
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1547                                    UNITED STATES,                                      Appellee,                                          v.                                    JOHN P. FLYNN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            George F.  Gormley with  whom  John D.  Colucci was  on brief  for            __________________             ________________        appellant.            Jean L. Ryan, Assistant United States  Attorney, with whom Paul M.            ____________                                               _______        Gagnon, United States Attorney, was on brief for appellee.        ______                                 ____________________                                    March 1, 1995                                 --------------------                      STAHL,  Circuit Judge.  Defendant-appellant John P.                      STAHL,  Circuit Judge.                              _____________            Flynn  challenges  the  district  court's  revocation of  his            probation and  imposition of  a five-year prison  sentence on            the grounds that  his probation had  already expired and  the            district  court therefore  lacked jurisdiction.    Flynn also            attacks on due process  grounds the district court's findings            respecting two of his  alleged thirteen probation violations.            We affirm.                                               I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      Flynn  pled   guilty  in  1983  to   one  count  of            conspiracy to commit mail fraud ("Count I") and two counts of            mail  fraud  ("Counts  II/III").    On  August  8,  1983, the            district court imposed a  five-year prison sentence for Count            I and another  five years  for Counts II/III.   The  district            court  suspended  the  prison  sentence  for  Counts  II/III,            however,  and placed Flynn on  probation for five  years.  At            the sentencing hearing, the district court stated that "[t]he            sentences herewith imposed on  Counts II and III  are ordered            to run  concurrently with  one another, but  consecutively to            the sentence imposed  for Count I."   Similarly, the district            court wrote in  its Judgment  and Probation/Commitment  Order            ("Sentencing Judgment") filed on  August 8, 1983, that "[t]he            sentences   for  Counts  II  and  III   are  ordered  to  run            concurrently with one another but consecutively to Count I."                                         -2-                                          2                      Flynn began serving  his five-year  Count I  prison            term on August 29, 1983.   He was released on parole  on June            27,  1986.  On August 16, 1993  -- just shy of ten years from            the date Flynn began  serving his Count I sentence,  and more            than six years  after he  was released on  parole --  Flynn's            probation officer, Vincent Frost,  filed a petition to revoke            Flynn's probation, alleging that Flynn had committed thirteen            probation violations since his release in 1986.  The petition            alleged in  detail that  Flynn had  committed  the crimes  of            threats of violence, forgery, theft, theft by deception, wire            fraud, insurance  fraud, bank fraud, and  false statements to            the  Probation  Office.    It also  alleged  that  Flynn  had            violated his  probation by  traveling  to Colorado  on a  ski            vacation and associating  with a convicted felon,  one of his            former co-conspirators.1                      Flynn's  probation  revocation  hearing   began  on            February 2, 1994, and lasted six days.  On February 24, 1994,            the district  court issued  its  Memorandum Opinion,  finding            that  the  government had  proved by  a preponderance  of the            evidence  that   Flynn  had   committed  forgery,   theft  by                                            ____________________            1.  The details of Flynn's  violations are amply described in            the district  court's Memorandum Opinion.   See United States                                                        ___ _____________            v.  Flynn, 844 F. Supp.  856, 860-75 (D.N.H.  1994).  Because                _____            our  decision is  limited  to a  jurisdictional issue  wholly            separate from the probation  violations themselves, we do not            describe them in any detail.                                         -3-                                          3            deception, credit  card fraud,2 bank fraud,  and making false            statements, and  had also  violated probation by  leaving the            judicial district without permission and by associating  with            a  convicted felon.   On  April 6,  1994, the  district court            imposed on  Flynn the full  five-year prison sentence  it had            earlier suspended   -- the  maximum sentence the  court could            impose  under  18  U.S.C.     3565(a)(2)  (limiting  term  of            sentence upon revocation  of probation to sentence  available            at time of initial sentencing).                      On  appeal,  Flynn   asserts  that  his   five-year            probation term began to  run upon his release from  prison on            June  27, 1986  and  expired no  later  than June  27,  1991.            Therefore,   Flynn  argues,   the   district   court   lacked            jurisdiction to revoke his probation in 1993.  The government            contends that Flynn's probation did not commence until August            28,  1988,  when Flynn  completed  his parole,  and  thus the                                            ____________________            2.  Although  the   crime  of  credit  card   fraud  was  not            specifically  alleged in  the probation  revocation petition,            the  government claimed in its hearing brief filed on the day            the final revocation proceeding  began that the same behavior            that  constituted wire  fraud  also constituted  credit  card            fraud  and  theft by  deception.   The  court found  that the            government had failed  to prove  an element of  the crime  of            wire  fraud, but  that it  had proved  credit card  fraud and            theft  by deception.   