U.S. v. Mazarky

• Decision Date: 12 September 2007
• Docket Number: No. 06-13316.,06-13316.
• Citation: 499 F.3d 1246
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen Blaine MAZARKY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

499 F.3d 1246

UNITED STATES of America, Plaintiff-Appellee, v. Stephen Blaine MAZARKY, Defendant-Appellant.

No. 06-13316.

United States Court of Appeals, Eleventh Circuit.

September 12, 2007.

Thomas Jake Waldrop and Stephanie Kearns, Fed. Pub. Defenders, Fed. Def. Program, Inc., Atlanta, GA, for Mazarky.

H. Allen Moye, SE Drug Task Force, Amy Levin Weil, U.S. Atty., Atlanta, GA, for U.S.

Appeal from the United States District Court for the Northern District of Georgia.

Before DUBINA and BLACK, Circuit Judges, and RESTANI,^* Judge.

RESTANI, Judge:

Appellant Stephen B. Mazarky ("Mazarky") appeals a sentence of twenty-eight months of supervised release imposed by the district court following its second revocation of Mazarky's term of supervised release. Mazarky challenges the length of the sentence, arguing that under 18 U.S.C. § 3583¹ the district court was required to reduce the new sentence by the aggregate length of imprisonment already served following his first revocation of supervised release. We vacate the district court's sentence and remand for resentencing.

BACKGROUND

In 1998, Mazarky was indicted for conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1) (Count One), possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §§ 2, 3147 (Count Four), and conspiracy to commit various federal offenses, in violation of 18 U.S.C. §§ 2, 371 and 3147 (Count Fifteen). (R1-91 at 1-3, 5, 10-14.) The indictment charged Mazarky with committing the crimes described in Count Four between 1996 and 1997, and those described in Count Fifteen from 1987 until 1998. (Id. at 5, 10.) Pursuant to a plea agreement, Mazarky pled guilty to Counts Four and Fifteen on June 11, 1999, and was sentenced to concurrent terms of 42 months of imprisonment followed by 36 months of supervised release, in addition to monetary penalties. (R1-537.)

In 2004, following his release from prison, Mazarky admitted to violating the terms of his supervised release. (R1-748.) The district court revoked his supervised release and sentenced him to 10 months of imprisonment followed by 26 months of supervised release, the first 3 months to be served in a halfway house. (Id.) Mazarky did not appeal this sentence, or the original conviction and sentence.

In 2006, following his second release from prison, Mazarky again admitted to violating the terms of his supervised release. (R1-779.) The district court revoked the supervised release and sentenced Mazarky to 8 months of imprisonment, followed by 28 months of supervised release, the first 10 months to be served in a halfway house. Mazarky timely appealed.

JURISDICTION & STANDARD OF REVIEW

This Court has jurisdiction over the final judgment and sentence of the district court pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review de novo "the legality of a sentence, including a sentence imposed pursuant to revocation of a term of supervised release." United States v. Pla, 345 F.3d 1312, 1313 (11th Cir.2003) (quotations and citation omitted). We review issues of statutory interpretation de novo. United States v. Castro, 455 F.3d 1249, 1251 (11th Cir.2006).

DISCUSSION

Mazarky challenges the sentence imposed following the second revocation, arguing that, under 18 U.S.C. § 3583, the new term of supervised release should have been reduced by the aggregate length of imprisonment imposed in both revocations.

Subsections (e) and (h) of 18 U.S.C. § 3583 govern the imposition of a new term of supervised release following the revocation of a prior term.² Subsection (e) provides, in relevant part, that:

[T]he 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 . . . 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 C or D felony³. . . .

18 U.S.C. § 3583(e)(3). Subsection (h) permits multiple terms of supervised release:

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.

