U.S. v. Marlow

• Decision Date: 24 January 2002
• Docket Number: No. 00-5748.,00-5748.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. MARLOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

278 F.3d 581

UNITED STATES of America, Plaintiff-Appellee, v. Thomas L. MARLOW, Defendant-Appellant.

No. 00-5748.

United States Court of Appeals, Sixth Circuit.

Argued July 12, 2001.

Decided and Filed January 24, 2002.

Michael E. Winck, Assistant United States Attorney (argued and briefed), Paige Auer Winck, Asst. U.S. Atty. (briefed), Knoxville, TN, for Appellee.

Nikki C. Pierce (argued and briefed), Federal Defender Services, Greeneville, TN, Stephen M. Kissinger, Federal Defender Services, Knoxville, TN, for Appellant.

Before: SILER and GILMAN, Circuit Judges; GIBBONS, District Judge.^*

OPINION

GIBBONS, District Judge.

Defendant Thomas L. Marlow pled guilty to manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)¹ and was sentenced on August 12, 1994, to seventy-eight months in prison to be followed by four years of supervised release. Marlow began his supervised release term on January 27, 1998 and subsequently violated its conditions. Consequently, the district court revoked his release on March 31, 2000 and ordered him to serve twenty months in prison to be followed by a new four-year term of supervised release. Marlow appeals the district court's imposition of the additional four-year supervised release term, arguing that under 18 U.S.C. § 3583(e)(3) the duration of the postrevocation incarceration plus the new term of supervised release cannot exceed the duration of the original term of supervised release. While we agree that subsection (e)(3) does not authorize the new sentence to exceed the original term of supervised release, we conclude that the district court was authorized by its general sentencing authority under 18 U.S.C. § 3583(a) to impose an additional term of supervised release after postrevocation incarceration. Thus, we affirm Marlow's sentence for reasons different from those stated by the district court.

Before the district court, Marlow argued that § 3583(e)(3) did not allow for the reimposition of a four-year term of supervised release in addition to a term of incarceration.² Rather, he claimed, only twenty-eight months of the original term of supervised release could be imposed after the twenty-month prison sentence pursuant to that statute. The district court rejected Marlow's argument, stating:

We'll, let's keep it at four years. If the Supreme Court [in Johnson v. United States] changes the law, we'll voluntarily reduce it.

. . . . .

It used to be I couldn't impose any more once I put him back in jail, I couldn't do that.

. . . . .

If the Supreme Court comes down on your side, no more supervised release. If it comes down on the government's side, you have four years supervised release.

Marlow now appeals from the district court's imposition of the additional four years of supervised release, arguing that the Supreme Court's decision in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), supports his position that § 3583(e)(3) does not authorize a postrevocation sentence that exceeds the duration of the original term of supervised release. He asks this court to direct the district court to reduce his supervised release to twenty-eight months.

The issue here involves the correctness of the district court's application of the supervised release statutes, which we review de novo. United States v. Davis, 187 F.3d 528, 531 (6th Cir.1999); see also United States v. Cade, 236 F.3d 463, 465 (9th Cir.2000).

In Johnson, the district court had revoked the defendant's three-year term of supervised release and imposed a prison term of eighteen months to be followed by a twelve-month term of supervised release. Johnson, 529 U.S. at 698, 120 S.Ct. 1795. Notably, the duration of the new sentence of imprisonment plus the supervised release was thirty months, six months less than the original term of supervised release. Nevertheless, the defendant argued that § 3583(e)(3) gave no power to the district court to order supervised release after the original term had been revoked.³ Id. The Supreme Court rejected the defendant's argument and held that a district court has the power under § 3583(e)(3) to impose a term of supervised release to be served after a postrevocation term of imprisonment. Id. at 713, 120 S.Ct. 1795.

