U.S. v. Cortes-Claudio

• Decision Date: 02 December 2002
• Docket Number: No. 01-2113.,01-2113.
• Parties: UNITED STATES, Appellee, v. William CORTES-CLAUDIO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

312 F.3d 17

UNITED STATES, Appellee, v. William CORTES-CLAUDIO, Defendant, Appellant.

No. 01-2113.

United States Court of Appeals, First Circuit.

Heard May 10, 2002.

Decided December 2, 2002.

Rafael F. Castro-Lang for appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal Division, were on brief for the United States.

Before LIPEZ, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

This appeal raises, inter alia, the question of which statutory provision governs the district court's imposition of a term of supervised release upon a drug offender. A statute pertaining to federal crimes in general provides that for Class A and Class B felonies, the maximum supervised release term is five years. 18 U.S.C. § 3583(b)(2000). Another statute, however, making criminal the drug offenses under which this defendant was sentenced, provides for somewhat different terms of supervised release and, in the defendant's circumstances, mandates a supervised release term of "at least five years." 21 U.S.C. § 841(b)(1)(A) (1999). Most of the courts of appeal considering the issue have held that the latter statute, 21 U.S.C. § 841, rather than 18 U.S.C. § 3583(b), determines the limits of the supervised release terms a district court may impose upon drug offenders sentenced thereunder. These same courts have interpreted the "at least" terminology as implying that, in such cases, a term of supervised release longer than five years is statutorily authorized.

Having pled guilty in the district court to a drug conspiracy charge involving, as the conspiracy's object, substantive offenses under 21 U.S.C. § 841(a), William Cortes-Claudio ("Cortes-Claudio") was sentenced to imprisonment and a ten-year term of supervised release. He appeals from the latter, arguing on the basis of 18 U.S.C. § 3583(b) that the maximum supervisory release term is five years. He also argues that the district court committed plain error by neglecting to give him advance notice that it was considering an upward departure (to ten years) from the five year supervised release term provided in the United States Sentencing Guidelines. See U.S.S.G. § 5D1.2(a)(1) (2001).

We conclude that 21 U.S.C. § 841(b) controls, and that it confers statutory authority upon the district court to impose the ten-year term of supervised release that it chose. The district court erred, however, in overlooking the Sentencing Guidelines provision for a supervised release term of five years. The ten-year term was thus an upward departure requiring the court to give prior notice, see Burns v. United States, 501 U.S. 129, 135 111 S.Ct. 2182, 115 L.Ed.2d 123 (1990), and to state on the record the aggravating circumstances that warranted such a departure. Since the district court observed neither requirement, we vacate and remand for re-sentencing of Cortes-Claudio's supervised release term.

I. Background

Cortes-Claudio, pursuant to a plea agreement, pleaded guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, one or more kilograms of heroin, and multi-kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) (1999). The plea agreement set forth the statutory penalties for Cortes-Claudio's offense including "a term of imprisonment which may not be less than ten years or more than life" and a "term of supervised release of at least 5 years." § 841(b)(1)(A). While Cortes-Claudio and the government agreed to a term of imprisonment of 151 months, the parties did not stipulate to a specific supervised release term. As to the supervised release term, the plea agreement parroted the language of § 841(b) stating that "the defendant understands that he can be sentenced to ... a term of supervised release of at least five (5) years."

Neither the pre-sentence report, nor the district court's colloquy at the change of plea hearing, stated a specific supervised release term. The pre-sentence report indicated that the court "must impose a term of supervised release of at least five (5) years" and that the term of supervised release "shall in no event be less than any statutorily required term." The pre-sentence report also stated that there was no basis for a departure from the Guidelines. At the change of plea hearing, the judge informed Cortes-Claudio of the sentence he could receive upon pleading guilty, including "a supervised release term of not less than five years."

Later, at the sentencing hearing, following a discussion concerning an error in the pre-sentence report regarding a prior conviction, the district court sentenced Cortes-Claudio to 151 months imprisonment and ten years of supervised release. Cortes-Claudio did not object.

