U.S. v. Vanhoose

• Decision Date: 07 February 2006
• Docket Number: No. 05-3290.,05-3290.
• Citation: 437 F.3d 497
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul VanHOOSE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

437 F.3d 497

UNITED STATES of America, Plaintiff-Appellee, v. Paul VanHOOSE, Defendant-Appellant.

No. 05-3290.

United States Court of Appeals, Sixth Circuit.

Argued: November 1, 2005.

Decided and Filed: February 7, 2006.

ARGUED: Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Salvador A. Dominguez, Assistant United States Attorney, Columbus, Ohio, for Appellee. ON BRIEF: Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Salvador A. Dominguez, Assistant United States Attorney, Columbus, Ohio, for Appellee.

Before: MOORE and SUTTON, Circuit Judges; BUNNING, District Judge.^*

OPINION

MOORE, Circuit Judge.

In February 1994, Defendant-Appellant Paul VanHoose ("VanHoose"), having been convicted of a federal drug offense, was sentenced to a prison term to be followed by a term of supervised release. VanHoose subsequently violated several supervised-release conditions. The district court revoked the supervised-release term and sentenced VanHoose to the maximum statutorily-authorized prison term to be followed by a new term of supervised release. In doing so, the district court invoked 18 U.S.C. § 3583(h), a provision that was enacted in September 1994.

VanHoose argues that the district court violated the Ex Post Facto Clause by sentencing him pursuant to a statutory provision that was not in effect at the time of the conduct that led to his original conviction and sentence. VanHoose also contends that under 18 U.S.C. § 3583(e)(3), the statutory provision that was in effect at the time of his federal offense, the imposition of a maximum postrevocation prison term foreclosed the possibility of a new term of supervised release.

Because the Ex Post Facto Clause was not implicated by the district court's erroneous reliance on § 3583(h) and the sentence was statutorily authorized by § 3583(e)(3), we AFFIRM VanHoose's sentence.

I. BACKGROUND

A. Factual and Procedural Background

On February 14, 1994, VanHoose was sentenced to 125 months in prison, thirty-six months of supervised release, and a fine for conspiring to commit drug offenses in violation of 21 U.S.C. § 846.¹ VanHoose's term of supervised release commenced on November 15, 2002. On February 10, 2005, VanHoose admitted to having violated conditions of his supervised release requiring him to report to his probation officer and to avoid committing another crime or possessing drugs. The district court revoked VanHoose's supervised release and, invoking § 3583(h), sentenced VanHoose to twenty-four months in prison and a new supervised-release term of twenty-four months. VanHoose now appeals his sentence.

B. Legislative Background

Section 3583(e)(3) governs the revocation of supervised release. At the time of VanHoose's federal offense, it provided in relevant part:

The court may . . . 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 time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release,. . . 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. . . .

18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V).² The majority of the courts of appeals — including this one — interpreted this section to give district courts no authority to impose a new term of supervised release following revocation and reimprisonment. Johnson v. United States, 529 U.S. 694, 698 & n. 2, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). The Supreme Court concluded otherwise in Johnson, 529 U.S. at 713, 120 S.Ct. 1795.

On September 13, 1994, Congress enacted § 3583(h) to clarify the law governing postrevocation supervised release. It provided in relevant part:

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) (1994) (emphasis added). On April 30, 2003, Congress amended the section by removing the emphasized text. PROTECT Act, Pub.L. No. 108-21, § 101(2), 117 Stat. 650, 651 (2003) (codified at 18 U.S.C. § 3583(h)).

