U.S. v. Lominac, No. 96-4282

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore WIDENER and MICHAEL; MICHAEL; WIDENER
Citation144 F.3d 308
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Duane Douglas LOMINAC, Defendant-Appellant.
Docket NumberNo. 96-4282
Decision Date11 May 1998

Page 308

144 F.3d 308
UNITED STATES of America, Plaintiff-Appellee,
v.
Duane Douglas LOMINAC, Defendant-Appellant.
No. 96-4282.
United States Court of Appeals,
Fourth Circuit.
Argued Oct. 1, 1997.
Decided May 11, 1998.

Page 309

ARGUED: Melvin J. Radin, Norfolk, VA, for Appellant. Harvey Lee Bryant, III, Assistant United States Attorney, Norfolk, VA, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Norfolk, VA, for Appellee.

Before WIDENER and MICHAEL, Circuit Judges, and THORNBURG, United States District Judge for the Western District of North Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge THORNBURG joined. Judge WIDENER wrote a separate concurring and dissenting opinion.

OPINION

MICHAEL, Circuit Judge:

Duane Lominac appeals from a sentence imposed for the violation of conditions of his supervised release. The district court revoked Lominac's supervised release and sentenced him under 18 U.S.C. § 3583(e)(3) and (h) to a six-month term of imprisonment to be followed by a new thirty-month term of supervised release. Lominac contends that this sentence violates the prohibition against ex post facto laws because (1) § 3583(h) was enacted after he committed his original felonies and (2) this new section increases the punishment for his original crimes. Because we agree, we vacate the sentence and remand for resentencing.

I.

Lominac and an accomplice defrauded the American Express Travel Related Services Company out of $166,000 by using credit cards obtained under fictitious names. See American Express Travel Related Servs. Co. v. Lominac, 158 F.R.D. 376, 376-77 (E.D.Va.1994). Lominac pled guilty on July 6, 1989, to two counts of an indictment charging conspiracy to defraud, 18 U.S.C. § 371 (1988), and access device fraud, 18 U.S.C. § 1029(a)(2) (1988). 1 He was sentenced to forty-one months of imprisonment and three years of supervised release for each offense, with the sentences to run concurrently. Lominac served his prison time, and on February 19, 1993, he began the three-year term of supervised release.

On February 14, 1996, less than a week before Lominac would have completed his entire sentence, the district court issued a summons requiring him to appear and show cause why his supervised release should not be revoked. After holding an evidentiary hearing on March 26, 1996, the court found that Lominac had violated the terms of his

Page 310

supervised release in several respects: (1) he submitted false monthly reports to the probation office by understating his income, by failing to note new employment, and by failing to report a change in his living arrangements, (2) he ignored his probation officer's instruction to submit certain W-2 forms, (3) he failed to file a monthly report with the probation office for October 1995, and (4) he failed to inform his employer that he was a convicted felon. 2 The court revoked Lominac's release and sentenced him to serve six months in prison followed by thirty months of additional supervised release. Because this was Lominac's second violation of supervised release, 3 the court found "that it [wa]s proper to depart upward" from the three-- to nine-month imprisonment range suggested in the 1991 Guidelines by adding a new term of supervised release to a six-month prison sentence. Cf. U.S. Sentencing Guidelines Manual § 7B1.4(a) (1991) (nonbinding policy statement, adopted after Lominac's conviction, recommending imprisonment range of three to nine months for grade C supervised release violation by defendant with category I criminal history).

Lominac, who appeared at the hearing pro se, objected to this sentence, saying "I don't think that I was originally convicted under the law you are sentencing me under.... I think that the subsection you are using ... to continue my supervised release ... was added on after I was originally convicted." The district court took Lominac's comment as an ex post facto challenge.

At the time Lominac committed his crimes, 18 U.S.C. § 3583(e) alone governed the sanction for violation of the conditions of super vised release. Once a violation was found, the district court (after considering specified factors) could under this subsection:

(1) terminate a term of supervised release and discharge the person released ...;

(2) extend a term of supervised release if less than the maximum authorized term [defined by 18 U.S.C. § 3583(b) ] was previously imposed, and ... modify, reduce, or enlarge the conditions 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 the time previously served on postrelease supervision ..., except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony; or

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

18 U.S.C. § 3583(e)(1)-(5) (1988) (including technical amendments added in 1990) (emphasis added). 4 In United States v. Cooper, 962 F.2d 339 (4th Cir.1992), we rejected the argument that this subsection allows the imposition of both prison time and another term of supervised release. We found that "[s]ection 3583[ (e) ] is unambiguously written in the disjunctive, presenting the court with four discrete choices when it elects to modify or revoke a term of supervised release." Id. at 341. We added that "we must await congressional action, if any, for the addition of

Page 311

flexibility to the provisions of section 3583(e)(3)." Id. at 342.

Congress acted on September 13, 1994, when it amended § 3583 by adding subsection (h). See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 110505(3), 108 Stat. 1796, 2017 (1994). The new subsection 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.

18 U.S.C. § 3583(h) (1994). This subsection does not overrule our decision in Cooper, which limits a court to only one of the four options under § 3583(e). However, if the sentencing court chooses the imprisonment option, subsection (h) gives the court the additional authority to impose a new term of supervised release to follow imprisonment.

