
USCA1 Opinion

	




          December 22, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1637                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                               SAMUEL MANDARELLI, III,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            Stephen H. Mackenzie for appellant.            ____________________            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with            _______________________        whom  Richard S. Cohen, United States Attorney, and Michael M. DuBose,              ________________                              _________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                       BREYER,  Chief   Judge.     In   1989  Samuel   J.                                _____________             Mandarelli,  III pled guilty to a charge of possessing a gun             unlawfully (as a previously convicted  felon).  18 U.S.C.                922(g), 924(a)(2).  The  district court, following the then-             current Sentencing Guidelines, imposed a  sentence of twelve             months   in  prison,  followed   by  twenty-four  months  of             supervised  release.  In 1992,  after completing his term in             prison, Mandarelli violated an important  condition attached             to  his supervised  release, namely,  the condition  that he             "not  commit another . . . crime."  Mandarelli violated this             condition  1) by  assaulting an  acquaintance, see  Me. Rev.                                                            ___             Stat. Ann. tit. 17-A,   207,  and 2) by giving his probation             officer   a   false  address,   see   18   U.S.C.      1001.                                             ___             Consequently,  the  district   court  revoked   Mandarelli's             supervised  release  and,  again following  the  Guidelines,             sentenced   him  to   serve  eighteen   months   in  prison.             Mandarelli appeals, claiming that  the law forbids the court             to sentence him (for  his "supervised release" violation) to             more than fourteen additional  months in prison, the maximum             he could have received under the Guidelines for his original             (felon  in  possession  of  a firearm)  offense.    We  find             Mandarelli's argument unconvincing  and affirm the  district             court's judgment.                       The relevant sentencing  statute and the  relevant             Sentencing Guidelines give the district court adequate legal             power to impose an eighteen month sentence.  The statute, 18             U.S.C.     3583,  is  entitled  "Inclusion  of  a  term   of             supervised  release  after  imprisonment."     It  says,  in             relevant  part, that, if the  sentencing court "finds  . . .             that the person violated a condition of supervised release,"             then the court                       may  .   .  .   revoke  [the]  term   of                       supervised  release,   and  require  the                       person to serve in prison all or part of                                                 ______________                       the term of  supervised release  without                       ________________________________________                       credit  for  time  previously served  on                       ______                       postrelease supervision .  . . .  except                       that [the person] may not be required to                                             ___                       serve more than  . . . 2 years in prison                             _________        _______                       if the [original] offense was a  Class C                       __                               _______                       . . . felony . . . .              18  U.S.C.    3583(e)(emphasis added).   Since  Mandarelli's             initial  crime  was   a  Class  C  felony,  see   18  U.S.C.                                                         ___                924(a)(2), 3559(a)(3), and the initial term of supervised             release was twenty-four months, his eighteen month  sentence             satisfies both these requirements.                       The   same   statutory   provision  adds   another             requirement, namely  that the  new sentence be  "pursuant to             the . . . provisions of applicable  policy statements issued             by the Sentencing Commission . .  . ."  18 U.S.C.   3583(e).             Guidelines  Chapter 7B,  entitled "Probation  and Supervised                                         -3-                                          3             Release  Violations"  contains  these  "policy  statements."             Guidelines   (policy   statement)   section  7B1.1   divides             violations of  conditions of  supervised release  into three             categories, according to the  seriousness of the "violating"             conduct.  It describes as  "Grade B Violations" conduct that             does not involve drugs, guns, or serious violence, but which             constitutes an "offense punishable by a term of imprisonment             exceeding  one year."  Guidelines (policy statement) section             7B1.3(a)(1) says that  "[u]pon a finding of a Grade  . . . B             violation, the court shall revoke . . . supervised release."             And, Guidelines  (policy  statement) section  7B1.4(a)  says             that  in the  case of  a Grade  B violation  committed by  a             person  in  Criminal  History  Category IV,  the  "range  of             imprisonment" is twelve to eighteen months.                         The  district  court  followed   these  Guidelines             policy statements.   It  found that Mandarelli's  condition-             violating  conduct fell within Grade B, see 18 U.S.C.   1001                                                     ___             (five year maximum), and  that Mandarelli's Criminal History             placed  him  in  Category IV.    The  court  then noted  the             Guidelines  conclusion, namely, a  prison sentence of twelve             to  eighteen  months.   And,  the  court chose  a  sentence,             eighteen months, at the top of this range.  The court, then,                                         -4-                                          4             would  seem to  have  followed both  the Guidelines  "policy             statements" and the statute that requires it to do so.                        