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No. 98-1696: United States v. Johnson

No. 98-1696

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

ROY LEE JOHNSON

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217






In the Supreme Court of the United States

No. 98-1696
UNITED STATES OF AMERICA, PETITIONER

v.

ROY LEE JOHNSON

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT




REPLY BRIEF FOR THE UNITED STATES




A. Congress Unambiguously Provided That A Defendant's Term Of SupervisedRelease Commences Only When He Is Actually Released From Prison
Our submission in this case is that a term of supervised release commencesonly when a defendant is actually released from prison, and not on an earlierdate when he should, in retrospect, have been released under a subsequentjudicial decision that clarified the law. Respondent argues (Br. 11) thatvarious provisions of federal sentencing law "are in conflict"and thus create ambiguity on this issue. Respondent is incorrect.
In the statute governing "Supervision after release," Congressprovided that "[a] term of supervised release commences on the daythe person is released from imprisonment and runs concurrently with anyFederal, State, or local term of probation or supervised release or parolefor another offense to which the person is subject or becomes subject duringthe term of supervised release." 18 U.S.C. 3624(e). Congress furtherprovided that "[a] term of supervised release does not run during anyperiod in which the person is imprisoned [for 30 or more consecutive days]in connection with a conviction for a Federal, State, or local crime."Ibid. Section 3624(e) thus makes clear that a term of supervised releasecannot commence before the day on which a person is actually released fromprison-or, in other words, that a term of supervised release cannot runconcurrently with a term of imprisonment (except a term, unlike respondent'shere, of less than 30 days).
Respondent contends (Br. 9-14) that Section 3624(e) is ambiguous in itsapplication to persons who served time in prison on a conviction that ultimatelywas ruled invalid under a subsequent judicial decision clarifying the law.Respondent locates (Br. 11) the source of that ambiguity in another subsectionof the same statute, 18 U.S.C. 3624(a), which states, in pertinent part,that "[a] prisoner shall be released by the Bureau of Prisons on thedate of the expiration of the prisoner's term of imprisonment," lessany time credited toward his sentence for satisfactory behavior.
Contrary to respondent's assertions, no such ambiguity exists. Section 3624(a)says not a word about supervised release. And nothing in Section 3624(a)implies that an individual who is not released by the Bureau of Prisonson "the date of the expiration of [his] term of imprisonment"is entitled as a remedy to a reduction in his term of supervised releaseon a conviction that remains valid. Presumably, respondent would not contendthat a defendant may avoid other terms of his remaining sentence, such asthe payment of a fine, as a remedy for a violation of Section 3624(a). Thereis no more support in Section 3624(a) for the remedy that respondent doessuggest.
Indeed, Section 3624(a) does not appear to have been intended to addressthe situation of persons, such as respondent, who were released from prisonon the very date prescribed under a revised sentence imposed by the districtcourt.1 Under the natural reading of Section 3624(a), such prisoners arereleased "on the date of the expiration of [their] term of imprisonment,"notwithstanding that the date could have come earlier if the new judicialdecision had been announced or applied to their case earlier.2 Neither thetext nor the legislative history of Section 3624(a) suggests that Congressintended the phrase "on the date of the expiration of the prisoner'sterm of imprisonment" to have the more esoteric meaning assumed byrespondent and the court of appeals, i.e., as either the date that the prisoner'sterm actually expired under the sentence imposed by the district court oron the earlier date on which the prisoner's term could have expired undera retroactively applied change in the law. To the contrary, as noted inour opening brief (at 13 n.7), the provision of Section 3624(a) on whichrespondent and the court of appeals rely was designed simply to providea single straightforward rule governing the date of a prisoner's release,"replac[ing] a confusing array of statutes and administrative proceduresconcerning the determination of the date of release of a prisoner."S. Rep. No. 225, 98th Cong., 1st Sess. 144 (1983).3

