
USCA1 Opinion

	




          August 2, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1235                                     UNITED STATES,                                      Appellee,                                          v.                                  EDMUND M. HURLEY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Edmund M. Hurley on brief pro se.            ________________            Robert L. Ullmann,  Assistant United States Attorney, on Motion to            _________________        Remand Case for Resentencing, for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Pro se probationer Edmund Hurley                      __________   ___ __            appeals from a district court order that denied his motion to            be released from  a probation term he  is presently serving.1            The government has  filed a  motion which asks  us to  remand            Hurley's  case  for  resentencing  while  retaining appellate            jurisdiction.    For the reasons discussed below, we deny the            government's motion  and summarily affirm the  district court            order denying  Hurley's motion to further  amend his judgment            of conviction.                       Hurley, a Boston lawyer, was convicted of one count            of  conspiring to  defraud  the Internal  Revenue Service  by            participating in a money laundering scheme in violation of 18            U.S.C.  371.2   He was sentenced to  two years' imprisonment,            the first eight months of which  were to be served in prison,            the  sixteen month balance of which was suspended in favor of            probation.   Hurley was also  required to pay  a $10,000 fine            and a $50 special assessment.   This court affirmed  Hurley's            conviction on  direct appeal.   See United States  v. Hurley,                                            ___ _____________     ______            957  F.2d  1  (1st  Cir.),  cert. denied,  60  U.S.L.W.  3801                                        _____ ______            (October  5, 1992).  Hurley began serving his prison sentence            on May 14, 1992.                                             ____________________            1.  Hurley's motion  was  titled, "Motion  to  Further  Amend            Judgment of Conviction."             2.  Persons convicted under this  statute "shall be fined not            more  than $10,000 or imprisoned not more than five years, or            both."  See 18 U.S.C.  371.                     ___                      On August 5, 1992, Hurley filed a motion to correct            his  sentence.    That  motion  correctly  pointed  out  that            Hurley's sentence  was an  illegal "split sentence"  under 18            U.S.C.  3651  (repealed effective  November 1, 1987).3   That            statute provided that:                      Upon entering a judgment of conviction of                      any  offense not  punishable by  death or                      life   imprisonment,   if   the   maximum                      punishment provided for  such offense  is                      more  than six  months, any  court having                      jurisdiction to try offenses  against the                      United  States,  when satisfied  that the                      ends of justice and  the best interest of                      the public as well as the defendant  will                      be served thereby,  may impose a sentence                                          _____________________                      in  excess of six months and provide that                      _________________________________________                      the  defendant be confined in a jail-type                      _________________________________________                      institution  or  a treatment  institution                      ___________                      for a period not exceeding six months and                      _____________________________________                      that  the execution  of the  remainder of                      the   sentence   be  suspended   and  the                      defendant  placed  on probation  for such                      period and upon such terms and conditions                      as  the  court   deems  best.   (emphasis                      supplied).                      Thus, a "split sentence"  under 18 U.S.C.  3651 may            not impose  a prison term  of more than  six months.   Hurley            argued that  the district court  should have confined  him to            prison  only for six months, a term that, with deductions for            good time credits, would  have allowed him to be  released on            September  29, 1992.    The district  court summarily  denied            Hurley's  motion and  Hurley appealed.   On October  2, 1992,                                            ____________________            3.  As Hurley's  crime was committed before  this statute was            repealed, it continues to govern his sentencing.  See Pub. L.                                                              ___            98-473 (effective Nov. 1, 1987).                                         -3-            Hurley filed a motion for bail pending appeal and to expedite            his  appeal.   The government  opposed bail,  contending that            although Hurley's  split sentence was  improper, the district            court could  still  impose  an  eight-month  prison  sentence            followed by  a sixteen-month probation term.   The government            later conceded  that Hurley had  served six months  (or, more            correctly, all the time he legally had to serve under a  six-            month sentence) in jail.                        On October 14, 1992, this court  summarily reversed            the  district court's  order.   We  determined that  Hurley's            sentence  was illegal  because  it required  Hurley to  serve            eight months in prison.   We further ruled that  since Hurley            had  served  the  maximum  amount  of  prison  time  he could            lawfully  be required to serve under 18 U.S.C.  3651 he could            not be resentenced to a term requiring further incarceration.            We  instructed the district court  "to order that [Hurley] be            released from custody forthwith."   The district court issued            such an  order and  Hurley was  released  from the  Allenwood            Federal Prison Camp  on October  15, 1992.   Hurley was  also            instructed  to report to  the U.S. Probation  Office to begin            serving his  probation term.   Although our October  14, 1992            order  implicitly  required that  Hurley's split  sentence be            amended  to impose a six-month  prison term   and the balance            probation, an amended judgment has yet to issue.                                         -4-                      On  November 13,  1992,  Hurley filed  a motion  to            further amend his judgment of conviction.  