Defendant-appellant Vincent Albano appeals from district court order denying his motion for correction of allegedly illegal sentence. Sentence appealed from includes ten-year probation period, which violates limit on probation set in 18 U.S.C. § 3651. Reversed and remanded.
Feinberg, Chief Judge, Kaufman and Cardamone, Circuit Judges.
Defendant-appellant Vincent Albano appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, J., denying his motion for correction of an allegedly illegal sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. The claimed illegality is that the court imposed a 10-year period of probation, allegedly beyond its power under 18 U.S.C. § 3651. For reasons stated below, we find that defendant's sentence did violate 18 U.S.C. § 3651. We therefore reverse and remand to the district court for correction of the sentence in accordance with this opinion.
In October 1976, defendant pled guilty to three counts of an indictment charging him with income tax evasion, in violation of 26 U.S.C. § 7201, and filing a fradulent income tax return, in violation of 26 U.S.C. § 7206(1). On one count, appellant received a sentence of three years' imprisonment and a $10,000 fine. On each of the other two counts, the court imposed a suspended three-year sentence, a $5,000 fine, and a five-year probation period. The two five-year probation periods were to run consecutively. Thus, appellant's total sentence was $20,000 in fines, and three years in prison, to be followed by ten years of probation. Appellant was released from prison in December 1979. He remained on parole until March 1980, when he began serving the first of his two five-year terms of probation.
In January 1982, defendant filed a motion to correct his sentence under Rule 35 of the Federal Rules of Criminal Procedure.*fn1 In that motion, he argued that his sentence was illegal because the ten-year probation period exceeded the five-year limit set by the Probation Act, 18 U.S.C. § 3651. The government informed the district court it would not oppose a reduction of the probation term to five years. The district court nonetheless denied appellant's motion, and appellant has renewed his claim in this court. On appeal, the government has conceded the merit of appellant's argument, and has even filed a persuasive brief in appellant's favor.
After reviewing the language of the Act, the relevant case law, and the legislative history, we agree with the parties that the Probation Act prohibits the imposition of a probation term in excess of five years on a single indictment.*fn2 The statute itself, reproduced in the margin,*fn3 states explicitly that "the period of probation, together with any extension thereof, shall not exceed five years." 18 U.S.C. § 3651. The issue, however, is whether that proviso limits the total period of probation that may be imposed under an indictment, or whether it limits only the probation period that may be imposed for each count of a multi-count indictment. Apart from the decision of the court below, the courts that have faced this issue have held or assumed, usually with little or no discussion, that the statute limits the total period of probation, even for a multi-count indictment, to five years. See United States v. Rice, 645 F.2d 691, 694 (9th Cir. 1981), cert. denied, 454 U.S. 862, 70 L. Ed. 2d 160, 102 S. Ct. 318 (1982); United States v. Hargis, 568 F.2d 21, 23 (7th Cir. 1977); Fox v. United States, 354 F.2d 752, 753-54 (10th Cir. 1965); Engle v. United States, 332 F.2d 88, 90 (6th Cir.), cert. denied, 379 U.S. 903, 13 L. Ed. 2d 176, 85 S. Ct. 192 (1964); Sanford v. King, 136 F.2d 106, 108 (5th Cir. 1943); United States v. Pisano, 266 F. Supp. 913 (E.D. Pa. 1967). As the court in Fox stated with respect to the five-year proviso in § 3651:
We believe that this means exactly what it says and that when a sentence is suspended on multiple counts and probation granted, the total probation period may not exceed five years. Otherwise on indictments or informations containing many counts a young person might be placed on probation for the remainder of his life. In our opinion such a result was not intended by Congress.
Fox v. United States, 354 F.2d at 753-54.
In denying appellant's motion, Judge Platt disagreed with the authorities cited above. In a reasoned opinion, he suggested that juxtaposing the first sentence of § 3651, see note 3 supra, with the language of the fifth paragraph limiting probation to five years reveals that the five-year limit was intended to apply only to the individual counts of an indictment. The combined language would read as follows: "Upon entering a judgment of conviction of any offense . . . the period of probation . . . shall not exceed five years." Emphasizing principally the reference to "any offense", Judge Platt construed the statute to mean that the five-year limit applies only to each offense as embodied in the individual counts of an indictment. In his view, the interpretation reached in Fox v. United States, 354 F.2d at 753-54, would be supportable only if the five-year proviso were modified by the word "total", so that it read "The period of probation . . . shall not exceed a total of five years." While we think the addition of the word "total" would have made clearer the statutory interpretation suggested by appellant, we do not think its absence requires a contrary result. Indeed, the Supreme Court, in an early decision interpreting the Probation Act, read the five-year proviso as if it contained the word total: "The only limitation, and this applies to both the grant and any modification of it, is that the total period of probation shall not exceed five years." Burns v. United States, 287 U.S. 216, 221, 77 L. Ed. 266, 53 S. Ct. 154 (1932).*fn4 In any case, we do not think the first sentence of the statute was intended to modify the five-year limit, which seems to stand by itself as a limitation on the total period of probation permissible under a single indictment.
The legislative history of the Probation Act provides some support for this interpretation. In 1910, Congress enacted a probation law for the District of Columbia, which imposed no limit on probation; a court was free to assign probation "for such a time and upon such terms as it may deem best. . . ." Pub. L. No. 315, § 2, 36 Stat. 864 (1910). In 1915, a bill was introduced in the Senate that would provide federal courts throughout the country with the option of imposing probation. S. 1092, 64th Cong., 1st Sess. (1915). Unlike the District of Columbia probation statute, however, the Senate bill would have set a limit on probation equal to the defendant's possible sentence:
Provided, That the original probationary period, together with any extensions thereof, shall not exceed the maximum period for which the defendant might have been originally sentenced.
This Senate bill was not enacted, but in 1925 Congress passed the Probation Act, Pub. L. No. 596, 43 Stat. 1259 (1925). The Act was similar to the earlier Senate bill, but the limitation on the maximum ...