USCA1 Opinion
August 2, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1235
UNITED STATES,
Appellee,
v.
EDMUND M. HURLEY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Edmund M. Hurley on brief pro se.
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Robert L. Ullmann, Assistant United States Attorney, on Motion to
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Remand Case for Resentencing, for appellee.
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Per Curiam. Pro se probationer Edmund Hurley
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appeals from a district court order that denied his motion to
be released from a probation term he is presently serving.1
The government has filed a motion which asks us to remand
Hurley's case for resentencing while retaining appellate
jurisdiction. For the reasons discussed below, we deny the
government's motion and summarily affirm the district court
order denying Hurley's motion to further amend his judgment
of conviction.
Hurley, a Boston lawyer, was convicted of one count
of conspiring to defraud the Internal Revenue Service by
participating in a money laundering scheme in violation of 18
U.S.C. 371.2 He was sentenced to two years' imprisonment,
the first eight months of which were to be served in prison,
the sixteen month balance of which was suspended in favor of
probation. Hurley was also required to pay a $10,000 fine
and a $50 special assessment. This court affirmed Hurley's
conviction on direct appeal. See United States v. Hurley,
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957 F.2d 1 (1st Cir.), cert. denied, 60 U.S.L.W. 3801
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(October 5, 1992). Hurley began serving his prison sentence
on May 14, 1992.
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1. Hurley's motion was titled, "Motion to Further Amend
Judgment of Conviction."
2. Persons convicted under this statute "shall be fined not
more than $10,000 or imprisoned not more than five years, or
both." See 18 U.S.C. 371.
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On August 5, 1992, Hurley filed a motion to correct
his sentence. That motion correctly pointed out that
Hurley's sentence was an illegal "split sentence" under 18
U.S.C. 3651 (repealed effective November 1, 1987).3 That
statute provided that:
Upon entering a judgment of conviction of
any offense not punishable by death or
life imprisonment, if the maximum
punishment provided for such offense is
more than six months, any court having
jurisdiction to try offenses against the
United States, when satisfied that the
ends of justice and the best interest of
the public as well as the defendant will
be served thereby, may impose a sentence
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in excess of six months and provide that
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the defendant be confined in a jail-type
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institution or a treatment institution
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for a period not exceeding six months and
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that the execution of the remainder of
the sentence be suspended and the
defendant placed on probation for such
period and upon such terms and conditions
as the court deems best. (emphasis
supplied).
Thus, a "split sentence" under 18 U.S.C. 3651 may
not impose a prison term of more than six months. Hurley
argued that the district court should have confined him to
prison only for six months, a term that, with deductions for
good time credits, would have allowed him to be released on
September 29, 1992. The district court summarily denied
Hurley's motion and Hurley appealed. On October 2, 1992,
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3. As Hurley's crime was committed before this statute was
repealed, it continues to govern his sentencing. See Pub. L.
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98-473 (effective Nov. 1, 1987).
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Hurley filed a motion for bail pending appeal and to expedite
his appeal. The government opposed bail, contending that
although Hurley's split sentence was improper, the district
court could still impose an eight-month prison sentence
followed by a sixteen-month probation term. The government
later conceded that Hurley had served six months (or, more
correctly, all the time he legally had to serve under a six-
month sentence) in jail.
On October 14, 1992, this court summarily reversed
the district court's order. We determined that Hurley's
sentence was illegal because it required Hurley to serve
eight months in prison. We further ruled that since Hurley
had served the maximum amount of prison time he could
lawfully be required to serve under 18 U.S.C. 3651 he could
not be resentenced to a term requiring further incarceration.
We instructed the district court "to order that [Hurley] be
released from custody forthwith." The district court issued
such an order and Hurley was released from the Allenwood
Federal Prison Camp on October 15, 1992. Hurley was also
instructed to report to the U.S. Probation Office to begin
serving his probation term. Although our October 14, 1992
order implicitly required that Hurley's split sentence be
amended to impose a six-month prison term and the balance
probation, an amended judgment has yet to issue.
