United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 2, 2012 Decided March 29, 2013

No. 11-3035

UNITED STATES OF AMERICA,

APPELLEE

v.

TERRY DAVIS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cr-00193-1)

Allen H. Orenberg, appointed by the court, argued the cause

and filed the brief for appellant.

Christopher Macchiaroli, Assistant U.S. Attorney, argued

the cause for appellee. With him on the brief were Ronald C.

Machen, Jr., U.S. Attorney, and Chrisellen R. Kolb and Michael

K. Atkinson, Assistant U.S. Attorneys. Elizabeth Trosman,

Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, Chief Judge, KAVANAUGH, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: After a jury convicted Terry Davis

of multiple counts of bank fraud, he successfully appealed his

convictions to a panel of this court, which vacated them on the

ground that the district court had erred in admitting certain of his

statements in evidence. Thereafter, Davis pled guilty to a single

count of bank fraud and received a sentence of the time he had

already served on the earlier convictions, plus five years of

supervised release. He now contends that his term of supervised

release should be calculated as having commenced when he was

ordered released on his own recognizance pending his ultimately

successful appeal. We disagree and conclude that Davis’ term

of supervised release did not commence until he was sentenced,

on the charge to which he pled guilty, to time served plus five

years of supervised release. 

I

From 1999 to 2003, Terry Davis served as national treasurer

of the Phi Beta Sigma fraternity. United States v. Davis, 596

F.3d 852, 854 (D.C. Cir. 2010). During that time, Davis used at

least $50,000 of the fraternity’s funds for his own benefit by

periodically writing checks to cash, sometimes forging the

signature of the fraternity’s national president and sometimes

representing to fraternity officials that the proceeds of the

checks went to fund fraternity activities. Davis was indicted on

federal charges in June 2006 and arrested the following month. 

In May 2007, a jury found him guilty on one count of firstdegree fraud, one count of first-degree theft, and multiple counts

of bank fraud in connection with his activities as treasurer. On

August 7, 2007, the district court sentenced Davis to 51 months’

imprisonment followed by five years of supervised release,

Judgment at 1-4, United States v. Davis, No. 06-cr-193 (D.D.C.,

filed Aug. 20, 2007), and committed him to the custody of the

Bureau of Prisons to serve his term, id. at 3.

Davis appealed his convictions. On December 4, 2009,

immediately following oral argument, a panel of this court
3

ordered that Davis “be released forthwith pending resolution of

this appeal, subject to the terms and conditions of pretrial release

set by the district court in its order of July 12, 2006,” the day of

Davis’ original arrest. Order, United States v. Davis, No. 07-

3100 (D.C. Cir. Dec. 4, 2009). On December 17, the district

court released Davis on his own recognizance, pursuant to a

modified set of pretrial release conditions. Release on

Conditions (Dec. 30, 2009) (J.A. 22). In February 2010, the

circuit panel vacated the district court’s judgment of conviction,

finding that the district court erred in admitting statements Davis

had made in compromise negotiations, in contravention of

Federal Rule of Evidence 408, and remanded the case for further

proceedings. Davis, 596 F.3d at 861. Thereafter, the district

court set a retrial date and again slightly modified the conditions

of Davis’ pretrial release.

On November 8, 2010, the government filed a superseding

information charging Davis with a single count of bank fraud in

connection with his defrauding of Phi Beta Sigma. Davis pled

guilty to the information later that month. On March 14, 2011,

the district court sentenced him to the time he had served on his

2007 sentence before the district court ordered his release in

December 2009, plus five years of supervised release. Davis has

filed a timely appeal.

II

Davis’ sole contention is that the district court erred in

setting March 14, 2011, the day the district court sentenced him

on the charge to which he pled guilty, as the commencement

date of his five-year term of supervised release. Davis Br. 7.1

1

 Although other parts of Davis’ brief created some ambiguity as

to when he thought the district court intended his supervised relief

term to commence, at oral argument Davis made clear that he believes
4

The correct date, he maintains, is December 17, 2009, the day

the district court (in response to the appellate panel’s

instruction) ordered his release pending resolution of his appeal

from his original convictions. The 2009 date is dictated, he

insists, by the text of 18 U.S.C. § 3624(e).

