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No. 98-1696: United States v. Johnson

No. 98-1696

In the Supreme Court of the United States
OCTOBER TERM, 1998

UNITED STATES OF AMERICA, PETITIONER
v.
ROY LEE JOHNSON

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

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
JOSEPH C. WYDERKO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 97-1151

ROY LEE JOHNSON, PETITIONER-APPELLANT
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE

Argued: August 4, 1998
Decided: August 26, 1998

OPINION

Before: MERRIT, KENNEDY, and GILMAN, Circuit Judges.
MERRITT, Circuit Judge.
This appeal from the District Court's partial denial of petitioner Roy LeeJohnson's motion to modify his sentence under 28 U.S.C. § 2255 raisesa single issue: When a criminal defendant's sentence of imprisonment isreduced below the time he has already served, does his term of supervisedrelease commence on the date of his actual release or on the date he shouldhave been released according to his revised sentence?
In 1990 a jury convicted Johnson of five separate offenses: (1) possessionwith intent to distribute cocaine in violation of 21 U.S.C. § 841(a);(2) use of firearms during and relating to the cocaine trafficking offensein violation of 18 U.S.C. § 924(c); (3) possession with intent to distributeDilaudid in violation of § 841(a); (4) use of a firearm during andrelating to the Dilaudid trafficking offense in violation of § 924(c);and (5) possession of a firearm after having previously been convicted ofa felony in violation of 18 U.S.C. § 922(g). Johnson's sentence of171 months imprisonment included two consecutive five-year terms for the§ 924(c) offenses. The court also imposed a three-year term of supervisedrelease on the drug charges. A panel of this Court affirmed the convictionin all respects, but on rehearing, we held that the District Court erredin sentencing Johnson to consecutive terms of imprisonment for the two §924(c) violations. United States v. Johnson, 25 F.3d 1335, 1337-38 (6thCir. 1994) (en banc). In August 1994, District Judge Horace Gilmore resentencedJohnson to concurrent five-year terms for the § 924(c) convictions.Johnson filed a motion under 28 U.S.C. § 2255 in March 1996, and JudgeGilmore vacated the two § 924(c) convictions in light of the SupremeCourt's new decision in Bailey v. United States, 516 U.S. 137, 116 S. Ct.501, 133 L. Ed. 2d 472 (1995). Because Johnson had already served more timein prison than called for under the revised sentence, Judge Gilmore orderedhis immediate release. He refused, however, to credit the extra time Johnsonserved in prison toward his three-year term of supervised release.
On appeal, Johnson argues that his term of supervised release should bedeemed to have commenced on the date on which he was entitled to be releasedin light of Bailey. The relevant statute provides that a person's "termof supervised release commences on the day the person is released from imprisonment,"and that a "term of supervised release does not run during any periodin which the person is imprisoned in connection with a conviction for aFederal, State, or local crime." 18 U.S.C. § 3624(e). Anotherportion of the statute states that a "prisoner shall be released bythe Bureau of Prisons on the date of the expiration of the prisoner's termof imprisonment." 18 U.S.C. § 3624(a). Relying on the languageof § 3624(a), Johnson contends that we should consider "the dayhe [was] released from imprisonment" for purposes of § 3624(e)to be the date he was entitled to be released under Bailey's interpretationof § 924(c) and the resulting revised sentence.
Our Court has not yet addressed the question raised by Johnson's appeal,but several other courts have considered the issue. In United States v.Blake, 88 F.3d 824 (9th Cir. 1996), the Ninth Circuit held that the defendants'terms of supervised release commenced on the day they should have been releasedfrom prison pursuant to the retroactive application of a clarifying amendmentto the Sentencing Guidelines, and not on the date of their actual release.Based on the language of § 3624(a) and on the "obvious purposeof leniency in applying the revised sentencing guidelines retroactively,"the Blake Court read the statute as "setting the date of release, andconsequently the commencement of a supervised release term, at the timea prisoner's term expires." Id. at 825. The First and Eighth Circuitshave adopted a contrary approach. Relying on the language of § 3624(e)and on the different purposes of imprisonment and supervised release, theyhave held that supervised release commences on the date the offender isactually released from prison. See United States v. Joseph, 109 F.3d 34(1st Cir. 1997); United States v. Douglas, 88 F.3d 533 (8th Cir. 1996) (percuriam).
