United States v. Cassesse

• Decision Date: 25 July 2012
• Docket Number: Docket No. 10–2210–cr.
• Parties: UNITED STATES of America, Appellee, v. Michael CASSESSE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

685 F.3d 186

UNITED STATES of America, Appellee,

v.Michael CASSESSE, Defendant–Appellant.¹

Docket No. 10–2210–cr.

United States Court of Appeals,Second Circuit.

Argued: April 3, 2012.

Decided: July 11, 2012.

Amended: July 25, 2012.

Bradley W. Moore, New Haven, Conn. (James I. Glasser, Wiggin and Dana LLP, New Haven, Conn., on the brief), for Defendant–Appellant.

Amy Busa, Asst. U.S. Atty., Brooklyn, N.Y. (Loretta E. Lynch, U.S. Atty. for the Eastern District of New York, Peter A. Norling, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for Appellee.

Before: NEWMAN, KATZMANN, and PARKER, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal presents primarily the almost metaphysical issue of how, if at all, a lifetime term of supervised release, imposed for a supervised release violation, should be reduced by the number of months of a prison term imposed for that same violation, a subtraction we are willing to assume is required by the literal terms of the provisions governing supervised release. Defendant–Appellant Michael Cassesse appeals from the June 19, 2009, judgment of the District Court for the Eastern District of New York (Sandra L. Townes, District Judge) revoking his previous term of lifetime term of supervised release and sentencing him to a term of twelve months in prison followed by a renewed lifetime term of supervised release. We affirm.

Background

In 1987, Cassesse was convicted of conspiracy to distribute heroin and sentenced to five years' probation. In 1991, he was convicted of possession with intent to distribute more than 500 grams of heroin and sentenced to 87 months of imprisonment, a consecutive term of 87 months for violating his probation, and a lifetime term of supervised release, the maximum possible term of supervised release under the statute. See21 U.S.C. § 841(b)(1)(B) (1991). One of the conditions of lifetime supervised release for the narcotics offense was that Cassesse refrain from new criminal conduct.

In 2007, while Cassesse was out of prison but continuing to serve his term of supervised release, he was indicted on several new charges, including racketeering in violation of 18 U.S.C. § 1962. Cassesse was subsequently charged with violating a condition of supervised release by committing a new crime. Following his guilty plea to the racketeering charge, the District Court sentenced Cassesse for both the racketeering conviction and the supervised-release violation.

Speaking with respect to the racketeering offense, Judge Townes noted that she had considered all of the submitted documents, all of the statements made by the defense, the United States Sentencing Guidelines (“the Guidelines”), and the factors enumerated by 18 U.S.C. § 3553(a), including the Defendant's history and characteristics, the nature of the crime committed, and the need for specific and general deterrence. Judge Townes noted that Cassesse's racketeering offense was a violation of his term of supervised release:

He committed the crime to which he pled guilty [ i.e., racketeering] while serving ... a term of supervised release. Mr. Cassesse's difficulties in life do not relieve him of his responsibilities for [the consequences of] continuing to commit crimes. [Yet] he does not seem inclined to stop.... I truly don't think Mr. Cassesse has fully accepted responsibility for his criminal conduct. I believe he's just been caught.

The District Court imposed a sentence of 90 months of imprisonment and three years of supervised release for the racketeering crime.

Judge Townes next turned to the violation of supervised release. At this point the parties presented to the Court a plea agreement, in which Cassesse apparently agreed to plead guilty to the supervised release violation in exchange for the Government's recommendation that any additional prison term for that violation be served concurrently with the 90–month racketeering sentence. The parties agreed that the relevant advisory range for the supervised release violation was six to twelve months of imprisonment.

The District Court accepted Cassesse's guilty plea but rejected the parties' recommendation of a concurrent term, imposing instead a sentence of twelve months of imprisonment for the supervised release violation to run consecutively to the 90 month term for the racketeering conviction. Having revoked the previously imposed term of lifetime supervised release for the narcotics violation, the District Court then imposed a new lifetime term of supervised release.

Although Judge Townes provided no detailed explanation for the sentence for the supervised release violation, she stated, “I have reviewed everything.” At the conclusion of the hearing, defense counsel objected to the lifetime term of supervised release but did not object either to the Court's failure to subtract the twelve month term of imprisonment from it or to the brevity of the Court's explanation of that term.

Discussion

A. Standard of Review

On appeal, sentences may be challenged for substantive and procedural reasonableness. See United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir.2008). Cassesse argues on appeal that the lifetime term of supervised release should somehow have been reduced by twelve months, which is a procedural objection. Although Cassesse did not specifically object in the District Court to the lack of a twelve month reduction, we will assume that his general objection to the length of the new lifetime term comprehended this point. Because this claim presents a question of statutory interpretation, we review the District Court's decision de novo. See United States v. Aleynikov, 676 F.3d 71, 76 (2d Cir.2012).

Cassesse also complains that the District Court inadequately explained its reasons for the lifetime term, which is a procedural objection, and in the absence of any objection in the District Court, plain error review applies. See United States v. Villafuerte, 502 F.3d 204, 208, 211 (2d Cir.2007) (holding that “rigorous” plain error analysis applies to unpreserved claims of procedural sentencing error under 18 U.S.C. § 3553(a) and (c)). ²

B. Whether and How to Reduce the Lifetime Term of Supervised Release

Cassesse contends that the District Court erred when, after revoking his previously imposed term of lifetime supervised release for his narcotics offense, it imposed both twelve months of imprisonment and a new lifetime term of supervised release for the supervised release violation. More specifically, he contends that the District Court was required by statute to deduct the former from the latter, limiting the supervised release term to something at least twelve months less than the “lifetime” maximum authorized for the narcotics violation for which his original term of supervised release was imposed.

Sentencing for a violation of supervised release is governed by 18 U.S.C. § 3583. The parties agree that the relevant form of section 3583 is the one that was in force in 1991, at the time that Cassesse was sentenced to his original lifetime term of supervised release. See United States v. Smith, 354 F.3d 171, 172 (2d Cir.2003). The version of section 3583 in effect in 1991 provides 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....

18 U.S.C. § 3583(e)(3) (1991). The 1991 version is silent on the question of whether a renewed term of supervised release may be imposed in addition to a prison term as punishment for a supervised release violation. Interpreting this version of the statute, the Supreme Court in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), concluded that a court may “revoke the release term and require service of a prison term equal to the maximum authorized length of a term of supervised release.” id. at 705, 120 S.Ct. 1795. Moreover, the Court added, because a term of supervised release “continues ... after revocation even when part of it is served in prison, ... the balance of it [ ] remain[s] effective as a term of supervised release when the incarceration is over[.]” Id. at 706, 120 S.Ct. 1795. As we have noted, section 841(b)(1)(B) provided for the original term of supervised release and authorized a maximum term of lifetime supervised release. In 1994, before Johnson was decided, but after Cassesse was sentenced, Congress amended the supervised release provisions to provide explicitly that a renewed term of supervised release may be imposed for a supervised release violation. See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, § 110505, 108 Stat. 1796, 2017, codified at18 U.S.C. § 3583(h). The amending language not only authorized a renewed term of supervised release not to exceed the maximum allowable for the underlying violation, but also introduced the concept, relevant to this appeal, of a reduction of the maximum allowable term of supervised release by the length of time spent in prison for the supervised release violation. The amendment added section 3583(h), which provides:

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 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) (2012) (emphasis added).

Both parties agree, in effect, that once the Supreme Court ruled in Johnson that a renewed term of supervised release may be imposed for violations that occurred under the 1991 version...