U.S. v. St. John, 95-3665

• Decision Date: 19 August 1996
• Docket Number: No. 95-3665,95-3665
• Citation: 92 F.3d 761
• Parties: UNITED STATES of America, Appellee, v. Charles E. ST. JOHN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 761

92 F.3d 761

UNITED STATES of America, Appellee, v. Charles E. ST. JOHN, Appellant.

No. 95-3665.

United States Court of Appeals Eighth Circuit.

Submitted March 12, 1996.

Decided Aug. 19, 1996.

Kenneth E. Nelson, Kansas City, MO, argued, for appellant.

Bruce E. Clark, Kansas City, MO, argued, for appellee.

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Charles E. St. John appeals from a final judgment entered in the District Court ¹ for the Western District of Missouri revoking his supervised release and sentencing him to 14 months imprisonment to be followed by 22 months supervised release. The district court also ordered St. John to pay the balance of the fine which had been originally imposed. For reversal, St. John argues the district court erred in imposing a revocation sentence that included both a term of imprisonment and a term of supervised release because 18 U.S.C. § 3583(e)(3) does not authorize supervised release upon revocation of supervised release and because 18 U.S.C. § 3583(h), which does authorize supervised release upon revocation of supervised release, was not in effect at the time the offenses were committed. St. John argues that application of 18 U.S.C. § 3583(h) imposes an increased penalty and thus violates the ex post facto clause. For the reasons discussed below, we affirm the judgment of the district court.

In December 1989 a federal grand jury indicted St. John for conspiracy to distribute dilaudid in violation of 21 U.S.C. § 846, seven counts of distribution of dilaudid in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). St. John pleaded guilty to the seven distribution counts and the firearms count, and in September 1990 the district court sentenced him to 63 months imprisonment, 36 months supervised release and a $4,000 fine. St. John completed his prison sentence and began serving his term of supervised release in May 1995. Almost immediately St. John violated the conditions of supervised release. Among other things he repeatedly tested positive for illegal drug use, operated a motor vehicle under the influence of alcohol, and was arrested for solicitation. The government filed a motion to revoke supervised release. In October 1995 the district court held a revocation hearing; St. John did not contest the allegations of the violations. The district court revoked supervised release and sentenced St. John to 14 months imprisonment to be followed by 22 months supervised release, for a total of 36 months, the length of the original term of supervised release. The district court did not explicitly state the statutory basis for its order. The practical effect of the revocation sentence is that St. John will serve in prison 14 of the 36 months of the original term of supervised release. The district court also ordered him to pay the balance of the fine originally imposed. This appeal followed.

St. John argues the district court erred in sentencing him to both a term of imprisonment and a term of supervised release because 18 U.S.C. § 3583(e)(3) ² does not authorize the imposition, upon revocation of supervised release, of both a term of imprisonment and a term of supervised release. St. John argues that, at the time he was originally sentenced in 1990, the only court to interpret § 3583(e)(3) had held that, because § 3583(e) was written in the disjunctive, a district court could revoke supervised release and either impose a term of imprisonment or modify the terms of the original supervised release, but not both. United States v. Behnezhad, 907 F.2d 896, 898 (9th Cir.1990). St. John acknowledges that this court subsequently held § 3583(e)(3) authorized imposition of a revocation sentence including both a term of imprisonment and a term of supervised release, United States v. Schrader, 973 F.2d 623, 624-25 (8th Cir.1992), but he argues that due process prohibits imposition of a sentence based on case law decided after the offense was committed. St. John also acknowledges that 18 U.S.C. § 3583(h) (effective Sept. 13, 1994), ³ which Congress enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 110505, 1994 U.S.C.C.A.N. (108 Stat.) 1796, 2017, specifically authorizes, upon revocation of supervised release, the imposition of both a term of imprisonment and a term of supervised release. However, St. John argues that, because § 3583(h) was enacted subsequent to his conviction and increases the penalty for the offenses, applying § 3583(h) to him would violate the ex post facto clause.

