Under 18 U.S.C. § 3651, after a sentence of consecutive terms on
multiple counts of an indictment has been imposed and service of
sentence for the first such term has commenced, a federal district
court may not suspend sentence and grant probation as to the
remaining term or terms.
United States v. Murray,
275 U. S. 347. Pp.
350 U. S.
79-84.
(a) The legislative history of this section does not require a
different result. Pp.
350 U. S. 81-82,
350 U. S.
84.
(b) The probationary power ceases with respect to all of the
sentences composing a single cumulative sentence immediately upon
imprisonment for any part of the cumulative sentence. Pp.
350 U. S.
82-83.
(c) The provisions for probation should be interpreted to avoid,
so far as possible, duplicating other existing provisions for the
mitigating of criminal sentences. P.
350 U. S.
84.
221 F.2d 150 affirmed.
MR. JUSTICE REED delivered the opinion of the Court.
Affronti was tried in the United States District Court for the
Western District of Missouri on a ten-count indictment charging him
with illegal sales of narcotics. A jury found him guilty on counts
two through ten, and a five-year sentence was imposed on each
count, to be served consecutively. At the time of sentencing,
execution of the sentences on counts six through ten was suspended
and probation granted, the probation to commence at the
Page 350 U. S. 80
expiration of the sentences on counts two through five. While
serving his sentence on count two, petitioner filed a motion in the
District Court seeking suspension of sentence and probation on
counts three, four and five. The motion was denied upon the
controlling authority of
Phillips v. United States, 212
F.2d 327 (1954), which held that the district courts have no power
to suspend sentence after a prisoner has begun to serve a
cumulative sentence composed of two or more consecutive sentences.
The Court of Appeals affirmed, [
Footnote 1] and we granted certiorari [
Footnote 2] because of the existence of a conflict
between the decision below and the decision of the Ninth Circuit in
Kirk v. United States, 185 F.2d 185. [
Footnote 3]
Prior to 1925, the district courts had no power at all to
suspend sentences and release a convict on probation.
Ex parte
United States, 242 U. S. 27. This
situation was remedied by Congress when it passed the Probation Act
in 1925. [
Footnote 4] That Act
gave power to the federal courts, "after conviction or after a plea
of guilty or
nolo contendere," to suspend sentence and
place the defendant on probation. [
Footnote 5] The purpose of the Act, as revealed by its
legislative history, was discussed by this Court in
United
States v. Murray, 275 U. S. 347.
That case also presented a question concerning the time within
which a district court can suspend a sentence and grant
probation.
Page 350 U. S. 81
In
Murray, this Court observed that, in view of the
existence of provisions for parole and executive clemency, it would
seem unlikely that Congress would have intended to make the
probation provisions applicable during the same period of time.
Id. at
275 U. S. 356.
It was concluded that it would be more reasonable to construe the
Probation Act so as to reconcile the three methods of mitigation of
criminal sentences, thereby "making them as little of a repetition
as we can."
Id. at
275 U. S. 357.
This and other considerations led the Court to hold that a district
judge had no power under the Act to place a convict on probation
after he had begun the execution of his sentence.
The decision in the
Murray case does not, however,
completely dispose of the question now before the Court. Since the
Murray decision, there has been a language change in the
statutory provisions for probation. In
Murray, the Court
was considering the question of power of the district courts to
place a convict on probation after he had commenced to serve a
single general sentence. [
Footnote
6] Here, we are concerned with the power to grant suspension of
sentences which are, technically, wholly unexecuted because they
constitute the unserved terms of a series of consecutive
sentences.
In 1948, in connection with the revision and codification of
Title 18 of the United States Code, the language of the
Page 350 U. S. 82
Probation Act with which we are concerned was changed. The
statute now provides for suspension of sentence and probation
"[u]pon entering a judgment of conviction." [
Footnote 7] The substitution of the quoted words
for "after conviction or after a plea of guilty or
nolo
contendere," the phrase which appeared in the Probation Act
prior to the 1948 codification of Title 18, does not appear to have
resulted in any substantive change in the law. The Reviser's Notes
which accompanied the 1948 codification merely stated the following
with respect to this amendment:
"Words 'after conviction or after a plea of guilty or
nolo
contendere for any crime or offense not punishable by death or
life imprisonment' were omitted from first sentence as unnecessary.
[
Footnote 8]"
The Reviser's Notes were used by Congress as a full explanation
of all changes made in the text of the existing law. [
Footnote 9] It is unlikely, therefore, that
Congress intended the phrase as it appears in the present section
to have a different meaning than the phrase had prior to the
revision. [
Footnote 10]
The more significant difference between the
Murray case
and the present one is the fact that here we are dealing with a
cumulative sentence composed of a number of distinct sentences
which are to run consecutively. [
Footnote 11] Petitioner notes that, while he has begun
the execution of the first of the series of sentences, he has not
commenced the execution of the sentences which he is now seeking to
have suspended. He reasons from this fact that the District Court
still has probationary power over the latter sentences. Of course,
the words of the statute do not themselves require adoption of
petitioner's argument. In fact, the language of the present
probation provision, and
Page 350 U. S. 83
of the original provision as interpreted by
Murray,
suggests a contrary result.
