1                   IN THE UNITED STATES COURT OF APPEALS

2                           FOR THE FIFTH CIRCUIT

3                              _______________

4                                No. 92-3486
5                              _______________


6                        UNITED STATES OF AMERICA,

7                                                Plaintiff-Appellee,

8                                  VERSUS

9                            MICHAEL ALAN KING,

10                                               Defendant-Appellant.


11                        _________________________

12             Appeal from the United States District Court
13                 for the Eastern District of Louisiana
14                       _________________________

15                            (April 22, 1993)
16   Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

17   JERRY E. SMITH, Circuit Judge:

18        Michael Alan King appeals the district court's order revoking

19   his sentence of probation and sentencing him to five years' im-

20   prisonment.   The district court determined that King had committed

21   violations of probation terms and conditions while serving a pa-

22   role term for a prior offense.   Finding no error, we affirm.



23                                    I.

24        In April and May 1985, King robbed five banks and pleaded

25   guilty to a superseding bill of information charging five counts

26   of bank robbery.   On August 7, 1985, the district court sentenced

27   King to a term of eight years' imprisonment for each of counts one
28   through four, the sentences to run concurrently.      The court sus-

29   pended King's sentence on count five and placed him on "active

30   probation for a period of five (5) years, to commence upon defen-

31   dant's release from custody."

32        On September 18, 1990, King was released on parole from fed-

33   eral prison in Alabama and thereafter reported to his probation

34   officer.   In February 1991, King changed his residence and failed

35   to submit a monthly supervision report, in violation of the terms

36   and conditions of his probation.      The government filed a rule to

37   revoke King's probation.    On May 1, 1991, a Florida grand jury

38   returned a seven count indictment charging King with bank robbery.

39   Accordingly, the United States amended its rule to revoke, in

40   order to incorporate King's additional violation.

41        The district court held a hearing and found that King had

42   violated the terms and conditions of his probation, as alleged in

43   the government's rule to revoke.      The court revoked King's sen-

44   tence of probation on count five of the original indictment and

45   sentenced him to five years' imprisonment.     King appeals, arguing

46   that because his term of probation had not commenced when he com-

47   mitted the violation, the district court improperly revoked his

48   probation under United States v. Wright, 744 F.2d 1127 (5th Cir.

49   1984).



50                                   II.

51        The threshold question is whether King's term of probation

52   had commenced when he was released on parole.     King contends that


                                      2
53   his period of probation could not have begun before termination of

54   his parole.      He asserts that he could not have completed his first

55   sentence until his parole term had expired and that when a court

56   imposes     a    probationary     term       "consecutively    to     any   other

57   sentences," probation does not begin until expiration of the first

58   sentence.

59         In Sanford v. King, 136 F.2d 106, 108 (5th Cir. 1943), this

60   court     stated    that     "[t]he      controlling     consideration         [in

61   interpreting when a probation period commences] is the intention

62   of the Court imposing the sentence, to be found in the language

63   employed    to   create    the   probationary      status."1        The   district

64   judge's Judgment and Probation/Commitment Order issued in the

65   instant case provides as follows:

66               The defendant is hereby committed to the
67               custody of the Attorney General or his
68               authorized representative for imprisonment
69               for a period of eight (8) years as to each of
70               counts 1 through 4.     Sentences imposed on
71               counts 2, 3, and 4 are to run concurrently
72               with sentence imposed on count 1. Imposition
73               of sentence is suspended on count 5 and the
74               defendant is placed on active probation for a
75               period of five (5) years, to commence upon
76               defendant's release from custody.

