                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2003

USA v. Cook
Precedential or Non-Precedential: Precedential

Docket 02-2313




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Recommended Citation
"USA v. Cook" (2003). 2003 Decisions. Paper 501.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/501


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                                  PRECEDENTIAL

                                              Filed May 19, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 02-2313


                UNITED STATES OF AMERICA,
                                  v.
                          SCOTT COOK,
                                 Appellant

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
             (D.C. Criminal No. 88-cr-00223-1)
       District Judge: Honorable Lowell A. Reed, Jr.

         Submitted under Third Circuit LAR 34.1(a)
                      April 8, 2003
  Before: BECKER, Chief Judge,* BARRY, and BRIGHT,**
                    Circuit Judges.

                      (Filed: May 19, 2003)




* Judge Becker completed his term as Chief Judge on May 4, 2003.
** Honorable Myron H. Bright, Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
                              2


                      David L. McColgin, Esq.
                      Defender Association of Philadelphia
                      Federal Court Division
                      Curtis Center
                      Independence Square West
                      Suite 540 West
                      Philadelphia, PA 19106
                         Counsel for Appellant
                      Pamela Foa, Esq.
                      Office of United States Attorney
                      Suite 1250
                      615 Chestnut Street
                      Philadelphia, PA 19106
                         Counsel for Appellee


                 OPINION OF THE COURT

BRIGHT, Circuit Judge.
   Scott Cook pled guilty to possession with intent to
distribute methamphetamine, in violation of 21 U.S.C.
§ 841, use of a firearm in connection with a drug trafficking
offense, in violation of 21 U.S.C. § 924(c), and possession of
a destructive device, in violation of 26 U.S.C. § 5861(d). On
November 7, 1988, the District Court sentenced Cook to a
total of fifteen years imprisonment, consisting of a term of
five years imprisonment on each count to run
consecutively. Cook also received a five-year period of
supervised release.
  Cook’s imprisonment ran from July 7, 1988 until August
18, 1994, when he was released to a halfway house. Cook
obtained release from the halfway house on February 14,
1995, and was placed on parole. The U.S. Parole
Commission terminated Cook’s parole on July 22, 2000.
That same month, according to the Probation Department,
Cook’s five-year period of supervised release began.
  In December 2001, Cook’s probation officer charged him
with violating his supervised release based on conduct
occurring during the summer and fall of 2001. At a
                                     3


violation hearing on February 25, 2002, the District Court
rejected Cook’s argument that under the terms of 18 U.S.C.
§ 3624(e) his five-year supervised release period should
have commenced on February 14, 1995, the day he was
released from prison.1 The Court then found that Cook
violated his supervised release, revoked the release, and
sentenced Cook to one year of supervised release, with a
condition of three months home confinement with release
for work and drug rehabilitation at an outpatient clinic.
  Cook appeals the District Court’s decision. We reverse
and remand with instructions to vacate the District Court’s
order revoking Cook’s supervised release and to dismiss the
revocation petition with prejudice.
I.   BACKGROUND
   This case presents what is called a “window case.” Cook’s
offense occurred after the effective date of the Anti-Drug
Abuse Act of 1986 (“ADAA”), 21 U.S.C. § 841(b)(1)(C), which
mandates supervised release for drug trafficking offenses,
and before the effective date of the Sentencing Reform Act
of 1984 (“SRA”), 18 U.S.C. § 3551 et seq., which abolished
probation and imposed a system of supervised release for
all federal crimes. Scott Cook’s offense concluded on March
6, 1987. The ADAA went into effect on October 27, 1986,
and the SRA went into effect on November 1, 1987.
  Cook pled guilty on September 26, 1988. As noted, Cook
obtained release on August 18, 1994 from prison to a
halfway house, and then was paroled from February 14,
1995 through July 22, 2000. The Probation Department
and the government calculated that Cook’s term of five
years supervised release began on July 22, 2000,2 the date
on which he completed his parole.

1. The District Court’s discussion and application of 18 U.S.C. § 3624(e)
appeared in its October 24, 2001 decision, which Cook did not appeal.
In its February 28, 2002 decision, the District Court refused to permit
Cook to “re-litigate” the issue of when his supervised release term began.
The District Court’s substantive discussion of the issue appeared only in
its October 24, 2001 decision. Because the ground for this appeal is
jurisdictional, Cook’s failure to appeal the earlier decision does not affect
our jurisdiction.
2. There is some discrepancy with regard to this date. The Notice of
Discharge from Parole Supervision issued by the Probation Department
                                   4


