On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal No. 86-93.
Sloviter, Becker and Garth, Circuit Judges.
In an opinion filed today in an unrelated case, United States v. Camarata, 828 F.2d 974, No. 86-1766 (3d Cir. , 1987), we considered whether a district court has the authority to revoke probation on the basis of violations of conditions of probation occurring after the beginning of service of a custodial term but prior to the beginning of a consecutive term of probation. A similar issue is presented on this appeal by William Holloway Davis who challenges the revocation of his probation.
Davis pled guilty to one count of a multiple count indictment charging him with possession of stolen checks in violation of 18 U.S.C. § 1708. Davis was sentenced to four years imprisonment "and on condition that the defendant be confined in a jail type or treatment institution for a period of 90 days," the execution of the remainder of the sentence was suspended and Davis was put on probation for three years beginning after release from the 90 days confinement. App. at 12.*fn1 The district court recommended that Davis be confined at the Southside Community Treatment Center in Pittsburgh so that he could "participate in a work release program." App. at 12.
Davis began serving his 90 days at the Goodwill Community Treatment Center in Pittsburgh (Center) where he participated in a work release program. While Davis was at the Center, the chairman of the Center's disciplinary committee informed the United States Probation Office that Davis had violated the conditions of his incarceration at the Center by failing "to return from work to the center in a timely manner on several occasions." App. at 19.*fn2 As a result of his program failures, Davis had two hearings before the Center's disciplinary committee. At an October 10, 1986 disciplinary hearing, Davis was instructed to repeat the orientation phase of the Center's program. At a November 5, 1986 hearing, Davis was informed that as a result of his failures, he would ordinarily be terminated from the Center's program and removed by the United States Marshal's Service to a Bureau of Prisons facility. Davis was not removed from the Center because his scheduled release date, November 7, 1986, was only two days away.
On November 6, 1986, the United States Probation Office for the Western District of Pennsylvania petitioned the district court for a revocation of Davis' probation on the basis of Davis' failure to abide by the rules and regulations of the Center. Davis was released from the Center to his probationary term on November 7, 1986. On November 13, 1986, the district court held a probation revocation hearing. Following the hearing, the district court revoked Davis' probation and resentenced him to four years incarceration. Davis appeals.*fn3 We have jurisdiction under 28 U.S.C. § 1291. The only issue raised by Davis is a challenge to the authority of the district court to revoke his probation based upon infractions which occurred while he was serving a federal sentence. Our review of that issue is plenary.
At the hearing before the district court on revocation of probation, a probation officer testified that the probation office was notified by the Center of four infractions by Davis of the rules and regulations of the Center between October 4, 1986 and November 4, 1986. See note 2 supra. The Assistant Director of Rehabilitation Services at the Center testified that the two "primary" infractions were Davis' signing out on October 4, 1986, stating his "purpose" as being his place of employment, on a day he was not scheduled to be at work, and his failure to return expeditiously to the Center on November 1, 1986 after being scheduled to be off work at noon and only returning to the Center at approximately 6:55 p.m. App. at 24-26. Davis testified that on November 1, 1986, although he punched out at 12:15 from his job, he stayed at his place of business until 4:00 because his job had been changed from cashier to dairy manager and he was being shown "how to arrange the produce and the different things in the diary section of the store," that the bus to return to the Cent didn't come for 15 or 20 minutes, and that he did not get to the neighborhood in which the Center is located until approximately 6:00 p.m. when, under the applicable rules, he was required to get his food and bring it with him, which he did. He did not explain the October 4 incident before the district court, but an exhibit admitted in evidence contains the notation by the Center's Disciplinary Committee that Davis "went to his Father-in-Law's house to help him move." Exhibit 4 to Tr. of Probation Violation Hearing (Nov. 13, 1986). Davis does not dispute on appeal that he committed the infractions of the rules of the Center which were the basis upon which the district court revoked his probation.*fn4 Moreover, Davis does not argue that his infractions were not a valid basis upon which to revoke probation; compliance with the rules of the work release program was an explicit condition of his probation.
In arguing that the district court had authority to revoke Davis' probation, the government relies on our prior decision in United States v. Veatch, 792 F.2d 48 (3d Cir.), cert. denied, 479 U.S. 933, 107 S. Ct. 407, 93 L. Ed. 2d 359 (1986), were we sustained revocation for occurrences between sentencing and the beginning of a custodial term. Davis contends that Veatch is distinguishable since Davis' infractions occurred while Davis was in the custody of the Attorney General.*fn5 Davis relies on Affronti v. United States, 350 U.S. 79, 100 L. Ed. 62, 76 S. Ct. 171 (1955), and United states v. Murray, 275 U.S. 347, 72 L. Ed. 309, 48 S. Ct. 146 (1928), as authority for the argument that probation may not be revoked on the basis of incidents occurring prior to the beginning of the probationary term while the prospective probationer is in the executive's custody.
Davis' argument is similar to that made by appellant in United states v. Camarata, 828 F.2d 974, No. 86-1766 (3d Cir., 1987). In my opinion in that case I expressed my belief that "the sentencing court retains the power to revoke probation for violations of the conditions of probation, even though those violations occurred while defendant was still in custody." Id. at 981, slip op. at . Moreover, the policy concern underlying Affronti and Murray, a desire to avoid overlap between the judiciary's power to grant probation and the executive's powers of clemency and parole, is implicated even less here than it was in Camarata. Because Davis was sentenced to less than six months custody and the district court made no specific provision for parole, Davis was never eligible for parole. See 18 U.S.C. § 4205(f).
Davis' custodial sentence provided him with an opportunity to prove his ability to comply with the conditions or probation. Instead, the district court determined that Davis' infractions demonstrated that even while subject to the highly structured Center environment, he was unable to comply wit those conditions. In such circumstances, I do not believe that Congress intended the district courts to be without the authority to revoke probation and impose a custodial term. I believe that the district courts retain the authority to determine that ...