APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 84-00038)
Before: ADAMS, GIBBONS, and WEIS, Circuit Judges.
While free on bond pending appeal from convictions of federal crimes, defendant committed a state felony. Because of the defendant's state conviction, the district court revoked the probationary sentence it had imposed. Although recognizing the split among the courts of appeals on this issue, we conclude that district courts have authority to revoke probation even before it commences. Accordingly, we will affirm the order of the district court.
Defendant pleaded guilty to three counts of firearms violations, 18 U.S.C. § 1202(a)(1), 26 U.S.C. §§ 5861(d) and (h), and received the following sentences:
Count III, ten year confinement - suspended, defendant to serve six months in jail, probation for a period of five years to commence on release from confinement.
Count II, ten years confinement, execution suspended, probation for five years concurrent with that imposed on Count III.
Count I, two years confinement, execution suspended, probation for two years concurrent with Count III.
The guilty plea was conditional,*fn1 and the district judge permitted defendant to remain on bail pending appeal of the denial of a suppression motion.
At the sentencing hearing on November 24, 1984, the district judge told defendant, "if you go out and have your probation revoked, you could be put in jail for ten years. So that is going to be hanging over you . . . and I hope as a deterrent, to cause you to reflect and pause before you get into any more trouble."
After referring to a complaint by the defendant's former girlfriend, the judge cautioned that should the woman be assaulted, "you are going to go to federal prison for a long time, like ten years or how long they keep you." Commenting on the relevancy of the Bail Reform Act, the court warned that it might be applicable to defendant; if so, "it could be that you would have a revocation of your probation. Understand? Now we don't know for sure but it could be, you could go as long as ten years in prison. . . . I am putting it on the record so you won't be surprised."
The judge continued, "let's suppose in the middle of next year, [defendant] goes out and commits a crime, this gentleman here, Mr. Veatch, he commits a crime in July of 1985. Now I have a hearing, I revoke his probation, he goes into jail for ten years."
Despite his declaration of reform, defendant did not even wait until July of 1985, but on December 27, 1984 participated in the kidnapping and violent rape of a woman.*fn2 He was arrested by state authorities soon afterward and has remained in state custody. On January 29, 1985, the government moved to revoke the defendant's bail and probation. The district court directed that a hearing would be held on release of defendant by state authorities or after a state conviction, whichever occurred earlier.
On August 13, 1985, agreeing that the district court's ruling on the suppression motion was proper, this court affirmed the conviction on the firearms charges. On August 30, 1985, the state court ...