Mandarelli does  not challenge the  court's "Grade             B" or "Category IV" findings.  But, he nonetheless makes two             arguments challenging its conclusion.  First, he points to a             different statute, 18 U.S.C.   3565, entitled "Revocation of             probation."   That statute, in relevant part, says that if a             "defendant  violates a  condition of probation,"  then, "the             court may"                       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.   Mandarelli adds that  Subchapter A,  18             U.S.C.   3553(a)(4),(b), describes the Sentencing Guidelines             and  instructs  courts   (normally)  to  impose   Guidelines             sentences.   He says  that the Guidelines  applicable to his             original (felon in possession) crime generated  a sentencing             range  of eight to fourteen  months.  He  concludes that the             statute  prohibits the  court  from imposing  a sentence  of             greater than fourteen months.                       The fairly  obvious flaw in this  argument is that             the statute  to which Mandarelli points  is about probation,                                                               _________             not about  supervised release.  Under  the Sentencing Reform                        __________________             Act  of  1984, "probation"  is an  alternative to  prison; a                                                ___________                                         -5-                                          5             defendant may not be sentenced both to probation and "at the                           ___              ____             same time to a term of imprisonment."  18 U.S.C.    3561(a).             "Supervised release" is  "part of" a prison  sentence, to be             served  after imprisonment.    18  U.S.C.    3583(a).    The                     _____             statutes  treat  the  two  similarly, but  not  identically.             Compare  18   U.S.C.    3565(a)(2)  (maximum   sentence  for             _______             probation  violation is  maximum for  underlying conviction)             with 18  U.S.C.    3583(e) (maximum sentence  for supervised             ____             release violation depends on  seriousness of violation,  not             on  underlying conviction).   Nothing  in the  statute books             suggests that  the "probation," rather than  the "supervised             release," statute governs this supervised release case.                       Mandarelli  also  points  to  a  sentence  in  the             Guidelines'  "Introductory Commentary" to  Chapter 7B, which             says,                            Because  these  policy   statements                       focus  on the  violation  of the  court-                       ordered  supervision,  this chapter,  to                       the  extent  permitted  by  law,  treats                       violations   of    the   conditions   of                       probation  and   supervised  release  as                       functionally equivalent.              He  argues that  this sentence  means the  Guidelines policy             statements  automatically  make  applicable   to  supervised             release the statutes that  govern probation.  We do  not see             how this  could be so.   For one thing, the  quoted language                                         -6-                                          6             purports to  be a  general description about  the Guidelines             that follow.    It  does  not  purport  to  supersede  those             following Guidelines;  nor does it guarantee  that, in every             lawful   respect,  the   Guidelines  will   treat  probation             violations  and  supervised release  violations identically.             For another thing, it  contains a qualification, namely, "to             the extent permitted by law," and, as we have just seen, the             statutes treat  violations of the two  separately.  Finally,             the  sentence  appears  in  "commentary,"  i.e.,  Commission             language that advises  courts how to  interpret or to  apply             the  Guidelines themselves.    See, e.g.,  United States  v.                                            ___  ____   _____________             Fiore, No. 92-1601,  slip op. at 4 (1st Cir.  Dec. 9, 1992).             _____             Such  language  does  not  control  the  courts'  subsequent             actions to the same degree  as do the Guidelines themselves,             or  as do the Guidelines "policy  statements" that, as here,             are  statutorily vested  with legal  authority.   Thus, were             there a conflict between the introductory commentary and the             Guidelines (policy  statements) themselves, the  latter, not             the former, would govern.                       We   note  a   final,  non-legal,   argument  that             Mandarelli makes.  He  points out that, normally, supervised             release  will be  imposed  after fairly  long prison  terms;             hence,  the   statutory  and   Guidelines  rules  will   not                                         -7-                                          7             ordinarily  give courts  the power  to impose  longer prison             terms  for   supervised  release  violations  than  for  the             original  crime  itself.   His  case  (where the  supervised             release  term is  longer than his  initial prison  term), he             says, is an anomaly.                       We  are  not certain  about  the  extent to  which             Mandarelli's  case  is  anomalous.    The  court  apparently             sentenced  him to a top-of-the-range eighteen months because             it  believed his  conduct  while on  supervised release,  as             revealed by the  Presentence Report, showed  he "was on  the             way  to a course of  conduct that ultimately  would have had             much more serious [criminal] consequences."  Regardless, the             Sentencing  Commission,  not  this  court,  would  seem  the             appropriate body to determine whether any anomaly exists and             whether, or how, it might be corrected.                       The judgment of the district court is                       Affirmed.                       _________                                         ***                       See  Slip  Opinion  for  Appendix  (excerpts  from             Sentencing Guidelines).                                         -8-                                          8
