United States v. Spencer

• Decision Date: 21 June 2013
• Docket Number: No. 11–3017.,11–3017.
• Citation: 720 F.3d 363
• Parties: UNITED STATES of America, Appellee v. Emmett SPENCER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

720 F.3d 363

UNITED STATES of America, Appellee

v.Emmett SPENCER, Appellant.

No. 11–3017.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 16, 2012.

Decided June 21, 2013.

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 for the Court filed by Senior Circuit Judge SENTELLE.

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 supervisedrelease, 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 Consequently, his supervised release was revoked, and he was sentenced to 14 months imprisonment and 22 months of supervised release.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from this second imprisonment and while on supervisedrelease, Spencer again violated the terms and supervised release was revoked.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 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 ... more than 2 years in prison if such offense is a Class C or D felony.

Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322 § 110505(2)(B), 108 Stat. 1796, 2016–17 (1994) (amendment italicized). One result of the added language was that sentencing courts were now authorized “to impose a term of revocation imprisonment without being limited by the amount of supervised release the original sentencing court imposed.” Hampton, 633 F.3d at 341. The amendments instead extended imprisonment upon revocation up to the terms authorized by § 3583(b), i.e., those terms “authorized by statute for the offense that resulted in such term of supervised release.” Id.

Another result of the 1994 amendment was that courts began to interpret the new language “as requiring courts to credit a defendant's prior revocation sentences when imposing a new one.” United States v. Hunt, 673 F.3d 1289, 1291–92 (10th Cir.2012). Further, many courts held that the felony class revocation limits at the end of § 3583(e)(3) were cumulative limits that applied to all prison terms imposed for violations of supervised release in the same case. See United States v. Tapia–Escalera, 356 F.3d 181, 187 n. 7 (1st Cir.2004) (collecting cases); United States v. Swenson, 289 F.3d 676, 677 (10th Cir.2002) (same); United States v. Merced, 263 F.3d 34, 37 (2d Cir.2001) (same). In Spencer's terminology, then, courts were now considering the “except” clause limits as aggregate limits upon supervised release revocation. So, if Spencer had been sentenced for revocation of his second supervised release during this time period, then the aggregate limit for his class C felony pursuant to § 3583(e)(3) would have been two years, and since he had already served 14 months after his first revocation, the most imprisonment he could receive after his second revocation would have been 10 months.

In 2003, § 3583(e)(3) was again amended, this time to read, in pertinent part, that a 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.

Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (“PROTECT”) Act, Pub L. 108–21, § 101, 117 Stat. 650, 651 (Apr. 30, 2003) (amendment italicized). As discussed more fully below, pursuant to this amendment courts no longer consider the class limits at the end of § 3583(e)(3) to be aggregate limits on imprisonment for multiple revocations of supervised release. Instead, now that a defendant “may not be required to serve on any such revocation ... more than” a certain number of years based on the class of felony originally committed, courts have held that the limit applies to each revocation, but no aggregate limit.

A.

Spencer's first argument is that pursuant to the felony class imprisonment term limits at the end of § 3583(e)(3), the aggregate limit for his two supervised releaserevocations is 2 years, and since he was sentenced to 14 months after his first revocation, the court was limited to sentencing him to 10 months after his second revocation. Spencer acknowledges that the weight of authority is against him. He rightly admits that all circuits that have considered the question “have concluded that, when Congress amended § 3583(e)(3) to add the phrase ‘on any such revocation’ to that provision,” hold that Congress “intended to preclude the aggregation of more than one term of imprisonment following supervised release, in calculating the maximum allowable term under the ‘except’ clause.” Appellant's Br. at pp. 6–7. Appellant's concession is well taken. See, e.g., United States v. Hernandez, 655 F.3d 1193, 1195 (10th Cir.2011); United States v. Epstein, 620 F.3d 76, 80 (2d Cir.2010); United States v. Knight, 580 F.3d 933, 937–38 (9th Cir.2009); United States v. Lewis, 519 F.3d 822, 825 (8th Cir.2008).

Spencer argues that the unanimous weight of authority is wrong. He contends that the 2003 amendment is inapplicable to case...