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

REPLY BRIEF FOR THE PETITIONER

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

REPLY BRIEF FOR THE PETITIONER

The United States seeks the Court's review to resolve a circuit conflictover whether a term of supervised release begins on the date of a federalprisoner's actual release from prison or on the earlier date on which heshould have been released in accordance with a retroactively applied interpretationof the law. The Sixth Circuit, consistent with the Ninth Circuit, concludedthat the date of a prisoner's release from prison under federal law is thedate on which "he was entitled to be released rather than the day hewalked out the prison door." Pet. App. 5a. The effect is to creditany excess time that the prisoner served in prison against the time thathe is to serve on supervised release. The First, Fifth, and Eighth Circuitshave reached the contrary conclusion. See Pet. 6-8 (citing cases).
Respondent does not dispute that the question presented in the petitionis an important and recurring one that has divided the courts of appeals.Nor does respondent identify any reason why this is not an appropriate casein which to resolve that question definitively. Respondent argues only thatthe decision below is correct on the merits. Even if true, that would beno reason to withhold review of a question of such significance to the federalcriminal justice system. In any event, respondent's defense of the decisionbelow is unavailing.
1. Respondent acknowledges (Br. in Opp. 3) that Congress has expressly providedthat "supervised release begins on the defendant's release from prison."See 18 U.S.C. 3624(e) ("The term of supervised release commences onthe day the person is released from imprisonment * * * . A term of supervisedrelease does not run during any period in which the person is imprisonedin connection with a conviction for a Federal, State, or local crime unlessthe imprisonment is for a period of less than 30 consecutive days.").1Respondent nonetheless argues (Br. in Opp. 4) that this clear, straightforward,and unequivocal statutory text is "ambiguous," and thus that therule of lenity should apply, because Congress "fail[ed] to considerthis scenario [i.e., a vacated sentence]" when enacting supervisedrelease. As this Court has recognized, however, "[t]he fact that [acriminal statute] has been applied in situations not expressly anticipatedby Congress does not demonstrate ambiguity. It demonstrates breadth."National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 262 (1994) (quotingSedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985)); see also Beechamv. United States, 511 U.S. 368, 374 (1994) (In deciding whether a statuteis so ambiguous as to warrant the application of the rule of lenity, "ourtask is not the hopeless one of ascertaining what the legislators who passedthe law would have decided had they reconvened to consider petitioners'particular cases. Rather, it is to determine whether the language the legislatorsactually enacted has a plain, unambiguous meaning.").

2. Respondent further contends (Br. in Opp. 5) that the supervised releaseprovisions should not be given "[a] literal reading," but insteadshould be construed to mean that a defendant's term of supervised releasemay be deemed to have begun before his release from prison, because thatis "[t]he only way to give some effect" to Congress's "inten[t]that the Bureau of Prisons not hold a defendant longer than his lawful sentence."The statute from which respondent discerns Congress's intent, 18 U.S.C.3624(a), provides, in pertinent part, that "[a] prisoner shall be releasedby the Bureau of Prisons on the date of the expiration of the prisoner'sterm of imprisonment." It does not address the situation of a defendant,such as respondent, who was, in fact, "released by the Bureau of Prisonson the date of the expiration of [his] term of imprisonment," albeiton a later date than if the retroactively applied understanding of the lawprevailed at the time of his original sentencing. Equally important, andcontrary to respondent's assertion, Congress has already provided a remedyfor defendants who serve excess time in prison: under 18 U.S.C. 3583(e)(1),after a defendant has served one year of supervised release, the districtcourt may terminate the remainder of his supervised release term if "satisfiedthat such action is warranted by the conduct of the defendant released andthe interest of justice." A defendant's service of excess time in prisonis a factor that a court may be consider in determining whether early terminationof supervised release is "in the interest of justice." See SentencingGuidelines § 1B1.10, Application Note 5. It is thus unnecessary tostrain the text of 18 U.S.C. 3624(e), or any other statutory provision,to create a remedy for defendants such as respondent.

3. Finally, respondent argues (Br. in Opp. 5) that crediting a defendant'sexcess prison time against his supervised release time is "equitable"because, "although supervised release and imprisonment do have somedivergent goals, they both still carry punishment as an overriding factor."But this Court does not create exceptions not warranted by the plain textof a statute, or by other tools of statutory construction, simply to achievea result that is arguably more "equitable." See, e.g., Broganv. United States, 522 U.S. 398 (1998). As noted in the petition (at 11-13),moreover, Congress expressly stated that supervised release was not designedto serve "the sentencing purposes of incapacitation and punishment."S. Rep. No. 225, 98th Cong., 1st Sess. 124 (1983). Rather, Congress explainedthat "the primary goal of such a term [of supervised release] is toease the defendant's transition into the community after the service ofa long prison term for a particularly serious offense, or to provide rehabilitationto a defendant who has spent a fairly short period in prison for punishmentor other purposes but still needs supervision and training programs afterrelease." Ibid. Congress thus intended that incarceration and supervisedrelease be distinct, rather than interchangeable, components of a defendant'ssentence.

* * * * *
For the reasons stated above and in the petition for a writ of certiorari,the petition should be granted.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General


JUNE 1999


1 Respondent mistakenly cites 18 U.S.C. 3583(e) for the quoted statement.Section 3583(e), as discussed subsequently in the text, provides a districtcourt with authority, among other things, to terminate a term of supervisedrelease after one year.