United States v. Terry Davis

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 2, 2012 Decided March 29, 2013
No. 11-3035
UNITED STATES OF AMERICA,
APPELLEE
v.
TERRY DAVIS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00193-1)
Allen H. Orenberg, appointed by the court, argued the cause
and filed the brief for appellant.
Christopher Macchiaroli, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Chrisellen R. Kolb and Michael
K. Atkinson, Assistant U.S. Attorneys. Elizabeth Trosman,
Assistant U.S. Attorney, entered an appearance.
Before: GARLAND, Chief Judge, KAVANAUGH, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: After a jury convicted Terry Davis
of multiple counts of bank fraud, he successfully appealed his
convictions to a panel of this court, which vacated them on the
ground that the district court had erred in admitting certain of his
statements in evidence. Thereafter, Davis pled guilty to a single
count of bank fraud and received a sentence of the time he had
already served on the earlier convictions, plus five years of
supervised release. He now contends that his term of supervised
release should be calculated as having commenced when he was
ordered released on his own recognizance pending his ultimately
successful appeal. We disagree and conclude that Davis’ term
of supervised release did not commence until he was sentenced,
on the charge to which he pled guilty, to time served plus five
years of supervised release.
I
From 1999 to 2003, Terry Davis served as national treasurer
of the Phi Beta Sigma fraternity. United States v. Davis, 596
F.3d 852, 854 (D.C. Cir. 2010). During that time, Davis used at
least $50,000 of the fraternity’s funds for his own benefit by
periodically writing checks to cash, sometimes forging the
signature of the fraternity’s national president and sometimes
representing to fraternity officials that the proceeds of the
checks went to fund fraternity activities. Davis was indicted on
federal charges in June 2006 and arrested the following month.
In May 2007, a jury found him guilty on one count of first-
degree fraud, one count of first-degree theft, and multiple counts
of bank fraud in connection with his activities as treasurer. On
August 7, 2007, the district court sentenced Davis to 51 months’
imprisonment followed by five years of supervised release,
Judgment at 1-4, United States v. Davis, No. 06-cr-193 (D.D.C.,
filed Aug. 20, 2007), and committed him to the custody of the
Bureau of Prisons to serve his term, id. at 3.
Davis appealed his convictions. On December 4, 2009,
immediately following oral argument, a panel of this court
3
ordered that Davis “be released forthwith pending resolution of
this appeal, subject to the terms and conditions of pretrial release
set by the district court in its order of July 12, 2006,” the day of
Davis’ original arrest. Order, United States v. Davis, No. 07-
3100 (D.C. Cir. Dec. 4, 2009). On December 17, the district
court released Davis on his own recognizance, pursuant to a
modified set of pretrial release conditions. Release on
Conditions (Dec. 30, 2009) (J.A. 22). In February 2010, the
circuit panel vacated the district court’s judgment of conviction,
finding that the district court erred in admitting statements Davis
had made in compromise negotiations, in contravention of
Federal Rule of Evidence 408, and remanded the case for further
proceedings. Davis, 596 F.3d at 861. Thereafter, the district
court set a retrial date and again slightly modified the conditions
of Davis’ pretrial release.
On November 8, 2010, the government filed a superseding
information charging Davis with a single count of bank fraud in
connection with his defrauding of Phi Beta Sigma. Davis pled
guilty to the information later that month. On March 14, 2011,
the district court sentenced him to the time he had served on his
2007 sentence before the district court ordered his release in
December 2009, plus five years of supervised release. Davis has
filed a timely appeal.
II
Davis’ sole contention is that the district court erred in
setting March 14, 2011, the day the district court sentenced him
on the charge to which he pled guilty, as the commencement
date of his five-year term of supervised release. Davis Br. 7.1
1
Although other parts of Davis’ brief created some ambiguity as
to when he thought the district court intended his supervised relief
term to commence, at oral argument Davis made clear that he believes
4
The correct date, he maintains, is December 17, 2009, the day
the district court (in response to the appellate panel’s
instruction) ordered his release pending resolution of his appeal
from his original convictions. The 2009 date is dictated, he
insists, by the text of 18 U.S.C. § 3624(e).