In contrast to his            first motion,  which challenged only  the eight-month  prison            term,  Hurley's  motion  to  further amend  his  judgment  of            conviction  attacked  the  probation  portion  of  his  split            sentence.    Hurley's probation  is  scheduled  to expire  on            February 15, 1994.  Relying on cases cited in our October 14,            1992  order,  Hurley  argued  that any  period  of  probation            imposed by  the original  judgment of conviction  was illegal            because  that judgment imposed a  jail term of  more than six            months.  See United States v. Addonizio, 442 U.S. 178, 189 n.                     ___ _____________    _________            15  (1979)(citing 18  U.S.C.  3651  for the  proposition that            "probation  may not  be  combined with  a sentence  entailing            incarceration  of more  than six  months"); United  States v.                                                        ______________            Martin,  938 F.2d  883,  884-85 (8th  Cir. 1991)(per  curiam)            ______            ("Under   3651, a court could not order probation to follow a            period  of confinement that  exceeded six months.")    Hurley            further  argued  that this  court's  October  14, 1992  order            required that Hurley be  released from all forms  of custody,                                                   ___            including  probation.   The district  court summarily  denied            Hurley's motion and this appeal followed.                      On  appeal,  Hurley argues  that the  United States            Probation Office's  continuing  supervision of  him  violates            this court's October 14, 1992 order and the  district court's            ensuing October 15, 1992  order because these orders required                                         -5-            that  he  be released  from  all forms  of  custody including                                         ___            probation.  Hurley  further argues that probation may  not be            combined with a sentence which includes incarceration of more            than six months under 18 U.S.C.  3651.  He contends that this            is the holding of United States v. Addonizio, supra, and that                              _____________    _________  _____            it  requires the  elimination  of the  probation part  of his            sentence.  Hurley  served sixteen days  beyond the amount  of            prison  time that would  have been required  had he initially            received a six-month prison  term and all potential statutory            and discretionary  good time  credits under 18  U.S.C.   4161            and  4162 (repealed).4   He contends that  these sixteen days            are the equivalent of sixteen months of probation and that he            should be freed from the latter.                      Contrary  to Hurley's  contention, our  October 14,            1992 order  and the district  court's October 15,  1992 order            did not purport  to release Hurley from the probation portion                ___            of his  split sentence.  While it is true that probation is a            form of "custody,"   Hurley did not  ask to be released  from                                            ____________________            4.  These  statutes remained  effective  through November  1,            1992 for  persons who  committed offenses before  November 1,            1987, thus they continue to apply to  Hurley. See Pub. L. 98-                                                          ___            473,   235(b)(1)(B).   18 U.S.C.   4161 authorized  good time            deductions of five days per  month for sentences between  six            months  and one  year,  while  18  U.S.C.  4162  allowed  the            Attorney General to deduct an additional three days per month            of employment  in a  prison industry.   Had  Hurley initially            received a split sentence  embodying a six-month prison term,            he would have been eligible for 30 days of good  time credits            under 18  U.S.C.  4161  and approximately 18  additional days            under 18 U.S.C.  4162.                                            -6-            probation  in the context of his previous appeal, thus we had            no  occasion to consider the validity of his probation term.             And while United States v. Addonizio, supra, notes that under                      _____________    _________  _____            18  U.S.C.   3651  "probation  may  not  be  combined  with a            sentence entailing  incarceration of  more than six  months,"            this case does not hold that a probation term that is part of            an illegal  split sentence is automatically  void or invalid.            Indeed,  Addonizio did not  concern the  validity of  a split                     _________            sentence,  thus  the  quotation  cited  above   is  obviously            dictum.5                      A defendant may not receive a greater sentence than            the legislature has authorized. United States v. DiFrancesco,                                            _____________    ___________            449 U.S. 117, 139  (1980).   The split-sentence  provision of            18 U.S.C.  3651  was enacted  to "allow[] judges  to grant  a            short sentence (six months or less) followed by  probation on            a one count  indictment."  United  States v. Wertheimer,  474                                       ______________    __________            F.2d 1004, 1006 (2nd  Cir. 1970), cert. denied, 414  U.S. 833                                              _____ ______            (1973).6   Although  Hurley was  not released until   October            15,  1992, he  did not  receive a  greater sentence  than the            legislature  authorized in  18  U.S.C.  3651  because he  was                                            ____________________            5.  Similarly,  United  States  v.  Martin, supra,  does  not                            ______________      ______  _____            require that we hold Hurley's probation term invalid.              6.  Before this provision was enacted, district courts had no            means to impose  probation and prison time on  a single-count            conviction.  Id.                         ___                                         -7-            actually incarcerated for only  five months.  Thus,  there is            nothing unlawful about his present term of probation.                      Accordingly, the government's  motion to remand for            resentencing is denied.  The judgment denying Hurley's motion                            ______            to  further amend his judgment of conviction is affirmed.  In                                                            ________            accordance  with this  court's  October 14,  1992 order,  the            district court shall amend Hurley's judgment of conviction to            impose a six-month prison term and an  eighteen-month term of            probation.                                         -8-