Davis acknowledges that he failed to object to the start date

of his term of release in the district court. Oral Arg. Recording

at 1:21-2:40. We therefore review his claim for plain error only. 

See United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir.

2005). This standard of review has no consequence, however,

because we discern no error at all.

In pertinent part, § 3624(e) states:

Supervision after release. -- A prisoner whose sentence

includes a term of supervised release after

imprisonment shall be released by the Bureau of

Prisons to the supervision of a probation officer who

shall, during the term imposed, supervise the person

released . . . . The term of supervised release

commences on the day the person is released from

imprisonment . . . .

18 U.S.C. § 3624(e) (emphasis added). Focusing on the second

(italicized) provision in the subsection, and contending that he

was “released from imprisonment” on December 17, 2009,

Davis maintains that the term of his supervised release

commenced on that date. In context, however, it is clear that

this provision of § 3624(e) offers Davis no relief.

the district court determined that it would commence on March 14,

2011. Oral Arg. Recording at 19:04-19:18. The government agrees

that it is “very clear” the district court intended the term to begin on

that date, id. at 17:30-17:46, as do we.
5

The provision that Davis cites is immediately preceded by

a provision (also quoted above) that states: “A prisoner whose

sentence includes a term of supervised release after

imprisonment shall be released by the Bureau of Prisons to the

supervision of a probation officer who shall, during the term

imposed, supervise the person released . . . .” Id. (emphases

added). This first provision makes clear that the “supervised

release” referred to in the second provision is a component of a

particular sentence that was imposed on the prisoner. But the

sentence that Davis challenges on this appeal -- more

specifically, the supervised release term “include[d]” in that

sentence -- did not exist on December 17, 2009. At that time,

Davis was subject to a different sentence, which had been

handed down in August 2007. Moreover, that sentence was

vacated by this court in February 2010, and from then until

March 2011, he was not subject to any sentence at all. It was

not until March 14, 2011, that the sentence with the supervised

release component that Davis challenges here was issued. 

Hence, the supervised release term could not have commenced

in December 2009, more than a year before it was imposed.

Nor was Davis released in December 2009 to “supervised

release” in the sense contemplated by § 3624(e). As we have

said, the first provision of § 3624(e) indicates that the “release”

it references is release by the Bureau of Prisons to the

supervision of a probation officer for a term of supervision

following expiration of a sentence’s term of imprisonment.2

 But

Davis was not released in December 2009 because his term of

imprisonment had expired. Rather, he was released because this

2

 This is confirmed by the text of § 3624(a), the first subsection

of § 3624. That subsection is entitled “Date of release” and states: “A

prisoner shall be released by the Bureau of Prisons on the date of the

expiration of the prisoner’s term of imprisonment . . . .” 18 U.S.C.

§ 3624(a).
6

court so ordered pending resolution of his appeal. Nor was he

released “to the supervision of a probation officer,” as

contemplated by § 3624(e). Instead, he was required to report

to the D.C. Pretrial Services Agency. See Release on Conditions

(Dec. 30, 2009) (J.A. 22); Order (D.D.C. Aug. 17, 2010); see

also Release on Conditions (July 12, 2006). Indeed, Davis was

not released to the supervision of the Probation Office until he

was sentenced on March 14, 2011. See Judgment at 3 (filed

Mar. 25, 2011) (J.A. 114).

So what was the nature of Davis’ December 2009 release if

it was not “supervised release”? Davis was first ordered

released by the district court, per this court’s instruction,

“pending resolution of [his] appeal” and “subject to the terms

and conditions of pretrial release set by the district court in its

order of July 12, 2006.” Order, United States v. Davis, No. 07-

3100 (D.C. Cir. Dec. 4, 2009). The district court continued (and

modified) those earlier conditions pending a possible retrial or

plea. See Release on Conditions (Dec. 30, 2009) (J.A. 22);

Order (Aug. 17, 2010). In short, Davis was released “pending

judicial proceedings,” which is the subject (and title) of Chapter

207 of Title 18 of the United States Code, the Title of the Code

that covers release pending trial and appeal. See 18 U.S.C.

