Gregory v . United States CV-03-492-M 12/08/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Nicholas Gregory, Petitioner

v. Civil N o . 03-492-M Opinion N o .

United States of America, Respondent

O R D E R

Nicholas Gregory petitions for relief pursuant to

, arguing that his criminal sentence was unlawful in that a

two year period of supervised release was imposed following his

imprisonment for ten months. Petitioner asserts, incorrectly,

that a period of supervised release cannot lawfully be imposed as

part of a criminal sentence unless a period of incarceration

exceeding one year is also imposed. While it is true that a

period of supervised release must be imposed as part of a

criminal sentence when incarceration for more than one year is

imposed, supervised release “may” be imposed as part of a

sentence in any case in which some period of imprisonment is

imposed. See

(a); United States Sentencing

Guideline § 5D1.1. Here, a ten month period of imprisonment was imposed. Therefore, the supervised release imposed was entirely

lawful.

Petitioner asserts a related claim as well — that his

attorney provided ineffective assistance by failing to recognize

and argue the impropriety of imposing supervised release.

Counsel was not ineffective. Petitioner’s underlying point is

legally incorrect, and counsel could not have responsibly made

the argument petitioner now asserts. Additionally, no prejudice

inured to petitioner because the argument he says should have

been made would not have been successful. See Strickland v .

Washington,

(1984) (requiring a showing of both

error and prejudice to establish ineffective assistance of

counsel).

Finally, petitioner seems to argue that he was prejudiced by

counsel’s failure to object to the prosecutor’s suggestion, at

sentencing, that the government’s recommendation of a sentence

that included two years of supervised release was at the “low

end” when in fact the “low end” would not have included

supervised release at all (since, in petitioner’s view, it was

2 not mandatory, given the incarceration period of less than one

year). Again, defense counsel was not ineffective. First, “low

end” usually refers to the period of incarceration in the context

of Guideline Sentencing plea bargains. Indeed, petitioner’s plea

agreement (document n o . 7 , p . 4 , C r . N o . 02-80-01-M) provides

that “The United States will recommend that the defendant be

sentenced at the low end of the applicable Guideline Sentencing

Range (“GSR”). Second, even if counsel had objected and made

petitioner’s point at sentencing, it would have made no

difference whatsoever. The court would have imposed a two year

period of supervised release in any event, even had defense

counsel objected, and even if the prosecutor, consistent with

petitioner’s current interpretation of what a “low end”

recommendation properly includes, had recommended no period of

supervised release in this case. Accordingly, no prejudice was

suffered by petitioner.

Conclusion

The petition for relief pursuant to

is

hereby denied; the petition, files and records of the case

conclusively show that the prisoner is entitled to no relief.

3 SO ORDERED.

Steven J. McAuliffe United States District Judge

December 8 , 2003

cc: Nicholas Gregory Peter E . Papps, Esq.

4