F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          NOV 27 2002

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-5087
 v.                                                D.C. No. 89-CR-36-C
                                                     (N.D. Oklahoma)
 JOSEPH GERALD McELROY,

          Defendant - Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, McKAY and MURPHY, Circuit Judges.



      Joseph Gerald McElroy appeals the district court’s revocation of his

probation in 1999, contending the court lacked jurisdiction to do so. We disagree

and affirm.

      Mr. McElroy was convicted on a twenty-six count indictment for various

crimes, including conspiracy, wire fraud, and aiding and abetting in violation of


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
federal banking laws. On February 1, 1990, he received a sentence of four years

for Count One, and concurrent five-year terms of probation for Counts Two

through Twenty-six “to commence after being released from having served Count

One.” Rec., vol. II at 25 (Trans. of Sentencing Hearing). 1 Because of good time

served, Mr. McElroy was released on parole on October 18, 1992. He completed

the terms of parole and commenced the terms of probation on the remaining

counts on August 5, 1993.

      In 1996, Mr. McElroy violated the terms of his probation and was ordered

to serve a three year term in custody on Count Two, during which the probation

was suspended as to Counts Three through Twenty-six. On October 20, 1997, he

was again released from custody early for good time served. At that time he

began serving his parole for Count Two, as well as the concurrent probation terms

on the remaining counts. In 1999, some weeks prior to his potential discharge

date for those remaining counts, Mr. McElroy again violated his probation, as a

result of which he received a sentence of five year concurrent terms. At this

point, he failed to appear voluntarily at the prison, was convicted for that failure

to appear, and was sentenced to a term of twelve months and one day to be served

consecutively to the revocation sentence.


      1
        The court’s written judgment described probation as commencing “upon
expiration of the sentence imposed as to Count One.” Rec., vol. I, doc. 267,
exhib. 1.

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      Mr. McElroy now asserts that the district court committed clear error when

it found that his probation on Counts Two through Twenty-six originally began to

run in August of 1993 when he completed parole on Count One, contending

instead that it should have commenced when he was initially released from prison

on October 18, 1992. If he is correct, the district court did not have jurisdiction

to revoke his probation in 1999 because he would have already completed his

probationary sentence by that time.

      We have held that “[t]he controlling consideration in interpreting when a

probation period commences is the intention of the Court imposing the sentence,

to be found in the language employed to create the probationary status.” United

States v. Einspahr, 

, 506 (10th Cir. 1994). Furthermore, “[u]nless the

sentencing court specifically indicated that a consecutive sentence of probation

begins at a prisoner’s release from custody or confinement, the default assumption

is that the full term of the earlier sentence must be completed before the probation

period commences.” 

      The district court used different language in imposing the initial sentence

on Mr. McElroy as compared with the other five defendants who participated in

the same crimes. Their terms of probation were to begin “after the service of

imprisonment.” See, e.g., rec., vol II at 6. As a result, Mr. McElroy argued to the

district court that the time his probation was to commence was not clear and that


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his sentence ought to be interpreted as ordering treatment identical to his

codefendants despite the distinction in the language. However, the district court

stated that the distinction it made was intentional and that its language was

unambiguous in providing for Mr. McElroy’s consecutive sentence to begin after

he had completed his parole term on Count One. Rec., vol. I, doc. 285 at 8. After

reviewing the record, we are not convinced that the district court erred.

      Accordingly, we AFFIRM.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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