U.S. v. McGee
| Decision Date | 27 July 1995 |
| Docket Number | No. 95-1437,95-1437 |
| Citation | 60 F.3d 1266 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William McGEE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John H. Campbell, Office of U.S. Atty., Peoria, IL, for U.S.
Raymond L. Huff, Peoria, IL, for William McGee.
Before CUMMINGS, CUDAHY and COFFEY, Circuit Judges.
William McGee appeals the district court's decision to revoke his term of supervised release and impose a sentence of 24 months' imprisonment for violations including retail theft and cocaine possession. McGee argues that (1) his sentence violates the Ex Post Facto Clause; (2) he should have received credit for the time he was in state custody prior to his revocation hearing; and (3) the district court erred in sentencing at the high end of the applicable range found in the policy statements of Chapter Seven of the Sentencing Guidelines.
In 1990, McGee was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). His criminal history category was calculated to be VI. He was sentenced to 43 months of imprisonment, to be followed by three years of supervised release. McGee was released in December 1993 to serve the term of supervised release. McGee violated several conditions of his supervised release and in May 1994 a warrant was issued for his arrest. The violations alleged in the warrant included retail theft, three instances of cocaine possession, failure to submit to urinalysis, and failure to report to U.S. Probation Officers.
On June 7, 1994, McGee was arrested on retail theft charges. A federal warrant was placed as a detainer. McGee pleaded guilty to the state charges and was sentenced to two years imprisonment in the Illinois Department of Corrections. The state court granted McGee 90 days credit for time served awaiting this sentence. On November 29, 1994, McGee was released from state prison and transferred to federal custody. A revocation hearing was scheduled and a U.S. Probation Officer prepared a presentence report (PSR), which was given to McGee before the hearing.
Under 18 U.S.C. Sec. 3583(g) in effect from September 13, 1994, the PSR found that imprisonment was required for McGee's violations but that the maximum sentence was 24 months. Under Chapter Seven of the U.S. Sentencing Guidelines, the PSR calculated the range of imprisonment for McGee's violations to be 21 to 27 months. 1 Because of the statutory maximum, the PSR recommended a range of imprisonment of 21 to 24 months.
On January 13, 1995, the district court held a revocation hearing. McGee admitted the alleged violations of his conditions of supervised release. The district court asked McGee and his counsel if they had any objections to the PSR; they had none. Accordingly, the district court ordered revocation of McGee's supervised release and sentenced him to 24 months' imprisonment with credit for time in federal custody from November 29, 1994, the date he was released from state prison to the federal detainer. McGee now appeals.
As a threshold matter, because McGee did not object to his sentence in the district court, review is limited to plain error. United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993).
McGee makes three arguments on appeal. First, he contends that the statute mandating imprisonment for his violation of supervised release terms, 18 U.S.C. Sec. 3583, violated the Ex Post Facto Clause. Second, he argues that he should have received credit for time served from the date of his arrest on state charges, on June 7, 1994, and not merely from the date of his federal custody, November 29, 1994. Third, he argues that the district court erred in sentencing him at the high end of the range of revocation sentences. Each argument will be considered in turn.
Section 3583 of Chapter 18 of the United States Code governs the conditions of supervised release and the punishment for violating them. Subsection (g) of this statute, which mandates imprisonment for possession of controlled substances while on supervised release, was amended, effective September 13, 1994. McGee's violative conduct occurred in February through April, 1994, before the amendment, but he was sentenced in January 1995, under the amended statute. (For clarity, the pre-amendment version will be referred to as the 1994 statute and the post-amendment version as the 1995 statute.)
McGee's argument is summarized as follows: In 1994, Sec. 3583(g) provided mandatory termination of supervised release for cocaine possession; with a one-year minimum sentence for McGee. In 1995, Sec. 3583(g) provided mandatory revocation of supervised release; with a two-year maximum sentence for McGee. The guidelines, Sec. 7B1.4 p.s., provide a 21-27 month imprisonment range upon revocation of supervised release. McGee argues that because the statute distinguishes termination from revocation, the guideline range for revocation was not applicable in 1994 when he committed the violations. McGee's argument is supported by subsection (e)(3) of Sec. 3583, which does seem to distinguish revocation of supervised release from its termination.
Subsection (e) of Sec. 3583 directs that a court may terminate a term of supervised release in the interest of justice; may extend a term of supervised release, upon appropriate conditions; or may revoke a term of supervised release and impose a prison term if the releasee violates a condition of his release. 18 U.S.C. Sec. 3583(e)(1)-(3) (emphasis added).
However for controlled substance violations, the statute mandates a term of imprisonment. The 1994 statute read:
(g) Possession of controlled substances.--If the defendant is found by the court to be in the possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.
18 U.S.C. Sec. 3583(g) (1994) (emphasis added). Because McGee was originally sentenced to three years of supervised release, the 1994 statute mandates a minimum 12-month prison term for his possession of cocaine. However, the amended section (g) reads:
(g) Mandatory revocation for possession of controlled substance or firearm or for refusal to comply with drug testing.--If the defendant--
(1) possesses a controlled substance in violation of the condition set forth in subsection (d);
. . . . .
the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).
18 U.S.C. Sec. 3583(g) (1995) (emphasis added). The district court used the 1995 statute to revoke McGee's term of supervised release. The court calculated the imprisonment range from two sources: subsection (e)(3) of the statute and the Sentencing Guidelines. Subsection (e)(3), referenced in subsection (g), provides a maximum two-year prison term for revocation in McGee's situation. 2 Chapter Seven of the sentencing guidelines provides a range of 21 to 27 months for his violation. So, combining the Chapter Seven range and statutory maximum, the district court calculated a range of 21 to 24 months. McGee claims that this was plain error.
McGee claims that the 1994 amendment alters the punishment for cocaine possession to his detriment. Although he does not fully flesh out the argument, the detriment can be seen in the following way. First, the 1994 statute provided a one-year minimum for McGee ("requir[ing] a [prison term] of not less than one-third of [McGee's three-year] term of supervised release"), whereas the 1995 statute provides only a two-year maximum (prison term not to exceed that authorized under (e)(3)). Second, McGee argues that amending the subsection to "revoke" rather than "terminate" supervised release alters the punishment in the following manner: because the guideline range only refers to "revocation of supervised release," the guideline range is inapplicable to "termination" of supervised release.
Thus, following McGee's reasoning, the 1994 statute provides termination of supervised release with a minimum sentence of 12 months (and no applicable guideline range); whereas the 1995 statute provides revocation of supervised release with a guidelines-imposed 21-month minimum and statutory 24-month maximum.
Under McGee's analysis, the amendment works to his detriment because the 12-month minimum is increased to a 21-month minimum when the guidelines are imposed. Of course, if the guidelines' revocation range is applicable to both the 1994 (termination) and 1995 (revocation) statutes, then McGee's argument fails. Thus, his argument for ex post facto punishment requires that the guidelines' revocation range did not apply to termination of supervised release under Sec. 3583(g) in 1994; a proposition supported by no known or cited caselaw. However, this analysis may be complicated by United States v. Hill, 48 F.3d 228 (7th Cir.1995), which held that Chapter Seven of the guidelines, which is entirely a policy statement, is not binding upon the courts, but only advisory. There are four possible resolutions of McGee's claim; each will be discussed below.
McGee's ex post facto argument would require us to hold that the sentencing guidelines were not applicable to McGee's case in 1994, but became applicable upon the 1995 amendment. McGee's argument fails because the guidelines were applicable in 1994.
As a threshold matter, McGee has cited no cases, and we have found none, that hold or imply that the imprisonment...
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