II. ANALYSIS

A. Section 3583(h) and the Ex Post Facto Clause

1. Standard of Review

VanHoose argues that his sentence was contrary to the Ex Post Facto Clause because the district court relied on § 3583(h), a provision that was enacted on September 13, 1994, i.e., after VanHoose was sentenced on February 14, 1994.³ Ex post facto challenges present questions of law that we typically review de novo. United States v. Ristovski, 312 F.3d 206, 210 (6th Cir.2002); Hamama v. INS, 78 F.3d 233, 235 (6th Cir.1996); United States v. Knipp, 963 F.2d 839, 842-43 (6th Cir.1992). Because VanHoose did not raise the issue before the district court,⁴ however, his claim is reviewed for plain error. FED. R. CRIM. P. 52(b); United States v. Davis, 397 F.3d 340, 346 (6th Cir.2005); United States v. Green, 305 F.3d 422, 432 (6th Cir.2002); United States v. Schulte, 264 F.3d 656, 660 (6th Cir.2001); United States v. Covert, 117 F.3d 940, 944 (6th Cir.), cert. denied, 522 U.S. 880, 118 S.Ct. 204, 139 L.Ed.2d 140 (1997). To satisfy the plain error standard, "there must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (alterations in original) (citations and internal quotation marks omitted).

2. Merits

The federal Ex Post Facto Clause provides that "[n]o . . . ex post facto Law shall be passed." U.S. CONST. art. I, § 9, cl. 3; see also U.S. CONST. art. I, § 10, cl. 1 (Ex Post Facto Clause directed at the states). "The heart of the Ex Post Facto Clause bars application of a law `that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. . . .'" Johnson, 529 U.S. at 699, 120 S.Ct. 1795 (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (Chase, J.)) (citation omitted). "[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

A simple comparison of the date that VanHoose was sentenced for his original federal drug offense (February 14, 1994) and the date that § 3583(h) went into effect (September 13, 1994) reveals that it was erroneous for the district court to impose VanHoose's postrevocation sentence pursuant to § 3583(h) rather than § 3583(e)(3).⁵ The Supreme Court has squarely held, however, that this error does not have constitutional significance. In Johnson v. United States, the defendant, like VanHoose, raised an ex post facto claim because he (i) was initially sentenced to prison and supervised release before the enactment of § 3583(h) and (ii) received a postrevocation sentence under § 3583(h) of a new prison term to be followed by a new supervised-release term. 529 U.S. at 697-98, 120 S.Ct. 1795. The Court held that the postrevocation sentence did not implicate the Ex Post Facto Clause because Congress did not intend § 3583(h) to have retroactive effect; instead, the section "applies only to cases in which that initial offense occurred after the effective date of the amendment, September 13, 1994." Id. at 702, 120 S.Ct. 1795. Following Johnson, we reject VanHoose's ex post facto challenge.

B. Statutory Authority

1. Standard of Review

After rejecting the defendant's ex post facto claim, the Johnson Court turned to whether the postrevocation sentence was permissible under § 3583(e)(3), the provision governing supervised-release revocation that was in effect at the time of the original offense. 529 U.S. at 702-03, 120 S.Ct. 1795. Similarly, we turn to VanHoose's second argument — that his postrevocation sentence was not authorized by § 3583(e)(3). Because this issue is a matter of statutory interpretation, we conduct de novo review. United States v. Marlow, 278 F.3d 581, 583 (6th Cir.) (interpreting §§ 3583(a) and (e)(3)), cert. denied, 535 U.S. 1119, 122 S.Ct. 2342, 153 L.Ed.2d 171 (2002); United States v. Quintero, 157 F.3d 1038, 1039 (6th Cir.1998) (interpreting § 3584(a)).

2. Merits

Upon the revocation of his supervised release, VanHoose was sentenced to twenty-four months in prison and twenty-four months of supervised release. It will be helpful first to set out the aspects of this sentence that VanHoose does not challenge. He does not object to the length of his postrevocation sentence's prison component, which was clearly valid. (Where the original offense is a Class C felony — which VanHoose's 1994 offense was — § 3583(e)(3) permits a postrevocation prison term of up to two years.) Nor does VanHoose challenge the district court's general authority to impose postrevocation supervised release under § 3583(e)(3), an authority that the Supreme Court recognized in Johnson, 529 U.S. at 713, 120 S.Ct. 1795. What VanHoose do...