IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-40933

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LARRY MICHAEL JEANES,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Texas

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August 7, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Larry Jeanes appeals the den ial of his motion for postsentence modification of his term of supervised release. We

affirm.

I.

In 1992, Jeanes pleaded guilty to each count of a three-count

information charging him with violations of 18 U.S.C. § 922(g)

(felo n in possession of a firearm), 21 U.S.C. § 841(b)(1)(D)1 The government argues that we lack jurisdiction over this appeal because

Jeanes's notice of appeal was not timely filed. This argument is without merit,

a s the record indicates that Jeanes filed notice within 10 days o f entry of

judgment.

2 (possession of marihuana with intent to distribute), and 18 U.S.C.

§ 924(c) (carrying a firearm during a drug-trafficking crime). He

was sentenced to twenty-one months on counts 1 and 2, to be served

concurrently, and sixt y months on count 3, to be served

consecutively.

In 1996, Jeanes filed a motion under 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence in light of B ailey v.

United States

, 516 U.S. 137 (1995). Specifically, Jeanes

challenged the evidence underlying his § 924(c) plea, arguing that

the evidence did not support a finding that he actively employed

the firearm. The district court vacated the § 924(c) judgment and

sentence. Because Jeanes had already served more than twenty-one

months, he was immediately released from custody and began his term

of supervised release stemming from the remaining two counts.

Jeanes then filed a motion for post-sentence modification of

his term of supervised release, arguing that the court should apply

his good-time cr edits and time served to his supervised release

term. The court denied the motion. 1

II.

The question presented is whether the district court erred in

refusing to reduce Jeanes's term of superv ised release. Jeanes3

deploys two overlapping arguments: that the court should have

reduced his term pursuant to the plain language of 18 U.S.C.

§ 3583(e)(1) and should have reduced his term by applying his time

served and good-time credits that accrued during his incarceration

for the § 924(c) count. We review for abuse of discretion. U nited

States v. Grandlund , 71 F.3d 507, 509 (5th Cir. 1995), clarified

,

77 F.3d 811 (5th Cir. 1996).

A.

Jeanes argues that the district court abused its discretion by

refusing t o discharge him from his remaining term of supervised

release pursuant to the statute's plain language. He points out

that his conduct as a federal prisoner was exemplary and argues

that the interest of justice warranted his release.

The district court, under § 3583(e)(1), may terminate a term

of supervised release at any time after the defendant has served

one year of supervised release. The statute directs the court to

take into account a variety of considerations, including the nature

of the offense an d the history of the offender, as well as any

implications for public safety and deterrence. These are largely

the same considerations the court must assess when imposing the

original sentence.

After weighing thes e factors, the court may discharge the

de fendant from supervised release “if it is satisfied that such4

action is warranted by the conduct of the defendant released and

the interest of justice.” § 3583(e)(1). In sum, the statute

confers broad discretion.

The court noted that the probation office, should it find that

Jeanes posed little danger to the community, could weaken his

reporting requirements or oth erwise modify the conditions of

supervised release. Accordingly, the court concluded that keeping

Jeanes under the continued supervision of the probation office was

“a much better alternative than completely removing [him] from the

Probation Office's supervision.” Jeanes paints these remarks as an

abdication of the court's responsibility to consider on its own the

merits of his motion S S amounting, he says, to an abuse of

discretion.

This is a mischaracterization: The district court explicitly

considered such factors as Jeanes's exemplary conduct while in

custody a nd the burden on his family stemming from continued

supervision. These factors cut in favor of his claim. But the

court also observed that Jeanes “is a convicted felon, and certain

consequences flow from choices he has made.” S ee 18 U.S.C.

§ 3553(a)(2)(B) (noting that district court must consider whether

its decision will “afford ade quate deterrence to criminal

conduct”). Moreover, the court was agnostic as to whether

Jeanes's discharge from supervision m ight pose a risk to the

community. While lauding his behavior to date, the court was5

careful to note that problems might arise in the future.

Accordingly, the court determined that co ntinued supervision was

the wisest choice. S ee 18 U.S.C. § 3553(a)(2)(C) (holding that

district court must consider whether its decision will “protect the

public from further crimes of the defendant ”). Given the

foregoing, we do not agree that the court abused its discretion.

B.

Jeanes asks that his time served and good-time credits on the

now-vacated § 924(c) sentence be applied to reduce his term of

supervised release. Although framed as a double-jeopardy

challenge, his argument is essentially tha t he is entitled to

red uction or termination of his supervised release term as

compens ation for the time served on the wrongful conviction and

sentence.

Although we have yet to pass on the question, a similar

situation was confronted in United States v. Joseph

, 109 F.3d 34

(1st Cir. 1997). There, a defendant whose § 924(c) conviction was

vacated sought to have his term of supe rvised release (stemming

from a separate, valid conviction) reduced accordingly. The court

rejected his claim, observing that “imprisonment and supervised

release are designed to serve very different purposes.” I d

. at 38.

The court explained:

Rather than being punitive, supervised release is

intended to facilitate “the integration of the violator2 See also Uni ted States v. Love , 19 F.3d 415, 417 n. 4 (8th Cir. 1994)

(noting purposes of supervised release).

6 into the community, while providing the supervision

designed to limit further criminal conduct.”

Incarceration, to the contrary, does nothing to assist a

defendant's transition back into society and is not a

reasonable substitute for a portion of the supe rvised

release term.

Id

. at 38-39 (quoting U.S.S.G. ch. 7, pt. A, comment. (n. 4), p.s.)

(internal citation omitted). 2

We agree t hat incarceration and supervised release are not

fungible. The supervised release term serves a broader, societal

purpose by reducing recidivism. While substituting wrongful

incarceration time for supervised release time may even the ledger

from the defendant's perspec tive, it affects the public by

eliminating the defendant's transition period.

We note that Jeanes's claim to a time-served offset is fully

cognizable under § 3583(e)(1), which requires a district court to

consider the “interest of justice” in deciding whether termination

of a termof supervised release is appropriate. S ee Joseph

, 109

F.3d at 39. So, in making its decision, a court may take into

account the fact that a defendant served time under a wrongful

conviction and sentence. Like the First Circuit, however, we opt

not to invent so me form of “automatic credit” as a means of

compensation. S ee id

. Claims of injustice or unfairness may

properly be evaluated SS as one factor among many SS under the broad and

general directive of § 3583(e)(1).7

AFFIRMED.