See  844 F.  Supp. at  865-68.   Flynn                                   ___            claims  that  because  the  government  amended  the  charges            against  him  on the  day  of his  hearing,  he did  not have            adequate notice  and was  therefore deprived of  due process.            We discuss this claim infra at Part II.B.                                   _____                                         -4-                                          4            probation  revocation  proceedings   were  initiated   before            Flynn's probation term expired.3                                              II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  The District Court's Jurisdiction            _____________________________________                      "The intent of the  sentencing court must guide any            retrospective  inquiry   into  the  term  and   nature  of  a            sentence."  United States v. Einspahr, 35 F.3d 505, 506 (10th                        _____________    ________            Cir.), cert. denied, 115 S. Ct. 531 (1994).   See also United                   _____ ______                           ___ ____ ______            States  v. King, 990 F.2d  190, 192 (5th  Cir.) (stating that            ______     ____            sentencing court's intention  is "controlling  consideration"            in determining commencement date  of probation, as  expressed                                            ____________________            3.  At  oral argument,  counsel  for Flynn  raised the  novel            argument that  even under the  government's interpretation of            the consecutive  sentences, Flynn's parole could  have ended,            and his  probation could have  commenced, no  later than  180            days  prior to  August 28,  1988.   This, counsel  argued, is                  _____            because of 18 U.S.C.   4164, which states:                           A prisoner having served his term or                      terms  less  good-time deductions  shall,                      upon release, be deemed as if released on                      parole  until  the   expiration  of   the                      maximum term or  terms for  which he  was                      sentenced  less  one  hundred and  eighty                      days.            Unfortunately  for   Flynn,  the  section   only  applies  to            "mandatory releasees,"  i.e., prisoners who must  be released            because they have served their entire term less time  accrued            for good conduct.   See,  e.g., Clay v.  Henderson, 524  F.2d                                ___   ____  ____     _________            921,  922-23 (5th  Cir.  1975), cert.  denied,  425 U.S.  995                                            _____  ______            (1976).    Flynn  was  not  a "mandatory  releasee";  he  was            released on  parole well  before his mandatory  release date,            and  thus he remained on parole for the full remainder of his            entire five-year term.  Id.                                    ___                                         -5-                                          5            in  "the  language   employed  to  create  the   probationary            status")(quoting Sanford v. King, 136 F.2d 106, 108 (5th Cir.                             _______    ____            1943)), cert. denied, 114 S. Ct. 223 (1993).  At Flynn's 1983                    _____ ______            sentencing hearing, the district  court stated that the Count            II/III  sentence  would  run "consecutively  to  the sentence            imposed for Count I."  The Sentencing Judgment filed the same            day ordered that the Count II/III sentence run "consecutively            to Count I."   The  district court did  not explicitly  state                                                        __________            that  Flynn's probation  term must  run consecutively  to any            parole granted to Flynn on Count I.  Flynn would have us hold            that because of the district court's "silence" on this issue,            the sentencing language is  ambiguous, and that the ambiguity            must be resolved in Flynn's favor.  We are not persuaded.                       It  is true  that  the district  court could  have            employed sentencing language that would  have explicitly made            Flynn's probation term consecutive to any parole served under            Count I.  The Ninth Circuit has urged courts to                      state   explicitly  and   precisely  when                      probation is to commence.  For example, a                      probationary sentence  could specify that                      the   period   of   probation  shall   be                      consecutive to the confinement portion of                      the  sentence served on a remaining count                      or counts or that the period of probation                      shall  be  consecutive  to  the  sentence                      imposed  on a  remaining count  or counts                      including any parole or other supervision                      _________________________________________                      time.                      ____            United States v.  Adair, 681  F.2d 1150, 1151  n.3 (9th  Cir.            _____________     _____            1982)  (emphasis added).  While  the use of  such language by                                         -6-                                          6            the  district  court  probably  would have  obviated  Flynn's            appeal on  this  issue,  we  decline  to  convert  the  Ninth            Circuit's  suggested language  into  magic words  a  district            court must utter to achieve its desired result.  The district            court  "reveal[ed]   with  fair  certainty"  its  intent  and            "exclude[d] any serious misapprehensions" about the nature of            the  sentence.  United States v. Daugherty, 269 U.S. 360, 363                            _____________    _________            (1926).  Nothing in  the district court's sentencing language            suggested that the "sentence imposed for Count I" -- to which            the probation term was expressly made  consecutive -- did not            include parole time.  As the Tenth Circuit stated:                      The granting of parole to a prisoner does                      not terminate  the  sentence that  he  is                      serving.    