Appeal from the United States District Court for the Western District of Wisconsin. No. 93 C 0089 -- Barbara B. Crabb, Chief Judge.
Before CUDAHY and MANION, Circuit Judges, and GORDON, District Judge. *fn1
James Knight brings this action pursuant to 28 U.S.C. sec. 2255 contesting the revocation of his probation. Knight did not file a direct appeal and concedes that he cannot show cause for and prejudice from this failure. Accordingly, we review only for jurisdiction. Kelly v. United States, 29 F.3d 1107, 1113 (7th Cir. 1994). Knight asserts that the district court lacked jurisdiction in two regards: (1) to exercise its probationary power when Knight was under the control of the United States Parole Commission; and (2) to revoke his probation based on pre-probation conduct that occurred while Knight was on parole. Knight argues that under Affronti v. United States, 350 U.S. 79 (1955), and United States v. Murray, 275 U.S. 347 (1928), the district court, by revoking his probation while he was on parole and for conduct occurring during Knight's parole term, violated the relevant statutes and the separation of powers by improperly extending the judicial function of sentencing to invade the executive functions of clemency and parole.
Knight's argument raises two separate questions: (1) whether the district court may exercise probationary power while a convict is on parole; and (2) whether the district court may revoke probation for pre-probation conduct occurring while the convict is on parole. These are difficult questions (the former question being one of first impression in this circuit) that require us to balance the goals of probation against the desire to maintain an orderly governmental structure. After a good deal of deliberation, we hold that the Probation Act empowers the district court to revoke probation while a convict is on parole and to consider all relevant conduct, including conduct that occurs while the convict is under executive branch control.
In September of 1987, Knight pleaded guilty to a twocount indictment for false representation of a social security number, 42 U.S.C. sec. 408(g)(2), *fn2 and for mail fraud, 18 U.S.C. sec. 1341. On the social security count, the district court sentenced Knight to a five-year term of imprisonment, which Knight began serving on November 6, 1987. On the mail fraud count, Knight was sentenced to a fiveyear term of imprisonment that was suspended in favor of five years of probation to commence upon his release from supervision under the social security count. Knight's probation was subject to special conditions: he was required to make restitution in payments of $5,988.64 per month and he was prohibited from engaging in self-employment during the probation period, except with the express written consent of the court. See Transcript of December 5, 1991, Revocation of Probation. *fn3
Knight did not serve the full five years of imprisonment for which he was sentenced. In October of 1990, he was paroled. By September of 1991, however, Knight had violated the terms of his parole by illegally "playing the float" of his checking account. Knight and the United States Parole Commission agreed that Knight would plead guilty to the violation, and the parole board would allow Knight to remain on parole. *fn4 The parole board did not revoke Knight's parole. However, the parole board informed the Office of Probation for the Western District of Wisconsin of Knight's conduct and the need for a request for judicial review of the terms of Knight's probation. The district court apparently took a different view of Knight's activities, revoking Knight's probation and ordering him to serve the five-year term of imprisonment originally suspended on the mail fraud count. *fn5
Parole and probation, now superseded by supervised release, *fn6 are distinct conditions. Parole is an extension of the Constitutional grant of clemency power given to the President. Under the clemency power, U.S. Const., Art. II, sec. 2, the President, generally by delegation to the United States Parole Commission, an executive-branch agency, may grant an imprisoned convict a suspension of the remainder of his sentence. See, e.g., Exec. Order No. 11919, 41 Fed. Reg. 23663 (1976), reprinted as amended in 18 U.S.C. sec. 4203(b). Probation, in contrast, is a legislatively created power granted to the judicial branch under the Federal Probation Act. Unlike parole, probation is a type of sentence imposed in lieu of imprisonment. See 18 U.S.C. sec. 3561; United States v. Granderson, 114 S. Ct. 1259, 1262 n.3 (1994). *fn7 Probation does not involve the suspension of an on-going incarceration. See S. Rep. No. 225, 98th Cong., 2d Sess. 88 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3271. Instead, the trial court grants probation at the time of sentencing, substituting it for the imposition or execution of either part or the entirety of the sentence, see Murray, 275 U.S. at 352-53, and thereafter monitors the probationer's conduct. 18 U.S.C. secs. 3601- 07. In their practical application, parole and probation are very similar -- both constituting a means by which a convicted felon may be "re-introduced" into society on a controlled basis. Under both regimes, a convict escapes actual imprisonment on condition of consistent good behavior. See Burns v. United States, 287 U.S. 216, 220 (1932) (federal probation is "designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable.")
Because parole and probation emanate from different branches of government, the responsibility for the terms, conditions and supervision of each lies with different agencies. The judiciary manages probation, while authority over parole is wielded under the Constitution by the executive branch. Cf. Duehay v. Thompson, 223 F. 305, 307 (9th Cir. 1915) (finding parole tantamount to a commutation). The Parole Commission supervises the paroled convict, 18 U.S.C. sec. 4201-18, repealed Oct. 12, 1984, 98 Stat. 2027 (repeal effective Nov. 1, 1987 for offenses committed after that date), and may at any time, upon notice and hearing, change the conditions of the parole, revoke it or even terminate it entirely. See 18 U.S.C. secs. 4209(d)(1) (modification), 4211(a) (termination), 4213 (revocation). The conduct of probationers, on the other hand, is monitored by judicially-appointed probation officers within the Probation Department. See 18 U.S.C. secs. 3653-55. Probation may similarly be amended, revoked or terminated by the sentencing court at the recommendation of the Probation Department or on the motion of the government. See 18 U.S.C. secs. 3565(a) (revocation, modification), 3564(c) (termination).
The federal court has no inherent power or authority over probation. Its jurisdiction derives solely from Congress by statute. The court's jurisdiction to allow probation instead of a sentence of imprisonment and its power to revoke or modify a probationary term are provided for in 18 U.S.C. secs. 3651 & 3653 (1982). In Affronti, the Supreme Court held that the probation statute must be applied in such a way as to "avoid interference with the parole and clemency powers of the Executive Branch." 350 U.S. at 83. Compare 18 U.S.C. secs. 4201-18 (governing parole; repealed in October of 1984 but remaining in effect as to persons who committed offenses before Nov. 1, 1987. Pub. L. 98-473, Title II, sec. 218(a)(4), Oct. 12, 1984, 98 ...