§ 3141(a), (b). It is for that reason that he was required to report

not to Probation but to Pretrial Services, the entity that is

responsible for persons released under Chapter 207. See 18

U.S.C. § 3154(3). And in the end, it is also for that reason that

the provisions of 18 U.S.C. § 3624(e) are not relevant to Davis’

2009 release pending resolution of his appeal. Section 3624(e)

is not part of Chapter 207, but rather part of Chapter 229, which

covers the subject of (and is entitled) “Postsentence

Administration.” As we have explained, Davis was not

“postsentence” in December 2009. To the contrary, the sentence

from which he now appeals had not yet begun.
7

Davis contends that his textual argument is supported by the

Supreme Court’s decision in United States v. Johnson, 529 U.S.

53 (2000), but the problem addressed in that case is different

from the one at issue here. In Johnson, the question was

whether a prisoner who had been imprisoned longer than he

should have been could have that time credited to his supervised

release term, reducing its length. Ruling that the text of 18

U.S.C. § 3624(e) controlled the question, the Court held that “a

supervised release term does not commence until an individual

‘is released from imprisonment.’” 529 U.S. at 57 (quoting 18

U.S.C. § 3624(e)). But holding that a supervised release term

does not commence until release from imprisonment is not the

same as saying that every release from imprisonment does

commence a supervised release term. Moreover, the Court

noted that its construction was confirmed by the first sentence

of § 3624(e), which provides that supervised release does not

come until the prisoner is “released by the Bureau of Prisons to

the supervision of a probation officer.” Id. (emphasis added). 

As we have noted above, Davis was not released to the

supervision of a probation officer until he was sentenced on

March 14, 2011.

Finally, Davis suggests that we should calculate his term of

supervised release as commencing in December 2009 because

the release conditions the court imposed on him at that time

were “akin” to those included in the supervised release

conditions of the sentence it imposed in March 2011. Davis Br.

10. In fact, the two sets of conditions are quite different, as the

latter are materially more restrictive. Compare Release on

Conditions (Dec. 30, 2009) (J.A. 22), with Judgment at 3-4

(filed Mar. 25, 2011) (J.A. 114-15). Nor are the objectives of

the two kinds of release conditions congruent. The former are

intended to assure that a defendant will appear at future judicial

hearings and not commit a crime in the interim. See 18 U.S.C.

§ 3142 (b), (c). The latter are intended, among other things, to
8

ease a defendant’s transition into the community and provide for

rehabilitation. See Johnson, 529 U.S. at 59 (citing, inter alia, S.

REP.NO. 98-225, at 124 (1983)); U.S.SENTENCING GUIDELINES

MANUAL § 5D1.3; accord United States v. Vallejo, 69 F.3d 992,

994 (9th Cir. 1995). 

But it would not matter even if the two sets of conditions

were the same. Davis does not cite any statute that would cause

his term of supervised release to commence earlier than the date

he was sentenced merely because he had previously been subject

to equivalent pretrial release conditions. As we have explained,

the only statute that he does cite, 18 U.S.C. § 3624(e), does not

apply to the kind of release to which Davis was subject from

December 2009 to March 2011. And in the absence of a statute,

we have no authority to change the date upon which his

supervised release began. Cf. Johnson, 529 U.S. at 60.

III

For the foregoing reasons, we conclude that Davis did not

become a “prisoner whose sentence includes a term of

supervised release after imprisonment,” 18 U.S.C. § 3624(e),

until March 14, 2011, the date the district court sentenced him

to time served plus five years of supervised release. 

Accordingly, because his term of supervised release did not

commence until that date, the judgment of the district court is

Affirmed.