Rather,  supervision  in  the                      prison    setting   is    replaced   with                      supervision  by   probation  authorities.                      The confinement period and any subsequent                      period  of  parole  supervision are  best                      understood  as  two  parts  of  a  single                      indivisible sentence.            Einspahr, 35 F.3d at 507  (internal quotation omitted).   Cf.            ________                                                  ___            Jones v. Cunningham, 371  U.S. 236, 243 (1963) (holding  that            _____    __________            parole    "significantly    confine[d]   and    restrain[ed]"            petitioner's  freedom  and  therefore  constituted  "custody"            amenable to  habeas corpus  relief); Anderson v.  Corall, 263                                                 ________     ______            U.S.  193, 196  (1923) (stating that  release on  parole with            restrictions  on freedom is  "in legal effect imprisonment");            United  States v. Williams, 15 F.3d 1356, 1359 n.3 (6th Cir.)            ______________    ________            ("A  paroled  convict  is still,  as  a  matter  of law,  `in                                         -7-                                          7            custody,' and continues to serve the  `custodial term' of his            or her sentence."), cert. denied, 115 S. Ct. 431 (1994).                                _____ ______                      In Einspahr,  the Tenth Circuit  was presented with                         ________            facts  almost  identical  to  those  presented  here.4    The            defendant  in  Einspahr  received a  forty-five  month prison                           ________            sentence on  one count and  four years  probation on  another            count,  which   the  district  court  stated   was  "`to  run            consecutive to Count I.'"   35 F.3d at 505-06.  The defendant            was released after serving  fifteen months in prison, leaving            thirty months to serve  on parole.  At the  conclusion of his            parole,  the  Probation  Department  activated  his four-year            probation term on  the second  count.  Two  weeks before  the            defendant's probation term would have expired, the government            initiated probation  revocation proceedings.   Just  as Flynn            argues  now,  the  defendant  in Einspahr  claimed  that  his                                             ________            probation term  commenced when  he was released  from prison,            ran concurrently with his parole, and had long since expired.            The  court,  however, found  "no  ambiguity  in the  district            court's  sentence," stating  that it  "clearly  indicated the            court's intent  that the probation term  not run concurrently            with any  period of parole  supervision."  Id.  at 506.   The                                                       ___            court went on to state:                                            ____________________            4.  Indeed,   we  are  surprised   that  neither  party,  and            particularly  the government,  cited  this case  to us  while            directing   our  attention   to  a   number  of   cases  only            tangentially relevant to the central issue.                                         -8-                                          8                      Unless the  sentencing court specifically                      indicates that a consecutive  sentence of                      probation begins at a  prisoner's release                      from custody or confinement,  the default                      assumption is  that the full  term of the                      earlier sentence must be completed before                      the probation period commences.            Id.  at 507.   See also Williams,  15 F.3d at  1358, 1359 n.3            ___            ___ ____ ________            (stating in  dictum that  "a convict's  probationary sentence            begins not with parole" but only after completion of parole);            United States v. Chancey, 695  F.2d 1275, 1276-77 (11th  Cir.            _____________    _______            1982)  ("This  consecutive  sentencing  evinces  the  court's            intent . . . that there be no overlap  between the end of the            first sentence and the beginning of probation.").                      We  find the  Tenth Circuit's  reasoning persuasive            and  directly applicable  to the  facts of  this case.5   The                                            ____________________            5.  The   Tenth   Circuit's  interpretation   of  consecutive            sentencing is supported by  two other Circuit Court decisions            that    employ,    without    discussion,    the    identical            interpretation.   See  Williams, 15  F.3d at  1358 (probation                              ___  ________            term ordered to  run consecutive to  prison sentence did  not            commence  until parole completed);  United States  v. Wright,                                                _____________     ______            744 F.2d 1127,  1128 (5th  Cir. 1984) (same).   Other  courts            have  held  that  probation  terms  imposed  consecutively to            another  sentence  begin  upon  release from  prison  if  the            sentencing  courts clearly  indicate  such an  intent.   See,                                                                     ___            e.g.,  United States v. Laughlin, 933 F.2d 786, 788 (9th Cir.            ____   _____________    ________            1991) (rejecting defendant's argument that probation term did            not  begin  until  parole  had  terminated; sentencing  court            ordered  probation   "to  commence  upon  his   release  from            prison"); King,  990 F.2d 190,  191 (5th Cir.  1993) (holding                      ____            that  probation   term  ran  concurrent  with   parole  where            sentencing order stated  that probation term  would "commence            upon defendant's  release from  custody").  The  King holding                                                             ____            appears to be inconsistent with authority cited above holding            that  parole is  in fact  custody.   