U.S. v. Paskow

• Decision Date: 26 November 1993
• Docket Number: No. 92-50616,92-50616
• Citation: 11 F.3d 873
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stuart Jeffrey PASKOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 873

11 F.3d 873

UNITED STATES of America, Plaintiff-Appellee, v. Stuart Jeffrey PASKOW, Defendant-Appellant.

No. 92-50616.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 1993.

Submission Vacated Sept. 13, 1993.

Resubmitted Nov. 18, 1993.

Decided Nov. 26, 1993.

Pedro V. Castillo, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant Stuart Jeffrey Paskow.

Warrington S. Parker III, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee U.S.

Appeal from the United States District Court for the Central District of California.

Before: HARLINGTON WOOD, Jr., ^* REINHARDT, and RYMER, Circuit Judges.

REINHARDT, Circuit Judge:

The issue in this case is whether the ex post facto clause is violated when a statutory amendment that increases a penalty to be imposed upon the revocation of supervised release is applied in a case in which the underlying offense was committed before the amendment was adopted but the conduct that led to revocation of supervised release occurred afterwards. We conclude that applying the amendment under such circumstances violates the ex post facto clause.

I.

Stuart Jeffrey Paskow conspired to receive the proceeds of a bank robbery and received of the proceeds of a bank robbery, in violation of 18 U.S.C. Secs. 371, 2113(c), in April and May of 1988. He pled guilty and was sentenced in August, 1990, to eight months' imprisonment and three years of supervised release.

On December 31, 1988, several months after Paskow committed that underlying offense, an amendment to the supervised release statute, 18 U.S.C. Sec. 3583, became effective. Anti-Drug Abuse Act of 1988, 102 Stat. 4181, 4464, Pub.L. 100-690 Sec. 7303(b). The amendment provides:

If the defendant is found by the court to be in the possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.

18 U.S.C. Sec. 3583(g). Before the amendment was enacted, violation of supervised release for possession of a controlled substance carried no mandatory minimum penalty. Indeed, before the amendment, the only restriction on the court's discretion was a requirement that no sentence could exceed two years (if the underlying offense was a Class C or D felony) or three years (if the underlying offense was a Class B felony). 18 U.S.C. Sec. 3583(e). Thus, before the addition of the amendment, the statute imposed a ceiling on a court's discretion, but set no floor. The effect of the amendment was to set a floor: one-third of the term of supervised release. Practically speaking, following the amendment, Paskow was subject to a mandatory minimum one-year sentence for violating supervised release. Prior to the amendment, he could have received no sentence at all.

Paskow began the supervised release portion of his sentence in December, 1990. The terms of his release required that he submit to random drug tests. In August, 1992, after random testing revealed that he had used marijuana and cocaine, his supervised release was revoked and he was sentenced to twelve months in prison, one-third of his term of supervised release, the mandatory minimum under the amendment. 18 U.S.C. Sec. 3583(g). ¹

At his revocation hearing, Paskow objected to his sentence on the ground that the amendment to the supervised release statute, as applied, violated the ex post facto clause. The district court held that, because the behavior for which his supervised release was revoked took place after the amendment became effective, the ex post facto prohibition was not violated. [RT 14-15]. Paskow now appeals. While the district court's ruling has great appeal intuitively, a close analysis of Supreme Court and other precedent persuades us that we are required to reverse.

II.

Article I of the Constitution provides that neither Congress nor any state shall pass any ex post facto law. U.S. Const. art. I, Sec. 9, cl. 3, art. I, Sec. 10, cl. 1. ² An ex post facto law is not simply one that makes criminal an act that was lawful at the time it was committed, or a law that increases a sentence following the commission of the act for which punishment is imposed. The ex post facto provision applies to a wide range of changes affecting trial procedures and the mechanics of punishment.

