United States v. Harris

• Citation: 878 F.3d 111
• Decision Date: 19 December 2017
• Docket Number: No. 16-4546,16-4546
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcus L. HARRIS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

878 F.3d 111

UNITED STATES of America, Plaintiff-Appellee,

v.Marcus L. HARRIS, Defendant-Appellant.

No. 16-4546

United States Court of Appeals, Fourth Circuit.

Argued: September 15, 2017

Decided: December 19, 2017

ARGUED: Laura Jill Koenig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Brian R. Hood, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Before SHEDD, AGEE, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion in which Judge Shedd and Judge Agee joined.

FLOYD, Circuit Judge:

Appellant Marcus L. Harris appeals the revocation of his supervised release. The district court revoked his original term of supervised release for a technical violation, and imposed a second term of supervised release. Soon after, the court revoked Harris’s second term of supervised release for a substantive violation. Harris argues that the district court lacked jurisdiction to revoke his second term of supervised release. Assuming the court had jurisdiction, Harris further argues that the revocation sentence exceeded the statutory maximum. Because the district court retained jurisdiction to revoke Harris’s supervised release a second time, and properly prescribed the maximum sentence permitted under 18 U.S.C. § 3583(e)(3), we affirm.

I.

In 2009, Harris pled guilty to Possession with Intent to Distribute 5 Grams or More of Cocaine Base, a Class B felony under 21 U.S.C. § 841. The district court sentenced Harris to a term of imprisonment and 48 months of supervised release ("original term"). Harris began his original term of supervised release on September 8, 2014. The conditions of the release specified that Harris "shall not commit another federal, state or local crime," and "shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer...." J.A. 20.

In July 2015, Harris was involved in a traffic stop by the Petersburg Bureau of Police ("PBP"), which led to the discovery of firearms and substances suspected to be drugs, and the execution of two search warrants at his home. Harris failed to report the PBP officers’ questioning in connection with the search warrants to his probation officer, but the probation officer eventually learned of the encounter. As a result, on September 3, 2015, the government filed a petition ("original petition") in federal court seeking to revoke Harris’s original term of supervised release for two alleged violations: (1) commission of a crime—Possession of a Firearm by a Convicted Felon and (2) commission of a crime—Possession of Controlled Substance.

While the original petition was pending, on September 24, 2015, Harris was separately arrested by the PBP and charged in state court with murder and use of a firearm in the commission of a felony. The government subsequently filed three addenda to the original petition, indicating that the state investigation of the murder charge was connected to the July traffic stop involving the drugs and firearms. The first addendum alleged that Harris failed to notify his probation officer within 72 hours of questioning by law enforcement, referencing the PBP’s execution of the search warrants. The second addendum alleged Harris’s two new state criminal charges as the basis for revocation. The third addendum requested that the district court issue an arrest warrant based on the second addendum’s allegations. The district court approved the government’s request to amend the original petition through these addenda and issued an arrest warrant.

The district court held a revocation hearing on October 6, 2015. The court revoked Harris’s original term of supervised release for his failure to report, as alleged in the first addendum, and imposed the first revocation sentence. This sentence consisted of one month of imprisonment (from October 6, 2015, to November 5, 2015) and 40 months of supervised release. Given the pending state court proceedings, the district court neither dismissed nor ruled on the allegations regarding the violations based on the state criminal charges.

While Harris was serving his one month imprisonment, a federal grand jury indicted Harris for Possession of a Firearm by a Convicted Felon for the firearms discovered during the July 2015 traffic stop. Based on this federal indictment, the government filed a fourth addendum to the original petition, alleging the commission of this crime as a new basis for revoking Harris’s supervised release. On October 23, 2015, the district court approved the fourth addendum and issued an arrest warrant on the basis of these allegations. The district court also granted the government’s motion to dismiss the original petition and other addenda, allowing the fourth addendum to supersede other allegations. Harris remained in pre-trial detention pending his federal criminal trial, even after he completed his one-month, post-revocation imprisonment.

On April 6, 2016, Harris was convicted of Possession of a Firearm by a Convicted Felon. Based on this conviction, on August 18, 2016, the district court revoked Harris’s supervised release again and imposed a second revocation sentence, consisting of 36 months of imprisonment and 24 months of supervised release. Harris appeals this second revocation of his supervised release. Harris claims that the district court lacked jurisdiction to revoke his supervised release, and that even if it had jurisdiction, the court exceeded the statutory maximum for a revocation sentence under 18 U.S.C. § 3583.

II.

We first consider whether the district court had jurisdiction to revoke Harris’s supervised release a second time. This Court reviews de novo whether the district court had jurisdiction to rule upon alleged violations of supervised release. United States v. Barton , 26 F.3d 490, 491 (4th Cir. 1994). We hold that the district court had jurisdiction to revoke Harris’s supervised release a second time.

A.

It is well-established that a revocation does not end a term of supervised release. 18 U.S.C. § 3583 governs the district court’s authority to revoke, extend, modify, or terminate a defendant’s term of supervised release. Under 18 U.S.C. § 3583(e), the court may

(1) terminate a term of supervised release and discharge the defendant released ...;

(2) extend a term of supervised release ... at any time prior to the expiration or termination of the term of supervised release ...;

(3) 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 without credit for time previously served on postrelease supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release....

18 U.S.C. § 3583(e)(1)–(3). When the district court terminates a term of supervised release, the defendant is discharged from the court’s supervision. Termination "end[s] the term of supervised release without the possibility of its reimposition or continuation at a later time." Johnson v. United States , 529 U.S. 694, 704, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). "Thus, if the district court later discovered that the defendant had earlier violated some condition of his supervised release, the court would lack authority to send him back to prison for that violation qua violation." United States v. Cross , 846 F.3d 188, 190 (6th Cir. 2017).

By contrast, when the court revokes a term of supervised release, the defendant is not discharged from the court’s supervision. The court may "require the defendant to serve in prison all or part of the term of supervised release...." 18 U.S.C. § 3583(e)(3) ; see also 18 U.S.C. § 3583(h) (allowing the court to include a post-revocation term of supervised release to follow the post-revocation imprisonment as part of a revocation sentence). After revocation, the defendant continues to serve his term of supervised release, but does so in prison. Revocation merely " ‘recall[s],’ ‘call[s] or summon[s] back’ the release." United States v. Winfield , 665 F.3d 107, 110 (4th Cir. 2012) (quoting Johnson , 529 U.S. at 706, 120 S.Ct. 1795 ) (alterations in original); see also Cross , 846 F.3d at 190 ("Revocation therefore revokes only the release part of supervised release...."). Unlike termination, revocation does not end the term of supervised release; instead, the term of supervised release continues on past revocation.

Johnson 529 U.S. at 705, 120 S.Ct. 1795 ("[I]f ‘the term of supervised release’ is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation.").

Based on Johnson ’s holding that a term of supervised release survives past a revocation, we similarly held in Winfield that the district court’s jurisdiction over the supervised release continues past revocation. 665 F.3d at 112. In Winfield, the district court revoked Winfield’s release based on technical violations and sentenced Winfield to 12 months of imprisonment. Id. at 109. The court, however, postponed adjudicating the substantive violations pending a state criminal trial. Id. When the court held a second revocation hearing, Winfield argued that the first revocation had deprived the district court of its jurisdiction. Id. at 110. We looked to the Supreme Court’s reasoning in Johnson , and the Third Circuit’s determination in a similar case that the first revocation "did not deprive the court of its jurisdiction to hold a...