United States v. Bass, Helen ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2540
United States of America,
Plaintiff-Appellee,
v.
Helen Bass,
Defendant-Appellant,
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-CR-30020--William D. Stiehl, Chief Judge.
Argued September 8, 2000--Decided December 1, 2000
Before Flaum, Chief Judge, and Posner and Rovner,
Circuit Judges.
Posner, Circuit Judge. This appeal from a
sentence for violation of conditions of
supervised release presents a novel question
under the federal sentencing guidelines. In
December of last year the federal district court
in St. Louis sentenced Helen Bass for bank fraud
upon her plea of guilty. The sentence, as stated
in the form document entitled "Judgment in a
Criminal Case," was as follows: "The defendant is
sentenced to a one (1) day imprisonment with
credit given for time served. The defendant is
placed on a term of six (6) months home
confinement. The defendant is released to begin
her term of home confinement and upon completion
the defendant is to begin her term of five (5)
years supervised release." The sentencing
guidelines provide that for a Class B felony,
which Bass’s offense was, a sentence of
supervised release with home confinement
substituted for imprisonment is proper only if
the defendant is sentenced to at least one
month’s imprisonment. U.S.S.G. sec. 5C1.1(c)(2).
But without objection by the government the
sentencing judge departed downward from one month
to one day. In exercising such lenience the judge
was hoping that Bass, who was employed, would be
able to repay the $31,000 that she had stolen
from the bank; home confinement would permit her
to work during the day. See U.S.S.G. sec. 5F1.2
Background Note ("in the usual case, the
Commission assumes that a condition requiring
that the defendant seek and maintain gainful
employment will be imposed when home detention is
ordered"). The maximum period of supervised
release for a Class B felony is five years. 18
U.S.C. sec. 3583(b)(1).
Although Bass worked in St. Louis, she lived
across the Mississippi River, in Belleville, in
the Southern District of Illinois. Two months
after sentencing Bass, and thus during her period
of home confinement, the sentencing judge
transferred jurisdiction over her case to the
Southern District of Illinois pursuant to 18
U.S.C. sec. 3605. This section provides that a
defendant who is on supervised release may be
transferred to another district, and the transfer
gives the judge in that district the same powers
as the original sentencing judge. The transfer
order states that the period of the defendant’s
supervised release runs from December 10, 1999,
the date of Bass’s sentencing, to December 9,
2004. Bass did not object to the transfer.
In May, the probation office for the southern
district filed a petition with that court seeking
to revoke Bass’s supervised release on the ground
that she had violated its conditions, for example
by not returning home immediately after work as
the home-confinement portion of her sentence,
still in force, required. After a hearing, Judge
Stiehl revoked Bass’s supervised release and
sentenced her to six months in prison followed by
54 months of supervised release. The sentence was
imposed on June 6, 2000, by which time Bass was
no longer in home confinement, although the
violations of the conditions of supervised
release that were the basis for the revocation
had occurred while she was.
The ground of the appeal is that the judge in
Missouri had no jurisdiction to transfer the case
to another district, and therefore that Judge
Stiehl acted beyond his power when he revoked
Bass’s supervised release. Since the transfer
statute merely regulates venue, it may be doubted
whether a violation of it goes to jurisdiction;
if it does not, then Bass’s failure to have
objected to the transfer bars her argument. But
in any event we do not think the statute was
violated.
It is true that the statute is limited to
defendants who are on supervised release; and
Bass argues that in February, when she was
transferred, she was still under home confinement
and so, under the terms of the judgment, her term
of supervised release had not yet begun. The
judgment had been explicit that Bass’s five-year
term of supervised release was to begin at the
end of the six-month period of home confinement.
If, instead, it had begun at the beginning of
that period, as the government argues in defense
of Judge Stiehl’s authority, it would exceed five
years and thus pierce the statutory ceiling. The
government contends that the judgment is
ambiguous as to when the period of supervised
release was to begin. It points out that the
section of the judgment captioned "Supervised
Release" states that "upon release from
imprisonment, the defendant shall be on
supervised release for a term of 5 years," and
the government interprets "imprisonment" to refer
to the one day in prison, not the six months of
home confinement. The government also points out
that the transfer order has the period of
supervised release beginning on the date of the
sentence and ending five years later; and this it
contends is what the sentencing judge intended.
The most natural interpretation of what the
sentencing judge intended is that the period of
supervised release was to begin upon the
defendant’s release from home confinement. The
term "imprisonment" on which the government rests
its best argument of ambiguity is part of the
form language in the judgment, rather than
language used by the judge himself; and as for
the transfer order, it was issued months later
and the dates of the period of supervised release
were probably filled in by a clerk and, since
they were just for identification, not reviewed
carefully by the judge.
So on the plane of literal interpretation the
defendant has the better of the argument. But
that is not the right plane to stay on. If the
judgment is read literally, the sentence was
illegal, because there is no authority in federal
law for imposing a free-standing sentence of home
confinement. United States v. Gilchrist, 130 F.3d
1131, 1137 (3d Cir. 1997) (concurring opinion).
Home confinement is authorized only as a
condition of pretrial release, probation, or
supervised release. U.S.S.G. sec. 5F1.2 ("home
detention may be imposed as a condition of
probation or supervised release, but only as a
substitute for imprisonment"). Cases can be found
in which a free-standing rather than conditional
sentence of home confinement was imposed, see,
e.g., United States v. Warner, 43 F.3d 1335, 1336
(10th Cir. 1994), but in none was the propriety
of such a sentence discussed.
What is more, if read literally the judgment in
this case would have prevented transferring
supervision of the defendant to the district in
which she lives during the very period in which
she was confined to her home; and that would make
no practical sense, since it is during that
period, when she is working outside the home,
that supervision is required. Had the sentencing
judge in Missouri been apprised by the parties
(the Department of Justice was especially remiss
in failing to apprise him) of the legal and
practical obstacles to his sentence, we are sure
he would have done just what Judge Stiehl
interpreted him to have done. That is, make the
five-year maximum term of supervised release run
from the date of the sentence (the defendant had
already served the one day in prison) and require
as a condition of supervised release that she
spend the first six months in home confinement.
Interpretation is a flexible tool, and if here
employed rather aggressively to bring about the
legally and practically sound result that Judge
Stiehl lacked authority to bring about directly,
we do not think it was flexed quite to the
breaking point.
Affirmed.