Article I, § 9, of the Constitution prohibits Congress from passing ex post facto laws. "[A]ny statute ... which makes more burdensome the punishment for a crime, after its commission, ... is prohibited as ex post facto." Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990). "[T]o fall within the ex post facto prohibition, two critical elements must be present: first, the law 'must be retrospective, that is, it must apply to events occurring before its enactment'; and second, 'it must disadvantage the offender affected by it.' " Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987), citing Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). Cf. California Dep't of Corrections v. Morales, 514 U.S. 499, ---- n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588 (1995) (shifting focus from whether the legislative change "produces some sort of ambiguous 'disadvantage' " to whether legislative change "alters definition of criminal conduct or increases the penalty by which a crime is punishable"). "It is 'axiomatic that for a law to be ex post facto it must be more onerous than the prior law.' " Miller v. Florida, 482 U.S. at 431, 107 S.Ct. at 2451-52, citing Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977); see, e.g., United States v. Bell, 991 F.2d 1445, 1448 (8th Cir.1993) (more burdensome punishment after crime was committed violates ex post facto clause).

We address first St. John's ex post facto argument based upon the Ninth Circuit's construction of 18 U.S.C. § 3583(e)(3) in Behnezhad. This argument must fail because "the ex post facto clause does not apply to judicial constructions of statutes." United States v. Burnom, 27 F.3d 283, 284 (7th Cir.1994); see, e.g., United States v. Levi, 2 F.3d 842, 844 (8th Cir.1993) (noting ex post facto analysis assumes the court is construing the effects of a penal "law"). "The Ex Post Facto Clause is a limitation upon the powers of the Legislature and does not of its own force apply to the Judicial Branch of government." Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992-93, 51 L.Ed.2d 260 (1977) (citation omitted). However, this Behnezhad-based argument raises due process considerations because

the principle on which the [Ex Post Facto] Clause is based--the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties--is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. In Bouie v. City of Columbia, 378 U.S. 347[, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894] (1964), a case involving the cognate provision of the Fourteenth Amendment, the Court reversed trespass convictions, finding that they rested on an unexpected construction of the state trespass statute by the State Supreme Court:

[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids.... If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.

Marks v. United States, 430 U.S. at 191-92, 97 S.Ct. at 992-93 (citations omitted).

Viewed from a due process perspective, St. John's argument is essentially that Schrader and this court's later cases unforeseeably (and incorrectly) expanded the reach of 18 U.S.C. § 3583(e)(3) beyond Behnezhad. St. John argues (accurately) that all the other circuit courts of appeals that considered the issue followed Behnezhad and not Schrader. See United States v. Stewart, 7 F.3d 1350, 1354 (8th Cir.1993) (Lay, J., dissenting) (noting that this court's holding in Schrader is contrary to that of all other circuits that have passed upon the issue and urging submission to court en banc for reconsideration); United States v. Krabbenhoft, 998 F.2d 591, 593 n. 2 (8th Cir.1993) (noting inconsistency between Schrader and the other circuits). However, this argument overlooks the fact that this court is not bound by the prior decisions of the other circuit courts of appeals. This circuit has consistently and repeatedly held that revocation sentences imposed under 18 U.S.C. § 3583(e)(3) may include both imprisonment and supervised release, as long as the aggregate of the two terms is less or equal to the original term of supervised release. See, e.g., United States v. Stewart, 7 F.3d at 1352 (stressing Schrader relied entirely on language of § 3583(e)(3) and not on relationship between § 3583(e) options or sentencing guidelines); United States v. Krabbenhoft, 998 F.2d at 594 ("term of supervised release" as used in § 3583(e) means the term of supervised release as originally imposed by the district court at sentencing); cf. United States v. Hartman, 57 F.3d 670, 671 & n. 2 (8th Cir.1995) (per curiam) (rejecting argument that recent enactment of 18 U.S.C. § 3583(h) which expressly allows district courts to impose revocation sentence consisting of both imprisonment and supervised release indicates this court misinterpreted 18 U.S.C. § 3583(e) and...