The Supreme Court first analyzed the Constitution's ex post facto clause in Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1788). There, Justice Chase stated:

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Id. at 390. Justice Chase's formulation remains the core of the ex post facto prohibition. Miller v. Florida, 482 U.S. 423, 429-30, 107 S.Ct. 2446, 2450-51, 96 L.Ed.2d 351 (1987).

Since Calder, a two-pronged test has been developed to determine whether the application of a penal law violates the ex post facto clause. "[F]irst, the law 'must be retrospective, that is, it must apply to events occurring before its enactment'; and second, 'it must disadvantage the offender affected by it.' " Miller v. Florida, 482 U.S. at 429, 107 S.Ct. at 2451 (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). ³ These two factors must be assessed in connection with the date of the defendant's offense, not of his conviction or sentencing. Watson v. Estelle, 886 F.2d 1093, 1096 (9th Cir.1989) (describing as "the key inquiry" the provisions of the law "at the time the defendant perpetrated the offense"). See also Weaver v. Graham, 450 U.S. at 30, 101 S.Ct. at 965 (date of inquiry is the date "when the crime was consummated").

We now consider, first, whether Paskow was disadvantaged by the application of the amended statute, and, next, whether the statute is retrospective.

A.

The government concedes that the amended statute disadvantages Paskow. Indeed, any argument to the contrary would be foreclosed by Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). The statute at issue there, at the time the defendant committed his crime, punished grand larceny by a sentence of between six months and fifteen years. By the time the defendant was sentenced, however, a change in the law modified the penalty to a flat fifteen-year sentence. The Court found that the retrospective application of the new law violated the ex post facto clause, because the defendant was "deprived of all opportunity to receive a sentence which would give [him] freedom from custody and control prior to the expiration of the 15-year term." 301 U.S. at 401-02, 57 S.Ct. at 799 (emphasis added) (quoted with approval, Miller v. Florida, 482 U.S. at 432, 107 S.Ct. at 2452). The principle of Lindsey, then, is that, in determining the disadvantage to a defendant, a court must focus on the change in the defendant's eligibility to receive a lesser sentence than a new law may permit, regardless of whether the defendant would actually have received the lesser sentence.

Here, before the supervised release statute was amended, Paskow was eligible to receive a sentence of less than one-third the term of his supervised release. 18 U.S.C. Sec. 3583(e). After the amendment, the district court was no longer free to impose such a sentence. It is the difference between a court's discretion to sentence a defendant to a particular term--or to one substantially shorter--and the absolute requirement that the defendant be sentenced to at least that term, that implicates the first prong of the ex post facto prohibition. We conclude that the application of the amended statute to Paskow disadvantaged him.

B.

We now consider the more difficult question whether the amended statute is retrospective as applied to Paskow. Following several decades of consistent case law, we conclude that it is.

1.

We find virtually dispositive the strong line of cases that decides this precise issue in connection with revocation of parole (as opposed to the revocation of supervised release at issue here). These cases hold that the ex post facto clause is violated when a parole violator is punished in a way that adversely affects his ultimate release date under a statute that was adopted after the violator committed the underlying offense but before he violated the terms of his parole. For the purposes of an ex post facto analysis, there is absolutely no difference between parole and supervised release. The considerations that underlie each are identical.

The line of cases on which we rely involve parole because, until 1987, federal prisoners were subject to parole rather than to supervised release, see 18 U.S.C. Sec. 3551 et seq. (setting forth the provisions of the Sentencing Reform Act of 1984), and because the states, by and large, still employ the parole system. ⁴ In these cases, the date of eligibility for parole is tantamount to a presumptive release date. The same is true of a date of eligibility for supervised release. To substitute "supervised release" for "parole" in no way changes the ex post facto analysis. In both cases, the question is at what time the prisoner is to be released from prison. A delay in that date constitutes the same punishment whether it is imposed following a parole violation or a violation of supervised release. Thus, whether the punishment is imposed in connection with the former violation or the latter is irrelevant...