U.S. v. Beals

• Decision Date: 20 June 1996
• Docket Number: No. 95-3415,95-3415
• Citation: 87 F.3d 854
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orlando J. BEALS, also known as Jeffrey Nicholson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 854

87 F.3d 854

UNITED STATES of America, Plaintiff-Appellee, v. Orlando J. BEALS, also known as Jeffrey Nicholson Defendant-Appellant.

No. 95-3415.

United States Court of Appeals Seventh Circuit.

Argued April 12, 1996.

Decided June 20, 1996.

Barry Rand Elden, Chief of Appeals, Edward Kohler (argued), Office of the U.S. Atty., Crim. Appellate Div., Chicago, IL, for plaintiff-appellee.

Edna Selan Epstein (argued), Chicago, IL, for defendant-appellant.

Before CUMMINGS, COFFEY and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

On July 27, 1993, defendant Orlando Beals pleaded guilty to submitting false claims for federal income tax refunds in violation of 18 U.S.C. § 286. He was sentenced to 30 months' imprisonment followed by three years of supervised release. He finished his prison term on January 20, 1995 and began his supervised release. By September 1995, however, Beals had skipped many of his required drug testing sessions, and two of the times he did show up he tested positive for cocaine use. For these reasons and others, Judge Lindberg (1) revoked Beals' supervised release and ordered him to spend ten months in prison pursuant to 18 U.S.C. § 3583(e)(3); and (2) ordered that Beals continue on supervised release following imprisonment pursuant to 18 U.S.C. § 3583(h). Beals asserts that because Section 3583(h) was enacted subsequent to his conviction, ordering him to undergo a term of supervised release after his ten-month prison term violates the Ex Post Facto Clause of the Constitution (Article I, § 9, cl. 3). We agree.

I.

The statute regarding revocation of supervised release in effect at the time of Beals' conviction was 18 U.S.C. § 3583(e). That section stated that when a defendant violated the terms of his supervised release, a district court was allowed to:

(1) terminate the term of supervised release ...;

(2) extend the term of supervised release if less than the maximum term was previously imposed, and ... modify, reduce or enlarge the conditions of supervised release ...;

(3) revoke the 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 ...; or

(4) order the person to remain at his place of residence.

In United States v. McGee, 981 F.2d 271, 274 (7th Cir.1992), we joined the majority of Circuit Courts of Appeals in holding that Section 3583(e)(3) did not allow the district court that revoked a defendant's supervised release to impose an additional term of supervised release following a period of incarceration. Most likely in response to McGee and cases that reached a similar conclusion, Congress enacted 18 U.S.C. § 3583(h) on September 13, 1994. That subsection now 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 under subsection (e)(3), 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.

Pursuant to this new subsection, Judge Lindberg ordered that Beals spend two years in supervised release following his ten-month prison term (a period within the subsection's parameters). The question we must answer is whether that sentence was constitutional in light of the fact that Beals' original offense took place prior to that subsection's enactment.

Initially, we address the government's contention that it is impossible to apply Subsection (h) retroactively because its enactment was not a change in the law, but merely a "clarification" of it. ¹ In other words, the government argues that Subsection (h) represents the "true" state of the law regarding supervised release revocation prior to September 13, 1994, despite the fact that this Circuit (and eight others) had not interpreted Section 3583(e) to allow what Subsection (h) now expressly permits. This assertion is in direct conflict with Rivers v. Roadway Express, Inc., 511 U.S. 298, ----, 114 S.Ct. 1510, 1516, 128 L.Ed.2d 274, where the Supreme Court specifically rejected the contention that amending a statute merely "corrects" the judicial construction of the law. "A change in statutory language--or ... a new statutory section--does not imply that the exegesis of the prior law was mistaken.... Congress acts by legislating rather than by reinterpreting laws already on the books." Evans v. United States Parole Commission, 78 F.3d 262, 266 (7th Cir.1996). Section 3583(h) represented a change in the law of this Circuit, and we will properly address it as such.

II.

Article I of the Constitution provides that neither Congress nor any State shall pass any "ex post facto Law." See Art. I, § 9, cl. 3. Our understanding of what is meant by "ex post facto" largely derives from Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798), in which the Court summarized which laws fell "within the words and intent of the prohibition":

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Id. at 390.

Beals argues that Subsection (h) falls within the third of the above prohibitions, inflicting a greater punishment than the law annexed to his crime at the time he committed it. Since Calder, a two-pronged test has been developed to determine whether the application of a law violates the Ex Post Facto Clause: (1) The law must apply to events occurring before its enactment; and (2) the law 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.

A.

Taking the second element first, we conclude that Subsection (h) could potentially disadvantage Beals. Prior to its enactment, if a defendant violated the terms of his supervised release, a district court was empowered to revoke the supervised release and send the defendant back to prison for a period equal to all or part of the maximum term of supervised release authorized for his original offense. 18 U.S.C. § 3583(e)(3). After Subsection (h), a district court can still revoke the supervised release and send the defendant to prison for the same amount of time. However, if the district court sends the defendant back to prison for a period of time less than the maximum allowed, the court can additionally require the defendant to spend the balance of the maximum time on another term of supervised release:

Under [Subsection (h) ], the maximum length of additional supervised release term may not exceed the maximum period of supervised release authorized by statute for the offense, less any term of imprisonment imposed upon revocation. For example, in the case of a Class C felony for which the maximum supervised release term is three years, a defendant who is revoked and re-imprisoned for 18 months could be ordered to serve as much as 18 additional months on supervised release (36-month maximum term of supervised release minus 18 months imprisonment equals 18 months possible re-release supervision). 137 Cong. Rec. S7769-01, S7771.

At first glance, it is difficult to see how Subsection (h) operates as a disadvantage: Prior to its enactment the defendant could go to prison for up to the maximum time period allowed; after its enactment the defendant can undergo a combination of prison and supervised release for up to the maximum time period allowed. Spending time on supervised release is hardly worse to the defendant than spending time in prison. The disadvantage comes from the fact that a defendant receives no credit toward the imprisonment cap for "time previously served on postrelease supervision." 18 U.S.C. § 3583(e)(3). Prior to Subsection (h), a defendant could serve only one term of supervised release, and thus only once "lose" credit for time served prior to the revocation. After Subsection (h), a defendant can serve multiple terms of supervised release and thus potentially "lose" multiple periods of time after the initial revocation:

If the same defendant [as in the example above] was again revoked, he could be re-imprisoned for not exceeding six months (24-month cap minus 18 months previously-served imprisonment equals 6 months allowable imprisonment) and if so imprisoned, could not thereafter be placed on supervision (because the two-year imprisonment cap would have been reached). Thus, under [Subsection (h) ], a defendant would always be credited for incarceration time against both the cap on re-imprisonment and the maximum authorized period of supervised release. 137 Cong. Rec. S7769-01, S7771.

The following hypothetical illustrates the point. Assume that Defendant A is convicted of a Class C felony and sentenced to a term of imprisonment followed by three years of supervised release (the maximum allowed under 18 U.S.C. § 3583(b)(2)). He serves his prison time and is released under supervision. One year into his supervised release period, he violates the terms of the release. Prior to Subsection (h), because an additional term of supervised release was not permitted, the maximum penalty the court could impose was two years imprisonment. 18 U.S.C. § 3583(b)(3). At the end of two years the government's supervision of A is extinguished. After S...