
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1507                                    UNITED STATES,                                      Appellee,                                          v.                                   EDWIN P. JOSEPH,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Louis F. Robbio with  whom Robbio & Nottie,  Ltd. was on brief for            _______________            ______________________        appellant.            Margaret E. Curran, Assistant United States Attorney, and  Sheldon            __________________                                         _______        Whitehouse, United States Attorney, were on brief for appellee.        __________                                 ____________________                                    March 20, 1997                                 ____________________                      CAMPBELL, Senior Circuit Judge.   This is an appeal                                ____________________            from  the  district  court's  partial  denial  of  defendant-            appellant Edwin P.  Joseph's 28  U.S.C.   2255  motion.   The            district  court, applying the Supreme Court's recent decision            in  Bailey v. United States, 116 S. Ct. 501 (1995), dismissed                ______    _____________            Joseph's 1991 conviction under  18 U.S.C.   924(c) (use  of a            firearm during and  in relation to a drug trafficking crime),            and  vacated his sixty  month sentence  for that  offense, of            which  Joseph had  already  served over  half.   Noting  that            Joseph had long since completed serving  the sentences on two            other charges to  which    along with the    924(c) charge               he had pleaded guilty in 1991, the district court ordered his            release.     However,  the  court  also   directed  that  the            concurrent  three  and  five year  supervised  release  terms            stemming from the two other charges begin operating.                      Joseph argues on appeal, as he did in his 28 U.S.C.              2255 motion, that the court erred in not ordering the terms            of  supervised  release to  have begun  on  the date  the two            served  sentences  had ended,  to wit  on December  22, 1992,            rather than on the date of his actual release in 1996.  Under            this  theory,  Joseph's  supervised release  terms  would  be            reduced  by  the  time he  spent  in  prison  under the  now-            dismissed    924(c) conviction.   Alternatively,  Joseph asks            that the supervised release terms be eliminated altogether to            compensate him for the  deprivation of his freedom, resulting                                         -2-                                          2            from the wrongful conviction and sentence under   924(c).  We            do  not accept  Joseph's contention  and affirm  the district            court's direction that the supervisory release terms commence            on the actual release date.                                          I.                                          I.                      On June 27, 1991, agents of the Bureau  of Alcohol,            Tobacco and Firearms arrived at Joseph's residence to execute            arrest and  search warrants.   While searching  the residence            for weapons, the agents  found several weapons, along with  a            small  quantity of  cocaine and  a scale.   The  weapons were            located in  a closet in  the living  room, under a  couch and            under a mattress in the bedroom.  Joseph was arrested.                        On July 31, 1991, Joseph pleaded guilty to a three-            count information charging him with illegal sale of firearms,            in violation of 18 U.S.C.   922(a)(5) (count one); possession            with intent to  distribute cocaine, in violation of 21 U.S.C.              841(a)(1) (count two);  and use of a firearm during  and in            relation to a drug crime, in violation of 18 U.S.C.    924(c)            (count three).                        On October  10, 1991, the district  court sentenced            Joseph to  concurrent twenty-one month terms  of imprisonment            on counts one and two, and  a consecutive sixty month term on            count three,  as mandated by  the statute.   See 18  U.S.C.                                                           ___            924(c)(1) (West Supp. 1996).  The district court also imposed                                         -3-                                          3            a supervised release term of three years on count  one, and a            concurrentsupervised release term of five years on count two.                      On or about March 31,  1993, Joseph filed his first            28 U.S.C.    2255 motion.   He alleged,  among other  things,            that he had been deprived of  his right to appeal because  of            counsel's ineffective assistance.  The district court reduced            the amount of the  fine imposed to $20,000 from  the original            amount of $70,000.  But  all the other sentencing  provisions            of the original judgment remained unchanged.                      On  or about  January  16, 1996,  Joseph filed  his            second  28 U.S.C.   2255 motion.  Invoking Bailey1, he argued                                                       ______            that his 18  U.S.C.   924(c) conviction  (count three) should            be vacated.   He also contended  that his supervised  release            terms under the other counts should "be reduced to adequately            reflect the excessive time  [he] has served in prison."   The            government, in a  response to Joseph's  motion, said that  it            did not oppose vacation of his conviction under   924(c).                      On March  27, 1996,  the  district court  announced            that  it vacated  Joseph's conviction  and sentence  on count            three,  and  dismissed  that count.    It  noted  that, as  a            consequence (Joseph  having long since completed  the twenty-            one  month concurrent  sentences on counts  one and  two), he                                            ____________________            1.   In Bailey, the Supreme Court explained that the "use" of                    ______            firearms,  for    924(c)(1) purposes,  includes "brandishing,            displaying,  bartering, striking  with,  and most  obviously,            firing, or  attempting to  fire, a firearm",  but not  merely            storing a gun near drugs.  Bailey, 116 S. Ct. at 508.                                       ______                                         -4-                                          4            would  be released from custody.   The court  stated that the            supervised  release  terms under  counts  one  and two  would            commence  to  operate.   A  conforming  amended judgment  was            entered the next day.                                         II.                                         II.                      The  government expressly  stated that  it did  not            oppose  vacation of Joseph's    924(c) conviction for using a            firearm.  