In this case, we decline to follow the position advocated by the governmentand adopted by the First and Eighth Circuits in Joseph and Douglas. Readin isolation, the text of § 3624(e) appears to undercut Johnson's argumentthat he should receive credit for the extra time he spent in prison. However,the language of § 3624(e) must be considered in the context of theentire provision rather than in isolation. United States v. Brown, 536 F.2d117,121 (6th Cir. 1976)("[I]t is fundamental that a section of a statuteshould not be read in isolation from the context of the whole statute.")(internal quotation marks and brackets omitted); see also Third NationalBank v. Impac Ltd., Inc., 432 U.S. 312, 320-21 (1977), 97 S. Ct. 2307, 58L. Ed. 2d 368. Reading § 3624(e) out of context would be particularlyinappropriate in this case because it is clear that Congress did not considerthe effect of the retroactive invalidation of sentences when it draftedthe statute. Section 3624(a), which requires that a prisoner "be releasedby the Bureau of Prisons on the date of the expiration of the prisoner'sterm of imprisonment," embodies Congress's intent that a prisoner notbe held in prison following the expiration of a valid prison term. Johnsonwas not released from prison until two and a half years after the validportion of his prison term expired. In light of the policy underlying subsection(a), we hold that Johnson was not "imprisoned in connection with aconviction for a Federal . . . crime" during these two and a half yearsbecause the conviction for which he was being held was invalid. Likewise,we conclude that the date of his "release" for purposes of the§ 3624(a) was the date he was entitled to be released rather than theday he walked out the prison door.
The government maintains that while imprisonment serves primarily to punishand incapacitate the offender, "supervised release is intended to facilitate'the integration of the violator into the community, while providing thesupervision designed to limit further criminal conduct.'" Joseph, 109F.3d at 38-39 (quoting U.S.S.G. Ch. 7, Pt. A4, p.s.). In light of thesedistinct purposes, it contends that there is no basis for crediting theextra time Johnson spent in prison toward his supervised release term. Weagree that rehabilitation is a primary purpose of supervised release, butsupervised release is also punitive in nature. See S. Rep. No. 98-225, 98thCong., 2d Sess., reprinted in 1984 U.S.C.C.A.N. 3182, 3306-08 (discussingpurposes of supervised release); United States v. Gilchrist, 130 F.3d 1131,1134 (3d Cir. 1997) ("Supervised release is punishment; it is a deprivationof some portion of one's liberty imposed as a punitive measure for a badact."), cert. denied, __ U.S. __, 118 S. Ct. 1307, 140 L.Ed. 2d 472(1998). Indeed, we doubt that Johnson would have brought this appeal otherwise.
The government also contends that Johnson's claim is more appropriatelydirected to the District Court pursuant to 18 U.S.C. § 3583(e), whichauthorizes the sentencing court to "terminate a term of supervisedrelease and discharge the defendant released at any time after the expirationof one year of supervised release . . . if it is satisfied that such actionis warranted by the conduct of the defendant released and the interest ofjustice." See United States v. Spinelle, 41 F.3d 1056, 1060-61 (6thCir. 1994) (statute requiring district court to impose three-year term ofsupervised release did not deprive district court of separate authorityunder § 3583(e) to terminate supervised release after completion ofone year). Under the circumstances, we decline to hold that § 3583(e)is the only avenue of relief available to Johnson. That provision woulddo him little good, since he might complete the remainder of his three-yearterm before the District Court considered such a motion.