B. Terms Of Supervised Release Should Not Be Shortened In Order To PreserveAppeals That Would Otherwise Be Moot
Respondent also contends (Br. 14) that, if the Court concludes that Section3624 unambiguously provides that a defendant's term of supervised releasecommences only upon his release from prison, the Court should reject that"literal interpretation" of Section 3624 as contrary to "Congress'sclear intent to allow appeals from [Sentencing] Guidelines determinations"under 18 U.S.C. 3742. Respondent notes that a defendant's appeal challengingthe length of his term of imprisonment might become moot if the defendanthas completed his term of imprisonment before the appeal is decided. Butbecause the appeal would not be moot if the sentence still could have "collaterallegal consequences" for the defendant after his release, Sibron v.New York, 392 U.S. 40, 57 (1968), respondent argues (Br. 15-19) that Section3624 should be construed as creating such collateral legal consequences,i.e., as providing that a reduction in a defendant's completed term of imprisonmentreduces his remaining term of supervised release.4
Respondent's argument is without support in the text or legislative historyof Section 3624, Section 3742, or any other provision of the ComprehensiveCrime Control Act of 1984. Respondent does not identify any congressionalexpression of intent that supervised release serve as a mechanism to preventdefendants' appeals of terms of imprisonment from becoming moot as a resultof the defendants' release from prison.
Instead, Congress chose a different, and more direct, mechanism to preventsentencing appeals from becoming moot. In another section of the ComprehensiveCrime Control Act, Congress specifically provided that a defendant may,in certain circumstances, be allowed to remain free pending an appeal ofhis conviction or sentence. 18 U.S.C. 3143(b). The district court must findthat the defendant "is not likely to flee or pose a danger to the safetyof any other person or the community," that the appeal "is notfor the purpose of delay," and that the appeal "raises a substantialquestion" that is "likely to result" in reversal, a new trial,a sentence that does not include imprisonment, or "a reduced sentenceto a term of imprisonment less than the total of the time already servedplus the expected duration of the appeal process." Ibid. In light ofSection 3143(b), which specifically addresses the concern that a defendantmay have served his entire term of imprisonment before his appeal is decided,it is implausible that Congress also intended to address that concern througha per se rule requiring that time erroneously served in prison be creditedagainst time on supervised release.
Respondent mistakenly asserts that two courts of appeals have "concludedthat in order to provide meaningful relief under 18 U.S.C. § 3742,credit from a supervised release term is a valid exercise of judicial authority."Br. 17-18 (citing United States v. Cottman, 142 F.3d 160 (3d Cir. 1998),and United States v. Fadayani, 28 F.3d 1236 (D.C. Cir. 1994)). In thosecases, the courts held that the defendants' appeals of sentences of imprisonmentwere not moot, even though the defendants had been released from prison,because the courts could not conclude that there was "no possibilitythat any collateral legal consequences will be imposed" on the defendantsas a result of the sentences. Fadayani, 28 F.3d at 1241 (quoting Sibron,392 U.S. at 57); accord Cottman, 142 F.3d at 164.5 The courts identifiedtwo such possible "collateral legal consequences": first, thata reduction in the defendant's completed term of imprisonment could, underthe Sentencing Guidelines, affect the duration of any future term of imprisonmentthat the defendant might receive, Cottman, 142 F.3d at 164-165; and, second,that a reduction in the defendant's completed term of imprisonment "wouldlikely merit a credit against [his] period of supervised release,"id. at 165. The courts did not definitively hold in either case that a defendantis automatically entitled to credit against his time on supervised releasefor any time that he erroneously spent in prison. The courts simply assumedthat such credit was a possible "collateral legal consequence"of a reduction in the defendant's completed sentence of imprisonment. SeeFadayani, 28 F.3d at 1241 ("Although the government may be correctthat both of these contingencies are remote, Sibron requires only that theybe possible."). The courts' one-sentence discussion in each case ofwhether a reduction in a defendant's term of imprisonment might affect histerm of supervised release-unaccompanied by any citation of authority, exceptin Cottman to Fadayani-reflects no consideration of the statutes governingsupervised release or, by the time of Cottman, the conflicting appellatedecisions on the question presented here. And nothing in either case supportsrespondent's assertion (Br. 27) that the courts actually concluded thatcredit was necessary "in order to provide meaningful relief under 18U.S.C. § 3742."6
Finally, contrary to respondent's assertions, the literal meaning of Section3624(e)-that a person's term of supervised release does not begin untilhe is actually released from prison-accords with Congress's intent in enactingthe supervised release provisions of the Comprehensive Crime Control Act.As explained in our opening brief (at 14-18), Congress intended that supervisedrelease would serve purposes distinct from incarceration. Supervised releasewas designed "to ease the defendant's transition into the community,""to provide rehabilitation" through "supervision and trainingprograms after release," and thereby to protect the community intowhich the defendant is released. S. Rep. No. 225, supra, at 124; see also18 U.S.C. 3553(a)(2)(B)-(D), 3583(c) (identifying the sentencing considerationsapplicable to supervised release as including "to afford adequate deterrenceto criminal conduct," "to protect the public from further crimesof the defendant," and "to provide the defendant with needed educationalor vocational training, medical care, or other correctional treatment").7Supervised release, unlike incarceration, was not intended to serve "thesentencing purposes of incapacitation and punishment." S. Rep. No.225, supra, at 124; see also 18 U.S.C. 3553(a)(2)(A), 3583(c) (excludingfrom the sentencing considerations applicable to supervised release "provid[ing]just punishment for the offense"). The distinct purposes of supervisedrelease that Congress identified can be adequately served only when a personhas been discharged from prison into the community. See United States v.Joseph, 109 F.3d 34, 38-39 (1st Cir. 1997) ("Incarceration * * * doesnothing to assist a defendant's transition back into society and is nota reasonable substitute for a portion of the supervised release term.").8

