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USCA1 Opinion
December 22, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1637
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
SAMUEL MANDARELLI, III,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Stephen H. Mackenzie for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Richard S. Cohen, United States Attorney, and Michael M. DuBose,
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Assistant United States Attorney, were on brief for appellee.
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BREYER, Chief Judge. In 1989 Samuel J.
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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.
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Stat. Ann. tit. 17-A, 207, and 2) by giving his probation
officer a false address, see 18 U.S.C. 1001.
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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
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the term of supervised release without
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credit for time previously served on
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postrelease supervision . . . . except
that [the person] may not be required to
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serve more than . . . 2 years in prison
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if the [original] offense was a Class C
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. . . felony . . . .
18 U.S.C. 3583(e)(emphasis added). Since Mandarelli's
initial crime was a Class C felony, see 18 U.S.C.
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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
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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
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(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,
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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,
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not about supervised release. Under the Sentencing Reform
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Act of 1984, "probation" is an alternative to prison; a
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defendant may not be sentenced both to probation and "at the
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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
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statutes treat the two similarly, but not identically.
Compare 18 U.S.C. 3565(a)(2) (maximum sentence for
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probation violation is maximum for underlying conviction)
with 18 U.S.C. 3583(e) (maximum sentence for supervised
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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
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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.
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Fiore, No. 92-1601, slip op. at 4 (1st Cir. Dec. 9, 1992).
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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
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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.
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***
See Slip Opinion for Appendix (excerpts from
Sentencing Guidelines).
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Document Info
Docket Number： 92-1637
Filed Date： 12/22/1992
Precedential Status： Precedential
Modified Date： 9/21/2015