U.S. v. Russell

• Decision Date: 13 August 2003
• Docket Number: No. 02-2773.,02-2773.
• Citation: 340 F.3d 450
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin RUSSELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

340 F.3d 450

UNITED STATES of America, Plaintiff-Appellee, v. Kevin RUSSELL, Defendant-Appellant.

No. 02-2773.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 2003.

Decided August 13, 2003.

Timothy J. Chapman (argued), Office of the U.S. Atty., Chicago, IL, for Plaintiff-Appellee.

Richard H. Parsons, Jonathan E. Hawley (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before POSNER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Kevin Russell was convicted of bank fraud and sentenced to 70 months' imprisonment and a 60-month term of supervised release. Upon his release from prison, Russell began serving his term of supervised release but subsequently violated its conditions. 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 appeals, and we reverse and remand.

I.

Kevin Russell pleaded guilty to one count of bank fraud in violation of 18 U.S.C. § 1344, and on March 30, 1994, was sentenced to 70 months in prison and 60 months of supervised release. Russell began his supervised release term on February 25, 2000, but subsequently violated its conditions by committing two separate acts of domestic battery on his wife. Thereafter, the United States Probation Office filed a special report with the district court, requesting that the court issue a rule to show cause why Russell's term of supervised release should not be revoked. The district court issued the rule on April 23, 2002, and after conducting a hearing on the matter, revoked Russell's term of supervised release, pursuant to 18 U.S.C. § 3583(e)(3), sentencing him to the maximum term of imprisonment allowed (i.e., 36 months) and a new 46-month term of supervised release. Russell appeals.

II.

Russell brings two separate challenges to the term of supervised release imposed by the district court as part of his revocation sentence. First, he argues that the district court exceeded its authority under § 3583(e)(3) by sentencing him to a combined term of reimprisonment and additional supervised release in excess of his original term of supervised release. Second, he contends that once the district court imposed the maximum term of imprisonment allowed under § 3583(e)(3), it thereafter lacked the authority to sentence him to any amount of supervised release following his reincarceration. Whether the district court exceeded its authority under § 3583(e)(3) is a question of statutory construction which we review de novo. Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846, 855 (7th Cir.2002).

A. Whether the district court exceeded its authority under § 3583(e)(3) by sentencing the defendant to a combined term of reimprisonment and additional supervised release in excess of his original term of supervised release.

At the time of Russell's conviction for bank robbery in January 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 postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, 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, or more than 2 years in prison if the offense was a Class C or D felony.

Id. (emphasis added).

This statute has since been amended, but the 1988 version of § 3583(e)(3) applies to Russell's sentence.¹ Section 3583(e)(3) does not specifically address whether a district court revoking a term of supervised release in favor of reincarceration may require a defendant to serve an additional term of supervised release upon his release from prison. Perhaps as a result of this statutory silence, a circuit split developed on the issue. Eight circuits held that § 3583(e)(3) did not authorize the imposition of a new term of supervised release if a defendant was reimprisoned after having his original term of supervised release revoked. See United States v. Tatum, 998 F.2d 893, 894-96 (11th Cir. 1993) (agreeing with the Second, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits on this issue). Two circuits, however, held that a new term of supervised release could be included as part of a revocation sentence under § 3583(e)(3), even if that sentence first required the defendant to serve a term of reimprisonment. United States v. O'Neil, 11 F.3d 292, 294, 301 (1st Cir.1993) (expressing its agreement with the Eighth Circuit's decision in United States v. Schrader, 973 F.2d 623, 624-25 (8th Cir.1992)). In 1994, Congress attempted to resolve this circuit split by enacting 18 U.S.C. § 3583(h), which provides that:

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.

The enactment of § 3583(h), however, resulted in yet another circuit split: whether application of § 3583(h) to cases involving a conviction preceding the subsection's effective date violated the Ex Post Facto Clause of the United States Constitution. Compare United States v. Withers, 128 F.3d 1167, 1172 (7th Cir.1997) (finding no ex post facto violation), with United States v. Collins, 118 F.3d 1394, 1398 (9th Cir.1997) (finding an ex post facto violation). The Supreme Court resolved this conflict in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), holding that Congress did not intend for § 3583(h) to have retroactive application and thus did not implicate the Ex Post Facto Clause. Id. at 702, 120 S.Ct. 1795. In Johnson, the Court also addressed the issue Congress had attempted to resolve by enacting § 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, 120 S.Ct. 1795. The Court concluded that a district court could impose a new term of supervised release after reincarceration, but in doing so held that a combined term of reincarceration and additional supervised release under § 3583(e)(3) could not exceed the length of the original term of supervised release. Id. at 705-06, 120 S.Ct. 1795. In reaching this determination, the Court noted:

As it was written before the 1994 amendments, subsection (3) did not provide (as it now does) that the court could revoke the release term and require service of a prison term equal to the maximum authorized length of a term of supervised release. It provided, rather, that the court could "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release...." So far as the text is concerned, it is not a "term of imprisonment" that is to be served, but all or part of "the term of supervised release." But if "the term of supervised release" is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation. While this sounds very metaphysical, the metaphysics make one thing clear: unlike a "terminated" order of supervised release, one that is "revoked" continues to have some effect. And since it continues in some sense after revocation even when part of it is served in prison, why can the balance of it not remain effective as a term of supervised release when the reincarceration is over?

Id. at 705-06, 120 S.Ct. 1795 (emphasis added); see also id. at 707, 120 S.Ct. 1795 (holding that Congress's use of the term "revoked" meant "that any balance not served in prison may survive to be served out as supervised release") (emphasis added).

Thus, according to Johnson, a district court may, upon revoking a term of supervised release under § 3583(e)(3), sentence a defendant to serve a combined term of reimprisonment and additional supervised release, so long as that sentence does not exceed the original term of supervised release. 529 U.S. at 705-07, 712-13, 120 S.Ct. 1795. In this case, the district court originally sentenced Russell to a 60-month term of supervised release. After revoking the defendant's supervised release, the court sentenced him to the maximum term of imprisonment allowed under § 3583(e)(3) (i.e., 36 months) and ordered that he also serve a new 46-month term of supervised release upon his release from prison; for a combined total of 82 months (22 months over his original term of supervised release).² We, therefore, agree with the defendant that, to the extent the district court's revocation sentence exceeded the original 60-month term of supervised release, the court exceeded its authority under § 3583(e)(3).

Nevertheless, the government argues— albeit half-heartedly—that the district court's entire 82-month revocation sentence may be affirmed under the rationale adopted by the Sixth Circuit in United States v. Marlow, 278 F.3d 581 (6th Cir.2002), cert. denied, 535 U.S. 1119, 122 S.Ct. 2342, 153 L.Ed.2d 171 (2002). In Marlow, the district court revoked the defendant's original four-year term of supervised release and sentenced...