U.S. v. Collins

• Decision Date: 09 July 1997
• Docket Number: 96-30187,Nos. 96-30115,s. 96-30115
• Citation: 118 F.3d 1394
• Parties: 97 Cal. Daily Op. Serv. 5434, 97 Daily Journal D.A.R. 8801 UNITED STATES of America, Plaintiff-Appellee, v. Thomas Brian COLLINS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronnal AULT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1394

118 F.3d 1394

97 Cal. Daily Op. Serv. 5434, 97 Daily Journal

D.A.R. 8801

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Brian COLLINS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ronnal AULT, Defendant-Appellant.

Nos. 96-30115, 96-30187.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 9, 1997.

Decided July 9, 1997.

Joseph W. Bottini, Assistant United States Attorney, Anchorage, AK, Donald E. Kresse, Jr., Assistant United States Attorney, Yakima, WA, for Plaintiff-Appellee.

Mary C. Geddes, Michael S. Taggart, Assistant Federal Defenders, Anchorage, AK, Jane Greek, Nancy D. Tenney, Assistant Federal Defenders, Yakima, WA, for Defendants-Appellants.

Appeal from the United States District Court for the District of Alaska; James K Before WRIGHT, CANBY, and TASHIMA, Circuit Judges.

Singleton, District Judge, Presiding. D.C. Nos. CR-91-00011-1-JKS, CR-94-02036-AAM.

CANBY, Circuit Judge.

Thomas Brian Collins, who pleaded guilty to bank robbery, and Ronnal Reno Ault, who pleaded guilty to being a felon in possession of a firearm, appeal the district courts' judgments that amended their sentences after they violated the terms of their supervised releases. ¹ The district courts revoked Collins' and Ault's supervised releases and, pursuant to 18 U.S.C. § 3583(h), imposed terms of incarceration followed by new additional terms of supervised release. Collins and Ault contend that the application of section 3583(h) violated the Ex Post Facto Clause because: (1) section 3583(h) was enacted after Collins and Ault committed their underlying crimes; and (2) its application exposed them to greater punishment than the law that was effective when they committed their underlying crimes. We agree, and remand both cases with instructions to vacate the supervised release portions of the defendants' sentences.

BACKGROUND

Collins:

In February 1991, Collins committed bank robbery. He pleaded guilty and was sentenced to fifteen months imprisonment followed by three years of supervised release. He served his fifteen months imprisonment and began his supervised release. In 1995, he violated the conditions of his supervised release. The district court accordingly revoked Collins' supervised release and entered an amended judgment that ordered him to serve ten months in prison followed by twenty-six months of supervised release.

Ault:

In January 1994, Ault committed the crime of being a felon in possession of a firearm to which he pleaded guilty. The district court sentenced him to eighteen months imprisonment followed by three years of supervised release. Ault served his eighteen months in prison and began his supervised release. In 1996, he violated the terms of his supervised release. The district court revoked his supervised release and entered an amended judgment that ordered him to serve fourteen months imprisonment followed by twenty-two months of supervised release.

ANALYSIS

The issue on appeal is whether it violates the Ex Post Facto Clause to apply 18 U.S.C. § 3583(h) to the defendants, because the application of that statute subjects them to sentences of both incarceration and additional terms of supervised release after revocation of their original terms of supervised release. ² Under the law in effect at the time of the commission of their offense, an additional term of supervised release could not be imposed following imprisonment.

The government does not speak with a single voice on this issue. In Ault's appeal, the government concedes that application of section 3583(h) violates the Ex Post Facto Clause, and agrees that the proper remedy is to remand to the district court with instructions to vacate the supervised release portion of the new sentence. In Collins' appeal, the government takes a different position and contends that a sentence of both incarceration and a term of supervised release may be imposed pursuant to section 3583(h) without any ex post facto violation. It concedes, however, that the combined sentence of incarceration and supervised release may not exceed two years, because that is the maximum period of incarceration to which Collins originally knew he would be subject as a Class C felon if he violated the conditions of his supervised release. See 18 U.S.C. § 3583(e)(3). The government therefore agrees that Collins'

term of supervised release should be reduced from 26 months to 14 months. In our view, however, the government's position in Ault's case is the correct one: application of section 3583(h) to these cases violates the Ex Post Facto Clause. The entire supervised release portions of both defendants' sentences accordingly must be vacated.

The Prior Law

At the time that Collins and Ault committed their underlying crimes, section 3583(e) set forth various alternatives available to the court with regard to their original condition of supervised release:

The court may ...

* * * *

(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release....

(3) revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute ... without credit for time previously served on postrelease supervision, if the court ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve more than ... 2 years in prison if [the offense that resulted in the term of supervised release] is a Class C or D felony ... or

(4) order the defendant to remain at his place of residence during nonworking hours....

18 U.S.C. § 3583(e) (emphasis added). Because these statutory options were stated in the alternative, we held in United States v. Behnezhad, 907 F.2d 896, 898-99 (9th Cir.1990), that the district court had to choose one option or the other; the statute did not permit the court to select part of one option (incarceration) and part of another (extension of a period of supervised release). Id. Nearly all of the other circuits subsequently arrived at the same conclusion. See, e.g., United States v. Koehler, 973 F.2d 132, 133 (2d Cir.1992); United States v. McGee, 981 F.2d 271, 273 (7th Cir.1992). ³ Thus, at the time they were first sentenced to supervised release, Collins and Ault could not be subjected to both incarceration and a new term of supervised release if they violated the conditions of their release.

Enactment of § 3583(h)

On September 13, 1994, Congress added section 3583(h) to the statute. Section 3583(h) directly overrode the line of decisions that began with Behnezhad. Section 3583(h) provides:

(h) Supervised Release Following Revocation. When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), 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.

18 U.S.C. § 3583(h).

As applied to Collins and Ault, section 3583(h) permits the district court to revoke the original supervised release and to impose up to two years incarceration (the maximum permitted by section 3583(e)(3) for their class of felonies), plus up to three years of additional supervised release minus the term of incarceration. The district courts followed this formula by sentencing Collins to 10 months incarceration plus 26 months of supervised release, and Ault to 14 months incarceration followed by 22 months of supervised release. If in the future either violates

the conditions of the renewed supervised release, then the district courts can then impose further incarceration, which (if the maximum imprisonment has not been reached) could be followed by yet another supervised release term with the threat of prison if revoked. See 18 U.S.C. § 3583(h).

Ex Post Facto Analysis

An ex post facto violation consists of two elements: (1) the law must "apply to events occurring before its enactment"; and (2) the law must "disadvantage the offender affected by it." Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). Thus a statute that " 'makes more burdensome the punishment of a crime, after its commission' " violates the Ex Post Facto Clause. Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Section 3583(h) has that prohibited effect, as it was applied to Collins and Ault.

First, the district courts here applied section 3583(h) to punish deeds of Collins and Ault that occurred before the section's enactment. See Miller, 482 U.S. at 430, 107 S.Ct. at 2451. Collins robbed the bank in 1991 and Ault possessed the firearm in January 1994, both well before section 3583(h) became effective in September 1994.

It is true, as the government points out, that Collins and Ault violated the conditions of their original supervised releases after section 3583(h) became effective. But the violation of a condition of supervised release is often not a crime at all, and the punishment that follows such a violation is imposed on the authority of conviction for the underlying offense. Violation of a condition of supervised release is accordingly not a new substantive offense for purposes of the Ex Post Facto Clause. See United States v. Paskow, 11 F.3d 873, 882-83 (9th Cir.19...