Following sentencing, however, Cortes-Claudio filed a motion to correct his sentence. Believing the district court had relied upon a prior conviction to increase his term of supervised release from five years to ten years, Cortes-Claudio stated in his motion that the district court had inadvertently imposed the ten-year supervised release term required by § 841(b) for a defendant with a prior conviction. He argued that because the government had failed to file an information pursuant to 21 U.S.C. § 851, indicating its intent to seek a higher sentence based on a prior conviction, the maximum allowable supervised release term was five years. 18 U.S.C. § 3583(b)(1).

The district court denied Cortes-Claudio's motion to correct his sentence. United States v. Cortez Claudio, 152 F.Supp.2d 177, 178 (D.P.R.2001). The court stated that it had not relied upon a prior conviction in setting Cortes-Claudio's term of supervised release. While the court recognized that 18 U.S.C. § 3583(b) provided for a maximum term of supervised release of five years for a Class A felony,¹ it concluded that the supervised release provisions in § 841(b) trumped the maximums provided in § 3583(b). According to the court, the requirement in § 841(b) of a minimum supervised release term of "at least 5 years" permitted the court, in its discretion, to impose a supervised release term of up to life. Id. at 180. The court stated that ten years was appropriate given the nature of Cortes-Claudio's offense.

According to the district court, in arriving at the ten-year supervised release term, it considered all the relevant evidence and circumstances "as well as the factors set forth in 18 U.S.C. § 3553(a)(2)." Id. at 180-81. The district court stated that both the terms of imprisonment and the supervised release term were "within the sentencing guidelines and appropriate considering the nature of the offense." Id. at 181.

II. Discussion

A. Statutory Length of Supervised Release Terms

The first issue is whether the five-year maximum provided in 18 U.S.C. § 3583 is applicable as a limitation upon the supervised release term of Cortes-Claudio who was sentenced for drug offenses pursuant to 21 U.S.C. § 841(b).

We begin with a close look at the language of the two statutes. See Brady v. Credit Recovery Inc., 160 F.3d 64, 66 (1st Cir.1998). Defendants convicted of conspiracy to commit drug offenses pursuant to 21 U.S.C. §§ 841(a) and 846, are subject to the penalties described in § 841(b).² Pursuant to § 841(b)(1)(A), the district court was required to sentence Cortes-Claudio to a term of imprisonment which could not be less than "10 years or more than life" and a term of supervised release of "at least 5 years." We have recently held that this language in § 841(b) establishes a mandatory minimum term of supervised release, not a maximum. United States v. Lopez, 299 F.3d 84, 90 (1st Cir.2002). Our holding in Lopez made clear that any apparent language to the contrary in previous cases is limited to the specific facts of those cases, and does not constitute precedent for the proposition that language in drug statutes, such as 21 U.S.C. § 841, referring to "at least 5 years" (or some other term) sets out the maximum rather than a minimum only. United States v. Barnes, 251 F.3d 251, 261 (1st Cir.2001); United States v. Barnes, 244 F.3d 172, 178 (1st Cir.2001); Suveges v. United States, 7 F.3d 6, 8 (1st Cir.1993). Given the plain meaning of "at least" and our Lopez holding, we do not regard Barnes and its companion cases as stare decisis in regard to the present issue concerning the upper limit of a term of supervised release in a drug case.

We start, therefore, with the premise that the district court was plainly required by § 841(b) to sentence Cortes-Claudio to a minimum supervised release term of at least five years. In arguing that five years is also a maximum in respect to the permissible term of supervised relief, Cortes-Claudio would have us borrow from a different statute, § 3583(b), applying to federal crimes generally. Section 3583(b) specifies Except as otherwise provided, the authorized terms of supervised release are —

(1) for a Class A or Class B felony, not more than five years;

(2) for a Class C or Class D felony, not more than three years; and

(3) for a Class E felony, or for misdemeanor (other than a petty offense) not more than one year.

18 U.S.C. § 3583(b)(emphasis supplied). Because Cortes-Claudio was convicted of a Class A felony, he argues that he is subject to a term of supervised release of "not more than five years."

The issue presented is whether § 841(b), which contains sentences applicable to specific drug offenses and conspiracy to commit such offenses, under which Cortes-Claudio was sentenced, takes precedence over the more general § 3583(b) in regard not only to the minimum five-year term expressly set forth in § 841(b) but also to the unspecified lengthier terms implied if not specifically set forth in the "at least" phraseology. We think it does. In so holding, we join the majority of circuits that have considered this issue and...