771 F.3d 849 (5th Cir. 2014), 13-10984, United States v. Oswalt

Docket Nº:13-10984
Citation:771 F.3d 849
Opinion Judge:PRISCILLA R. OWEN, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff--Appellee, v. JAY OSWALT, Defendant--Appellant
Attorney:For United States of America, Plaintiff - Appellee: Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX. For Jay Oswalt, Defendant - Appellant: Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX; Willi...
Judge Panel:Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
Case Date:November 07, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 849

771 F.3d 849 (5th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff--Appellee,

v.

JAY OSWALT, Defendant--Appellant

No. 13-10984

United States Court of Appeals, Fifth Circuit

November 7, 2014

Appeal from the United States District Court for the Northern District of Texas.

For United States of America, Plaintiff - Appellee: Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX.

For Jay Oswalt, Defendant - Appellant: Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX; William Reynolds Biggs, Fort Worth, TX.

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

OPINION

Page 850

PRISCILLA R. OWEN, Circuit Judge:

Jay Oswalt was convicted of three offenses. He was sentenced to three concurrent terms of imprisonment and three concurrent terms of supervised release. After revoking each term of supervised release, the district court sentenced Oswalt to three consecutive six-month terms of imprisonment and three concurrent 24-month terms of additional supervised release. Oswalt argues that the terms of his supervised release exceed the statutory maximum under 18 U.S.C. § 3583(h). He asserts that the district court erred by failing to reduce the maximum term of supervised release for each count by all terms of imprisonment imposed upon revocation even though two of the terms of imprisonment were imposed for different counts. We affirm.

I

Oswalt was convicted of two counts of bank robbery and one count of attempted bank robbery under 18 U.S.C. § 2113(a). He received three concurrent terms of imprisonment of 63 months to be followed by three concurrent terms of supervised release of 36 months. After serving his time in prison, Oswalt began his supervised release.

The district court later revoked Oswalt's supervised release because it determined that he had used and possessed certain controlled substances and had failed to attend drug counseling. The court sentenced Oswalt to prison for six months on each of his three counts, to run consecutively, for a total of 18 months of imprisonment. The court also sentenced Oswalt to 24 months of supervised release on each count, to run concurrently.

Oswalt did not object to the term of his supervised release in the district court. However, he now contends that the supervised release exceeds the maximum term allowed. He argues that the district court should have subtracted the sum of his three terms of imprisonment--18 months total--from the statutory maximum term of supervised release for each of his counts--36 months per count. Oswalt's equation limits his supervised release to 18 months per count, rather than the 24 months the district court imposed.

II

When a defendant argues that his sentence exceeds the statutory maximum, we review the issue de novo, regardless of whether the defendant properly preserved the objection to his sentence.1 Accordingly, whether Oswalt preserved error regarding the term of his supervised release is irrelevant.

III

When a court revokes a term of supervised release and requires the defendant to serve a term of imprisonment, the court may also impose another term of supervised release following the defendant's imprisonment, with certain limitations.2 The maximum term of supervised release following revocation is limited by 18 U.S.C. § 3583(h):

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

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upon revocation of supervised release.3

This provision requires a two-step calculation.4

The first step requires the district court to " identify the term of supervised release authorized for the defendant's original offense." 5 The parties do not dispute this portion of the calculation. Oswalt was convicted of two counts of bank robbery and one count of attempted bank robbery under 18 U.S.C. § 2113(a). The three offenses each carried a maximum sentence of twenty years,6 making each offense a Class C felony.7 For a Class C felony, a court may impose a maximum term of three years of supervised release.8 Accordingly, Oswalt's three offenses originally carried a maximum of 36 months of supervised release, per count.

The next step requires the district court to " subtract from the originally authorized supervised release term 'any term of imprisonment that was imposed upon revocation of supervised release.'" 9 The parties disagree as to how to apply this directive.

Oswalt contends that the phrase " less any term of imprisonment that was imposed upon revocation of supervised release" requires the district court to combine the prison terms imposed for each individual count and subtract that total...

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