U.S. v. Hernandez

• Citation: 655 F.3d 1193
• Decision Date: 23 August 2011
• Docket Number: No. 10–8086.,10–8086.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Brice HERNANDEZ, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

655 F.3d 1193

UNITED STATES of America, Plaintiff–Appellee,

v.Brice HERNANDEZ, Defendant–Appellant.

No. 10–8086.

United States Court of Appeals, Tenth Circuit.

Aug. 23, 2011.

Eric J. Palen, Palen Law Offices, LLP, Glendo, WY, for Defendant–Appellant.David A. Kubichek, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), District of Wyoming, Casper, WY, for Plaintiff–Appellee.Before GORSUCH, HOLLOWAY, and MATHESON, Circuit Judges.GORSUCH, Circuit Judge.

Brice Hernandez claims that he is stuck in a vicious cycle. Originally convicted of possessing an unregistered firearm seven years ago, he served his time and won supervised release. But when he violated the conditions imposed on his release he found himself back in prison. Over the years this process has now repeated itself no fewer than four times. In this appeal, Mr. Hernandez asks us to undo his latest prison sentence, arguing that the district court's view of the statutory revocation authority granted it by 18 U.S.C. § 3583(e)(3) means defendants like him can be trapped in endless cycles of imprisonment and release. We don't, however, read the statute either to forbid the district court's latest sentence—or to authorize the dire result Mr. Hernandez foresees.

The origins of the current dispute take us back to 2004 when Mr. Hernandez was convicted of possessing an unregistered firearm. See 26 U.S.C. §§ 5861(d) & 5871. For this crime, the district court sentenced him to forty-six months in prison followed by three years of supervised release. While there's no evidence Mr. Hernandez had any trouble as a prisoner, there's no question he had difficulty with supervised release. Soon after he finished his assigned prison term, Mr. Hernandez violated the terms imposed on his supervised release. Invoking the authority granted to it by 18 U.S.C. § 3583(e)(3), the district court responded by revoking Mr. Hernandez's supervised release and requiring him to serve six more months in prison followed by a new term of supervised release.

But rather than marking the end of it all, this turned out to be just the beginning. When Mr. Hernandez violated the terms of his new supervised release order, the district court sentenced him to three more months in prison and another term of supervised release. Mr. Hernandez then proceeded to violate the terms of that supervised release, and the district court responded with another twelve-month prison sentence and another (now fourth) term of supervised release. After Mr. Hernandez violated the terms of this latest supervised release order, too, the court ordered him to serve a longer term in prison—eighteen months, this time—but no more supervised release.

In this appeal, Mr. Hernandez seeks to undo the district court's final, eighteen-month prison sentence. He argues that the sentence exceeds the authority granted to the district court by 18 U.S.C. § 3583(e)(3), pointing us in particular to the italicized “except that” clause:

(e) The court may ... (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, except that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one year in any other case.

18 U.S.C. § 3583(e)(3) (italics added). Of course, Mr. Hernandez admits, his current term of incarceration is only eighteen months, and so itself within the “except that” clause's apparent two year maximum for class C felons like himself. But, Mr. Hernandez adds, he's entitled to credit—credit for all the prior prison terms he's served for violating supervised release orders. Aggregating those terms (six months for his first violation; three months for his second; and twelve for his third), he has already served twenty-one months in prison for violating the district court's supervised release orders. Because of this, he says, the district court could not lawfully sentence him to more than three additional months in prison on his latest revocation. And it is for this reason, he submits, we must vacate the district court's current eighteen-month prison sentence.

We cannot agree. The “except that” clause Mr. Hernandez focuses on surely limits the length of prison time a district court may authorize for supervised release violations. But just as surely it says a court may not require a class C felon like Mr. Hernandez to serve more than two years “ on any such revocation.” Id. (emphasis added). And the ordinary and natural meaning of the word “any” is straightforward enough—suggesting “every,” “all,” or “one or another” taken at random. Webster's Third New International Dictionary 97 (2002). So for every, all, or one or another of Mr. Hernandez's revocations, the clause's plain language creates a new and independent two-year incarceration limit. To hold otherwise—to arrive at the competing interpretation Mr. Hernandez urges—would require us to mangle the “except that” clause's express terms. We would need either to ignore the term “any such revocation” or to adorn it with new language such as: “provided, however, the district court should subtract from the two-year period any time already served.” None of this, however, is what the statute says.

Mr. Hernandez replies that this court and others used to read the “except that” clause just as he does. See, e.g., United States v. Swenson, 289 F.3d 676, 677 (10th Cir.2002); United States v. Jackson, 329 F.3d 406, 407–08 (5th Cir.2003) (collecting cases). But he also acknowledges (as he must) that this was before Congress added the words “on any such revocation” to the statute in 2003. Without those words, it was undoubtedly reasonable to read the “except that” clause as requiring a district court to aggregate and take account of all prior prison terms—to impose no more than a total of two years in prison for revoked class C felons like Mr. Hernandez. But those words, once added to the statute, cannot be elided, passed over, ignored. Congress was presumably aware of judicial decisions allowing aggregation when it adopted its 2003 amendment—and its decision to change § 3583 to impose a two-year prison term for class C felons on any such revocation was just as presumably designed to do something. And something the amendment did, by its plain terms upending existing case law and bringing to an end the aggregation Mr. Hernandez seeks and promotes. Indeed, every circuit to have addressed the “except that” clause's meaning after Congress's adoption of the 2003 amendment has adopted this very understanding, acknowledging in the process (as we must with respect to Swenson ) that the amendment has superseded earlier controlling circuit case law. See, e.g., United States v. Hampton, 633 F.3d 334, 338 & n. 1 (5th Cir.2011); United States v. Epstein, 620 F.3d 76, 80 (2d Cir.2010); United States v. Knight, 580 F.3d 933, 938–40 (9th Cir.2009); United States v. Lewis, 519 F.3d 822, 825 (8th Cir.2008); United States v. Williams, 425 F.3d 987, 989 (11th Cir.2005) (in dicta); United States v. Tapia–Escalera, 356 F.3d 181, 188 (1st Cir.2004) (in dicta).

Having said this much about the statute's plain language, it's important to emphasize what we're not saying about it. For example, we offer no view on how the language in § 3583(e)(3) preceding the “except that” clause operates. That language allows a district court to 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.” One might try to suggest that this language requires a district court to aggregate all prison terms served on revocation and limit total prison time to the period of supervised release authorized by statute for the underlying offense (a three-year period for class C felonies like the one Mr. Hernandez committed, see § 3583(b)(2)). At least one circuit has addressed—and rejected—this argument. See Hampton, 633 F.3d at 338. But it isn't one we are asked to resolve today.

Another possible complication arises within the “except that” clause. There, the length of time a district court may authorize in prison for each revocation depends on the nature of the “ offense that resulted in the term of supervised release.” (Emphasis added.) Mr. Hernandez presses this appeal on the express understanding that the term offense as used in § 3583(e) refers to his underlying criminal conviction, and that very well may be exactly right. See Tapia–Escalera, 356 F.3d at 185; Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Indeed, we have previously assumed it is, just as we do today. See United States v. Kelley, 359 F.3d 1302, 1303 n. 1 (10th Cir.2004); Swenson, 289 F.3d at 677. But if the “ offense that resulted in the term of supervised release” refers instead to a prior violation of supervised release, one might try to argue that the statutory limit on jail time for second and successive violations is just one year. See § 3583(e)(3) (when the “offense that resulted in the term of supervised release” is not a Class A, Class B, Class C, or Class D felony, “a defendant whose term is revoked ... may not be required to serve on any such revocation ... more than one year”). We...