In reaching its ultimate conclusion, the Court determined that "revoke" in the context of subsection (e)(3) means "to call or summon back" rather than "to terminate" the term of supervised release. Id. at 704-06, 120 S.Ct. 1795. The Court reasoned:

So far as the text is concerned, it is not a "term of imprisonment" that is to be served, but all or part of "the term of supervised release." But if "the term of supervised release" is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation.... [U]nlike a "terminated" order of supervised release, one that is "revoked" continues to have some effect. And since it continues in some sense after revocation even when part of it is served in prison, why can the balance of it not remain effective as a term of supervised release when the reincarceration is over?

Id. at 705-06, 120 S.Ct. 1795 (emphasis added). The Court recognized that it had attributed the unconventional meaning to the term "revoke," but it found that the unconventional meaning was more consistent with the statutory scheme and the intent of Congress. Id. at 706-07 & n. 9, 120 S.Ct. 1795. Though the Court held specifically that § 3583(e)(3) provides authority for a district court to impose a term of supervised release after reincarceration, it did not address the permissible length of such a term.

In the instant case, Marlow argues that the language used in Johnson indicates that § 3583(e)(3) authorizes a district court to impose only the "balance" of the original term of supervised release following a postrevocation period of incarceration. He relies on the above-quoted passage in arguing that only the portion of the original supervised release that "survives the preceding order of revocation" may be imposed. He claims that when the revoked period of supervised release is served in prison, only "the balance of it ... remain[s] effective as a term of supervised release when the reincarceration is over." Id. at 705-06, 120 S.Ct. 1795. Marlow argues that in imposing a sentence that endures longer than the original term of supervised release, a district court is essentially engaging in a reenactment of the initial sentencing, which the Johnson Court found to be improper. See id. at 712, 120 S.Ct. 1795 (noting that "[t]he proceeding that follows a violation of the conditions of supervised release is not, to be sure, a precise reenactment of the initial sentencing.").

In further support of his position, Marlow cites a pre-Johnson case, United States v. O'Neil, 11 F.3d 292 (1st Cir.1993), which was cited with approval by Justice Kennedy in his concurring opinion in Johnson. Id. at 714, 120 S.Ct. 1795 (Kennedy, J., concurring). In O'Neil, the defendant had been sentenced to twenty-one months in prison to be followed by a three-year period of supervised release. O'Neil, 11 F.3d at 293. Soon after the commencement of his supervised release, he violated the conditions thereof, and the district court revoked his release. Id. The court sentenced him to two years in prison to be followed by a new three-year term of supervised release. Id. The court addressed the issue posed in Johnson, whether § 3583(e)(3) authorized postrevocation imposition of supervised release, and reached the same conclusion. Unlike the facts in Johnson, however, the duration of the new sentence had plainly exceeded that of the original supervised release. The First Circuit held that the postrevocation sentence was unlawful, stating specifically that § 3583(e)(3) "permits a district court, upon revocation of a term of supervised release, to impose a prison sentence or a sentence combining incarceration with a further term of supervised release, so long as ... the combined length of the new prison sentence cum supervision term does not exceed the duration of the original term of supervised release." Id. at 302.

The government argues that Marlow misreads Johnson. Specifically, the government emphasizes that the precise issue here was not even addressed in Johnson because the postrevocation sentence in that case did not exceed the original period of supervised release. The government interprets the same language in Johnson to reach the opposite conclusion from that advocated by Marlow. Specifically, the government cites the Court's statement that "if `the term of supervised release' is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation." Johnson, 529 U.S. at 705, 120 S.Ct. 1795. The government gleans from this comment that even if a defendant is reincarcerated for the "whole" term of the initial supervised release, then "something about the term" of supervised release still remains. If that is so, then the district court must have the power to order a term of supervised release that would, when combined with the term of reimprisonment, exceed the original term of supervised release. The government argues that the Johnson opinion, when read as a whole, supports this expansive view of subsection (e)(3) much more than the restrictive view.

We are persuaded that Marlow's interpretation of Johnson is correct, and it is consistent with the meaning of the statute. Our analysis begins with a review of the language of § 3583(e)(3), which allows a court to "revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release ... without credit for time previously served on post-release supervision." § 3583(e)(3). Unfortunately, that subsection is devoid of any language relating to the permissible duration of any postrevocation order of...