Both King  and Laughlin,                                                      ____      ________            however, complement  Williams and Wright in  underscoring the                                 ________     ______            central principle of Einspahr:  that the most natural reading                                 ________            of unadorned  language imposing a probation  term consecutive                                         -9-                                          9            district court's sentencing language  unambiguously expressed            the court's intent to impose consecutive sentences.  That all                                                     _________            parties, including  Flynn, understood that  Flynn's probation            would not commence until he had served his entire sentence on                                                       ______            Count I is borne out by the fact that Flynn submitted without            argument to  supervision by  the Probation  Department during            the  years 1991-93, when he claims that  he was by law a free            man.  Indeed, the lack-of-jurisdiction argument that Flynn --            a  disbarred and, judging from  some of his  pro se petitions            contained in the record, not unskilled lawyer -- now advances            apparently  did  not  even  occur  to  him  until  after  his            probation  was revoked  by the  district court.   Of  course,            Flynn  did  not  waive  his jurisdictional  argument  by  not            raising  it below,  but his  failure to  do so  undercuts his            argument that there was any serious ambiguity in the district            court's original sentence.6                                            ____________________            to  a sentence on  another count  delays the  commencement of            probation until  the entire previous  sentence, including any                                 ______            parole, has been completed.            6.  In support  of his argument, Flynn  directs our attention            to the Ninth Circuit's rulings in United States v. Adair, 681                                              _____________    _____            F.2d 1150 (9th Cir.  1982), and United States v.  Carter, 827                                            _____________     ______            F.2d 546 (9th Cir. 1987).  Both  cases are unavailing.  Adair                                                                    _____            held that a defendant's  probation term ran concurrently with            his prison term on other counts because  the sentencing court            was  utterly  silent as  to  when the  probation  term should                          ______            commence.  Adair, 681 F.2d at 1151.  In such cases, the court                       _____            held,  "there is a strong presumption that the term starts on            the date sentence is  imposed and runs concurrently  with any            period  of imprisonment  imposed  on any  remaining count  or            counts."    Id.    The  Carter  court  then  relied  on  this                        ___         ______            presumption  in   holding  that  probation  began   with  the                                         -10-                                          10            B.  Due Process Challenges            __________________________                      Flynn also challenges on due process grounds two of            the court's findings of probation violations.  Flynn does not            argue that  the district  court  would not  have revoked  his            probation or  resentenced him  to five years  imprisonment in            the  absence  of  the   challenged  violations;  indeed,  the            district  court   expressly  stated  that  each   of  Flynn's                                                       ____            violations warranted the revocation of his probation.  Flynn,                                                                   _____            844  F.  Supp.  at 875.    Nevertheless,  Flynn  urges us  to            consider  his due  process argument  because, he  claims, the            challenged violations could affect his eligibility for parole            under the Parole Commission guidelines  found at 28 C.F.R.               2.20-21.  This, however, is sheer speculation; it is far from            clear exactly what information the Parole Commission will use            in  determining  Flynn's parole  eligibility date,  much less            that  the  district court's  findings  as  to the  challenged            violations  will have  a determinative  impact on  that date.            Furthermore, we are not  persuaded that the Parole Commission            may not legitimately use  this information, and, since  we do            not know if  it will  even enter the  calculation of  Flynn's                                            ____________________            commencement of the defendant's twenty-day prison sentence on                                                                       __            the same count and thereafter ran concurrently with a  parole            ______________            term on other convictions.   Carter, 827 F.2d 546, 548.  Even                                         ______            if we  were to adopt  the Ninth Circuit's  presumption, Flynn            could not reap its  benefit, because the district  court, far            from being  silent as to  when Flynn's probation  term should            commence, expressly  made the probation  term consecutive  to            his Count I sentence.                                         -11-                                          11            parole date, this issue is not before us.  See  Dye v. United                                                       ___  ___    ______            States  Parole Comm'n, 558  F.2d 1376, 1379  (10th Cir. 1977)            _____________________            ("the  Commission is  entitled to  take into  account factors            which could not, for constitutional reasons, be considered by            a court of law").   Thus, we need not decide the  due process            issues Flynn raises.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the  foregoing  reasons, the  decision  of  the            district court is                      Affirmed.                      Affirmed                      ________                                         -12-                                          12
