U.S. v. Lewis, 03-00387-01-CR-W-ODS.

• Decision Date: 22 August 2007
• Docket Number: No. 03-00387-01-CR-W-ODS.,03-00387-01-CR-W-ODS.
• Citation: 504 F.Supp.2d 708
• Parties: UNITED STATES of America, Plaintiff, v. Arron M. LEWIS, Defendant.
• Court: U.S. District Court — Western District of Missouri

504 F.Supp.2d 708

UNITED STATES of America, Plaintiff, v. Arron M. LEWIS, Defendant.

No. 03-00387-01-CR-W-ODS.

United States District Court, W.D. Missouri, Western Division.

August 22, 2007.

Jess Michaelsen, United States Attorney's Office, Kansas City, MO, for Plaintiff.

FPD, Federal Public Defender, David L. Owen, Jr., Federal Public Defender's Office, Kansas City, MO, for Defendant.

ORDER

SMITH, District Judge.

On August 17, 2007, the Court revoked Defendant's supervised release and sentenced him to eighteen months of imprisonment to be followed by eighteen months of supervised release. The issues involved in this proceeding are novel, and the parties and the Record will be aided by a written explanation of the Court's legal analysis.

I. BACKGROUND

On November 20, 2003, Defendant waived indictment and plead guilty to an Information charging him with interstate transportation of a stolen vehicle. The charge stemmed from an incident on October 31, 2003, in which Defendant stole a motorcycle. When he was arrested police officers found, among other items; a sketch of an explosive device, handcuffs, a law enforcement badge, and a demand note. The contents of the note indicate it was intended for use in a bank robbery. By the time of Defendant's arrest, the police had received a report from Defendant's roommate indicating Defendant had an explosive device. Later, Defendant admitted to officers that he had been designing an explosive device for use in a bank robbery.

The count of conviction is a C felony. The Total Offense Level was 4 and Defendant's criminal history category was III, resulting in a sentencing range of zero to six months. On March 11, 2004, Defendant was sentenced to time served with three years of supervised release. The conviction and sentence were not appealed.

On April 28, 2004, Defendant's supervised release was revoked because he had stolen a motorcycle in Kansas City and driven it to Irvine, Texas. These actions violated several conditions of his supervised release, including the conditions (1) prohibiting him from leaving the Western District of Missouri without permission of the Court or his Probation Officer and (2) prohibiting him from violating the law.

Discussion of the sentencing options resulted in a general agreement that the maximum amount of imprisonment permitted was two years, but the Court could then also impose an additional one year of supervised release. Stated another way, the Court could impose any combination of imprisonment and supervised release totaling up to three years, but the imprisonment component could not exceed two years. The difference in opinion involved the Court's options in the event Defendant later violated the terms of the subsequent supervised release. The Probation Officer opined that if the Court imposed the maximum possible term of imprisonment — two years — then "the year of supervision would, basically, be unenforceable." Rev. Tr. at 37.¹ Defendant's counsel expressed a different understanding:

The two year [statutory] maximum is the amount you can impose at one shot. If the Court was to impose an additional one year of supervision after release from two years of custody, the Court will still have that one year to work with. And any violations in there, ... whatever, they could still have that additional year, that two-year cap is only on the one shot.

Rev. Tr. at 37-38. Defendant was sentenced to two years imprisonment to be followed by one year of supervised release. One of the conditions of supervised release required Defendant to spend the first four months of that term in a halfway house. In issuing this sentence, the Court did not endeavor to decide what penalties, if any, could be imposed if Defendant were to violate the terms of the supervised release.

The revocation and sentence were not appealed. However, Defendant applied for postconviction relief pursuant to 28 U.S.C. § 2255. His request was denied, and the denial of relief was not appealed. Lewis v. United States, No. 05-0381-CVW-ODS (W.D.Mo. Aug. 17, 2005).

