19
Accordingly, we reject this jurisdictional challenge.20
b) Violation of Due Process
In his final (and only non-jurisdictional) argument,
Johnson contends that the District Court erred by relying on
two documents the Court had independently obtained from
the Middle District of Florida Probation Office. In so doing,
Johnson asserts, the District Court denied his Due Process
right to a neutral and detached arbiter by assuming the role of
an advocate for the government.
19
On that point, we note that the Judicial Conference has long
encouraged district courts to transfer undischarged supervised
release terms to the actual district of supervision, voting in
1988 to “encourage courts mutually to consent to such
transfers as provided by 18 U.S.C. [§] 3605.” Report of the
Proceedings of the Judicial Conference of the United States
13 (Mar. 15, 1988). The Guide to Judiciary Policy also
continues to recognize the advantages of “simultaneous
transfer of jurisdiction in all instances when an offender is
being supervised in another district.” 8E Guide to Judiciary
Policy § 375(c).
20
Contrary to what Johnson suggests, our holding does not
read out of the statute the mandatory responsibilities of the
Probation Office. Rather, it simply recognizes the distinction
between “mandatory” and “jurisdictional.” See, e.g.,
Henderson v. Shinseki, 562 U.S. 428, 435 (2011).
14
This claim fails under any standard of review.21
Although the documents in question are not part of the record
on appeal, the hearing transcript indicates that they consisted
of two letters acquired from the Middle District of Florida
Probation Office specifying the date of Johnson’s release
from prison and explaining why he was briefly released in
Kentucky, topics that had earlier been addressed by the
Probation Officer’s testimony. To the extent that the Court’s
reliance on them violated the “minimal” due process
protections that apply in revocation proceedings,22 Johnson
fails to show, or even argue, that this violation led to any
prejudice. We do not perceive any on independent review;
the documents were, at most, relevant to the start date of
Johnson’s term of supervised release and/or the fact of his
actual supervision in Florida, neither of which appeared to be
seriously in dispute (and neither of which is being litigated in
this appeal).
III.
As the District Court had jurisdiction to revoke
Johnson’s term of supervised release, and did not violate his
Due Process rights in the course of doing so, we will affirm
its judgment.
21
Johnson does not appear to have raised this as a Due
Process argument below, but the government nevertheless
urges plenary review, see Gov’t Br. at 16.
22
Morrissey v. Brewer, 408 U.S. 471, 485, 489 (1972); see
also United States v. Maloney, 513 F.3d 350, 356 (3d Cir.
2008) (explaining that Fed. R. Crim. P. 32.1 incorporates Due
Process protections).
15