On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 83-00220-01.
Sloviter, Becker and Garth, Circuit Judges.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
After being convicted on multiple counts of a federal indictment, James Camarata was sentenced by the district court to both a term of custody and a consecutive term of probation. Before he completed serving his custodial sentence, Camarata committed New Jersey crimes to which he later pled guilty. The district court subsequently revoked Camarata's probation on the basis of the New Jersey crimes. Camarata appeals the revocation. His appeal presents the question whether a district court has authority to revoke probation on the basis of violations of the conditions of probation occurring after the beginning of service of a custodial term but prior to the beginning of the probationary term. A related issue is raised in United States v. Davis, No. 86-3697, F.2d (3d Cir. 1987), which is filed today.
Camarata was convicted on two counts of mail fraud in violation of 18 U.S.C. § 1341, three counts of foreign transportation of falsely made securities in violation of 18 U.S.C. § 2314, nine counts of bank larceny in violation of 18 U.S.C. § 2113(b), and one count of conspiracy to commit the above crimes in violation of 18 U.S.C. § 371. Camarata was sentenced to 48 months federal custody on one count of bank larceny to be followed by five years probation on the conspiracy count. Sentence was granted bail pending appeal of his conviction, which was thereafter affirmed. United States v. Camarata, No. 83-1874 (3d Cir. Aug. 13, 1984).
While on bail pending appeal, Camarata began serving a New Jersey state sentence in the New Jersey state penitentiary at Leesburg. Subsequently, the district court reduced Camarata's federal sentence to 45 months with the recommendation that the Attorney General designate Leesburg as the institution for service of Camarata's federal sentence, which effectively made the federal sentence concurrent with the state sentence. The Attorney General accepted the district court's recommendation and designated Leesburg for service of Camarata's federal sentence.
On October 16, 1984, immediately after our affirmance of his conviction, Camarata filed a Rule 35 motion for a further reduction of sentence to time served. Camarata was scheduled for parole from his New Jersey sentence on October 30, 1984 and would ordinarily have been paroled to federal custody to continue service of his federal sentence. However, on October 26, 1984, in a somewhat unusual procedure occasioned by the failing health of Camarata's wife and her imminent surgery, the district court ordered "that upon . . . Camarata's release from the custody of the State of New Jersey to federal custody, which is scheduled to occur on October 30, 1984, he shall thereafter, that same day, be released from federal custody on a $20,000 OR bond until further order of this Court." App. at 12.*fn1
On January 22, 1985, the district court granted Camarata's Rule 35 motion and reduced Camarata's federal sentence to 24 months federal custody to be followed by three years probation of which the first six months was to be served at a Community Treatment Center. Camarata was credited with all time served on his New Jersey sentence and was ordered to report to the Federal Correctional Institution at Allenwood, Pennsylvania by June 1, 1985 to serve the 14 month balance of his reduced federal sentence (exclusive of good time credit). The delay in resumption of the custodial sentence was "so as to permit Mr. Camarata to be with Mrs. Camarata during the balance of the current regime of chemotherapy." Supp. App. at 60.
In October 1985, while still in federal custody, Camarata was indicted by New Jersey for conspiracy to engage in theft by deception and issuance of bad checks, offenses similar to those for which he was serving his federal sentence. These crimes were committed by Camarata and three conspirators between January 1985 and October 1985, including the period after May 1985 while he was in Allenwood federal prison. In July 1986, Camarata pled guilty to the New Jersey state charges pursuant to a plea agreement under which he was assured that he would receive a sentence requiring neither incarceration nor restitution. When pleading guilty, Camarata expressly acknowledged that his state conviction "may result in a violation of [his federal probation] status." App. at 31. In September 1986, Camarata was sentenced to probation, community service and a $1,000 fine.
Camarata was released from federal custody to his federal probationary term in the summer of 1986. In October 1986, after the New Jersey sentencing, the United States Probation Office for Eastern District of Pennsylvania petitioned the district court to revoke Camarata's probation and resentenced him to 21 months in federal custody to be followed by five years probation. Camarata appeals, challenging the district court's authority to revoke hi probation on the basis of a New Jersey offense occurring prior to the commencement of his probation. We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary.
The authority to grant probation is conferred on courts by the Federal Probation Act, 18 U.S.C. § § 3651-3656,*fn2 which provides that a court, "when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best." 18 U.S.C. § 3651. The court "may revoke or modify any condition or probation, or may change the period of probation," but the period of probation "shall not exceed five years." Id "At any time within the probation period," the probation officer may, for cause, arrest the probationer without a warrant, 18 U.S.C. § 3653. Following such an arrest, "the court may revoke the probation and require [the probationer] to serve the sentence imposed, or any lesser sentence, and if imposition of sentence was suspended, may impose any sentence which might originally have been imposed." Id.
Camarata argues that the trial court had no power to revoke his probation for actions occurring prior to the commencement of his probation while he was in the custody of the Attorney General serving a term of incarceration.*fn3 This argument raises two separate question; 1) does the statute itself, which is silent on this issue, preclude revocation of probation for actions of the defendant which occurred before the beginning of his probationary term? and 2) even if the statute is not preclusive, are there other reasons to deny such authority to the district court?
This court recently upheld revocation of probation on the basis of a crime committed while defendant was on bail pending appeal. We held "that a district court may revoke probation if a defendant violates the conditions of probation in the period between the date of sentencing and the date of incarceration." United States v. Veatch, 792 F.2d 48, 52 (3d Cir.), cert. denied, 479 U.S. 933, 107 S. Ct. 407, 93 L. Ed. 2d 359 (1986).*fn4 In so holding, we expressly declined to follow the contrary holding of the Seventh Circuit in United States v. Dick, 773 F.2d 937, 944 (7th Cir. 1985).*fn5
Thus, I agree with the government that Veatch is controlling precedent that the probation statute does not confine the district court's power to revoke probation to consideration of acts committed during the probationary period.
