620 F.3d 76 (2nd Cir. 2010), 09-4025-cr, United States v. Epstein

Docket Nº:09-4025-cr.
Citation:620 F.3d 76
Opinion Judge:PER CURIAM:
Party Name:UNITED STATES of America, Appellee, v. Mitchell R. EPSTEIN, Defendant-Appellant, Mandie Jo Willis, Diana L. Willis, Defendants.
Attorney:Melissa A. Tuohey, Assistant Federal Public Defender (Alexander Bunin, Federal Public Defender, and James P. Egan, on the brief), Syracuse, NY, for defendant-appellant. Elizabeth S. Riker, Assistant United States Attorney (Richard S. Hartunian, United States Attorney, on the brief, and Richard R....
Judge Panel:Before: MINER, CABRANES, and STRAUB, Circuit Judges.
Case Date:September 03, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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620 F.3d 76 (2nd Cir. 2010)

UNITED STATES of America, Appellee,

v.

Mitchell R. EPSTEIN, Defendant-Appellant,

Mandie Jo Willis, Diana L. Willis, Defendants. [*]

No. 09-4025-cr.

United States Court of Appeals, Second Circuit.

September 3, 2010

Submitted: Aug. 27, 2010.

Page 77

Melissa A. Tuohey, Assistant Federal Public Defender (Alexander Bunin, Federal Public Defender, and James P. Egan, on the brief), Syracuse, NY, for defendant-appellant.

Elizabeth S. Riker, Assistant United States Attorney (Richard S. Hartunian, United States Attorney, on the brief, and Richard R. Southwick, Assistant United States Attorney, of counsel), United States Attorney's Office for the Northern District of New York, Syracuse, NY, for appellee.

Before: MINER, CABRANES, and STRAUB, Circuit Judges.

PER CURIAM:

The question presented is whether our holding in United States v. Merced, 263 F.3d 34 (2d Cir.2001)-establishing that prior terms of imprisonment for violations of supervised release count toward, and therefore limit, the maximum sentence a district court may impose for a subsequent violation of supervised release under 18 U.S.C. § 3583(e)(3)1-applies to a defendant

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whose underlying offense was committed after the enactment of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (" PROTECT Act" ), Pub.L. 108-21, § 101, 117 Stat. 650, 651 (2003).

Defendant-appellant Mitchell R. Epstein (" defendant" or " Epstein" ) appeals from a September 17, 2009 judgment of the United States District Court for the Northern District of New York (David N. Hurd, Judge ) sentencing him principally to 24 months' imprisonment for violating the conditions of his supervised release. Epstein argues that the District Court erred in failing to count his prior 12-month prison term for a violation of supervised release toward his sentence for the subsequent violation. Because 18 U.S.C. § 3583 permits a court to impose a maximum sentence of two years for violations of conditions of supervised release for which the underlying offense was a Class C or D felony, Epstein contends that the 24-month sentence he received after the second revocation of his supervised release exceeded the legal maximum sentence by 12 months.

We hold that prior sentences for violations of the conditions of supervised release are not credited toward, and therefore do not limit, the statutory maximum a district court may impose for a subsequent violation of supervised release pursuant to § 3583(e)(3), as amended by the PROTECT Act. That is, each violation is subject to the maximum sentence notwithstanding time served pursuant to prior revocations. Our holding to the contrary in Merced does not control when a defendant's underlying offense occurred after the enactment of the PROTECT Act.

BACKGROUND

On January 19, 2007, Epstein pleaded guilty to two counts of a six-count indictment charging him and two others with (1) conspiracy to make false statements in the acquisition of firearms (18 U.S.C. § 371), a Class D felony, and (2) possession of a firearm by a convicted felon (18 U.S.C. §§ 922(g)(1), 924(a)(2)), a Class C felony. He was sentenced by the District Court on October 15, 2007 principally to 27 months' imprisonment and three years of supervised release. On January 15, 2008, Epstein was released from prison and began his first term of supervised release. On July 9, 2008, after Epstein tested positive for marijuana and opiates, the District Court revoked Epstein's supervised release and sentenced him principally to a 12-month term of imprisonment followed by two more years of supervised release.

On June 26, 2009, Epstein was released from prison and began his second term of supervised...

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