C. Congress Has Provided An Avenue Of Meaningful Relief For Defendants WhoHave Been Incarcerated On A Conviction That Is Subsequently Vacated
Respondent finally contends (Br. 24) that 18 U.S.C. 3583(e)(1) "doesnot provide meaningful relief" for persons in his circumstances fortwo reasons: first, Section 3583(e)(1) allows a district court to terminatea term of supervised release only after the defendant has served at leastone year of that term, and, second, a district court has discretion underSection 3583(e)(1) whether to terminate a term of supervised release. BecauseCongress believed that supervised release serves important purposes thatare overcome only where there are specific and sufficient countervailinginterests, Section 3583(e)(1) does not afford an individual the identicalrelief-an automatic credit-that would be available under the court of appeals'decision. Section 3583(e)(1) nonetheless provides an avenue of "meaningfulrelief" that, in contrast to the court of appeals' approach, accordswith the congressional purposes underlying supervised release.
Contrary to respondent's assertions (Br. 24-25), there is a significantbenefit for an individual who, after serving a one-year term of supervisedrelease, obtains early termination of supervised release under Section 3583(e)(1)based in part on the "interest of justice" reflected in his serviceof time in prison on a convic- tion later set aside.9 And, even before adefendant has served one year of supervised release, Section 3583(e)(2)permits the district court to modify the conditions of his supervised release.
Nor does the district courts' discretion over Section 3583(e)(1) motionsfor early termination of supervised release render that avenue of reliefmeaningless. District courts exercise that discretion frequently in favorof defendants. During the year ending September 30, 1998, for example, 1462former federal prisoners were granted early termination of supervised release.Administrative Office of the United States Courts, Judicial Business ofthe United States Courts 275 (1998).
Moreover, Section 3583(e)(1) requires the district courts to consider whetherearly termination of supervised release is "warranted by the conductof the defendant released and the interest of justice," and thus isno longer necessary to achieve the congressionally identified purposes ofeasing the defendant's transition into society and protecting the communityfrom a recurrence of his criminal behavior. See S. Rep. No. 225, supra,at 124. The court of appeals' remedy- automatic early termination of supervisedrelease for defendants in respondent's position-gives no consideration tothose purposes. It would instead reinstate for such defendants the sortof regime that Congress sought to eliminate with supervised release, inwhich a defendant's period of supervision turned "on the almost sheeraccident of the amount of time that happens to remain of the term of imprisonmentwhen the defendant is released," rather than on the needs of the defendantand the community. Ibid.10
* * * * *
For the foregoing reasons and those stated in our opening brief, the judgmentof the court of appeals should be reversed.


Respectfully submitted.

SETH P. WAXMAN
Solicitor General
DECEMBER 1999





1 After the hearing on respondent's unopposed motion to vacate his Section924(c) convictions under Bailey v. United States, 516 U.S. 137 (1995), thedistrict court imposed a revised sentence directing that respondent be releasedfrom prison immediately. Judgment 2 (May 2, 1996). The Bureau of Prisonscomplied with that directive.

2 Such a prisoner would not automatically be entitled to release on theday that his original term of imprisonment on any surviving counts wouldexpire. For example, many district courts, after invalidating a defendant'ssentence on a Section 924(c) count under Bailey, resentenced the defendantto an enhanced term of imprisonment on a surviving drug count based on hispossession of a firearm. See Sentencing Guidelines § 2D1.1(b)(1). Thecourts of appeals have uniformly upheld such resentencings. See, e.g., UnitedStates v. Gordils, 117 F.3d 99 (2d Cir.) (47-month and 37- month enhancements),cert. denied, 522 U.S. 975 (1997); United States v. Morris, 116 F.3d 501(D.C. Cir.) (37-month and 17-month enhancements), cert. denied, 522 U.S.975 (1997); United States v. Davis, 112 F.3d 118 (3d Cir.) (32-month enhancement),cert. denied, 522 U.S. 888 (1997); United States v. Smith, 103 F.3d 531(7th Cir. 1996) (17-month enhancement), cert. denied, 520 U.S. 1248 (1997).The government did not seek such resentencing in this case.

