U.S. v. McGee

• Citation: 981 F.2d 271
• Decision Date: 30 November 1992
• Docket Number: Nos. 92-1553,92-1729,s. 92-1553
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James L. McGEE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 271

981 F.2d 271

UNITED STATES of America, Plaintiff-Appellee, v. James L. McGEE, Defendant-Appellant.

Nos. 92-1553, 92-1729.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 1992.

Decided Nov. 30, 1992.

Frances C. Hulin, Asst. U.S. Atty., Danville, IL, Rodger A. Heaton, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Springfield, IL, for U.S.

Gregory E. Pelini (argued), Pelini & Sheffler, Champaign, IL, for defendant-appellant.

Before CUMMINGS and MANION, Circuit Judges, and ZAGEL, District Judge. ^*

CUMMINGS, Circuit Judge.

James McGee was convicted for possession of heroin and sentenced to twenty-seven months in prison followed by three years of supervised release. Prison did not fortify McGee's respect for the law, for shortly after he completed his prison term, he was charged with violating his conditions of supervised release by using drugs, by failing to report to his probation officer, and by failing to participate in drug-abuse counseling. After affirming these charges, the district court revoked McGee's supervised release under 18 U.S.C. § 3583(e)(3) and ordered him to serve an additional two years in prison followed by five years of supervised release.

On appeal, McGee argues that the district court lacked power under § 3583 to revoke his release, imprison him, and then impose a new term of supervised release. He argues in essence that once a district court decides that a defendant who violated a condition of release must go back to prison, the court has only prison at its disposal. We agree. Once a court revokes a defendant's supervised release and imprisons him under § 3583(e)(3), no residual term of supervised release survives revocation. Consequently, there is no way for a court to revisit § 3583(e)(2) and create or "extend" a second term of supervised release.

I. Jurisdiction and Standard of Review

The record below raises a jurisdictional issue. After revoking McGee's first term of supervised release, the district court on March 2, 1992, orally sentenced McGee under 18 U.S.C. § 3583 to two years in prison and five years of supervised release. The court noted and discussed this sentence in its March 5, 1992 Order on Final Disposition. However, when the court entered Judgment on March 2, 1992, it incorrectly recorded McGee's term of supervised release as two years instead of five. McGee filed a notice of appeal (no. 92-1553) from that judgment on March 5. On March 18, the court corrected its clerical error by amending its earlier judgment to reflect the five years' supervised release orally imposed on March 2 and discussed in the memorandum Order of March 5. McGee filed a second notice of appeal (no. 92-1729) from the amended judgment on March 30, 1992. McGee argues that this Court has jurisdiction to hear his second appeal from the district court's amended judgment; the government does not contest.

These facts require us to consider whether the district court had jurisdiction to correct the clerical error in its judgment after the first notice of appeal had been filed. As a general rule, "[o]nce the notice of appeal is filed, jurisdiction is conferred on the court of appeals and the district court's power to proceed further is suspended." United States v. Veteto, 945 F.2d 163, 165 (7th Cir.1991). An exception to this principle is offered by Rule 36 of the Federal Rules of Criminal Procedure, which states that "clerical mistakes in judgments * * * may be corrected by the court at any time * * *." See United States v. Queen, 847 F.2d 346, 350 (7th Cir.1988). Once the district court corrected its clerical error and the parties filed a new notice of appeal, we gained jurisdiction over the corrected judgment. All agree that the amended sentence was the correct sentence imposed at trial.

Whether the district court exceeded its authority under § 3583 is a question of law that we review de novo. United States v. Reynolds, 900 F.2d 1000, 1004 (7th Cir.1990); United States v. Montoya, 827 F.2d 143, 146 (7th Cir.1987).

II. The Statute: 18 U.S.C. § 3583

McGee's original sentence for possession of heroin included three years of supervised release as authorized by 18 U.S.C. § 3583. When he violated the conditions of that release, the same statute empowered the court either to modify McGee's release or imprison him. Because McGee's appeal questions a district court's authority to modify and revoke his supervised release, analysis properly begins with a review of the statute.