77         The order contains no language indicating that "defendant's

78   release from custody" means anything other than the defendant's



           1
             Title 18 U.S.C. § 3564 provides for concurrent terms of probation and
     parole. "A term of probation commences on the day that the sentence of
     probation is imposed, unless otherwise ordered by the court." 18 U.S.C. §
     3564(a)(1985). "A term of probation runs concurrently with any Federal,
     State, or local term of probation, or supervised release, or parole for
     another offense to which the defendant is subject or becomes subject during
     the term of probation . . . ." 18 U.S.C. § 3564(b) (1985 & Supp. 1992)
     (effective Nov. 1, 1987). This subsection does not apply in this case,
     however, because King committed his offense prior to its effective date.

                                              3
79   release from physical custody in federal prison.               The court did

80   not use any language indicating that the term of probation would

81   run consecutively to the concurrent prison sentences on counts one

82   through four.       Additionally, when the district judge reviewed the

83   order at the revocation hearing, he stated that the order "could

84   not be clearer" in its direction that the term of probation

85   commence when King was released from prison on parole.

86        The plain language of the order, taken together with the

87   court's comments at the hearing, indicates that the intention of

88   the sentencing court was that the term of probation commence on

89   September 18, 1990, when King was released from prison on parole.2

90   Therefore, we find no error in the district court's determination

91   that King     was    on   probation   when   he   committed   the   violations

92   alleged in the rule to revoke.



93                                         III.

94        Title 18 U.S.C. § 3651 states that "[t]he court may revoke or

95   modify any condition of probation, or may change the period of

96   probation."     18 U.S.C. § 3651 (1985).          Section 3653 provides in

97   pertinent part,


           2
             King asserts that a prisoner released on parole remains in the custody
     of the Attorney General until the parole term has expired. See 18 U.S.C.
     § 4210(a). He contends that, therefore, he was not released from "custody"
     when he was released from prison, as the district court contemplated that term
     in its probation order. King's reliance upon this provision is misplaced.
     Courts have distinguished actual custody from the constructive custody under
     which a defendant is placed while on parole status. See Zerbst v. Kidwell,
     304 U.S. 359, 361 (1938); United States v. Harrison, 461 F.2d 1127, 1130 (5th
     Cir.), cert. denied, 409 U.S. 884 (1972). We need not reach this issue,
     however, as sufficient evidence of the sentencing court's intent exists in the
     plain language of the order and in the court's comments at the revocation
     hearing. Once we have determined the sentencing court's intent, we need look
     no further.

                                            4
 98                      At any time within the probation period,
 99                 [the probationer may be arrested, either by
100                 the probation officer, with cause, or by the
101                 United States marshal, with a warrant]. . . .

102                      As speedily as possible after arrest the
103                 probationer shall be taken before the court
104                 for the district having jurisdiction over
105                 him.   Thereupon the court may revoke the
106                 probation and require him to serve the
107                 sentence imposed, or any lesser sentence,
108                 and, if imposition of sentence was suspended,
109                 may   impose   any   sentence   which   might
110                 originally have been imposed.

111   18 U.S.C. § 3653 (1985).3

112         We review the district court's revocation of King's probation

113   under an abuse of discretion standard.           United States v. Fryar,

114   920 F.2d 252, 258 (5th Cir. 1990) ("To secure a reversal of a

115   revocation order, a probationer must present clear evidence that

116   the     district   court   abused    its   discretion     by    ordering   the

117   revocation.") (quoting United States v. Ramirez, 675 F.2d 707, 709

118   (5th Cir. 1982)), cert. denied, 111 S. Ct. 1635 (1991).                    King

119   argues that the revocation of his probation was improper under

120   United States v. Wright, 744 F.2d 1127 (5th Cir. 1984).

121         In Affronti v. United States, 350 U.S. 79 (1955), the Court

122   considered whether a district court has the power to suspend

123   sentence and place a defendant on probation after he has begun to

124   serve     a   cumulative   prison   sentence   composed    of   two   or   more



            3
              Sections 3651 and 3653 were repealed by the Comprehensive Crime
      Control Act of 1984, effective November 1, 1987, and replaced by 18 U.S.C. §§
      3561-3566 (1988). Because King committed his offense prior to the effective
      date of the new statute, the former statutory provisions apply. See United
      States v. Balboa, 893 F.2d 703, 706 (5th Cir. 1990) (stating that since
      revocation of probation under § 3653 was part of sentencing procedure for
      offense that occurred before effective date of new statute, old provision
      continues to apply).