In the final analysis, this case must be governed by the meaning
of the statute. Are we to read the statute to mean that the courts
should be able to suspend the uncommenced terms of a cumulative
sentence after the prisoner has been imprisoned and entered upon
the execution of a prior term? We think not. The
Murray
opinion points out that it is unlikely that Congress would have
found it wise to make probation apply in such a way as to
unnecessarily overlap the parole and executive clemency provisions
of the law. Federal judicial power to permit probation springs
solely from legislative action.
Ex parte United States,
supra. The authority to put a convict on probation for an
uncommenced term, after service of an earlier term has begun, has
not been clearly given. Therefore, in construing the provisions for
probation, we adhere to the
Murray interpretation to avoid
interference with the parole and clemency powers vested in the
Executive Branch. [
Footnote
12] We conclude that the probationary power ceases with respect
to all of the sentences composing a single cumulative sentence
immediately upon imprisonment for any part of the cumulative
sentence. [
Footnote 13]
Page 350 U. S. 84
We note the argument that, since Congress has authorized the
sentencing court to limit probation to less than all of the terms
of a cumulative sentence, [
Footnote 14] it should follow that the probation powers
for each term exist until that term is begun. But the power to
limit a grant of probation to less than an entire cumulative
sentence does not compel a conclusion that the power to grant
probation as to each of the separate sentences exists until the
convict begins to serve each. We think, moreover, this argument is
met by our conclusion that the provisions for probation should be
interpreted to avoid, so far as possible, duplicating other
existing provisions for the mitigation of criminal sentences.
See note 12
supra.
Congress has done nothing since this Court's decision in
United States v. Murray, supra, to indicate that probation
power should be applied after the beginning of any term of a
sentence.
Affirmed.
[
Footnote 1]
221 F.2d 150.
[
Footnote 2]
349 U.S. 951.
[
Footnote 3]
The Fourth Circuit appears to be in accord with the Eighth
Circuit on this question.
Mann v. United States, 218 F.2d
936. The Tenth Circuit,
obiter dictum, in
White v.
Steigleder, 37 F.2d 858, 859, is in accord with the Ninth
Circuit.
See also Kelley v. United States, 209 F.2d
638.
[
Footnote 4]
43 Stat. 1259.
[
Footnote 5]
The power extended to sentences for convictions of any offense
not punishable by death or life imprisonment, and the exercise of
the power was discretionary, and conditioned upon the ends of
justice and the best interests of the public and the defendant.
[
Footnote 6]
The
Murray decision embraced two cases consolidated for
argument. In one of the cases, the District Court had suspended a
three-month prison sentence and placed the convict (Murray) on
probation one day after he had commenced serving the sentence. In
the other case, the prisoner (Cook) had been sentenced to "a total
of fourteen years and nine months" imprisonment, and the District
Court suspended the remainder of his sentence and placed him on
probation after he had served approximately two years of the
sentence.
Whether Cook's sentence was in fact a cumulative sentence of a
number of consecutive sentences (
see Phillips v. United
States, 212 F.2d 327, 332) is unimportant at this time. His
sentence was treated as if it had been a single general
sentence.
[
Footnote 7]
62 Stat. 842, 18 U.S.C. § 3651.
[
Footnote 8]
H.R.Rep. No. 304, 80th Cong., 1st Sess., App. A173.
[
Footnote 9]
Id. at 9.
[
Footnote 10]
See Kirk v. United States, 185 F.2d 185, 188.
[
Footnote 11]
See note 6
supra.
[
Footnote 12]
That a contrary construction would result in an unnecessary
overlap between probation and parole provisions is made clear by a
reference to 18 U.S.C. § 4202. That section provides that a federal
prisoner may be paroled after he has served one-third of the "term
or terms" for which he is confined. Thus, if serving a cumulative
sentence composed of two or more consecutive sentences, a prisoner
is eligible for parole when he has served one-third of the total
sentence.
See also 18 U.S.C. § 4161, which provides that
"When two or more consecutive sentences are to be served, the
aggregate of the several sentences shall be the basis" for
computing time off for good behavior.
[
Footnote 13]
This conclusion as to the meaning of the statute is further
supported by a recognition of some of the practicalities of
sentencing. At the time of entering a judgment of conviction, the
district judge is in the best position to fix the terms of a
convict's sentence. Thereafter, however, the judge becomes
progressively less familiar with the considerations material to the
adjustment of the punishment to fit the criminal. At the same time,
the officials of the Executive Branch responsible for these matters
become progressively better qualified to make the proper
adjustments.
Cf. United States v. Soeder, 120 F. Supp.
594, 597;
United States v. Bernett, 123 F. Supp. 841, 846.
These considerations apply as much to a series of consecutive
sentences as to a simple general sentence.
But see Note, Application of Federal Probation to
Convicts Serving Consecutive Sentences, 64 Yale L.J. 260, 265-268
(1954).
[
Footnote 14]
18 U.S.C. § 3651. The provision for probation "limited to one or
more counts or indictments" was added by the 1948 codification of
Title 18. The Reviser's Notes indicate that this provision was
added because it "reflects exactly the practice followed by Federal
courts." H.R.Rep. No. 304, 80th Cong., 1st Sess., App. A173. Thus,
this addition did not result in a substantive change in the
Probation Act, and does not of itself reveal any extension
thereof.