In its brief, the government states that it "agreed            that the  Petitioner's   924(c) conviction  could not survive            Bailey."   We agree that  the evidence of  firearm "use" here            ______            was  insufficient to  pass muster  under  Bailey.   A further                                                      ______            question might  be whether Bailey has retroactive application                                       ______            to  prior cases like this on collateral review.  However, the            government's  concession that Joseph's  conviction "could not            survive  Bailey" waives  any  contest over  that point.2   We                     ______            accordingly proceed to  the sole question in this appeal, the            timing and  operation of the  supervisory release  provisions            from the sentences on the two valid counts.                                          III.                                         III.                      Assuming  without  deciding  that   Bailey  applies                                                          ______            retroactively  to "use"  cases on  collateral review,  we now                                            ____________________            2.    Several   courts  have   ruled   that  Bailey   applies                                                         ______            retroactively.  See,  e.g., Guzman-Rivera  v. United  States,                            __________  _____________     ______________            933  F. Supp.  138,  143 (D.P.R.  1996);  Sanabria v.  United                                                      ________     ______            States, 916 F. Supp. 106, 112-13 (D.P.R. 1996); United States            ______                                          _____________            v. Barnhardt,  93 F.3d 706,  708-09 (10th Cir.  1996); United               _________                                           ______            States  v. Cota-Loaiza,  936  F. Supp.  751, 753-54  (D.Colo.            ______     ___________            1996).                                         -5-                                          5            consider  Joseph's appellate  challenges  to  his  supervised            release  terms.   After completing  service  of the  terms of            imprisonment under counts one and two, Joseph spent more than            thirty-nine additional months in prison under the consecutive            sentence imposed  on the 18  U.S.C.   924(c)(1)  count before            that conviction  was dismissed, and the  sentence vacated, by            the  district court.  Joseph  contends he is  entitled to, at            least,  a  thirty-nine month  credit  against  his supervised            release  terms  on  the other  two  counts.    His arguments,            however, are contrary to the language of 18 U.S.C.   3624 and            they also run  counter to the purposes of  supervised release            terms,  which are  not  alternative forms  of punishment  but            rather are  designed to ease a prisoner's  return to civilian            life.   Joseph's arguments also fail to take into account the            availability of relief under 18 U.S.C.   3583(e).            (1) The Language of 18 U.S.C.   3624.            _____________________________________                      Section  3624 provides  that  a person's  "term  of            supervised  release  commences  on  the  day  the  person  is            released  from imprisonment  . . . ", and  that "[a]  term of            supervised  release does not  run during any  period in which            the person is imprisoned in  connection with a conviction for            a  Federal, State,  or  local crime  . . . ."   18  U.S.C.               3624(e) (West Supp. 1996) (Supervision after Release).  These            provisions are, on their  face, contrary to Joseph's argument            that his supervised  release terms should  be deemed to  have                                         -6-                                          6            begun on the  day that his  concurrent sentences under  count            one  and  count two  expired, since  he  was in  prison then,            serving what, at the time, was a valid sentence for violation            of   924(c)(1).3   Joseph  points out, however,  that    3624            also provides  that "[a]  prisoner shall  be released  by the            Bureau  of Prisons  on  the date  of  the expiration  of  the            prisoner's term of imprisonment . . . ."  18 U.S.C.   3624(a)            (West  Supp.  1996) (Date  of Release).    He argues  that he            should have been released late in 1992, as  that was when his            terms of imprisonment for the other  two counts expired, they            being  the only  valid counts  (as now  but not  then known),            given the holding in Bailey.                                     ______                      In  so  arguing,  Joseph  relies on  the  Court  of            Appeals for the Ninth Circuit's  decision in United States v.                                                         _____________            Blake,   88  F.3d  824  (9th  Cir.  1996).    In  Blake,  the            _____                                             _____            defendants'  custodial sentences were  reduced below the time            they  had  already  served   in  prison  by  the  retroactive            application of  a clarifying  amendment to the  United States            Sentencing Guidelines.  The government, nonetheless, used the            defendants' actual  release dates  as the starting  dates for                        _____________________            measuring the duration of the  three year terms of supervised            release.  See Id. at 825.                      ___ ___                                            ____________________            3.    This  circuit, like  many at  the  time, had  adopted a            broader definition of  the term "use" than the  Supreme Court            held was acceptable in its 1995 Bailey decision.                                            ______                                         -7-                                          7                      The  court  of appeals  held  that  the defendants'            terms  of supervised release should be deemed to have started            on  the day  that they  should have  been released  under the                                    __________________________            reduced sentences.  The  Blake Court read the language  of 18                                     _____            U.S.C.      3624(a)  to  set   "the  date  of   release,  and            consequently the  commencement of a supervised  release term,            at the time a  prisoner's term expires."   Blake, 88 F.3d  at                                                       _____            825.  Furthermore, the Blake Court stated that its ruling was                                   _____            dictated  by  the  circuit  precedent  of  United  States  v.                                                       ______________            Montenegro-Rojo, 908 F.2d 425,  431 n.8 (9th Cir.  1990) ("If            _______________            the district  court  decides to  shorten  the extent  of  its            departure [from  the Sentencing  Guidelines], the extra  time            Montenegro-Rojo spent in jail should, in fairness, be counted            towards the year  of supervised release.").   Thus, the Blake                                                                    _____            Court concluded that, in  view of the language of    3624(a),            and "the obvious  purpose of leniency in applying the revised            sentencing guidelines retroactively", Blake, 88 F.3d at  825,                                                  _____            it  was bound  to follow  Montenegro-Rojo, and to  direct the                                      _______________            district   court  to   modify  the   commencement   dates  of            defendants' supervised release terms.                      According to Joseph, his  situation is analogous to            Blake.  Joseph contends that the application of Blake to this            _____                                           _____            case leads  to the inevitable conclusion  that his supervised            release  terms should be deemed to have begun on December 22,                                         -8-                                          8            1992, the date on which he should have finished  his terms of            imprisonment.                      We are not persuaded  by Joseph's arguments, nor by            the rationale of Blake and Montenegro-Rojo.  The fact remains                             _____     _______________            that   3624(e)  ties the  beginning of a  term of  supervised            release to release from imprisonment.  It forbids the running            of  the term of supervised release during any period in which            the  person is imprisoned.  Joseph was  in prison at the time            he  now seeks to  identify as the  beginning of  his terms of            supervised release and  was, under  the plain  language of               3624(e), ineligible for supervised release then.                        To be sure, an equitable argument can be made that,            while  Joseph could not in  any real sense  have expected his            terms of supervised release to start on December 22, 1992, he            should be  given credit for incarceration  now found improper            by  offsetting the excess time he spent in prison against the            terms  of supervised release.   However,  while we  have some            sympathy  for this argument, we  reject it for  much the same            reasons the Court of Appeals for  the Eighth Circuit rejected            a similar argument in  United States v. Douglas, 88  F.3d 533                                   _____________    _______            (8th Cir. 1996).   In Douglas, the  defendant was resentenced                                  _______            to a substantially lower prison term pursuant to a clarifying            amendment to the Sentencing Guidelines.  Since he had already            served several months beyond  his newly imposed sentence, the            defendant sought credit  against his supervised  release term                                         -9-                                          9            for  the  excess time  spent in  prison.   The  Douglas Court                                                            _______            refused  to grant  such  credit, noting  that "[t]he  statute            dealing with  the release of  a prisoner plainly  states that            supervised  release  'commences  on  the day  the  person  is            released  from imprisonment,'  and 'does  not run  during any            period in which the person is imprisoned in connection with a            conviction  for   a  Federal  . . . crime.'"     Id.  at  534                                                             ___            (citations omitted).  The court went on to note "that this is            consistent   with  the   distinctly  different   purposes  of            imprisonment  and  supervised   release."    Id.   (citations                                                         ___            omitted).                      Joseph attempts  to distinguish Douglas  by arguing                                                      _______            that  the defendant in that case never claimed that he should            not have been  convicted of  the particular crime.   He  also            considers relevant the fact that no change in the substantive            law or  application of  a guideline amendment  eliminated the            conviction previously  entered by the district  court in that            case.   These  distinctions,  however,  do  not  seem  to  us            dispositive.   The bottom line  is that both  cases deal with            changes  yielding the same result: a reduction in the term of            imprisonment beyond the time already served.                      Even so,  Joseph maintains  that he could  not have            been  imprisoned for a federal crime that he, as the district            court's  ruling recognized,  could not  have committed.   He,            thus, contends that, even applying the language of   3624(e),                                         -10-                                          10            his supervised release terms  should revert back to  the date            of release for the valid convictions, since he could not have            been  imprisoned for  the  use of  a  firearm during  and  in            relation to a drug crime.  But, as already noted, when Joseph            pleaded guilty  and was sentenced  in 1991, the  sentence for            his  18 U.S.C.     924(c)(1) conviction  was appropriate  and            "legal", being in accordance  with a statutory interpretation            then enforced, and of  course believed to be correct,  by the            courts having jurisdiction over his case.  It was only in the            wake of the Bailey  decision in 1995 that his  conviction and                        ______            sentence under  count three  of the original  indictment were            recognized  as being contrary to  the law, at  which point he            was immediately  relieved of the remaining  sentence for that            count and  released from prison.   It was at this  point that            his supervised  release terms,  in accordance with  the plain            language of   3624(e), began to operate.                        Lastly,  Joseph asserts  that the  statutory scheme            codified in   3624  did not contemplate a situation  like the            one  presented in  this case.   He  argues that  a reasonable            reading  of    3624 would  imply  the unwritten  language "or            should have been released."  Congress, however, did not place            such language in    3624, and,  given the entirely  different            purposes  served by imprisonment  and supervised  release, we            see  no clear  basis for implying  it now.   Rather, like the            Eighth  Circuit in Douglas, we believe that the language in                                 _______                                         -11-                                          11            3624(e) must be
