U.S. v. Holmes, 91-3624

• Decision Date: 12 February 1992
• Docket Number: No. 91-3624,91-3624
• Citation: 954 F.2d 270
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raynell HOLMES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 270

954 F.2d 270

UNITED STATES of America, Plaintiff-Appellee, v. Raynell HOLMES, Defendant-Appellant.

No. 91-3624.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1992.

Virginia Laughlin Schlueter, Deputy Federal Public Defender, Roma A. Kent, Asst. Federal Public Defender, New Orleans, La., for defendant-appellant.

Peter G. Strasser, Patrice M. Harris, Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, La., for U.S.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Raynell Holmes argues that when a district court revokes a term of supervised release he may not follow the prison sentence with service of the "remainder" of his initial period of supervised release. We agree, and reverse the judgment of the district court.

I.

In November of 1988, Holmes pled guilty to one count of escape, which carries a maximum term of imprisonment of five years. 18 U.S.C. § 751(a). He was sentenced to two years incarceration and three years supervised release. He served his time in prison and was set free. Five months later and following a hearing at which Holmes admitted violating the terms of his release, the district court ordered his return to prison for thirteen months. It also ordered that he be placed back on supervised release for thirty-one months upon his release from prison. Thirty-one months remain of Holmes' original supervised release term. The sole issue on appeal is whether the district court erred in ordering a second term of supervised release.

II.

A district court's options in modifying or revoking a term of supervised release are set forth in 18 U.S.C. § 3583(e). The court may

(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release ...;

(2) extend a term of supervised release if less than the maximum 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 ...; or

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

Holmes argues that this statute does not authorize a district court to reimpose a term of supervised release after revoking his original term of release. Two courts of appeals have addressed this issue and have reached opposite conclusions.

In United States v. Behnezhad, 907 F.2d 896 (9th Cir.1990), the Ninth Circuit invoked the canon of statutory construction that statutes written in the disjunctive set forth separate and distinct alternatives. Consequently, § 3583(e) is properly interpreted as providing alternatives from which a district court could choose in altering a previously imposed term of supervised release. In its view, the district court is not allowed to combine these options to fashion more flexible remedies. It therefore concluded that it is error "to revoke a person's supervised release, order a term of incarceration and then order another term of supervised release." Id. at 898.

The Tenth Circuit disagreed in United States v. Boling, 947 F.2d 1461 (10th Cir.1991). It argued, inter alia, that "it would be 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." Id. at 1463. It reasoned that since § 3583(e)(3) expressly permits courts to require imprisonment for "part of the term of supervised release," the remaining part of the term may survive revocation, and may be extended under § 3583(e)(2). In its view, § 3583(e) permits district courts to revoke a term of supervised release, impose further imprisonment, and reimpose supervised release following imprisonment.

The Tenth Circuit bolstered its interpretation of the statute with § 7B1.3(g)(2) of the Sentencing Guidelines, which was promulgated several months after Behnezhad was decided. This policy statement states that "when supervised release is revoked and the term of imprisonment imposed is less than the maximum term of imprisonment imposable upon revocation, the defendant may, to the extent permitted by law, be ordered to recommence supervised release upon release from imprisonment." The commentary to this provision acknowledges Behnezhad 's interpretation of § 3583(e) and states that the Sentencing Commission has transmitted a proposal to Congress for a statutory amendment to address this issue. Indeed, the Boling court observed that the Senate had already passed an amendment to § 3583 to allow courts to renew supervised release following revocation and imprisonment. Thus it found support for its construction in the Commission's reaction to Behnezhad and the current Congressional efforts "to clarify its original intent in enacting § 3583." Id. at 1462.

We agree with the Ninth Circuit that § 3583(e) does not authorize recommencement of supervised release after revocation. In reaching this conclusion, we rely solely on the plain meaning of the words of the statute, our first and best resort. Section 3583(e)(3) authorizes the district court to "revoke" a term of supervised release. "Revoke" generally means to cancel or rescind. Once...