Sentence after revocation can’t exceed initial SR term

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When revoking supervised release, a court cannot order a combined term of imprisonment and additional supervised release that is longer than the original supervised release term, the Seventh Circuit held on Aug. 13.

In 1994, Kevin Russell was convicted of bank fraud, a Class B felony, and sentenced to 70 months’ imprisonment and a 60-month term of supervised release. Upon his release from prison, Russell violated the conditions of his supervised release.

As a result, the district court revoked Russell’s supervised release and ordered him to serve 36 additional months in prison to be followed by a new 46-month term of supervised release. Russell appealed, and the Seventh Circuit reversed in a decision by Judge Daniel A. Manion.

History

At the time of Russell’s conviction in 1994, 18 U.S.C. 3583(e)(3)(1988 ed., Supp. V) authorized district courts to: “revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for the time previously served on post-release supervision, … except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison, if the offense for which the person was convicted was a Class B felony…” The statute has since been amended, but the 1988 version of sec. 3583(e)(3) applies to Russell’s sentence.

Section 3583(e)(3) did not specifically address whether a district court revoking a term of supervised release may require a defendant to serve an additional term of supervised release upon his release from prison, and a split developed within the circuits on the issue.

In 1994, Congress attempted to resolve this circuit split by enacting 18 U.S.C. 3583(h), which provides: “When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.”

However, another circuit split then developed whether application of sec. 3583(h) to cases involving a conviction preceding the subsection’s effective date violated the Ex Post Facto Clause.

The Supreme Court resolved this conflict in Johnson v. United States, 529 U.S. 694, 702 (2000), holding that Congress did not intend for sec. 3583(h) to have retroactive application and thus did not implicate the Ex Post Facto Clause.

In Johnson, the Court also addressed the issue Congress had attempted to resolve by enacting sec. 3583(h) in the first place: whether ‘a district court revoking a term of supervised release in favor of reimprisonment may require service of a further term of supervised release following the further incarceration.’ Id. at 704. The Court concluded that a district court could impose a new term of supervised release after reimprisonment, but in doing so held that a combined term of reimprisonment and additional supervised release under sec. 3583(e)(3) could not exceed the length of the original term of supervised release. Id. at 705-06.

Because Russell’s original term of supervised release was only 60 months, while the sentence upon revocation was 36 months reimprisonment, plus 46 months additional supervised release for a total of 82 months, the court held the sentence exceeded the district court’s authority, and that 24 months was the maximum supervised release term that the court could impose.

U.S. v. Marlow

The government argued that the holding in Johnson did not prohibit the sentence imposed, however, claiming that it could be affirmed under the rationale adopted by the Sixth Circuit in United States v. Marlow, 278 F.3d 581 (6th Cir.), cert. denied, 535 U.S. 1119 (2002).

In Marlow, the district court revoked the defendant’s original four-year term of supervised release and sentenced him to serve 20 months in prison, followed by a new four-year term of supervised release. On appeal, although the Sixth Circuit agreed that, after Johnson, sec. 3583(e)(3) could not be interpreted as authorizing the sentence, it nevertheless concluded that the district court was authorized to impose such a sentence pursuant to its general sentencing authority under 18 U.S.C. sec. 3583(a).

The Sixth Circuit reasoned, “Though the [Johnson] Court’s discussion of this issue was dicta, six justices agreed that ‘[t]here is no reason to think that under that regime [if subsection (e)(3) did not authorize a court to order a post-revocation term of supervised release] the court would lack the power to impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U.S.C. sec. 3583(a).” Marlow, 278 F.3d at 587, quoting Johnson, 529 U.S. at 708.

The Seventh Circuit rejected the reasoning of Marlow for several reasons, however.

First, the court found that the Marlow court’s reliance on dicta from Johnson is “entirely misplaced.” The court noted that the language at issue, written by Justice Souter, was in response to arguments made by Justice Scalia in his lone dissent over the meaning of the word, “revoke.”