For the reasons stated, we hold that Johnson's term of supervised releasecommenced at the end of the valid fifty-one month portion of his prisonterm. The judgment of the District Court denying Johnson's request for thetermination of his term of supervised release is REVERSED.
GILMAN, Circuit Judge, dissenting.
The majority adopts the Ninth Circuit's approach in United States v. Blake,88 F.3d 824 (9th Cir. 1996), holding that a prisoner's term of supervisedrelease should be reduced to account for any excess time served in prison.Because I believe that such an approach is contrary to both the plain languageand the purpose of 18 U.S.C. § 3624(e), I dissent. See United Statesv. Joseph, 109 F.3d 34, 38-39 (1st Cir. 1997), and United States v. Douglas,88 F.3d 533, 534 (8th Cir. 1996); see also S. Rep. No. 98-225, 98th Cong.,2d Sess., reprinted in 1984 U.S.C.C.A.N. 3182, 3306-08 (discussing purposesof supervised release).
The statute clearly states that a person's "term of supervised releasecommences on the day the person is released from imprisonment," andthat "[a] term of supervised release does not run during any periodin which the person is imprisoned in connection with a conviction."18 U.S.C. § 3624(e). The majority states that this language must beread in light of the language in § 3624(a) that "[a] prisonershall be released by the Bureau of Prisons on the date of the expirationof the prisoner's term of imprisonment." The majority concludes thatthis language alters subsection (e) to mean that a prisoner begins his termof supervised release on the date he was released from custody or shouldhave been released from custody, whichever first occurs. This approach isinconsistent with the language of subsection (e), which is clear and unconditionalin its requirements. The majority is thus attempting to fashion an equitableremedy for a perceived injustice.
Giving Johnson credit toward his term of supervised release for the excesstime in prison, however, does not satisfy the purpose of the statute. AlthoughCongress did not provide for the situation presented in this case, it isclear that the purpose of supervised release is to "facilitate 'theintegration of the violator into the community, while providing the supervisiondesigned to limit further criminal conduct.'" Joseph, 109 F.3d at 38-39(quoting U.S.S.G. Ch. 7, Pt. A, cmt. 4, and refusing to "invent someform of automatic credit or reduction . . . to compensate for . . . increasedincarceration."). In contrast, imprisonment serves primarily to punishand incapacitate offenders. Id. at 39. Nonetheless, the majority holds thatwe may properly adjust the supervised release term to account for the extratime Johnson served in prison because "supervised release is also punitivein nature."
The terms of supervised release may indeed be fairly restrictive. In myopinion, however, that fact should not cause this court to simply trade-offbetween a term of imprisonment and a term of supervised release. The fallacyof such reasoning is that a prisoner is not being reintegrated into societywhile still incarcerated. In an effort to do equity, the majority may becausing more harm than good by announcing a rule of law that excuses a prisonerunder the circumstances of this case from participating in a program ofsupervised reintegration into society.
While Johnson's case is compelling (he served two and one-half years inprison on a sentence that was later revoked), it should be noted that hissentence was not imposed erroneously at the time of sentencing. Rather,his sentence was revoked by a retroactively applied interpretation of theapplicable statute by the Supreme Court in Bailey v. United States, 516U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). Under such circumstances,I believe that a more appropriate avenue for relief is an application tothe district court under 18 U.S.C. § 3583(e). This statute authorizesthe sentencing court to cancel a term of supervised release after it hasbeen in effect for one year when "such action is warranted by the conductof the defendant released and the interest of justice." See UnitedStates v. Spinelle, 41 F.3d 1056, 1060-61 (6th Cir. 1994) (holding thata statute requiring a three-year term of supervised release did not evisceratethe district court's discretion to adjust the term of supervised releasepursuant to § 3583(e)).
Because I believe that the majority's approach is inconsistent with thepurpose as well as the unconditional language of 18 U.S.C. § 3624(e),I respectfully dissent.


APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Civil No. 96-71222
Related to Crim. No. 89-80093
ROY LEE JOHNSON, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT

ORDER DENYING PETITIONER'S MOTION
TO VACATE, SET ASIDE OR CORRECT SENTENCE

Before the Court is petitioner ROY LEE JOHNSON's motion to vacate, set asideor correct his sentence and conviction, filed pursuant to 28 U.S.C. §2255. Petitioner also filed a motion for bond pending post conviction reliefon March 19, 1996; a motion for summary judgment on June 6, 1996; and amotion to vacate supervised release term on June 7, 1996. For the reasonsdiscussed below, the motions are denied.
I.
This case has a complex procedural history. Petitioner was first chargedin an information filed on March 12, 1990, by the United States Attorney.That information charged petitioner with one count of possession of a firearmby a felon, in violation of 19 U.S.C. § 922(g), and two counts of possessionof narcotics, in violation of 21 U.S.C. § 844. On April 19, 1990, petitionerpled guilty to this information pursuant to a Rule 11 plea agreement. However,on June 7, 1990, the Government filed a five-count superseding indictment.Count 1 charged him with possessing cocaine with intent to distribute, inviolation of 21 U.S.C. § 841(a)(1); Count 2 charged him with the useof firearms in relation to the drug trafficking crime set forth in Count1, in violation of 18 U.S.C. § 924(c); Count 3 charged him with possessionwith intent to distribute Dilaudid, in violation of 21 U.S.C. § 841(a)(1);Count 4 charged him with a second violation of 18 U.S.C. § 924(c),using the same firearms in relation to the drug trafficking crime chargedin Count 3; and Count 5 charged him as a felon in possession of a firearm,in violation of 18 U.S.C. § 922(g)(1). On June 13, 1990, the Governmentmoved to withdraw from the Rule 11 plea agreement, and after a hearing onthe motion on July 19, 1990, this Court granted the government's motion,vacated the plea agreement, and set the matter on for trial.
Trial began in September, 1990. However, on September 26, 1980, a mistrialwas declared because the jury was split 11 to 1 in favor of conviction,and could not reach a unanimous verdict. A new trial began on November 19,1990, and on November 27, 1990, petitioner was convicted on all five countsof the superseding indictment.
On January 25, 1991, petitioner was sentenced to 51 months on Counts 1,3 and 5, and was also sentenced to two consecutive 5 year terms of imprisonmenton the § 924(c) counts, for a total of 171 months incarceration. Representedby new counsel, petitioner appealed his conviction to the Sixth Circuit,setting forth the following claims of error:
I. That the Government waived its right to withdraw from the plea agreement;
II. That he was denied ineffective [sic] assistance of counsel by the Court'sfailure to allow him substitute counsel at sentencing;
III. That he was denied ineffective [sic] assistance of counsel when counselfailed to file pre-trial and other motions;
IV. That his conviction under 18 U.S.C. § 922(g) was improper; and
V. That his convictions under 18 U.S.C. § 924(c) violated double jeopardy.
Initially, the Sixth Circuit affirmed the conviction in all respects. SeeUnited States v. Johnson, 986 F.2d 134 (6th Cir. 1993). However, an en bancpanel of the Court reversed on the double jeopardy claim, holding that thisCourt erred in imposing consecutive sentences on the § 924(c) counts.United States v. Johnson, 25 F.3d 1335 (6th Cir. 1994). On August 30, 1994,this Court resentenced petitioner pursuant to the instructions of the SixthCircuit, reimposing a sentence of 60 months on the § 924(c) charges.
On March 20, 1996, petitioner filed a motion to vacate his sentence andconviction pursuant to 28 U.S.C. § 2255, setting forth the followingclaims of error:
1. That his § 924(c) convictions should be vacated pursuant to Baileyv. United States, 116 S. Ct. 501 (1995);

2. That he received ineffective assistance of counsel at voir dire, creatinga violation of Batson v. Kentucky, 476 U.S. 79 (1986);