The statute is structured as follows: part (a) allows a judge to include supervised release as part of a sentence; part (b) correlates the period of release to the class of offense; part (c) refers to factors in other statutes a judge should consider when imposing a sentence of release; part (d) outlines special conditions a judge may include as part of a release; and part (e) lists four ways a judge may modify or revoke a supervised release. McGee's appeal focuses on a judge's authority under § 3585(e), ¹ entitled "Modification of conditions or revocation," which allows a district court to:

(1) terminate a term of supervised release * * *

(2) extend a term of supervised release if less than the maximum term 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 time previously served on postrelease supervision * * * or

(4) order the person to remain at his place of residence * * *

The order below does not say how the trial court interpreted the statute, but its options were limited to those listed above. The trial court's order does state that it considered McGee's fragile health, his admission of a serious drug problem and his recidivist tendencies when it imposed the second, lengthy five-year sentence of supervised release. Section 3583(e) directed the trial court to consider these matters by referring it to 18 U.S.C. § 3553(a), which lists factors to be considered in imposing a sentence; the sentence below probably addressed the needs of both the public and McGee as provided in that statute. McGee's appeal challenges the district court's application of § 3583(e), however, not the merits of his second sentence. Since the district court misread the scope of its statutory authority, we are forced to clarify its options under § 3583(e).

III. Analysis

We begin by outlining an interpretation of § 3583 that would support the trial judge's order in this case. Section (e)(3) allows a judge to "revoke" a supervised release and imprison a defendant for "part of the term of supervised release." A judge could fairly read this language to leave any remaining "part of the term" intact, to be served as supervised release. In this case, the judge could have assumed that when he revoked McGee's release, (e)(3) allowed him to sentence McGee to three years in jail, or to some three-year combination of jail and release. If (e)(3) is interpreted to authorize reapportioning "the term of supervised release" between prison and release, it becomes a simple matter to extend the remaining term of release under (e)(2), as the trial judge did in this case, by extending McGee's term from three years to five years. This interpretation can be called a "flexible reading" of § 3583. Variations of this reading were approved in United States v. Boling, 947 F.2d 1461 (10th Cir.1991), and in United States v. Schrader, 973 F.2d 623 (8th Cir.1992). Several other circuits have rejected the flexible reading of § 3583, although for differing reasons, and we briefly canvass their opinions before continuing our analysis.

United States v. Behnezhad, 907 F.2d 896 (9th Cir.1990), overturned a district court order that revoked supervised release and sentenced the defendant to ten months in prison followed by two years' supervised release. Focusing on the word "or" between (e)(3) and (e)(4), Behnezhad explained that "we generally construe a statute written in the disjunctive as setting out separate and distinct alternatives." Id. at 898. Following this canon of construction, Behnezhad reasoned that the disjunctive meaning of "or" prevented a district court from combining (e)(3) and (e)(2) both to revoke and extend a supervised release. Behnezhad noted that the legislative history did not argue against a disjunctive reading of the statute, and that Congress had granted district courts clear flexibility in a different statute governing probation. Id. at 899. United States v. Cooper, 962 F.2d 339 (4th Cir.1992), followed the disjunctive reading of "or" to strike down a sentence that had briefly imprisoned a defendant under (e)(3) and then extended his release under (e)(2).

United States v. Holmes, 954 F.2d 270 (5th Cir.1992), used a different analysis to vacate a sentence that included supervised release following imprisonment under (e)(3):

Section 3583(e)(3) authorizes the district court to "revoke" a term of supervised release. "Revoke" generally means cancel or rescind. Once a term of supervised release has been revoked under § 3583(e)(3), there is nothing left to extend, modify, reduce, or enlarge under § 3583(e)(2). The term of release no longer exists.

Id. at 272. Holmes implicitly declined to support Behnezhad's disjunctive analysis by stating that the meaning of "revoke" controlled the issue "regardless of whether the options available under § 3583(e) could otherwise be used together, or in succession * * *." Holmes' analysis was followed by United States v. Koehler, 973 F.2d 132 (2nd Cir.1992).

Finally, two other circuits have suggested without detailed analysis that they would not read § 3583(e)(3) to allow imposing supervised release after revocation. United States v. Gozlon-Peretz, 894 F.2d 1402, 1405 n. 5 (3rd Cir.1990), amended, 910 F.2d 1152, affirmed on other grounds, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991); United...