  On September 27, 2000, Cook filed a motion to vacate or
correct his sentence under 28 U.S.C. § 2255. Cook argued
that his five-year period of supervised release should have
begun to run from the date of his release from the halfway
house on February 14, 1995, and ended in the year 2000
prior to his alleged violation of supervised release. He filed
essentially the same motion again on November 21, 2000.
The District Court denied both motions. Cook did not
appeal these decisions.
  On December 5, 2001, Cook’s probation officer filed a
notice of supervised release violations from the summer
and fall of 2001. After a hearing on February 25, 2001, the
District Court revoked supervised release and sentenced
Cook to one year supervised release with a condition of
three months home confinement.
II.   DISCUSSION
  In this appeal, Cook challenges the District Court’s
jurisdiction to revoke his supervised release. Whether the
District Court had jurisdiction turns on our resolution of
when Cook’s term of supervised release began.
  The statute in question, 18 U.S.C. § 3624(e), dealing with
supervised release, states as follows:
      (e) Supervision after release.— A prisoner whose
      sentence includes a term of supervised release after
      imprisonment shall be released by the Bureau of
      Prisons to the supervision of a probation officer who
      shall, during the term imposed, supervise the person
      released to the degree warranted by the conditions
      specified by the sentencing court. The term of
      supervised release commences on the day the person is
      released from imprisonment and runs concurrently
      with any Federal, State, or local term of probation or
      supervised release or parole for another offense to
      which the person is subject or becomes subject during

indicates that parole was terminated on July 11, 2000, and the five-year
term of supervised release began on the same date. For the purposes of
this opinion, we will accept that parole supervision terminated on July
22, 2000.
                             5


    the term of supervised release. 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 unless the
    imprisonment is for a period of less than 30
    consecutive days. (emphasis added).
   The District Court recognized that the Fifth and Tenth
Circuits have ruled in similar cases that the plain language
of § 3624(e) requires that parole and supervised release run
concurrently. See United States v. Lynch, 114 F.3d 61 (5th
Cir. 1997); United States v. Reider, 103 F.3d 99 (10th Cir.
1996). Both Courts recognized that the language of
§ 3624(e) is clear, direct, requires no interpretation and
does not bring about an absurd result, and therefore courts
must abide by the dictates of the statute, which requires
that the prisoner’s supervised release begins on the day he
is released from prison. However, the District Court opted
not to follow these decisions because, in its view, those two
Circuits did not have the benefit of the Supreme Court’s
decision in United States v. Johnson, 529 U.S. 53 (2000).
   In Johnson, the Supreme Court addressed the question of
whether a defendant’s term of supervised release should be
calculated from the date he should have been released from
prison, or from the date he was actually released. Although
the defendant had served two and one-half years excess
prison time, the Court held that his term of supervised
release began on the date he was released from prison,
rather than the date he should have been released from
prison. The Court relied on the plain-meaning analysis of
§ 3624(e), which provides in part that the term of
supervised release does not commence until the defendant
is “released from imprisonment.” Johnson, 529 U.S. at 27.
   The District Court relied upon “guidance” from Johnson
and focused on a secondary clause from § 3624(e), which
states that a term of supervised release “runs concurrently
with any Federal, State, or local term of probation or
supervised release or parole for another offense to which
the person is subject or becomes subject during the term of
supervised release.” (emphasis added). While the District
Court recognized that Cook’s parole was for the same
offense as his supervised release, the District Court
                               6


concluded that “Congress intended to exclude from
concurrency, parole and supervised release for the same
offense.”
   The District Court erred in its analysis. As noted above,
the statutory language is clear, direct, and requires no
interpretation: “The term of supervised release commences
on the day the person is released from imprisonment.”
Reider, 103 F.3d at 103; see also Lynch, 114 F.3d at 63.
The secondary clause upon which the District Court relied
is only applicable to situations in which the defendant has
been sentenced on “another offense.” Such is not the case
here. In this case, the plain language applies.
  The Supreme Court in Johnson did not address the
question of when supervised release may run concurrently
with another period of release, probation or parole for the
same offense. Moreover, the Johnson holding does not
undermine the reasoning of the Fifth or the Tenth Circuit.
To the contrary, the Supreme Court’s insistence that “the
phrase ‘on the day the person is released,’ in the second
sentence of § 3624(e), suggests a strict temporal
interpretation” bolsters the positions taken by those
Circuits and requires that Cook’s supervised release began
the day he was released from the halfway house. Johnson,
529 U.S. at 57.
   The District Court lacked jurisdiction to revoke Cook’s
supervised release for violations in the summer and fall of
2001, because his supervised release ended in July 2000,
five years after he was released from imprisonment.
  For these reasons, we REVERSE and REMAND with
instructions to vacate the District Court’s order revoking
Cook’s supervised release and to dismiss the revocation
petition with prejudice.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