3. That Counsel was ineffective for failing to move for suppression of theevidence;

4. That the Court violated his due process rights at sentencing by failingto ensure that he received effective assistance of counsel; and

5. That he is entitled to an evidentiary hearing on these matters.
In addition to this motion to vacate his sentence, petitioner also fileda motion for bond pending post-conviction relief.
After reviewing petitioner's § 2255 motion and motion for bond, theCourt ordered the Government to respond, and set the bond motion on forhearing. At that hearing, the Court ordered that petitioner's § 924(c)conviction (Count 4) be vacated, based on the Government's representationthat it did not contest petitioner's arguments under Bailey. Pursuant tothat order, petitioner was released from custody and placed on a three-yearterm of supervised release pursuant to the sentence imposed on Counts 1,3, and 5. The Government stated its intention to file a response opposingthe remainder of petitioner's § 2255 motion, and the court stated thatit would rule on the remainder of petitioner's motion at a later date.
II.
Having received a response from the government on the remainder of petitioner's§ 2255 motion, the Court must now consider these claims.1

Petitioner's first claim alleges that his trial counsel was deficient andviolated his due process rights by purposely exluding black members of thejury in violation of Batson v. Kentucky, 476 U.S. 79 (1986). In supportof this claim, petitioner has submitted a declaration stating that his trialcounsel informed him that he would exclude all black males from the jurybecause the Assistant United States Attorney prosecuting the case wantedit that way. Petitioner made this claim briefly at his initial sentencing,but the Court informed him that it was not an appropriate matter for sentencingand that he would have to raise it on a motion for new trial. Petitionerdid not file any post-trial motions, and did not raise the issue on appeal.

It is well established that a § 2255 motion shall not serve as a substitutefor a direct appeal, and that a claim under § 2255 is procedurallybarred unless the petitioner can justify his failure to present it at thetime of sentencing or direct appeal. United States v. Timmreck, 441 U.S.780, 784 (1979). Issues not raised on direct appeal will not be entertainedin a § 2255 proceeding unless the petitioner demonstrates cause forhis previous omission and prejudice resulting therefrom. United States v.Frady, 456 U.S. 152, 166-68 (1982).