The full text of Souter’s argument is, “Let us suppose that Congress had legislated in language that unequivocally supported the dissent, by writing subsection (3) to provide that the judge could ‘revoke’ or ‘terminate’ the term of supervised release and sentence the defendant to a further term of incarceration. There is no reason to think that under that regime the court would lack the power to impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U.S.C. sec. 3583(a)…”

The court thus concluded, “When viewed in context, it becomes clear that the Marlow Court’s reading of Johnson is untenable. The Supreme Court in Johnson did not imply, as the Sixth Circuit suggests, that a district court could revoke a defendant’s term of supervised release under sec. 3583(e)(3) and then sentence him to a combined term of reimprisonment and additional supervised release in excess of the original term of supervised release by using its general sentencing authority under 18 U.S.C. sec. 3583(a). Instead, the Court merely posited that if Justice Scalia were correct … a district court would still have the power ‘under that regime’ to ‘impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U.S.C. sec. 3583(a).’”

The court added, “The Johnson Court, however, rejected Justice Scalia’s interpretation of ‘revoke.’ Therefore, the Court’s speculation on what the outcome of the case might have been under a hypothetical statute containing ‘language that unequivocally supported the dissent’ is of no consequence.”

The court further found that the text of sec. 3583(a) strongly suggests that it applies only to the initial sentence, and does not apply to resentencing after revocation. The statute states that it applies to courts imposing a sentence, “for a felony or a misdemeanor.”

The court concluded, “Congress’s use of the phrase ‘for a felony or a misdemeanor’ can logically be interpreted as referring only to the underlying offense of conviction. Although all federal convictions are either felonies or misdemeanors, the same cannot be said of all violations of a condition of supervised release, which can encompass conduct that is neither a felony nor a misdemeanor (e.g., failure to report an arrest to a probation officer).”

The court further noted that, since subsec. (e)(3) is the more specific statute, applying solely to revocations, it takes precedence over the general statute, subsec. (a).
Advisory Opinion

Russell also argued that, because the court imposed the maximum imprisonment allowed on resentencing — three years — it could not impose any additional supervised release. However, the court determined it could not decide the argument, because to do so in the absence of a second revocation would constitute issuing an advisory opinion.

The court issued dicta suggesting the sentence was lawful, however.

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Again, the court cited Johnson v. United States, quoting as follows: “Section 3583(e)(3) limits the possible prison term to the duration of the term of supervised release originally imposed. (If less than the maximum has been imposed, a court presumably may, before revoking the term, extend it pursuant to sec. 3583(e)(2); this would allow the term of imprisonment to equal the term of supervised release authorized for the initial offense.) The new prison term is limited further according to the gravity of the original offense. See sec. 3583(e)(3). But nothing in these specific provisions suggests that the possibility of supervised release following imprisonment was meant to be eliminated.” Johnson, 529 U.S. at 712-13.

From the final sentence in this passage, the court reasoned that the sentencing court had authority to include an additional term of supervised release in the revocation sentence.

The court acknowledged that the Supreme Court in Johnson was not specifically addressing the argument raised by Russell. Nevertheless, the court concluded, “But that is of no consequence. Our inquiry here is limited solely to determining whether the district court had the authority to act — i.e., to include any term of supervised release in a revocation sentence that also requires the defendant to serve the statutory maximum term of imprisonment, and Johnson answers that question conclusively. We are not permitted, as Russell requests, to consider whether this authority is ‘meaningless.’ As previously noted, the district court’s ability to penalize the defendant should he violate a condition of supervised release upon his release from prison is not a question before us on appeal, and we lack the jurisdiction to issue an advisory opinion on the matter.”

The court further noted that the Eighth Circuit has stated that, even where the maximum term of imprisonment is imposed on revocation, the court can order additional supervised release. U.S. v. St. John, 92 F.3d 761 (8th Cir. 1996).

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David Ziemer can be reached by email.