The district court rejected Lominac's pro se argument that it was an ex post facto violation to use § 3583(h) to tack supervised release onto a prison term for violation of his release. In its analysis the district court first calculated the maximum punishment that Lominac could have received under § 3583(e), the only section applicable when he committed his underlying offenses. Because Lominac had been convicted of a Class C felony and a Class D felony, he could have been imprisoned for his release violations for not more than two years for each of these underlying felonies. See 18 U.S.C. § 3583(e)(3). Thus, the district court determined that Lominac's violations could have netted him a maximum penalty of four years in prison prior to the enactment of § 3583(h). The court concluded that "because [it had] imposed a six month term of confinement and a thirty month term of supervised release rather than imposing up to four years in prison, the [application of subsection (h) ] worked to Defendant's advantage" and was not an ex post facto violation. Lominac now appeals with the assistance of counsel.

II.

Article I of the United States Constitution provides that Congress shall not pass any "ex post facto Law." U.S. Const. art. I, § 9, cl. 3. "Although the Latin phrase 'ex post facto' literally encompasses any law passed 'after the fact,' it has long been recognized ... that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them." Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990); accord Kansas v. Hendricks, 521 U.S. 346, ----, 117 S.Ct. 2072, 2086, 138 L.Ed.2d 501 (1997) (clause "has been interpreted to pertain exclusively to penal statutes").

Lominac argues that the district court's application of § 3583(h) retroactively increased the punishment for his original crimes. This argument implicates the two "central concerns" behind the Ex Post Facto Clause, that is, " 'the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.' " Lynce v. Mathis, 519 U.S. 433, ----, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981)); see also Hill v. Jackson, 64 F.3d 163, 167 (4th Cir.1995) (purposes of clause are to require " 'fair warning' " and to " 'restrict[ ] governmental power by restraining arbitrary and potentially vindictive legislation' " (quoting Weaver, 450 U.S. at 28-29, 101 S.Ct. at 963-65) (alteration in original)).

Our ex post facto analysis involves a two-step inquiry. "To fall within the ex post facto prohibition, a law must be retrospective ... and it 'must disadvantage the offender affected by it' by altering the definition of criminal conduct or increasing punishment for the crime." Lynce, 519 U.S. at ----, 117 S.Ct. at 896 (citations omitted); accord California Dep't of Corrections v.

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17 practice notes
  • United States v. Merlino, No. 14–4341.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 5, 2015
    ...release.2 See, e.g., United States v. Janvier, 599 F.3d 264, 264 (2d Cir.2010) ; Sczubelek, 402 F.3d at 180 ; United States v. Lominac, 144 F.3d 308, 310 n. 2 (4th Cir.1998), abrogated on other grounds by Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) ; Unite......
  • US v. O'NEAL, No. 96-4188.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 2, 1999
    ...draw on Ursery, Salerno, and Mendoza-Martinez, along with ex post facto cases such as Hendricks and Flemming. 8 United States v. Lominac, 144 F.3d 308 (4th Cir.1998), on which O'Neal relies, did not present the question of whether a law imposed "punishment" and so is not relevant to our ana......
  • U.S. v. Martin, No. 03-1068.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 30, 2004
    ...a new sentence of imprisonment); United States v. Miller, 991 F.2d 552, 554 (9th Cir.1993) (same); see also United States v. Lominac, 144 F.3d 308, 318 (4th Cir.1998)(holding that a court may credit time erroneously served on supervised release against a new sentence of imprisonment because......
  • State v. Christian, No. 2017-1691
    • United States
    • United States State Supreme Court of Ohio
    • March 10, 2020
    ...on other grounds , Alabama v. Smith , 490 U.S. 794, 801, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) ; see also United States v. Lominac , 144 F.3d 308, 317 (4th Cir.1998) (explaining that "[b]ecause the interest protected by the Double Jeopardy Clause's prohibition against multiple punishments ......
  • Request a trial to view additional results
17 cases
  • United States v. Merlino, No. 14–4341.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 5, 2015
    ...release.2 See, e.g., United States v. Janvier, 599 F.3d 264, 264 (2d Cir.2010) ; Sczubelek, 402 F.3d at 180 ; United States v. Lominac, 144 F.3d 308, 310 n. 2 (4th Cir.1998), abrogated on other grounds by Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) ; Unite......
  • US v. O'NEAL, No. 96-4188.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 2, 1999
    ...draw on Ursery, Salerno, and Mendoza-Martinez, along with ex post facto cases such as Hendricks and Flemming. 8 United States v. Lominac, 144 F.3d 308 (4th Cir.1998), on which O'Neal relies, did not present the question of whether a law imposed "punishment" and so is not relevant to our ana......
  • U.S. v. Martin, No. 03-1068.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 30, 2004
    ...a new sentence of imprisonment); United States v. Miller, 991 F.2d 552, 554 (9th Cir.1993) (same); see also United States v. Lominac, 144 F.3d 308, 318 (4th Cir.1998)(holding that a court may credit time erroneously served on supervised release against a new sentence of imprisonment because......
  • State v. Christian, No. 2017-1691
    • United States
    • United States State Supreme Court of Ohio
    • March 10, 2020
    ...on other grounds , Alabama v. Smith , 490 U.S. 794, 801, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) ; see also United States v. Lominac , 144 F.3d 308, 317 (4th Cir.1998) (explaining that "[b]ecause the interest protected by the Double Jeopardy Clause's prohibition against multiple punishments ......
  • Request a trial to view additional results

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