In this case, petitioner offers no justification for his failure to presenthis Batson claim on direct appeal, or in a post-trial motion, as suggestedby the Court at sentencing. Although petitioner frames his Batson argumentas an ineffective assistance of counsel claim, which are generally moreproperly brought in § 2255 motions than on direct appeal, petitionerwas represented by different counsel on appeal than at trial, and certainlycould have raised this Batson argument previously. Because petitioner couldhave raised this issue on direct appeal, and as provided no justificationfor this failure to do so, he is procedurally barred from raising the issuein this § 2255 motion.
Petitioner's next claims are that this counsel was ineffective in failingto file a pre-trial motion to suppress evidence and that his due processrights were violated because he did not have an adequate opportunity toobject to the presentence report. Both of these claims of error were raisedby petitioner on direct appeal and were rejected by the Sixth Circuit. Absenta change in circumstances, claims which were rejected on a direct criminalappeal are precluded from being reviewed again in collateral proceedingsunder 28 U.S.C. § 2255. See United States v. Shabazz, 657 F.2d 189(8th Cir. 1981); United States v. Orejuela, 639 F.2d 1055 (3rd Cir. 1981);Stephan v. United States, 496 F.2d 527 (6th Cir. 1974), cert. denied, 423U.S. 861 (1975). In this case, petitioner has shown no change of circumstancescompelling this court to review these claims again. Moreover, any new variationson these arguments set forth in this motion should have been raised on appeal.Accordingly, petitioner is precluded from having these claims addressedin this § 2255 motion.
The final issue before the Court is petitioner's motion to vacate supervisedrelease term filed by petitioner on June 7, 1996, after this Court vacatedhis § 924(c) conviction and released him from custody. In that motion,petitioner argues that the Court should end his supervised release becausepetitioner served extra time in custody under the Sixth Circuit's former,erroneous interpretation of § 924(c). For the following reasons, petitioner'smotion is DENIED.
Under 18 U.S.C. § 3624, a person's
term of supervised release commences on the day the person is released fromimrpisonment. . . . A term of supervised release does not run during anyperiod in which the person is imprisoned in connection with a convictionfor a Federal, State or local crime. . . .
18 U.S.C. § 3624(e) (1994). This Court notes that supervised releaseand imprisonment fulfill distinct purposes. The purpose of supervised releaseis to aid the defendant's transition from incarceration to life in the community.Moreover, unlike prison, supervised release is not intended to punish orincapacitate the defendant. S. Rep. No. 225, 98th Cong., 2d Sess. 123-35(1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3306-08.
The statute further provides:
[a] prisoner shall be released by the Bureau of Prisons on the date of theexpiration of the prisoner's term of imprisonment.
§ 3624(e). Thus, § 3624(e) and (a) read in conjunction providethat supervised release does not begin until the person has been releasedfrom prison and does not run while the person is in prison. See United Statesv. Douglas, 88 F.3d 533 (8th Cir. 1996). Therefore, any argument suggestingthat petitioner's time served counts towards his supervised release termis rejected. Quinones v. United States, 936 F. Supp. 153 (S.D.N.Y. 1996)(petitioners' argument that term of supervised release began when sentencefor heroin conviction expired as opposed to when time for conviction under§ 924(c) expired rejected; however, six-year term of supervised releasereduced to three-year statutory minimum).
The Court is cognizant that petitioner served time for conviction on a §924(c) count which has since been vacated; however, Petitioner's prisonterm cannot be undone. Most importantly, the purpose of supervised releasehas not been satisfied, and petitioner's term constitutes the mandatoryminimum. Given that three years is the mandatory minimum of a supervisedrelease term and considering the purposes of supervised release which haveyet to be fulfilled, petitioner's motion to vacate the term of supervisedrelease is DENIED.
III.
Based on the foregoing analysis, petitioner's motions are resolved as follows:
(1) the § 2255 motion is DENIED;
(2) the motion for summary judgment is DENIED; and
(3) the motion to vacate supervised release is DENIED.
IT IS SO ORDERED.
/s/ HORACE W. GILMORE
HORACE W. GILMORE
United States District
Judge
Dated: Jan. 22, 1997______
Detroit, Michigan


1 Although the government's June 12, 1996 responsewas untimely filed, the Court accepted it pursuant to Fed. R. Civ. P. 6(b).

APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

97-1151
ROY LEE JOHNSON, PETITIONER-APPELLANT
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE

[Filed: Jan. 21, 1999]

ORDER

BEFORE: MERRITT, KENNEDY, and GILMAN, Circuit Judges.
The court having received a petition for rehearing en banc, and the petitionhaving been circulated not only to the original panel members but also toall other active judges of this court, and less than a majority of the judgeshaving favored the suggestion, the petition for rehearing has been referredto the original panel.
The panel has further reviewed the petition for rehearing and concludesthat the issues raised in the petition were fully considered upon the originalsubmission and decision of the case. Accordingly, the petition is denied.Judge Gilman would grant rehearing for the reasons stated in his dissent.
ENTERED BY ORDER OF THE COURT
/s/ LEONARD GREEN
LEONARD GREEN
Clerk