Camarata argues that allowing revocation of probation on the basis of criminal activity occurring at least in part while Camarata was in federal custody*fn6 conflicts with the policy concerns underlying the Supreme Court's decisions in United States v. Murray, 275 U.S. 347, 72 L. Ed. 309, 48 S. Ct. 146 (1928), and Affronti v. United States, 350 U.S. 79, 100 L. Ed. 62, 76 S. Ct. 171 (1955). In Murray, the Supreme Court held that a district court was without power to suspend service of a sentence and grant probation after the defendant had begun service of the sentence. In Affronti, the Court extended Murray to hold that a district court was without power to suspend service of any of a series of consecutive sentences imposed on multiple counts of an indictment and grant probation after the defendant had begun service on the first of the consecutive sentences. In both Murray and Affronti, the Court stated that the Probation Act should be interpreted to "avoid interference with the parole and clemency powers vested in the Executive Branch." 350 U.S. at 83; see also 275 U.S. at 357. To accomplish this, both Murray and Affronti limited courts' ability to mitigate sentences after incarceration had begun, since at that time a prisoner becomes subject to the executive's parole and clemency powers.*fn7
In Veatch, we recognized that " Affronti restricted the trial judge's discretion to revoke probation when it might conflict with the executive's prerogatives." 792 F.2d at 50. We held, however, that Affronti did not control because Veatch had committed his crime while at liberty pending appeal, and in that interval "there is no conflict between the court's authority and the executive's responsibility for confinement or clemency." Id. at 52.
Camarata argues that because he, unlike Veatch, was subject to the executive's parole and clemency powers at the time of the criminal conduct which formed the basis for his probation revocation, the policy consideration underlying Affronti and Murray require us to hold that the district court had no power to revoke his probation. He contends that because he was transferred from the federal prison at Allenwood to the federal prison at Danbury as a result of the New Jersey offense and was deprived of good time credit*fn8 and his scheduled release to a community treatment center, revocation of his probation with a resultant imposition of a new federal custodial sentence was inappropriately duplicative.
Camarata relies on United States v. Wright, 744 F.2d 1127 (5th Cir. 1984), where the court held that a parolee's probation could not be revoked for a state crime committed while on parole prior to the beginning of a probationary term. The Fifth Circuit read Affronti as prohibiting "application of the probation provisions 'in such a way as to unnecessarily overlap the parole and executive clemency provisions of the law." Id. at 1130 (quoting Affronti, 350 U.S. at 83). Noting that such "overlap certainly occurs if the probation statute is interpreted so as to permit the same pre-probation violation to serve as cause both to revoke the parole on a prior sentence and also to revoke the uncommenced probation on a consecutive sentence," the court held that "the district court was without power, once the defendant commenced service of the first of cumulative sentences, to grant or to revoke probation as to a consecutive sentence." Id. at 1130-31.
We need not decide how we would rule were Camarata's situation comparable to Wright's because Camarata was not on parole, and therefore was not subject to both parole and probation revocation for the same offense.*fn9 It is enough to note that probation revocation is a judicial function while parole revocation is an executive function. The ability of multiple authorities to impose multiple sanctions is "simply another manifestation of a central fact underlying modern federal criminal procedure; the power to determine the length and conditions of an individual criminal's punishment is dispersed between the judicial and executive branches." Diggs v. United States, 740 F.2d 239, 246 (3d Cir. 1984).
For example, Congress has vested in the sentencing judge the power to establish the minimum time a defendant must serve before parole eligibility. See 18 U.S.C. § § 4205(a), (b); see also United States v. Addonizio, 442 U.S. 178, 189 n.15, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979). Rule 35(b) gives the district court the opportunity to reduce defendant's sentence within 120 days after the conclusion of appellate review of the conviction. The appellate review can take more than a year during which time the Parole Commission may have already issued the presumptive parole date. See Diggs, 740 F.2d at 246 n.12. Since the sentencing court may thereafter, but still within the 120 days of Rule 35(b), reduce the sentence to a period below the presumptive release date set by the Parole Commission, it is evident that the scheme itself contains overlapping, rather than exclusive, spheres in which the courts and branches of the executive may affect the amount of time served by an individual defendant.*fn10
The central issue therefore is whether the action taken by the district court interferes with the powers vested in another branch. In rejecting Camarata's argument that the Affronti rationale precluded revocation of probation in this situation, the district court concluded that Affronti's concerns apply only to grants of probation. A close reading of Affronti supports this construction. The Court stated that it was "concerned with the power to grant suspension of [unexecuted] sentences." 350 U.S. at 81 (emphasis supplied). It framed the question as whether it should "read the statute to mean that courts should be able to suspend the uncommenced terms of a cumulative sentence after the prisoner has been imprisoned and entered upon the execution of a prior term?", and answered in the negative. Id. at 83 (emphasis supplied).
Affronti did not deal with the district court's power to revoke probation. As Judge Pollak, the district court judge in this case, explained, "to revoke probation is not to pose the difficulties of overlap which conflict with the parole and clemency authorities" since "revoking a probationary term which follows a term of incarceration does not stop the parole authorities from making such adjustments of the term of incarceration as they think appropriate." App. at 40-41. I agree. The authority in both the court and the Parole Commission to take appropriate action in response to new criminal activity by defendant, the former through revocation of ...