United States v. Hertler

Decision Date15 January 2015
Docket NumberNo. 13–30273.,13–30273.
Citation776 F.3d 680
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Mark William HERTLER, Defendant–Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Andrew J. Nelson (argued), Assistant Federal Defender, Federal Defenders of Montana, Missoula, MT, for DefendantAppellant.

Lori Anne Harper Suek (argued) and Cyndee L. Peterson, Assistant United States Attorney, United States Attorneys' Office District of Montana, Missoula, MT, for PlaintiffAppellee.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding.

Before: HARRY PREGERSON, RICHARD A. PAEZ, and PAUL J. WATFORD, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

Defendant Mark William Hertler appeals a postrevocation term of supervised release. He argues that the new term of twenty months exceeds the maximum period that can be imposed under 18 U.S.C. § 3583(h). That subsection authorizes a district court to impose a postrevocation term of supervised release up to the statutory maximum, but requires the court to reduce the length of supervised release by “any term of imprisonment that was imposed upon revocation of supervised release.” Hertler contends that the phrase “any term of imprisonment” in § 3583(h) refers to any term of imprisonment imposed for all offenses following the latest revocation of supervised release. He therefore argues that the district court erred when it construed this clause to refer only to all terms of imprisonment imposed for a single underlying offense. He further argues that, as a result of this error, the district court concluded that he was eligible for up to thirty-two months of additional supervised release when he should have been sentenced to no more than nine.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo the legality of Hertler's sentence. United States v. Xinidakis, 598 F.3d 1213, 1215 (9th Cir.2010). For the reasons set forth below, we agree with the construction of “any term of imprisonment” adopted by the district court, the Eighth Circuit in United States v. Zoran, 682 F.3d 1060 (8th Cir.2012), and the Fifth Circuit in United States v. Oswalt, 771 F.3d 849 (5th Cir.2014). We therefore affirm.

I

On July 13, 2005, Hertler was named in a two-count indictment in the Southern District of Texas. The indictment charged Hertler with: (1) distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(b)(2), and (2) possession of child pornography involving sexual exploitation of minors, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(1), and 2256(8). Hertler pled guilty to both counts in September, 2005. The district court ultimately sentenced him to concurrent terms of eighty-seven months of imprisonment on Count 1 and sixty months on Count 2. The court also imposed concurrent thirty-six month terms of supervised release “as to each of Counts 1 and 2.”1

Hertler was released from prison and began his supervised release on November 22, 2011. In July, 2012, the Southern District of Texas transferred jurisdiction over Hertler's case to the District of Montana. Shortly thereafter, on July 18, 2012, Hertler'sprobation officer filed a petition to revoke Hertler's supervised release. Among other allegations, the petition alleged that Hertler violated several conditions of his release by possessing sexually explicit materials, and by attending a Christmas dinner at which his nine-year-old niece was present. Hertler admitted the allegations. The district court revoked Hertler's supervised release and sentenced him to consecutive terms of nine months of imprisonment on Count 1 and three months on Count 2. The court also imposed concurrent terms of twenty-four months of supervised release on each of Counts 1 and 2.

Hertler was released from prison on July 17, 2013. Shortly thereafter, on August 1, 2013, Hertler's probation officer filed a petition to revoke his supervised release. The petition alleged that Hertler again violated the conditions of his release by possessing sexually explicit movies. Hertler admitted the violation. The district court sentenced Hertler to fifteen months of imprisonment on Count 1 and one month on Count 2, to run concurrently. The court also imposed a twenty month term of supervised release on Count 2. The district court did not impose any additional period of supervised release on Count 1. Hertler timely appealed his sentence.

II

We begin our analysis by reviewing the relevant statutes.

Section 3583 governs the imposition of supervised release. Subsection (a) authorizes district courts to impose supervised release, while subsection (b) sets forth the maximum period of supervised release that may be imposed for an offense of conviction. For example, subsection (b) provides that “for a Class A or Class B felony, not more than five years” may be imposed. 18 U.S.C. § 3583(b). Subsection (e) governs the modification of conditions and revocation of supervised release. As relevant here, § 3583(e)(3) provides 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.” That subsection also limits the amount of time that a court may require a defendant to serve in prison upon revocation, providing different maximum terms for different classes of felonies. Id.

Subsection 3583(h), the provision at issue in this case, governs the imposition of any additional term of supervised release following revocation:

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 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 upon revocation of supervised release.

Id. (emphasis added).

We have held that the limit on the length of a term of supervised release under § 3583(h) requires that “the maximum term of supervised release to be imposed following multiple revocations of supervised release ... be reduced by the aggregate length of any and all terms of imprisonment that have been imposed upon revocation of supervised release.” United States v. Knight, 580 F.3d 933, 940 (9th Cir.2009) (emphasis omitted); accord United States v. Anderson, 519 F.3d 1021, 1025 (9th Cir.2008). Thus, for example, in Anderson, we held that because the original term of supervised release was sixty months and, as a result of three revocations, the defendant had served additional terms of six, seven, and three months (a total of sixteen months), the district court could impose no more than forty-four months of supervised release for the fourth violation. 519 F.3d at 1025.

Also relevant to the imposition of supervised release is 18 U.S.C. § 3624(e), which provides that

[t]he term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release.

In essence, § 3624(e) provides that when a district court initially imposes multiple terms of supervised release, it must order that they run concurrently.

III

Relying in part on Knight, Hertler argues that, in calculating the maximum term of supervised release that could be imposed for Count 2, the district court should have aggregated the prison time imposed in connection with both Counts 1 and 2, and reduced the current term of supervised release accordingly. This adjustment would have significantly reduced the maximum term of supervised release that the court could have imposed for the current violation. Under Hertler's approach, the court should have started with the “term of supervised release authorized by statute for Count 2, which was thirty-six months. 18 U.S.C. § 3583(b), (h). Next, the court should have aggregated all postrevocation prison sentences, which totaled twenty-seven months—nine months on Count 1 and three months on Count 2 for the first violation, and fifteen months on Count 1 for the second violation. After deducting this amount from the statutory period of thirty-six months, the maximum length of supervised release that the district court could have imposed, according to Hertler, was nine months.

The government argues that because the convictions and sentences for Counts 1 and 2 were separate and distinct, the district court was not required to reduce the term of postrevocation supervised release that could be imposed for Count 2 by any months of imprisonment imposed for Count 1. Rather, the court was required to reduce the term of supervised release only by the aggregate of all time imposed on Count 2. According to the government, because the district court initially imposed thirty-six months of supervised release on Count 2 and has imposed only four months of postrevocation imprisonment on this count (three months for the first revocation and one month for the second), the maximum term of supervised release the court could have imposed was thirty-two months on Count 2. The government argues that, because the district court imposed only a twenty month term, Hertler's postrevocation sentence was proper under § 3583(h). We agree.

A

As an initial matter, Hertler's reliance on Knight is misplaced. Hertler argues that Knight supports aggregating the postrevocation terms of imprisonment for different counts of conviction. However, in Knight, the defendant was convicted of only one offense. See 580 F.3d at 935. Thus, in determining the maximum term of supervised release, the court was...

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