Davis acknowledges that he failed to object to the start date
of his term of release in the district court. Oral Arg. Recording
at 1:21-2:40. We therefore review his claim for plain error only.
See United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir.
2005). This standard of review has no consequence, however,
because we discern no error at all.
In pertinent part, § 3624(e) states:
Supervision after release. -- A prisoner whose sentence
includes a term of supervised release after
imprisonment shall be released by the Bureau of
Prisons to the supervision of a probation officer who
shall, during the term imposed, supervise the person
released . . . . The term of supervised release
commences on the day the person is released from
imprisonment . . . .
18 U.S.C. § 3624(e) (emphasis added). Focusing on the second
(italicized) provision in the subsection, and contending that he
was “released from imprisonment” on December 17, 2009,
Davis maintains that the term of his supervised release
commenced on that date. In context, however, it is clear that
this provision of § 3624(e) offers Davis no relief.
the district court determined that it would commence on March 14,
2011. Oral Arg. Recording at 19:04-19:18. The government agrees
that it is “very clear” the district court intended the term to begin on
that date, id. at 17:30-17:46, as do we.
5
The provision that Davis cites is immediately preceded by
a provision (also quoted above) that states: “A prisoner whose
sentence includes a term of supervised release after
imprisonment shall be released by the Bureau of Prisons to the
supervision of a probation officer who shall, during the term
imposed, supervise the person released . . . .” Id. (emphases
added). This first provision makes clear that the “supervised
release” referred to in the second provision is a component of a
particular sentence that was imposed on the prisoner. But the
sentence that Davis challenges on this appeal -- more
specifically, the supervised release term “include[d]” in that
sentence -- did not exist on December 17, 2009. At that time,
Davis was subject to a different sentence, which had been
handed down in August 2007. Moreover, that sentence was
vacated by this court in February 2010, and from then until
March 2011, he was not subject to any sentence at all. It was
not until March 14, 2011, that the sentence with the supervised
release component that Davis challenges here was issued.
Hence, the supervised release term could not have commenced
in December 2009, more than a year before it was imposed.
Nor was Davis released in December 2009 to “supervised
release” in the sense contemplated by § 3624(e). As we have
said, the first provision of § 3624(e) indicates that the “release”
it references is release by the Bureau of Prisons to the
supervision of a probation officer for a term of supervision
following expiration of a sentence’s term of imprisonment.2 But
Davis was not released in December 2009 because his term of
imprisonment had expired. Rather, he was released because this
2
This is confirmed by the text of § 3624(a), the first subsection
of § 3624. That subsection is entitled “Date of release” and states: “A
prisoner shall be released by the Bureau of Prisons on the date of the
expiration of the prisoner’s term of imprisonment . . . .” 18 U.S.C.
§ 3624(a).
6
court so ordered pending resolution of his appeal. Nor was he
released “to the supervision of a probation officer,” as
contemplated by § 3624(e). Instead, he was required to report
to the D.C. Pretrial Services Agency. See Release on Conditions
(Dec. 30, 2009) (J.A. 22); Order (D.D.C. Aug. 17, 2010); see
also Release on Conditions (July 12, 2006). Indeed, Davis was
not released to the supervision of the Probation Office until he
was sentenced on March 14, 2011. See Judgment at 3 (filed
Mar. 25, 2011) (J.A. 114).
So what was the nature of Davis’ December 2009 release if
it was not “supervised release”? Davis was first ordered
released by the district court, per this court’s instruction,
“pending resolution of [his] appeal” and “subject to the terms
and conditions of pretrial release set by the district court in its
order of July 12, 2006.” Order, United States v. Davis, No. 07-
3100 (D.C. Cir. Dec. 4, 2009). The district court continued (and
modified) those earlier conditions pending a possible retrial or
plea. See Release on Conditions (Dec. 30, 2009) (J.A. 22);
Order (Aug. 17, 2010). In short, Davis was released “pending
judicial proceedings,” which is the subject (and title) of Chapter
207 of Title 18 of the United States Code, the Title of the Code
that covers release pending trial and appeal. See 18 U.S.C.
