No Easy Answers

Wednesday, July 04, 2007

Court Order re: Effect of Commutation on Supervised Release [Doc 383]

OCR Job on Docket Entry No. 383. A legal technicality as to whether the law permits supervised release at all, when a convicted defendant does not serve time in prison.

I'd go with the plain reading of the law. Supervised release is out of the question, and since probation wasn't imposed to begin with, probation is out of the question too.

I doubt this was a planned artifact of the clemecy order. Just one of those things.


     On June 5, 2007, the defendant was sentenced to a term of thirty months in prison and
two years of supervised release as a result of his March 6, 2007 conviction on four counts of
perjury, obstruction of justice, and making false statements to federal investigators. Judgment at
3-4; see 18 U.S.C. Sec. 3583(a)(2000) (stating that "[t]he court, in imposing a sentence to a term of
imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement
that the defendant be placed on a term of supervised release after imprisonment").  In addition,
the Court imposed a fine of $250,000 and a special assessment of $400 on the defendant.
Judgment at 6.

    On Ju1y 2, 2007, the President of the United States commuted the term of incarceration
imposed upon the defendant by the Court, "leaving intact and in effect the two-year term of
supervised release, with all its conditions, and all other components of the sentence." Grant of
Executive Clemency at 1.  It has been brought to the Court's attention that the United States
Probation Office for the District Court of the District of Columbia intends to contact the
defendant imminently to require him to begin his term of supervised release.  Strictly construed,
the statute authorizing the imposition of supervised release indicates that such release should

occur only after the defendant has already served a term of imprisonment. 18 U.S.C.Sec. 3583(a)
(stating that the defendant "[may] be placed on a term of supervised release after imprisonment")
(emphasis added).  That is, despite the President's direction that the defendant's prison sentence
be commuted and his term of supervised release remain intact, see Grant of Executive Clemency
at 1, Sec. 3583 does not appear to contemplate a situation in which a defendant may be placed under
supervised release without first completing a term of incarceration.  It is therefore unclear how Sec.
3583 should be interpreted in unusual circumstances such as these, and the Court seeks the
parties' positions as to whether the defendant should be required to report to the Probation Office
immediately, whether he should be allowed to remain free of supervision until some later, more
appropriate time, or, indeed, whether the plain meaning of Sec. 3583 precludes the application of a
term of supervised release altogether now that the prison sentence has been commuted.

Accordingly, it is hereby

ORDERED that the parties shall, by July 9, 2007, submit to the Court their respective
positions regarding the application of Sec. 3583 in light of the President's commutation of the
defendant's prison sentence. 1

SO ORDERED this 3rd day of July, 2007.

1 If either party believes that it would be helpful to solicit clarification from the White 
House regarding the President's position on the proper interpretation of Sec. 3583 in light of his 
Grant of Executive Clemency, they are encouraged to do so.

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