On November 20, 2006, Defendant's supervision was transferred to the Western District of Louisiana, and he was designated to a halfway house in Monroe, Louisiana. On January 19, 2007, he was discharged from the halfway house because of noncompliant and uncooperative behavior. The Probation Department was not aware of his subsequent whereabouts until Defendant was arrested on February 4, 2007, by the Sheriff's Department of Ouachita Parish. This encounter with law enforcement began when an officer attempted to stop Defendant for failing to dim his headlights. Instead of stopping, Defendant led officers on a high-speed chase and rammed a police car several times to further his escape attempt. Defendant was eventually forced off the road by another police vehicle. He was charged with failing to dim his headlights, careless operation of a motor vehicle, lack of insurance failure to register a vehicle, obstruction of highway commerce, and aggravated flight from a law enforcement officer. He was convicted of the latter charge and the other charges are no longer pending. The conviction and other conduct constitutes a violation of the terms of supervised release. The question now before the Court is the question it did not address or resolve in April 2004: what consequences, if any, does Defendant face for violating the second term of supervised release?

The answer to this question requires an analysis of the PROTECT Act of 2003. The effective date of the PROTECT Act was April 30, 2003, and its provisions apply to crimes committed after that date. As noted earlier, Defendant's original offense occurred in October 2003.

The PROTECT Act's amendments to 18 U.S.C. § 3583 are at issue because they dictate what a court can and cannot do upon finding a defendant has violated the terms of his supervised release. Generally speaking, subsection (e)(3) dictates the amount of imprisonment that can be imposed following revocation, and subsection (h) dictates the amount of supervised release that can be imposed following revocation. The PROTECT Act amended both subsections, but understanding the meaning and effect of the amendments requires an understanding of the meaning and effect of the pre-amendment provisions.

Subsection (e)(3) permitted courts to "require the defendant to serve in prison all or part of the term of supervised release ... without credit for time previously served on postrelease supervision ... except that a defendant whose term is revoked under this paragraph may not be required to serve more than" specified limits. As noted, Defendant's underlying offense is a Class C felony, so the maximum term that could be imposed upon revocation was two years. Based largely on concessions from the Government, every court to consider the issue agreed this maximum term applied to the aggregate of all imprisonments imposed following revocations.' United States v. Tapia-Escalera, 356 F.3d 181, 187 & n. 7 (1st Cir.2004) (citing cases and recounting events); see also United States v. Williams, 425 F.3d 987, 989 (11th Cir.2005). As applied in this case, the pre-PROTECT Act version would not allow defendant to be sentenced to an additional period of imprisonment for his latest violation because he has already served two years for violating supervised release.

Subsection (h) formerly permitted a court to add a new term of supervised release, but only if the term of imprisonment imposed upon revocation was "less than the maximum term of imprisonment authorized under subsection (e)(3)." Defendant's original crime was a Class C felony, and the maximum term of imprisonment for violating supervised release imposed for a Class C felony (as described in subsection (e)(3) and as explained above) is two years. Defendant was sentenced to two years of imprisonment in April 2004 for the first violation of supervised release, so the prior version of the statute would not have permitted the Court to add a term of supervised release.

To properly analyze the Court's present options, the Court must first consider the legality of the new term of supervised release imposed in April 2004. The PROTECT ACT amended subsection (h) to remove the language quoted above. As amended, subsection (h) declares:

When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, 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.

(emphasis supplied). The critical change removes the comparison between the new term of supervised release and the term of imprisonment that could be imposed upon revocation; instead, the new term of supervised release is compared to the supervised release that could have been imposed for the original crime. In this case, the term of supervised release authorized by Defendant's original offense was three years. 18 U.S.C. § 3583(b)(2). Thus, the length of supervised release the Court could have imposed upon his violation in April 2004 was three years, less the two years of imprisonment imposed for that violation — for a total of one year. The Court's April 2004 sentence of two years of imprisonment and one year of supervised release was proper under the amended statute.

The next critical issue involves the issue the Court did not attempt to resolve during the April 2004 hearing: what consequences could follow from any subsequent violations of supervised release? The PROTECT Act amended subsection (e)(3) and now permits a court to "require the defendant to serve in prison all or part of the term of supervised release ... without credit for time previously...