U.S. v. Mcintosh

• Decision Date: 21 January 2011
• Docket Number: No. 10–1936.,10–1936.
• Citation: 630 F.3d 699
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Carlton McINTOSH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

630 F.3d 699

UNITED STATES of America, Plaintiff–Appellee,

v.Carlton McINTOSH, Defendant–Appellant.

No. 10–1936.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 28, 2010.Decided Jan. 21, 2011.

Peter M. Flanagan (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Jeffrey J. Levine (argued), Attorney, Chicago, IL, for Defendant–Appellant.Before MANION, ROVNER, and SYKES, Circuit Judges.MANION, Circuit Judge.

Carlton McIntosh was convicted of escaping from federal custody, a violation of 18 U.S.C. § 751(a), and served a 41–month term of imprisonment followed by a period of supervised release. On two separate occasions, he violated the terms of his supervised release and was ordered to serve terms of reimprisonment. After being ordered to serve a second reimprisonment period, McIntosh filed a motion to reconsider the judgment, arguing that it violated his constitutional rights, as articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied the motion, and McIntosh now appeals. We affirm.

In September 2003, McIntosh escaped from a correctional community center where he was serving a sentence for money laundering. As a result, he was charged with escaping from federal custody. By statute, the maximum sentence for the offense is 60 months' imprisonment. 18 U.S.C. § 751(a). Following a bench trial, he was found guilty and sentenced to 41 months' imprisonment, followed by three years of supervised release.

In September 2006, McIntosh completed his term of imprisonment and began serving his first period of supervised release. During this time, however, McIntosh violated the terms of his release by committing a crime, failing to report to his probation officer, failing to obtain work, and leaving the judicial district without permission. Because of this conduct, in May 2007, the district court revoked McIntosh's supervised release and sentenced him to an additional 14 months' imprisonment and 22 months of supervised release.

In June 2008, McIntosh completed his second term of imprisonment and again went on supervised release. In August 2009, the government moved to revoke McIntosh's supervised release a second time. Over the course of a three-day hearing, the government presented evidence that had been recovered from McIntosh's house, including a driver's license with McIntosh's picture and the name “Lamont Glass,” and two debit cards with the names “Lamont Glass” and “Brent Spann.” The government explained that “Lamont Glass” was the name of McIntosh's former cellmate. The government also presented evidence that McIntosh had used false identification to open two bank accounts in Glass's name; that he had obtained a tax refund in Glass's name without Glass's knowledge or permission; and that he had filed fraudulent federal income tax returns, in which he claimed tax refunds on behalf of several people whom he knew in prison and directed the refunds to himself instead of to the individuals listed on the tax return. In addition, the government presented evidence that McIntosh failed to report his arrest for criminal trespass to a motor vehicle involving the theft of a rental car, his contact with a convicted felon and federal inmate, his rental of two mailbox accounts, and his opening of multiple bank accounts. The government also demonstrated that McIntosh had failed to submit monthly supervision reports, make payments on his restitution, and sufficiently report information regarding his employment. Finally, the government presented bank records from accounts in McIntosh's name, showing gas station charges and other purchases made from locations outside the Northern District of Illinois even though McIntosh had not received permission to travel outside the district.

Following the hearing, the district court ruled that McIntosh had again violated the terms of his supervised release in multiple ways including using false identification to open bank accounts and to fraudulently obtain money, failing to pay restitution, and failing to comply with the reporting requirements for his supervised release. Consequently, the district court revoked his supervised release and sentenced McIntosh to serve another 16 months of imprisonment, followed by 12 months of supervised release, which the district court later modified to six months of supervised release.

McIntosh objected to the sentence, arguing that the additional 16–month reimprisonment violated his rights under Apprendi and should be reduced to five months. The district court rejected McIntosh's argument, and he now appeals.

We review de novo challenges based on Apprendi. United States v. Seymour, 519 F.3d 700, 709 (7th Cir.2008). Apprendi requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. On appeal, McIntosh argues that because sanctions for violations of a supervised release are part of the penalty for the initial offense, see Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), when his terms of reimprisonment are added to the original term of imprisonment and exceed the statutory maximum, Apprendi protections must apply. In McIntosh's case, adding his second reimprisonment (16 months) to his initial imprisonment (41 months) and the reimprisonment from the first violation of supervised release (14 months) gives a total of 71 months. This, of course, is greater than the 60–month statutory maximum authorized for his original offense. McIntosh argues this is a violation of his constitutional rights under Apprendi.

Apprendi does not apply here. McIntosh's underlying offense, escaping from federal custody, has a 60–month maximum term of imprisonment and is classified as a Class D felony. See 18 U.S.C. § 751(a); 18 U.S.C. § 3559(a)(4). Under 18 U.S.C. § 3583, when imposing a sentence for a felony conviction, a district court “may include as part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(a). The statute also authorizes the district court to include provisions for violations of the supervised-release conditions, including revocation of the supervised release and reimprisonment. 18 U.S.C. § 3583(e)(3). When the underlying offense is a Class D felony, the maximum term of supervised release is three years and the maximum term of reimprisonment after the revocation of a supervised release is two years. 18 U.S.C. § 3583(b)(2), (e)(3).

McIntosh's argument fails because a district court's authority to sentence is not based solely on 18 U.S.C. § 751(a), but on 18 U.S.C. § 3583 as well. That is to say, by statute, a district court is not restricted to only imposing a sentence of up to 60 months; instead, by statute, a district court may impose a 60–month sentence plus a three-year term of supervised release, which may include an additional reimprisonment of up to two years should the defendant violate terms of the supervised release.

We previously rejected McIntosh's argument in United States v. Colt, 126 F.3d 981 (7th Cir.1997). There, we noted that the statutory interpretation suggested by McIntosh would result in the anomaly where, in the case of a...