                                            5
125   consecutive sentences.      Concluding that "the probationary power

126   ceases with respect to all of the sentences composing a single

127   cumulative sentence immediately upon imprisonment for any part of

128   the cumulative sentence," id. at 83, the Court commented upon the

129   relationship between the power of the courts to place a defendant

130   on probation and the clemency and parole powers vested in the

131   executive branch.

132        Citing United States v. Murray, 275 U.S. 347 (1928), holding

133   that a district court has no power under the Probation Act to

134   place a defendant on probation after he has begun execution of a

135   single general sentence, the Court in Affronti stated that "in

136   view of the existence of provisions for parole and executive

137   clemency, it would seem unlikely that Congress would have intended

138   to make the probation provisions applicable during the same period

139   of time."     350 U.S. at 81 (citing Murray, 275 U.S. at 356).

140   Pointing out that "it is unlikely that Congress would have found

141   it wise to make probation apply in such a way as to unnecessarily

142   overlap the parole and executive-clemency provisions of the law,"

143   id. at 83, the Court therefore chose to "adhere to the Murray

144   interpretation to avoid interference with the parole and clemency

145   powers vested in the Executive Branch."             Id.   The Court concluded

146   that "the provisions for probation should be interpreted to avoid,

147   so far as possible, duplicating other existing provisions for the

148   mitigation of criminal sentences."          Id. at 84.

149        In   Wright,   we   echoed    the    Supreme    Court's    concern    about

150   unnecessary   overlap    between    the    probation      and   parole   powers.


                                           6
151   There, the district court had sentenced the defendant to five

152   years' imprisonment on the first count of a two-count indictment

153   and had suspended sentence on count two and placed Wright on

154   probation    for   a   period   of    five   years.     The     district   court

155   specifically provided that count two was "to run consecutive to

156   the sentence as to Count 1."          744 F.2d at 1128.       During his parole

157   from the sentence of imprisonment on the first count, Wright

158   committed a violation of a parole condition by committing a state

159   offense for which he was sentenced to imprisonment in the state

160   penitentiary.      The government sought to have his probation revoked

161   based upon the same conduct, which also constituted a violation of

162   a probation condition.

163        On appeal, we considered whether the district court was

164   authorized to revoke the probation for a violation of a probation

165   condition that had occurred while Wright was on parole from the

166   sentence    of   imprisonment    on    the   first    count    but   before   the

167   consecutive period of probation had commenced.            We recognized that

168   in a series of cases beginning with United States v. Ross, 503

169   F.2d 940 (5th Cir. 1974), we had held that a district court may

170   revoke probation when a defendant commits an illegal act prior his

171   commencement of service of any sentence imposed at the time the

172   probationary sentence was imposed.           Wright, however, had committed

173   the violation of a probation condition while on parole from his

174   first sentence.

175        Relying upon Affronti, we observed that overlap certainly

176   would occur if the same pre-probation violation could serve to


                                              7
177   revoke parole on a prior sentence and to revoke the uncommenced

178   probation on a consecutive sentence.                 744 F.2d at 1131.        We held

179   that once Wright had commenced serving the prior sentence, the

180   district court had no authority to revoke the probation on the

181   second count for a violation that had occurred before he had begun

182   serving his probationary sentence.