APPENDIX D
STATUTORY PROVISIONS INVOLVED
Section 3583 of Title 18 of the United States Code provides as follows:
Inclusion of a term of supervised release after imprisonment
(a) In general.-The court, in imposing a sentence to a term of imprisonmentfor a felony or a misdemeanor, may include as a part of the sentence a requirementthat the defendant be placed on a term of supervised release after imprisonment,except that the court shall include as a part of the sentence a requirementthat the defendant be placed on a term of supervised release if such a termis required by statute or if the defendant has been convicted for the firsttime of a domestic violence crime as defined in section 3561(b).
(b) Authorized terms of supervised release.- Except as otherwise provided,the authorized terms of supervised release are-
(1) for a Class A or Class B felony, not more than five years;
(2) for a Class C or Class D felony, not more than three years; and
(3) for a Class E felony, or for a misdemeanor (other than a petty offense),not more than one year.
(c) Factors to be considered in including a term of supervised release.-Thecourt, in determining whether to include a term of supervised release, and,if a term of supervised release is to be included, in determining the lengthof the term and the conditions of supervised release, shall consider thefactors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),(a)(4), (a)(5), and (a)(6).
(d) Conditions of supervised release.-The court shall order, as an explicitcondition of supervised release, that the defendant not commit another Federal,State, or local crime during the term of supervision and that the defendantnot unlawfully possess a controlled substance. The court shall order asan explicit condition of supervised release for a defendant convicted forthe first time of a domestic violence crime as defined in section 3561(b)that the defendant attend a public, private, or private nonprofit offenderrehabilitation program that has been approved by the court, in consultationwith a State Coalition Against Domestic Violence or other appropriate experts,if an approved program is readily available within a 50-mile radius of thelegal residence of the defendant. The court shall order, as an explicitcondition of supervised release for a person described in section 4042(c)(4),that the person report the address where the person will reside and anysubsequent change of residence to the probation officer responsible forsupervision, and that the person register in any State where the personresides, is employed, carries on a vocation, or is a student (as such termsare defined under section 170101(a)(3) of the Violent Crime Control andLaw Enforcement Act of 1994). The court shall also order, as an explicitcondition of supervised release, that the defendant refrain from any unlawfuluse of a controlled substance and submit to a drug test within 15 days ofrelease on supervised release and at least 2 periodic drug tests thereafter(as determined by the court) for use of a controlled substance. The conditionstated in the preceding sentence may be ameliorated or suspended by thecourt as provided in section 3563(a)(4). The results of a drug test administeredin accordance with the preceding subsection shall be subject to confirmationonly if the results are positive, the defendant is subject to possible imprisonmentfor such failure, and either the defendant denies the accuracy of such testor there is some other reason to question the results of the test. A drugtest confirmation shall be a urine drug test confirmed using gas chromatography/massspectrometry techniques or such test as the Director of the AdministrativeOffice of the United States Courts after consultation with the Secretaryof Health and Human Services may determine to be of equivalent accuracy.The court shall consider whether the availability of appropriate substanceabuse treatment programs, or an individual's current or past participationin such programs, warrants an exception in accordance with United StatesSentencing Commission guidelines from the rule of section 3583(g) when consideringany action against a defendant who fails a drug test. The court may order,as a further condition of supervised release, to the extent that such condition-
(1) is reasonably related to the factors set forth in section 3553(a)(1),(a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessaryfor the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D);and
(3) is consistent with any pertinent policy statements issued by the SentencingCommission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in section3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other conditionit considers to be appropriate. If an alien defendant is subject to deportation,the court may provide, as a condition of supervised release, that he bedeported and remain outside the United States, and may order that he bedelivered to a duly authorized immigration official for such deportation.
(e) Modification of conditions or revocation.-The court may, after consideringthe factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),(a)(4), (a)(5), and (a)(6)-
(1) terminate a term of supervised release and discharge the defendant releasedat any time after the expiration of one year of supervised release, pursuantto the provisions of the Federal Rules of Criminal Procedure relating tothe modification of probation, if it is satisfied that such action is warrantedby the conduct of the defendant released and the interest of justice;
