U.S. v. Pettus

• Decision Date: 09 September 2002
• Docket Number: No. 01-1250.,01-1250.
• Citation: 303 F.3d 480
• Parties: UNITED STATES of America, Appellee, v. James PETTUS, also known as "Mark Williams," also known as "James Williams," also known as "David Williams," also known as "Frank Davis," also known as "Wayne Davis," Appellant.
• Court: U.S. Court of Appeals — Second Circuit

303 F.3d 480

UNITED STATES of America, Appellee, v. James PETTUS, also known as "Mark Williams," also known as "James Williams," also known as "David Williams," also known as "Frank Davis," also known as "Wayne Davis," Appellant.

No. 01-1250.

United States Court of Appeals, Second Circuit.

Submitted April 24, 2002.

Decided September 09, 2002.

COPYRIGHT MATERIAL OMITTED

Anthony N. Iannarelli, Jr., New York, NY, for Appellant.

James B. Comey, United States Attorney for the Southern District of New York, (Marc A. Weinstein, John M. McEnany, Assistant United States Attorneys, of Counsel, on the brief) for Appellee.

Barry D. Leiwant, Attorney-in-Charge, Appeals Bureau, The Legal Aid Society, New York, NY, for Amicus Curiae, The Legal Aid Society.

Before F.I. PARKER, STRAUB, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

This appeal was brought by a convicted felon following the revocation of his term of supervised release. Appellant claims that the sentence of six months of imprisonment and thirty months of supervised release imposed by the United States District Court for the Southern District of New York (Wood, J.) exceeded the maximum term permitted under 18 U.S.C. § 3583(b) & (h) because the court did not give him credit for the time he had served under his first term of supervised release ("street time") before it was revoked. Appellant argues that the proper reading of § 3583(h) requires courts to grant defendants this credit.¹ Further, he argues that § 3583(h), as interpreted by the district court, violates the Double Jeopardy Clause of the Fifth Amendment. We reject both of these arguments. Section 3583(h) plainly permits judges to impose renewed terms of supervised release without crediting street time. Moreover, this interpretation of the statute does not run afoul of the Double Jeopardy Clause; supervised release is part of the whole matrix of punishment arising out of the original offense, and, as such, Congress has the power to define its length and terms. We affirm the sentence imposed by the district court.

BACKGROUND

Appellant, James Pettus, pleaded guilty to violating 18 U.S.C. § 641, Theft of Government Property, on December 17, 1999. During the two years preceding his arrest, Pettus opened bank accounts under a number of different aliases and used them to buy $14,407 worth of postage stamps, despite the fact that there were insufficient funds in the accounts. The district court ordered Pettus to provide full restitution and sentenced him to eighteen months' imprisonment and three years of supervised release — the maximum amount of supervised release that can be imposed for a Class C felony. 18 U.S.C. § 3583(b)(2).

On October 6, 2000, Pettus's prison term ended and he began his term of supervised release. On February 5, 2001, the United States Probation Office submitted a petition requesting a warrant for Pettus's arrest for violating three conditions of his supervised release. Judge Wood granted the warrant and Pettus was re-arrested on April 2, 2001. On April 23, the district court found that Pettus had violated two conditions and sentenced him under § 3583(h) to six months of imprisonment, thirty months of supervised release, and a $100 special assessment. The court also reimposed the previously ordered restitution of $14,407. The court did not give Pettus credit for the time he had previously served on supervised release. Pettus appeals from this sentence.

STANDARD OF REVIEW

Our review of this question of statutory interpretation and of the constitutionality of 18 U.S.C. § 3583(h) is de novo. See United States v. Sanchez, 225 F.3d 172, 175 (2d Cir.2000).

DISCUSSION

The Sentencing Reform Act of 1984, Pub.L. No. 98-473 tit. II, § 212(a)(2), 98 Stat. 1837, 1987, replaced most forms of parole with supervised release overseen by the sentencing court. See Johnson v. United States, 529 U.S. 694, 696-97, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Courts are permitted to impose a term of supervised release whenever sentencing a defendant to a term of imprisonment. 18 U.S.C. § 3583(a). When the defendant has committed a Class C felony, as in the instant case, the court may impose up to three years of supervised release. Id. § 3583(b)(2).

The imposition of a term of supervised release is not necessarily final. A court may terminate a term of supervised release for good behavior after at least one year has been served, or may lengthen a term up to the maximum authorized amount. § 3583(e)(1), (2). If a defendant violates the conditions set during sentencing, a court can "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 for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision...." Id. § 3583(e)(3).²

Most circuit courts originally interpreted subsection (e)(3) as prohibiting the reimposition of a term of supervised release following the revocation of the original term. See Strong v. U.S. Parole Comm'n, 141 F.3d 429, 432 & n. 3 (2d Cir.1998) (citing cases).³ In 1994, however Congress amended § 3583 to clarify that courts could reimpose supervised release after revocation. See id. The amended language, contained in subsection (h), reads:

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.

Id. § 3583(h). This text clearly authorizes courts to impose sentences that include both new prison time and new supervised release terms. Any time served in prison after revocation, though, must be credited against the length of the new term of supervised release. See United States v. Merced, 263 F.3d 34, 37-38 (2d Cir.2001) (holding that all prison terms after the first revocation of supervised release must be subtracted from the maximum possible term of supervised release, even if there has been more than one revocation). Pettus maintains that § 3583(h) also requires that defendants be credited for time previously served on supervised release when sentenced to a post-revocation term or else violates the Double Jeopardy Clause.

I. Statutory Interpretation

The Legal Aid Society, as amicus curiae, notes that subsection (h), unlike subsection (e)(3), does not contain language that explicitly tells courts to deny credit for street time when considering a post-revocation sentence. Its amicus brief argues that this Court should read Congress's decision not to add this term to subsection (h) as intentional. The difference between the language of these two subsections, it maintains, suggests that subsection (h) requires courts to credit street time when assigning a new term of supervised release. The amicus brief also invokes the canon of constitutional avoidance. United States v. Delaware & Hudson, 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909) ("[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter."); see also Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997). Not giving credit for street time, according to the amicus brief, is constitutionally dubious in light of the Double Jeopardy Clause and, as such, the ambiguous text of subsection (h) should be interpreted to avoid this problem.

We find no such ambiguity in the statute and, as discussed infra Part II, no looming constitutional infirmity meriting avoidance. Members of Congress clearly expressed their intent that courts should not give credit to defendants for time previously served on supervised release when assigning new terms of supervised release, and the text of the statute reflects this intent.

We start, as always, with the language of the statute, which explicitly states that the maximum term of post-revocation supervised release that can be imposed must be reduced by "any term of imprisonment that was imposed upon revocation of supervised release." 18 U.S.C. § 3583(h) (emphasis added). This language plainly indicates that courts are only required to credit time spent in prison. "Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." United States v. Smith, 499 U.S. 160, 167, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) (quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980)) (internal quotation marks omitted); see also In re Bell, 225 F.3d 203, 214 (2d Cir.2000).

The amicus correctly notes that when "Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 448, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972))) (internal quotation marks omitted). It fails to note, however, that the text of subsection (h) directly refers to subsection (e)(3) for its definition of the maximum term of imprisonment. See 18 U.S.C. § 3583(h). The restrictions of subsection (e)(3) were thus incorporated into subsection (...