U.S. v. Maxwell

• Decision Date: 08 April 2002
• Docket Number: No. 01-4527.,01-4527.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keith Everett MAXWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

285 F.3d 336

UNITED STATES of America, Plaintiff-Appellee, v. Keith Everett MAXWELL, Defendant-Appellant.

No. 01-4527.

United States Court of Appeals, Fourth Circuit.

Argued February 28, 2002.

Decided April 8, 2002.

COPYRIGHT MATERIAL OMITTED

ARGUED: Eric David Placke, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Michael Francis Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender, Greensboro, North Carolina, for Appellant. Benjamin H. White, Jr., United States Attorney, Steven H. Levin, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Before WIDENER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge WIDENER and Judge DIANA GRIBBON MOTZ joined.

OPINION

HAMILTON, Senior Circuit Judge.

This appeal presents an issue of first impression in this circuit regarding the application of 18 U.S.C. § 3583(h) when a defendant, with respect to the same underlying offense, is being resentenced following the second revocation of his supervised release. In this regard, the issue is whether § 3583(h) requires a district court, in calculating a defendant's second postrevocation sentence, to subtract the term of imprisonment that was imposed upon the defendant following the first revocation of his supervised release from the total amount of supervised release originally authorized by statute for the underlying crime. For reasons that follow, we hold § 3583(h) does so require.

Applying this holding to the facts of the present appeal reveals that the district court erred by sentencing Keith Everett Maxwell (Maxwell) to a term of supervised release following his second revocation of supervised release, with respect to the same underlying offense, that did not take into account the term of imprisonment that was imposed upon Maxwell following the first revocation of supervised release. Because Maxwell did not object to this error below, we are constrained to review for plain error. Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

For reasons that follow, we hold the error was plain and affected Maxwell's substantial rights. We also hold that a miscarriage of justice will result if we do not correct the error. Accordingly, we vacate Maxwell's sentence following the second revocation of his supervised release and remand for resentencing in accordance with this opinion.

I.

In October 1999, Maxwell was convicted on one count of the receipt of stolen postal money orders in violation of 18 U.S.C. § 500, a Class D Felony, 18 U.S.C. § 3559(a)(4). The maximum term of supervised release authorized for this criminal offense was thirty-six months. 18 U.S.C. § 3583(b)(2). The district court entered a judgment and commitment order that sentenced Maxwell to a twelve-month term of imprisonment to be followed by a thirty-six-month term of supervised release.

On December 30, 1999, Maxwell began serving his first term of supervised release, which was revoked a little more than eight months later. Following the first revocation of Maxwell's supervised release, the district court sentenced Maxwell to an eleven-month term of imprisonment to be followed by a twenty-five-month term of supervised release.

On March 9, 2001, Maxwell began serving his second term of supervised release, which was revoked a little more than three months later. Following this second revocation of Maxwell's supervised release, the district court sentenced Maxwell to a ten-month term of imprisonment to be followed by a twenty-six-month term of supervised release. At this sentencing, in calculating the term of Maxwell's supervised release, the district court did not give Maxwell credit for the eleven-month term of imprisonment imposed following the first revocation of his supervised release. Notably, Maxwell did not raise a contemporaneous objection in this regard.

Maxwell noted the present timely appeal. On appeal, Maxwell seeks vacature of his second postrevocation sentence and a remand for resentencing with instructions that the district court cannot impose a term of supervised release that exceeds fifteen months. Maxwell seeks this relief based upon his argument that the district court committed plain error, Fed. R.Crim.P. 52(b); Olano, 507 U.S. at 732, by failing to give him credit for the eleven-month term of imprisonment imposed as part of his first postrevocation sentence when calculating the term of his supervised release imposed as part of his second postrevocation sentence. Although the government opposed Maxwell's argument in its appellate brief, at oral argument, the government candidly and forthrightly conceded all issues in the appeal in favor of Maxwell.

II.

As previously stated, because Maxwell did not object to the length of the term of supervised release the district court imposed as part of his second postrevocation sentence, we are constrained to review for plain error. Fed.R.Crim.P. 52(b); Olano, 507 U.S. at 732, 113 S.Ct. 1770. Under the plain error test set forth by the Supreme Court in Olano, Maxwell must initially establish: (1) there was error; (2) the error was plain; and (3) the error affected his substantial rights. Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Maxwell establishes each of these prongs, Olano requires that before we may exercise our discretion to correct the error, we must be convinced that the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks omitted) (alteration in original). We now proceed through the Olano test.

The first question under the Olano test is whether the district court erred. We begin our analysis of this question by setting forth the relevant statutory provisions. Under 18 U.S.C. § 3583(e)(3), a district court may:

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 ... more than 2 years in prison if such offense is a class ... D felony ....

Id. Under 18 U.S.C. § 3583(h):

[w]hen 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.

Id. (emphasis added).

On appeal, Maxwell argues that the phrase "less any term of imprisonment that was imposed upon revocation," as provided in § 3583(h), includes both the eleven-month term of imprisonment imposed as part of his first postrevocation sentence and the ten-month term of imprisonment imposed as part of his second, i.e., current, postrevocation sentence. Maxwell argues, therefore, the twenty-six-month term of supervised release imposed as part of his second postrevocation sentence exceeded the statutorily authorized maximum amount of supervised release by eleven months.

Although the argument made by Maxwell raises an issue of first impression in this circuit, the Seventh Circuit, the Eighth Circuit, and most recently the Second Circuit have issued decisions in accord with Maxwell's argument. United States v. Merced, 263 F.3d 34, 37-38 (2d Cir.2001) (holding that plain language of § 3583(e)(3) and § 3583(h) provides that statutory maximum term of imprisonment and supervised release that may be imposed upon revocation of supervised release includes prison term of current revocation sentence, together with all prison time imposed under any prior revocation sentences related to same underlying offense); United States v. Brings Plenty, 188 F.3d 1051, 1053-54 (8th Cir.1999) (per curiam) (holding that "plain meaning" of the reference to "less any term of imprisonment that was imposed upon revocation of supervised release" in § 3583(h) "includes the prison term in the current revocation sentence together with all prison time [imposed] under any prior revocation sentence(s)"); United States v. Beals, 87 F.3d 854, 857-58 (7th Cir.1996), overruled on other grounds, United States v. Withers, 128 F.3d 1167, 1172 (7th Cir.1997) (under § 3583(h), a defendant must be credited with imprisonment time imposed as part of first postrevocation sentence in determining maximum statutory term of imprisonment and supervised release for second postrevocation sentence). The Second and Eighth Circuits held that the plain meaning of the phrase "less any term of imprisonment that was imposed upon revocation of supervised release" in § 3583(h) includes the prison term imposed in the current revocation sentence together with all prison time imposed under any prior revocation sentence or sentences. Merced, 263 F.3d at 37-38; Brings Plenty, 188 F.3d at 1053-54. While the Seventh Circuit did not expressly rely on the plain meaning of this phrase in reaching its holding, the court's discussion of the issue clearly indicates that it did so. Beals, 87 F.3d at 857-58. No other federal court of appeals has addressed the issue.

We agree with...