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 denial 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)

(felon 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,

as the record indicates that Jeanes filed notice within 10 days of 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 sixty 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 Bailey 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 credits 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 supervised release. Jeanes
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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. United

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 to 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 and 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 these factors, the court may discharge the

defendant from supervised release “if it is satisfied that such
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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 otherwise 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 motionSSamounting, 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 and 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.” See 18 U.S.C.

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

its decision will “afford adequate deterrence to criminal

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

Jeanes's discharge from supervision might pose a risk to the

community. While lauding his behavior to date, the court was
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careful to note that problems might arise in the future.

Accordingly, the court determined that continued supervision was

the wisest choice. See 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 that he is entitled to

reduction or termination of his supervised release term as

compensation 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 supervised 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.” Id. at 38.

The court explained:

Rather than being punitive, supervised release is

intended to facilitate “the integration of the violator
2 See also United 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 supervised

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 that 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 perspective, 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 term of supervised release is appropriate. See 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 some form of “automatic credit” as a means of

compensation. See id. Claims of injustice or unfairness may

properly be evaluatedSSas one factor among manySSunder the broad and

general directive of § 3583(e)(1).
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AFFIRMED.