§ 3141(a), (b). It is for that reason that he was required to report
not to Probation but to Pretrial Services, the entity that is
responsible for persons released under Chapter 207. See 18
U.S.C. § 3154(3). And in the end, it is also for that reason that
the provisions of 18 U.S.C. § 3624(e) are not relevant to Davis’
2009 release pending resolution of his appeal. Section 3624(e)
is not part of Chapter 207, but rather part of Chapter 229, which
covers the subject of (and is entitled) “Postsentence
Administration.” As we have explained, Davis was not
“postsentence” in December 2009. To the contrary, the sentence
from which he now appeals had not yet begun.
7
Davis contends that his textual argument is supported by the
Supreme Court’s decision in United States v. Johnson, 529 U.S.
53 (2000), but the problem addressed in that case is different
from the one at issue here. In Johnson, the question was
whether a prisoner who had been imprisoned longer than he
should have been could have that time credited to his supervised
release term, reducing its length. Ruling that the text of 18
U.S.C. § 3624(e) controlled the question, the Court held that “a
supervised release term does not commence until an individual
‘is released from imprisonment.’” 529 U.S. at 57 (quoting 18
U.S.C. § 3624(e)). But holding that a supervised release term
does not commence until release from imprisonment is not the
same as saying that every release from imprisonment does
commence a supervised release term. Moreover, the Court
noted that its construction was confirmed by the first sentence
of § 3624(e), which provides that supervised release does not
come until the prisoner is “released by the Bureau of Prisons to
the supervision of a probation officer.” Id. (emphasis added).
As we have noted above, Davis was not released to the
supervision of a probation officer until he was sentenced on
March 14, 2011.
Finally, Davis suggests that we should calculate his term of
supervised release as commencing in December 2009 because
the release conditions the court imposed on him at that time
were “akin” to those included in the supervised release
conditions of the sentence it imposed in March 2011. Davis Br.
10. In fact, the two sets of conditions are quite different, as the
latter are materially more restrictive. Compare Release on
Conditions (Dec. 30, 2009) (J.A. 22), with Judgment at 3-4
(filed Mar. 25, 2011) (J.A. 114-15). Nor are the objectives of
the two kinds of release conditions congruent. The former are
intended to assure that a defendant will appear at future judicial
hearings and not commit a crime in the interim. See 18 U.S.C.
§ 3142 (b), (c). The latter are intended, among other things, to
8
ease a defendant’s transition into the community and provide for
rehabilitation. See Johnson, 529 U.S. at 59 (citing, inter alia, S.
REP. NO. 98-225, at 124 (1983)); U.S. SENTENCING GUIDELINES
MANUAL § 5D1.3; accord United States v. Vallejo, 69 F.3d 992,
994 (9th Cir. 1995).
But it would not matter even if the two sets of conditions
were the same. Davis does not cite any statute that would cause
his term of supervised release to commence earlier than the date
he was sentenced merely because he had previously been subject
to equivalent pretrial release conditions. As we have explained,
the only statute that he does cite, 18 U.S.C. § 3624(e), does not
apply to the kind of release to which Davis was subject from
December 2009 to March 2011. And in the absence of a statute,
we have no authority to change the date upon which his
supervised release began. Cf. Johnson, 529 U.S. at 60.
III
For the foregoing reasons, we conclude that Davis did not
become a “prisoner whose sentence includes a term of
supervised release after imprisonment,” 18 U.S.C. § 3624(e),
until March 14, 2011, the date the district court sentenced him
to time served plus five years of supervised release.
Accordingly, because his term of supervised release did not
commence until that date, the judgment of the district court is
Affirmed.