USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1507
UNITED STATES,
Appellee,
v.
EDWIN P. JOSEPH,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Aldrich and Campbell, Senior Circuit Judges.
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Louis F. Robbio with whom Robbio & Nottie, Ltd. was on brief for
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appellant.
Margaret E. Curran, Assistant United States Attorney, and Sheldon
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Whitehouse, United States Attorney, were on brief for appellee.
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March 20, 1997
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CAMPBELL, Senior Circuit Judge. This is an appeal
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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
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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.
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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
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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
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1. In Bailey, the Supreme Court explained that the "use" of
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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
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was insufficient to pass muster under Bailey. A further
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question might be whether Bailey has retroactive application
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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
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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
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retroactively to "use" cases on collateral review, we now
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2. Several courts have ruled that Bailey applies
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retroactively. See, e.g., Guzman-Rivera v. United States,
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933 F. Supp. 138, 143 (D.P.R. 1996); Sanabria v. United
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States, 916 F. Supp. 106, 112-13 (D.P.R. 1996); United States
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v. Barnhardt, 93 F.3d 706, 708-09 (10th Cir. 1996); United
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States v. Cota-Loaiza, 936 F. Supp. 751, 753-54 (D.Colo.
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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.
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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.
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In so arguing, Joseph relies on the Court of
Appeals for the Ninth Circuit's decision in United States v.
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Blake, 88 F.3d 824 (9th Cir. 1996). In Blake, the
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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
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measuring the duration of the three year terms of supervised
release. See Id. at 825.
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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
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reduced sentences. The Blake Court read the language of 18
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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
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825. Furthermore, the Blake Court stated that its ruling was
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dictated by the circuit precedent of United States v.
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Montenegro-Rojo, 908 F.2d 425, 431 n.8 (9th Cir. 1990) ("If
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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
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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,
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it was bound to follow Montenegro-Rojo, and to direct the
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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
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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
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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
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(8th Cir. 1996). In Douglas, the defendant was resentenced
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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
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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
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(citations omitted). The court went on to note "that this is
consistent with the distinctly different purposes of
imprisonment and supervised release." Id. (citations
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omitted).
Joseph attempts to distinguish Douglas by arguing
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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
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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
