U.S. v. Boling

• Decision Date: 31 October 1991
• Docket Number: No. 90-6407,90-6407
• Citation: 947 F.2d 1461
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Scott BOLING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1461

947 F.2d 1461

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Scott BOLING, Defendant-Appellant.

No. 90-6407.

United States Court of Appeals, Tenth Circuit.

Oct. 31, 1991.

Susan Otto, Acting Federal Public Defender (Jerome T. Kearney, Asst. Federal Public Defender, on the brief), Oklahoma City, Okl., for defendant-appellant.

Ted A. Richardson, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before HOLLOWAY, LOGAN and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Timothy Scott Boling was sentenced, pursuant to a guilty plea to conspiracy to steal government property in violation of 18 U.S.C. § 371, to a term of fifteen months incarceration to be followed by twenty-four months of supervised release. After he had served the incarceration and ten months of the supervised release period defendant violated the conditions of the release. He was arrested on new charges of intent to distribute and possession of drug paraphernalia, and he failed to report his arrest to his probation officer. At the revocation hearing in this matter the district court sentenced defendant to fifteen months imprisonment and an additional term of fourteen months supervised release. In formulating the new sentence, the court apparently relied upon U.S.S.G. § 7B1.3(g)(2), which states as follows:

"Where supervised release is revoked and the term of imprisonment imposed is less than the maximum term of imprisonment imposable upon revocation, that defendant may, to the extent permitted by law, be ordered to recommence supervised release upon release from imprisonment."

The statutory authority for the guidelines treating modification or revocation of supervised release include 18 U.S.C. § 3583(e)(2)-(3), which provide as follows:

"(e) Modification of conditions or revocation.--The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6)-- ...

(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions 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 person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony; ..."

Defendant relies upon United States v. Behnezhad, 907 F.2d 896 (9th Cir.1990), which held that under 18 U.S.C. § 3583(e)(2)-(3) the district court had to either revoke the term of supervised release and incarcerate the defendant violator or modify the terms of supervised release, but it could not do both. Id. at 898-99. See also United States v. Gozlon-Peretz, 894 F.2d 1402, 1405 n. 5 (3d Cir.1990) (noting, in dicta, that "after revocation of a supervised release term, there is no provision for additional post-release supervision"), aff'd on other grounds, --- U.S. ----, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). We cannot agree with the Behnezhad court. We note that case was decided without the benefit of the United States Sentencing Commission's interpretation of § 3583(e) found in U.S.S.G. § 7B1.3(g)(2), which became effective only several months after the Behnezhad opinion. Moreover, we benefit from the reaction to Behnezhad and Congress' subsequent attempt to clarify its original intent in enacting § 3583.

In dealing with violations of supervised release the Sentencing Commission chose to issue policy statements rather than guidelines, in order to permit evaluation after experience with the new supervised release concept. In so doing it recognized 18 U.S.C. § 3583(e)(3) as limiting the period of imprisonment authorized for violations of supervised release. U.S.S.G. ch. 7, pt. A2(b); see also id. at A3(b) (referencing "relatively low ceilings set by statute"). It also chose the approach to sanctioning violations of supervised release that treated violations as a "breach of trust," leaving the punishment for new criminal conduct to the court responsible for sentencing for that new conduct. Id. at A3(b). In promulgating the policy statements which include U.S.S.G. § 7B1.3(g)(2), the Commission acknowledged the Behnezhad court's interpretation of § 3583(e); this may explain its "to the extent permitted by law" reference in § 7B1.3(g)(2). But clearly the Commission disagreed with that decision, as evidenced both by the policy statement it promulgated and its transmission to Congress of a proposal to address the issue. See U.S.S.G. § 7B1.3, comment. (n. 3).

The comments of members of Congress who are now in the process of amending § 3583 make clear that they too disagree with Behnezhad. An amendment to § 3583, passed by the Senate on July 11, 1991, as part of the Biden-Thurmond Violent Crime Control Act of 1991, expressly provides:

"When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized ... 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 statue [sic] 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."

137 Cong.Rec. S10021 (daily ed. July 15, 1991). Regarding this amendment, Senator Thurmond stated, "These proposals were suggested to me by the U.S. Sentencing Commission with the desire that they might be promptly enacted so that the supervised release component of sentences will function as Congress intended. " 137 Cong.Rec. S8892 (daily ed. June 27, 1991) (emphasis added). The senator continued by declaring the legislation "would clarify that Federal courts retain the flexibility to order an additional period of supervised release following the imposition of a term of imprisonment for a violation of a condition of supervised release." Id. (emphasis added). Although we must apply and construe the law as enacted and not as Congress might in the future amend it, we accept Senator Thurmond's amendment as indeed mere clarification of the original intent of § 3583(e). ¹

In our view, the proper reading of the statutory limitation of 18 U.S.C. § 3583(e)(3 ), is that the maximum prison term a court may impose when revoking supervised release is one equal to "the term of supervised release," id., originally imposed, without credit for time previously served under postrelease supervision. We also believe that the proper reading of 18 U.S.C. § 3583(e)(2 ) permits the court dealing with a violation of a supervised release term to extend a term of supervised release to the maximum term allowable for the original offense. Read properly, we believe § 3583(e) evinces Congress' intent to confer upon courts broad powers and flexibility in administering and overseeing terms of supervised release. Despite the word "or," which the dissent finds so limiting, we believe § 3583(e) permits a court when revoking a term of supervised release to impose further imprisonment and to reimpose supervised release following imprisonment. The combined term of imprisonment plus reimposed supervised release is limited to the maximum term of supervised release authorized by statute for the original offense. U.S.S.G. § 7B1.3(g)(2), therefore, is a proper application of the statute.

We do not agree with Behnezhad that a necessary construction of § 3583(e) is that upon revocation the prisoner must be given all new imprisonment or all new supervised release; § 3583(e)(3) expressly permits the court to require imprisonment for "part of the term of supervised release" previously imposed. That section does not require that the other part of the term of supervised release is automatically extinguished, nor does it imply that a court may not under § 3583(e)(2) extend the term of supervised release remaining. An all or nothing reading is contrary to our reading of Congress' intent. It is contrary to the Sentencing Commission's intent and interpretation, as evidenced by its promulgation of § 7B1.3(g)(2) and its promotion of a clarifying amendment before Congress. It is contrary to the range of imprisonment terms contemplated by U.S.S.G. § 7B1.4, which depends upon the grade of the violation based upon an unenhanced criminal history category. An all or nothing reading would give the sentencing judge a more draconian choice, which itself seems contrary to the spirit of the guidelines.

We believe the word "or" should not be read unnecessarily to limit a court's flexibility in administering supervised release. The dissent's reading, for example, would deny a court the option of ordering a "person to remain at his place of residence during nonworking hours" under § 3583(e)(4) and at the same time extending a term of supervised release or otherwise modifying its conditions under § 3583(e)(2). It seems to us unreasonable to say that a court, once exercising its authority under one option of § 3583(e), could never again return to § 3583(e) to exercise its authority under another subsection. We believe that Congress intended that a court have...