Id. at § 3583(h).⁴

In Williams, this court construed subsection (e) to mean that the maximum term of imprisonment, according to the class of the offense, applied "to the aggregate of the sentences imposed on multiple revocations of supervised release." Williams, 425 F.3d at 988.⁵ Under Williams, a district court could therefore revoke supervised release multiple times and reimpose sentences of imprisonment, as long as the total length of the prison terms imposed upon revocation did not exceed the permitted maximums. Williams addressed only post-revocation sentences of imprisonment, however, and did not address whether multiple terms of supervised release must also be reduced by the length of imprisonment imposed on all prior revocations.

Subsection (h) limits the maximum term of supervised release imposed upon revocation to "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) (emphasis added). The statute is silent, however, as to whether the term of imprisonment to be subtracted is that which was imposed upon a single revocation, or the aggregate of all prison terms imposed upon multiple revocations. This is a question of first impression in this Circuit, but has been addressed in the relevant legislative history, and in the Seventh, Eighth, and Second Circuits.

In the explanation of an earlier bill containing language nearly identical to subsection (h), the phrase "any term of imprisonment" is described as the aggregate of all prison terms served in prior revocations:

For example, in the case of a Class C felony for which the maximum supervised release term is three years, a defendant who is revoked and re-imprisoned for 18 months could be ordered to serve as much as 18 additional months on supervised release (36-month maximum term of supervised release minus 18 months imprisonment equals 18 months possible re-release supervision). If the same defendant was again revoked, he could be re-imprisoned for not exceeding six months (24-month cap minus 18 months previously-served imprisonment equals 6 months allowable imprisonment) and if so imprisoned, could not thereafter be placed on supervision (because the two-year imprisonment cap would have been reached). Thus, under [subsection (h)], a defendant would always be credited for incarceration time against both the cap on re-imprisonment and the maximum authorized period of supervised release.

137 Cong. Rec. S7769, S7772 (daily ed. June 13, 1991) (emphasis added).

United States v. Beals, 87 F.3d 854 (7th Cir.1996), overruled in part on other grounds by United States v. Withers, 128 F.3d 1167 (7th Cir.1997), followed this approach in holding that subsection (h) could potentially disadvantage a defendant whose crimes were completed prior to its enactment in 1994. Beals explained that:

Prior to Subsection (h), a defendant could serve only one term of supervised release, and thus only once "lose" credit for time served prior to the revocation. After Subsection (h), a defendant can serve multiple terms and thus potentially "lose" multiple periods of time after the initial revocation . . . .

Beals, 87 F.3d at 857 (citing 137 Cong. Rec. S7769, S7771). In Withers, the Seventh Circuit overruled Beals in part on the grounds that the practical effect of subsection (h) did not "produce[ ] a sufficient risk" of increased punishment to violate the Ex Post Facto Clause when applied retroactively. Withers, 128 F.3d at 1171-72. Withers maintained, however, the understanding that subsection (h) allows a court to:

impose the same punishment as under [subsection (e)(3)] . . . [but] also permit[s] a court to impose a sentence (for the same time period as under [subsection (e)(3)]) that includes a combination of prison time and additional supervised release. . . . Under either law, the defendant is subject to the same total amount of restraint. . . . The new law simply permits a court to fill this time with a mixed sentence of imprisonment and supervised release rather than a sentence consisting solely of imprisonment.

Withers, 128 F.3d at 1170. Although Beals and Withers primarily addressed the possibility of harsher prison sentences as a result of retroactive application of subsection (h), they also acknowledge that credit for incarceration time applies against both the maximum prison term and the maximum permitted supervised release.

Similarly, United States v. Brings Plenty, 188 F.3d 1051 (8th Cir.1999), cites to Beals and the above-cited legislative history in support of its holding that "`any term of imprisonment' includes the prison term in the current revocation sentence together with all prison time served under any prior revocation sentence(s)." Brings Plenty, 188 F.3d at 1053. Brings Plenty concluded that, under subsection (h), a term of supervised release imposed upon revocation must be reduced by the length of imprisonment served on all prior revocations. Id. at 1053-54 (citing, e.g., United States v. Walker, 32 F.Supp.2d...