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United States v. Dick

October 1, 1985


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 217 - Marvin E. Aspen, Judge.

Author: Cummings

Before CUMMINGS, Chief Judge. ESCHBACH, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*

CUMMINGS, Chief Judge.

Defendant Raymond Dick appeals from the district court's revocation of his probation. On July 2, 1981, Dick was sentenced to one year's imprisonment for extortionate extension of credit, to be followed by five years' probation for extortionate collection of credit, in violation of 18 U.S.C. §§ 892,894. That sentence was stayed pending Mr. Dick's timely appeal of his conviction, and he was released on appeal bond. Mr. Dick lost his appeal to this Court, and he began serving his sentence on July 19, 1982. He was released the following May to begin his five-year term of probation.

While out on appeal bond, Mr. Dick was arrested on rape and kidnapping charges arising out of a February 8, 1982, fare dispute with a passenger of the cab he was driving at the time. He was tried in the Circuit Court of Cook County, Illinois, and convicted of these charges on November 14, 1983. Thereafter he began serving his state sentence of twelve years' imprisonment.*fn1 On June 27, 1984, the government filed a motion for a rule to show cause why probation should not be revoked. The district court held a hearing on November 16, 1984, after which the court granted the government's motion. It sentenced Mr. Dick to a twelve-year term of imprisonment, to run concurrently with his state sentence. The defendant filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.

The issue before us is whether a district court may revoke a probationer's probation for an event occurring before the defendant began serving the probationary term but having no relation to the court's decision to impose probation. Federal judicial power to grant, and by necessary implication to revoke, probation derives entirely from Congress. Affronti v. United States, 350 U.S. 79, 83, 100 L. Ed. 62, 76 S. Ct. 171 ; Roberts v. United States, 320 U.S. 264, 265-266, 88 L. Ed. 41, 64 S. Ct. 113 . Therefore, reviewing the district court's order requires close attention to the Probation Act, codified at 18 U.S.C. §§ 3651 - 3656. The authority to grant probation stems from 18 U.S.C. § 3651, which provides in relevant part:

Suspension of sentence and probation

Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States 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.

The court may revoke or modify any condition of probation, or may change the period of probation.

The period of probation, together with any extension thereof, shall not exceed five years.

Section 3653 of Title 18 authorizes the arrest of probationers and the revocations of their probation, and provides in pertinent part:

At any time within the probation period, the probation officer may for cause arrest the probationer wherever found, without a warrant. At any time within the probation period, or within the maximum probation period permitted by section 3651 of this title, the court for the district in which the probationer is being supervised or if he is no longer under supervision, the court for the district in which he was last under supervision, may issue a warrant for his arrest for violation of probation occurring during the probation period. * * *

As speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him 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.

To be noted first is that Section 3651 does not authorize the revocation of probation. It authorizes a district court to revoke "any condition of probation" or to "change the period of probation," but it does not authorize a district court to revoke the probation and replace it with a sentence of imprisonment. The authority to do the latter derives exclusively from Section 3653, which by its terms authorizes the ...

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