(2) extend a term of supervised release if less than the maximum authorizedterm was previously imposed, and may modify, reduce, or enlarge the conditionsof supervised release, at any time prior to the expiration or terminationof the term of supervised release, pursuant to the provisions of the FederalRules of Criminal Procedure relating to the modification of probation andthe provisions applicable to the initial setting of the terms and conditionsof post-release supervision;
(3) revoke a term of supervised release, and require the defendant to servein prison all or part of the term of supervised release authorized by statutefor the offense that resulted in such term of supervised release withoutcredit for time previously served on postrelease supervision, if the court,pursuant to the Federal Rules of Criminal Procedure applicable to revocationof probation or supervised release, finds by a preponderance of the evidencethat the defendant violated a condition of supervised release, except thata defendant whose term is revoked under this paragraph may not be requiredto serve more than 5 years in prison if the offense that resulted in theterm of supervised release is a class A felony, more than 3 years in prisonif such offense is a class B felony, more than 2 years in prison if suchoffense is a class C or D felony, or more than one year in any other case;or
(4) order the defendant to remain at his place of residence during nonworkinghours and, if the court so directs, to have compliance monitored by telephoneor electronic signaling devices, except that an order under this paragraphmay be imposed only as an alternative to incarceration.
(f) Written statement of conditions.-The court shall direct that the probationofficer provide the defendant with a written statement that sets forth allthe conditions to which the term of supervised release is subject, and thatis sufficiently clear and specific to serve as a guide for the defendant'sconduct and for such supervision as is required.
(g) Mandatory revocation for possession of controlled substance or firearmor for refusal to comply with drug testing.-If the defendant-
(1) possesses a controlled substance in violation of the condition set forthin subsection (d);
(2) possesses a firearm, as such term is defined in section 921 of thistitle, in violation of Federal law, or otherwise violates a condition ofsupervised release prohibiting the defendant from possessing a firearm;or
(3) refuses to comply with drug testing imposed as a condition of supervisedrelease;
the court shall revoke the term of supervised release and require the defendantto serve a term of imprisonment not to exceed the maximum term of imprisonmentauthorized under subsection (e)(3).
(h) Supervised release following revocation.- When a term of supervisedrelease is revoked and the defendant is required to serve a term of imprisonmentthat is less than the maximum term of imprisonment authorized under subsection(e)(3), the court may include a requirement that the defendant be placedon a term of supervised release after imprisonment. The length of such aterm of supervised release shall not exceed the term of supervised releaseauthorized by statute for the offense that resulted in the original termof supervised release, less any term of imprisonment that was imposed uponrevocation of supervised release.
(i) Delayed revocation.-The power of the court to revoke a term of supervisedrelease for violation of a condition of supervised release, and to orderthe defendant to serve a term of imprisonment and, subject to the limitationsin subsection (h), a further term of supervised release, extends beyondthe expiration of the term of supervised release for any period reasonablynecessary for the adjudication of matters arising before its expirationif, before its expiration, a warrant or summons has been issued on the basisof an allegation of such a violation.
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Section 3624 of Title 18 of the United States Code provides, in pertinentpart, as follows:
Release of a prisoner
(a) Date of release.-A prisoner shall be released by the Bureau of Prisonson the date of the expiration of the prisoner's term of imprisonment, lessany time credited toward the service of the prisoner's sentence as providedin subsection (b). If the date for a prisoner's release falls on a Saturday,a Sunday, or a legal holiday at the place of confinement, the prisoner maybe released by the Bureau on the last preceding weekday.
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(e) Supervision after release.-A prisoner whose sentence includes a termof supervised release after imprisonment shall be released by the Bureauof Prisons to the supervision of a probation officer who shall, during theterm imposed, supervise the person released to the degree warranted by theconditions specified by the sentencing court. The term of supervised releasecommences on the day the person is released from imprisonment and runs concurrentlywith any Federal, State, or local term of probation or supervised releaseor parole for another offense to which the person is subject or becomessubject during the term of supervised release. A term of supervised releasedoes not run during any period in which the person is imprisoned in connectionwith a conviction for a Federal, State, or local crime unless the imprisonmentis for a period of less than 30 consecutive days. No prisoner shall be releasedon supervision unless such prisoner agrees to adhere to an installment schedule,not to exceed two years except in special circumstances, to pay for anyfine imposed for the offense committed by such prisoner.