183          Because we observe that King was serving his parole and

184   probation         terms     concurrently    at     the   time   he    committed     the

185   violations, we conclude that the district court properly exercised

186   its    authority       in    revoking     King's    probation.        In   Fryar,    we

187   reaffirmed the holding in Ross and extended that holding to allow

188   revocation of probation for violation of a probation condition

189   when       the   violation     occurred    after    sentencing       but   before   the

190   commencement of the probation term, regardless of whether the

191   defendant had begun serving his term of incarceration.4

192          No issue of overlap between parole and probation was involved

193   in Fryar, and we observed that the Wright holding therefore was

             4
              Title 18 U.S.C. § 3565, enacted by the Comprehensive Crime Control Act
      of 1984, see supra note 3, provides in pertinent part,
                             (a) Continuation or revocation. )) If the
                       defendant violates a condition of probation at any
                       time prior to the expiration or termination of the
                       term of probation, the court may, after a hearing
                       pursuant to Rule 32.1 of the Federal Rules of Criminal
                       Procedure . . .
                                                 * * *
                                  (2)   revoke the sentence of
                            probation and impose any other sentence
                            that was available under subchapter A at
                            the time of the initial sentencing.
      18 U.S.C. § 3565 (1988). The court in Fryar agreed with other circuits that
      this amendment was intended to clarify, rather than change, existing law. The
      court therefore considered the amendment as evidence of what Congress intended
      under the previous statute, § 3653, which controlled in Fryar and in the case
      before us.

                                                  8
194   inapplicable.           We    commented,         however,      upon     the     policy

195   considerations underlying Wright and concluded that "Wright is an

196   exception to the Ross rationale which holds that the act which

197   forms the basis for a probation revocation cannot be one that

198   occurred while the defendant was on parole from a sentence on

199   another count."       920 F.2d at 258.

200         In    King's    case,   the   same       misconduct    relied    upon    by   the

201   government in its rule to revoke probation also constituted a

202   parole violation.       Although King's case appears to fit within the

203   Fryar      court's    description     of       the   holding    in    Wright,       that

204   description is not complete, as the court in Wright emphasized

205   that the conduct relied upon by the district court in that case

206   could not be used to revoke an uncommenced probation.

207         The proper focus here is on the power and authority of the

208   district court, not on the conduct that constitutes the parole

209   and/or probation violations.          In Wright, relying upon the Affronti

210   Court's rationale, we observed that the district court's power to

211   revoke probation may interfere with the parole powers of the

212   executive branch if the district court sought to exercise its

213   power   to    revoke    probation      before        the   probation    period      had

214   commenced.       No    question     arises,      however,    about     the    district

215   court's power to revoke probation once a defendant has begun his

216   probationary term.5

            5
              Moreover, even if the focus here were on the same conduct constituting
      both parole and probation violations, the overlap concerns of the Affronti
      Court are not implicated. In Affronti, a jury found the defendant guilty on
      counts two through ten of a ten-count indictment charging him with illegal
      sales of narcotics. The court imposed a five-year prison sentence on each
      count, to be served consecutively. At sentencing, the court suspended

                                                 9
217                                        IV.

218        The district court intended King's probation to commence on

219   September 18, 1990, when he was released from custody.               Because

220   King's   term    of   probation    had     commenced   when   he   committed

221   violations of probation terms and conditions, the district court

222   properly exercised its authority in revoking his probation.               The

223   order appealed from is AFFIRMED.




      sentence on counts six through ten and granted probation to commence at the
      expiration of the sentences on counts two through five. While serving his
      sentence on count two, the prisoner sought suspension of sentence and
      probation on counts three, four, and five.
                  The Court therefore was concerned about the effect that suspension
      of the three consecutive sentences would have on the parole and clemency
      powers of the executive branch. The Court addressed the overlap created by
      suspension of a prison sentence once service of the first of several
      consecutive sentences had begun, and the conflict that would be created by the
      executive and judicial branches' working at cross-purposes. King's argument
      that overlapping conduct, or indeed, overlapping terms of probation and
      parole, bring the Affronti Court's reasoning into play misses the mark, as the
      district court's revocation of King's probation in no way interferes with the
      parole power of the executive branch.

                                           10
