U.S. v. Dozier

• Decision Date: 18 July 1997
• Docket Number: No. 96-5785,96-5785
• Citation: 119 F.3d 239
• Parties: UNITED STATES of America v. Keith DOZIER, also known as Pete, also known as Keith Bashir. Keith Dozier, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 239

119 F.3d 239

UNITED STATES of America v. Keith DOZIER, also known as Pete, also known as Keith Bashir.

Keith Dozier, Appellant.

No. 96-5785.

United States Court of Appeals,

Third Circuit.

Argued June 17, 1997.

Decided July 18, 1997.

Faith S. Hochberg, United States Attorney, Kevin McNulty, Allan Tananbaum (argued), Assistant U.S. Attorneys, Newark, NJ, for Appellee.

Patrick A. Mullin (argued), Hackensack, NJ, for Appellant.

Before: STAPLETON, LEWIS and ALDISERT, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

In this case we must determine whether the Ex Post Facto Clause of the United States Constitution is violated when, upon revocation of supervised release, a defendant is sentenced to a new term of supervised release, even though such a new term was not authorized at the time the defendant committed his underlying criminal offense. We conclude that retroactive application of 18 U.S.C. § 3583(h), which authorizes imposition of supervised release following revocation of a prior term of supervised release, increases the potential punishment for violations of supervised release and, therefore, violates the constitutional prohibition on ex post facto legislation. We will vacate the defendant's sentence and remand to the district court for resentencing.

I.

Appellant Keith Dozier was convicted in 1992 of the class D felony of conspiracy to transport stolen motor vehicles across state lines. See 18 U.S.C. § 371; id. at § 2313. In June 1992, he was sentenced to 34 months in prison to be followed by 36 months of supervised release--the maximum term of supervised release that could be imposed on a defendant convicted of a class C or D felony. 18 U.S.C. § 3583(b)(2). Dozier completed his period of imprisonment in October 1994 and then began his 36 months of supervised release.

In September 1996, Dozier pled guilty to various violations of his conditions of supervised release. His supervised release was revoked in November 1996 and he was sentenced again. Given Dozier's criminal history category of IV, and the fact that his supervised release violations were grade C, the Sentencing Guidelines recommended a sentence of six to twelve months of imprisonment. See U.S.S.G. 7B1.4. The district court sentenced Dozier to six months of prison to be followed by a new, 24-month term of supervised release. Together, the total length of sentence imposed upon revocation of Dozier's supervised release was 30 months.

The district court sentenced Dozier pursuant to 18 U.S.C. § 3583(h), which expressly permits the imposition of a new term of supervised release upon revocation of an earlier term of supervised release. However, § 3583(h) was not enacted until September 13, 1994, more than two years after Dozier committed his original offense of conviction. Although Dozier did not argue before the district court that application of § 3583(h) violated the Ex Post Facto Clause, he brought this timely appeal to press that argument in this court. We may only vacate Dozier's sentence if we find that the district court committed plain error. See Fed.R.Crim.P. 52(b). ¹

II.

The Ex Post Facto Clause of the Constitution states that "no ex post facto Law shall be passed." Art. I, § 9, cl. 3. "Two conditions must be satisfied before a law can be deemed to transgress the ex post facto prohibition. First, the law 'must be retrospective, that is, it must apply to events occurring before its enactment.' Second, the change in the law must 'alter[ ] the definition of criminal conduct or increase[ ] the penalty by which a crime is punishable.' " United States v. Brady, 88 F.3d 225, 228 (3d Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997) (citations omitted); see also California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).