3 Amici National Association of Criminal Defense Lawyers, et al., whilenot joining in respondent's statutory ambiguity argument, urge an extensionof the common law doctrine of constructive parole, which permits a defendantto receive credit against his term of imprisonment for time erroneouslyspent at liberty through no fault of his own. See, e.g., White v. Pearlman,42 F.2d 788, 789 (10th Cir. 1930). Amici's argument is foreclosed by theplain language of Section 3624(e), which provides, inter alia, that "[a]term of supervised release does not run during any period [of 30 days ormore] in which the person is imprisoned." Amici cite only one casethat applied the constructive parole doctrine to credit time erroneouslyspent in prison against time to be spent on parole. United States ex rel.Shuster v. Vincent, 524 F.2d 153 (2d Cir. 1975). Shuster is distinguishablefrom this case not only because the state law in that case contained noprovision similar to Section 3624(e), which would have barred a person'sterm of parole from running during his term of incarceration, but also becauseof its "appalling" facts "reminiscent of Solzhenitsyn's treatise"The Gulag Archipelago that persuaded the court of appeals to create an equitableremedy. 524 F.2d at 154 (noting that the petitioner was wrongfully confinedin a mental institution and a prison for "44 years after convictionof a crime for which the average time of imprisonment before parole is 15years").

4 Respondent similarly contends (Br. 19-20) that a literal constructionof Section 3624 "would also be in contradiction to Congress's intentunder 28 U.S.C. § 2255" to allow defendants to seek post-convictionreview of their sentences of imprisonment. That argument fails for the samereasons as does respondent's argument based on 18 U.S.C. 3742.

5 An application of the Sibron rule in the sentencing context can be foundin Mabry v. Johnson, 467 U.S. 504 (1984), which respondent erroneously claims(Br. 20) to be "[i]n [c]ontravention [t]o" the government's positionin this case. In Mabry, a state prisoner sought by a petition for habeascorpus to enforce a proposed plea agreement that would have allowed histerm of imprisonment on a new conviction to run concurrently with his termsof imprisonment on earlier convictions. In a footnote, this Court observedthat the case was not mooted by the prisoner's release on parole because"whether [he] must serve the sentence now under attack consecutivelyto his prior sentences will affect the date at which his parole will expireunder state law." 467 U.S. at 507 n.3. As respondent concedes (Br.21), Mabry "was based on Arkansas parole law." Mabry thus hasno relevance to the construction of the federal statutory provisions atissue in this case.

6 In any event, Cottman and Fadayani appear to involve defendants who wereseeking to have their sentences of imprisonment reduced to one year or less.See Cottman, 142 F.3d at 165; Fadayani, 28 F.3d at 1241. Such a reductioncould potentially affect a defendant's sentence of supervised release becausethe Sentencing Guidelines prescribe supervised release only when a defendantis sentenced to imprisonment for more than one year (or when required bystatute). See Sentencing Guidelines § 5D1.1(a) and (b). A reductionin the defendants' sentences in Cottman and Fadayani could thus have enabledthe district courts to reconsider whether to impose any term of supervisedrelease. See United States v. Eske, 925 F.2d 205, 206 n.2 (7th Cir. 1991)(holding that an appeal of a completed term of imprisonment was not mootin such circumstances).

7 As noted in our opening brief (at 16), although the Comprehensive CrimeControl Act did not identify "protect[ing] the public from furthercrimes of the defendant" as a sentencing consideration relevant tosupervised release, Congress subsequently amended Section 3583(c) to includea reference to that sentencing consideration.

8 It makes no difference whether, as respondent observes (Br. 22), supervisedrelease may, for some purposes, be viewed as punishment. See, e.g., UnitedStates v. Dozier, 119 F.3d 239, 242 (3d Cir. 1997) (concluding that "[s]upervisedrelease is punishment" for ex post facto purposes). Our point is thatCongress intended imprisonment and supervised release to serve differentpurposes. That intent supports construing Section 3624, in accordance withits plain language, as providing that a person's term of supervised releasebegins only upon his actual release from prison.

9 Congress recognized the significance of the difference between one-yearand three-year terms of supervised release in Section 3583(b), which authorizesa term of supervised release of "not more than three years" fora Class C or Class D felony, but a term of supervised release of "notmore than one year" for a Class E felony or a misdemeanor (other thana petty offense). 18 U.S.C. 3583(b)(2) and (3); see also, e.g., 21 U.S.C.841(b)(1)(D) (requiring a term of supervised release for a particular categoryof drug offense of "at least 4 years" if the defendant has a criminalrecord and of "at least 2 years" if the defendant has no criminalrecord).

10 Respondent also contends (Br. 23) that requiring him to serve the remainingnine months of his term of supervised release "would not serve anypurpose" because he "has been fully and successfully re-integratedinto society." The legal issue in this case, however, does not turnon respondent's individual response to release. Respondent's arguments concerninghis allegedly "full[] and successful[]" rehabilitation may bepresented to the district court on remand in a motion for early terminationof supervised release under Section 3583(e)(1).