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On November 13, 1992, Hurley filed a motion to
further amend his judgment of conviction. In contrast to his
first motion, which challenged only the eight-month prison
term, Hurley's motion to further amend his judgment of
conviction attacked the probation portion of his split
sentence. Hurley's probation is scheduled to expire on
February 15, 1994. Relying on cases cited in our October 14,
1992 order, Hurley argued that any period of probation
imposed by the original judgment of conviction was illegal
because that judgment imposed a jail term of more than six
months. See United States v. Addonizio, 442 U.S. 178, 189 n.
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15 (1979)(citing 18 U.S.C. 3651 for the proposition that
"probation may not be combined with a sentence entailing
incarceration of more than six months"); United States v.
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Martin, 938 F.2d 883, 884-85 (8th Cir. 1991)(per curiam)
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("Under 3651, a court could not order probation to follow a
period of confinement that exceeded six months.") Hurley
further argued that this court's October 14, 1992 order
required that Hurley be released from all forms of custody,
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including probation. The district court summarily denied
Hurley's motion and this appeal followed.
On appeal, Hurley argues that the United States
Probation Office's continuing supervision of him violates
this court's October 14, 1992 order and the district court's
ensuing October 15, 1992 order because these orders required
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that he be released from all forms of custody including
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probation. Hurley further argues that probation may not be
combined with a sentence which includes incarceration of more
than six months under 18 U.S.C. 3651. He contends that this
is the holding of United States v. Addonizio, supra, and that
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it requires the elimination of the probation part of his
sentence. Hurley served sixteen days beyond the amount of
prison time that would have been required had he initially
received a six-month prison term and all potential statutory
and discretionary good time credits under 18 U.S.C. 4161
and 4162 (repealed).4 He contends that these sixteen days
are the equivalent of sixteen months of probation and that he
should be freed from the latter.
Contrary to Hurley's contention, our October 14,
1992 order and the district court's October 15, 1992 order
did not purport to release Hurley from the probation portion
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of his split sentence. While it is true that probation is a
form of "custody," Hurley did not ask to be released from
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4. These statutes remained effective through November 1,
1992 for persons who committed offenses before November 1,
1987, thus they continue to apply to Hurley. See Pub. L. 98-
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473, 235(b)(1)(B). 18 U.S.C. 4161 authorized good time
deductions of five days per month for sentences between six
months and one year, while 18 U.S.C. 4162 allowed the
Attorney General to deduct an additional three days per month
of employment in a prison industry. Had Hurley initially
received a split sentence embodying a six-month prison term,
he would have been eligible for 30 days of good time credits
under 18 U.S.C. 4161 and approximately 18 additional days
under 18 U.S.C. 4162.
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probation in the context of his previous appeal, thus we had
no occasion to consider the validity of his probation term.
And while United States v. Addonizio, supra, notes that under
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18 U.S.C. 3651 "probation may not be combined with a
sentence entailing incarceration of more than six months,"
this case does not hold that a probation term that is part of
an illegal split sentence is automatically void or invalid.
Indeed, Addonizio did not concern the validity of a split
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sentence, thus the quotation cited above is obviously
dictum.5
A defendant may not receive a greater sentence than
the legislature has authorized. United States v. DiFrancesco,
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449 U.S. 117, 139 (1980). The split-sentence provision of
18 U.S.C. 3651 was enacted to "allow[] judges to grant a
short sentence (six months or less) followed by probation on
a one count indictment." United States v. Wertheimer, 474
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F.2d 1004, 1006 (2nd Cir. 1970), cert. denied, 414 U.S. 833
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(1973).6 Although Hurley was not released until October
15, 1992, he did not receive a greater sentence than the
legislature authorized in 18 U.S.C. 3651 because he was
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5. Similarly, United States v. Martin, supra, does not
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require that we hold Hurley's probation term invalid.
6. Before this provision was enacted, district courts had no
means to impose probation and prison time on a single-count
conviction. Id.
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actually incarcerated for only five months. Thus, there is
nothing unlawful about his present term of probation.
Accordingly, the government's motion to remand for
resentencing is denied. The judgment denying Hurley's motion
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to further amend his judgment of conviction is affirmed. In
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accordance with this court's October 14, 1992 order, the
district court shall amend Hurley's judgment of conviction to
impose a six-month prison term and an eighteen-month term of
probation.
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