The government concedes that the retrospective requirement is met here, and we see no reason to reject this concession. A sentence imposed upon revocation of supervised release is most properly viewed as a consequence of the original criminal conviction. See United States v. Beals, 87 F.3d 854, 859-60 (7th Cir.1996) (concluding that sentence imposed for violation of supervised release must be considered punishment for original crime because conduct violating supervised release need not itself be criminal to be punished, and because these violations need only be proven by preponderance of evidence); United States v. Woodrup, 86 F.3d 359, 361 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 332, 136 L.Ed.2d 245 (1996) (reaching same conclusion); United States v. Soto-Olivas, 44 F.3d 788, 791 (9th Cir.1995) (same); United States v. Meeks, 25 F.3d 1117, 1123 (2d Cir.1994) (same); Commentary, U.S.S.G. Ch. 7, Pt. A, para. 3(b) (describing violation of supervised release as "breach of trust" in connection with original sentence); but see United States v. Reese, 71 F.3d 582, 587-90 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2529, 135 L.Ed.2d 1053 (1996) (concluding that because defendants have notice of potential penalties for violations of supervised release at time they commit these violations, such penalties are for those violations and not for underlying criminal offense). Therefore, to sentence Dozier under § 3583(h) is to retrospectively apply a law passed in 1994 to criminal conduct that occurred in 1992.

The issue we will focus our attention on is whether the concededly retrospective application of § 3583(h) increases the penalty to which Dozier is subject for revocation of his supervised release. We must compare the penalty Dozier could have received prior to passage of § 3583(h) with the penalty he could have received after its passage. If under § 3583(h) Dozier may potentially be given a sentence constituting an increased penalty over the maximum he could have received prior to § 3583(h), then application of that statute to him constituted an ex post facto violation. See Miller v. Florida, 482 U.S. 423, 432, 107 S.Ct. 2446, 2452, 96 L.Ed.2d 351 (1987) (rejecting contention that there is no ex post facto violation when defendant cannot definitively show that he would have received lesser sentence under old statute); Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 798, 81 L.Ed. 1182 (1937) ("[A]n increase in the possible penalty is ex post facto, regardless of the length of the sentence actually imposed, [when] the measure of punishment prescribed by the later statute is more severe than that of the earlier ....") (citations omitted).

When Dozier committed his offense of conviction in 1992, the sentencing court's sentencing options upon revocation of a term of supervised release were limited to those specified in 18 U.S.C. § 3583(e). Section 3583(e)(3) provided, in relevant part, that the court could "require the person to serve in prison all or part of the term of supervised release without credit for the time previously served on postrelease supervision ... except that a person whose term is revoked under this paragraph may not be required to serve ... more than 2 years in prison if the offense was a class C or D felony." We have concluded that § 3583(e) did not permit imposition of a new term of supervised release as part of a sentence imposed upon revocation of the initial term of supervised release. See United States v. Malesic, 18 F.3d 205 (3d Cir.1994). Hence, had Dozier's supervised release been revoked prior to the passage of § 3583(h), the district court could only have sentenced him to prison, for any period up to and including 24 months. No new term of supervised release could have been imposed.

Section 3583(h) was enacted in September 1994. It provides:

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).

Under § 3583(h), the sentencing court has far greater sentencing flexibility than it had under § 3583(e) alone. As before, the court may still sentence someone whose criminal offense was a class D felony to any period of imprisonment up to and including 24 months, as provided under § 3583(e). In addition, if the court sentences such a defendant to less than 24 months imprisonment, then the court may also impose a new term of supervised release to follow that imprisonment. Together, the length of the imprisonment and the new supervised release can extend to a total of 36 months, i.e. the maximum term of supervised release authorized under § 3583(b)(2) for a class D felony.

Sentencing Dozier pursuant to § 3583(h) and not just pursuant to § 3583(e) affected the sentence to which he was subject in at least two important respects. First, it allowed imposition of a new term of supervised release, whereas prior to § 3583(h) Dozier would have been free of all supervision following any incarceration the court might impose. Second, it allowed the court to impose a "total package" of penalties stretching to 36 months--the maximum period of supervised release authorized under § 3583(b)(2)--rather than only 24 months--the maximum period of incarceration authorized under § 3583(e)(3). Here, for example, the district court sentenced Dozier to six months in prison followed by 24 months of supervised release for a total package of 30 months, while without § 3583(h) it could have only penalized Dozier for 24 months. ²

These effects of § 3583(h) "increase the penalty" to which Dozier is subject. Supervised release is punishment; it is a deprivation of some...