720 F.3d 363 (D.C. Cir. 2013), 11-3017, United States v. Spencer

Docket Nº:11-3017.
Citation:720 F.3d 363
Opinion Judge:SENTELLE, Senior Circuit Judge:
Party Name:UNITED STATES of America, Appellee v. Emmett SPENCER, Appellant.
Attorney:Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee and Mary Manning Petras, Assistant Federal Public Defenders, entered appearances. Peter S. Smith, Assistant U.S. Attorney, argued the...
Judge Panel:Before: GRIFFITH and KAVANAUGH, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Case Date:June 21, 2013
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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720 F.3d 363 (D.C. Cir. 2013)

UNITED STATES of America, Appellee

v.

Emmett SPENCER, Appellant.

No. 11-3017.

United States Court of Appeals, District of Columbia Circuit.

June 21, 2013

Argued Oct. 16, 2012.

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Appeal from the United States District Court for the District of Columbia (No. 1:04-cr-00046-1).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Neil H. Jaffee and Mary Manning Petras, Assistant Federal Public Defenders, entered appearances.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, Elizabeth H. Danello, and Jean W. Sexton, Assistant U.S. Attorneys.

Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and SENTELLE, Senior Circuit Judge.

OPINION

SENTELLE, Senior Circuit Judge:

Emmett Spencer appeals his sentence of 24 months imprisonment imposed after the second revocation of his supervised release. He contends that pursuant to the statute providing for supervised release after imprisonment, 18 U.S.C. § 3583, the district court was required to aggregate his terms of imprisonment following revocation of supervised release, thus limiting imprisonment after his second revocation of supervised release to 10 months or, in the alternative, 22 months. We disagree, and affirm the decision of the district court.

Background

In 2006 appellant Emmett Spencer pled guilty to unlawful possession of a firearm and ammunition by a convicted felon, a class C felony. He was sentenced to 37 months imprisonment and 3 years of supervised release. After being released from prison and while serving on supervised

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release, Spencer violated the terms of his supervised release. Consequently, his supervised release was revoked, and he was sentenced to 14 months imprisonment and 22 months of supervised release. After being released from this second imprisonment and while on supervised release, Spencer again violated the terms and supervised release was revoked. He was sentenced to 24 months imprisonment with no supervised release to follow. Spencer now appeals his 24 month prison sentence.

Discussion

On each occasion, Spencer's supervised release was revoked pursuant to 18 U.S.C. § 3583(e)(3). Since 2003 the relevant part of § 3583(e)(3) has read as follows:

The court may ... 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 ... except that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation ... more than 2 years in prison if such offense is a Class C or D felony....

18 U.S.C. § 3583(e)(3). Spencer argues that under § 3583(e)(3) his revocation sentences should be " aggregated," i.e., all post-revocation prison terms should be cumulative, and the total should not exceed a statutory maximum. He asserts two possible maxima. First, Spencer points to what he refers to as the " except" clause at the end of § 3583(e)(3), which states " except that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation ... more than 2 years in prison if such offense is a class C or D felony." As he did in the district court, Spencer argues that his maximum post-revocation aggregate prison time for his class C felony is the stated two years. As he already served 14 months after his first revocation, Spencer contends that the district court was limited to sentencing him to 10 months on his second revocation.

Alternatively, Spencer points to what he refers to as the " all or part" clause at the beginning of § 3583(e)(3), which states that upon revocation the defendant will be required " 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." Since under 18 U.S.C. § 3583(b) " the term of supervised release authorized by statute for" a class C felony is not more than three years, Spencer argues that his post-revocation maximum aggregate prison time is three years. Because he served 14 months in prison after his first supervised release revocation, Spencer argues that after his second supervised release revocation the court was limited to sentencing him to 22 months in prison.

To more fully understand Spencer's arguments, we will give a brief review of § 3583(e)(3). Prior to 1994, § 3583(e)(3) read, in pertinent part, that a 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 ... except that a person whose term is revoked under this paragraph may not be required to serve ... more than 2 years in prison if the offense was a Class C or D felony.

18 U.S.C. § 3583(e)(3) (Supp. V 1993). Under this version of § 3583(e)(3), " the revoking court could not impose a revocation sentence that exceeded the supervised release sentence imposed by the original sentencing court." United States v. Hampton, 633 F.3d 334, 341 (5th Cir.2011). In 1994 the statute was amended, to read in pertinent part that a court may

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revoke a term of supervised release, and require the defendant to serve in prison all or part of the term...

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