U.S. v. Meeks

• Decision Date: 02 June 1994
• Docket Number: D,No. 1338,1338
• Citation: 25 F.3d 1117
• Parties: UNITED STATES of America, Appellee, v. Larry J. MEEKS, Defendant-Appellant. ocket 93-1708.
• Court: U.S. Court of Appeals — Second Circuit

Page 1117

25 F.3d 1117

UNITED STATES of America, Appellee, v. Larry J. MEEKS, Defendant-Appellant.

No. 1338, Docket 93-1708.

United States Court of Appeals Second Circuit.

Argued April 19, 1994.

Decided June 2, 1994.

David V. Kirby, Asst. U.S. Atty., Burlington, VT (Charles R. Tetzlaff, U.S. Atty., D. VT, Paul J. Van de Graaf, Asst. U.S. Atty., Burlington, VT, on the brief), for appellee.

Paul S. Volk, Burlington, VT (Blodgett, Watts & Volk, Burlington, VT, on the brief), for defendant-appellant.

Before: OAKES, KEARSE, and MAHONEY, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Larry J. Meeks appeals from a judgment entered in the United States District Court for the District of Vermont, Franklin S. Billings, Jr., Judge, revoking his supervised release pursuant to 18 U.S.C. Sec. 3583 (1988) and sentencing him pursuant to Sec. 3583(g) to a mandatory minimum term

of imprisonment of 12 months, representing one-third the length of his term of supervised release, for possessing a controlled substance while on supervised release. On appeal, Meeks contends that, although his supervised-release violation occurred after enactment of Sec. 3583(g), his original offense conduct occurred before that enactment, and thus the application to him of Sec. 3583(g)'s mandatory minimum violates the Ex Post Facto Clause of the Constitution. We agree, and we therefore vacate the judgment and remand for resentencing.

I. BACKGROUND

The facts underlying this appeal are undisputed. In March 1988, Meeks sold cocaine to an undercover government agent. In April 1989, in connection with that sale, Meeks pleaded guilty to one count of distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) (1988). In December 1989, Meeks was sentenced to a 13-month term of imprisonment, to be followed by a three-year term of supervised release. One of the express conditions of Meeks's supervised release was that he "not possess illegal controlled substances." (Judgment dated December 4, 1989.)

Following an apparently uneventful period of incarceration, Meeks was released and began to serve his three-year term of supervised release. In July 1993, shortly before his supervised-release term was to expire, Meeks consented to a two-year extension of that term through August 1995.

In September 1993, Meeks's probation officer petitioned the district court to find Meeks in violation of the conditions of his supervised release. At the revocation hearing, the district court concluded that Meeks had violated the conditions of supervised release because it found by a preponderance of the evidence that he had used cocaine, since he had tested positive for that substance on four occasions, i.e., November 14, 1991, December 30, 1991, March 8, 1993, and July 7, 1993. The court also found that Meeks had violated the conditions of his release by submitting monthly supervision reports that failed to indicate his usage of cocaine. Accordingly, the court revoked Meeks's supervised release.

With respect to the punishment to be imposed, the government argued that Meeks was subject to a mandatory minimum term of imprisonment equal to one-third of the term of his supervised release in accordance with 18 U.S.C. Sec. 3583(g), which provides as follows:

(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.

This section, passed as part of the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, Sec. 7303(b)(2), 102 Stat. 4181, 4464 (1988), became effective on December 31, 1988, see id. Sec. 7303(d), 102 Stat. at 4464. Meeks argued that, since Sec. 3583(g)'s mandatory minimum sentencing provision became effective after the date of his underlying distribution offense, its application to him would violate the Ex Post Facto Clause of the Constitution.

The district court rejected Meeks's argument, stating "We don't think there is any ex post facto matter here, in view of the fact that we think that the violation of supervised release is a separate and distinct offense from the original offense." (Revocation Hearing at 69.) The court sentenced Meeks in October 1993 to a 12-month prison term, applying Sec. 3583(g)'s mandatory minimum provision. This appeal followed. Meeks is serving his sentence.

II. DISCUSSION

The Constitution prohibits Congress from passing any "ex post facto Law." U.S. Const. art. I, Sec. 9, cl. 3; see also id. art. I, Sec. 10, cl. 1 ("No State shall ... pass any ... ex post facto Law"). The prohibition against ex post facto laws embodies two principal concerns. First, it helps to prevent legislative abuses by curbing the "enact[ment of] arbitrary or vindictive legislation." Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987) ("Miller"); see also Calder v. Bull, 3 U.S. 386, 389, 1 L.Ed. 648 (3 Dall.1798); Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d The Supreme Court first addressed the Ex Post Facto Clause in Calder v. Bull, in which Justice Chase set forth the Court's understanding of what fell within the Clause's prohibition:

344 (1977); Landgraf v. USI Film Products, --- U.S. ----, ---- - ----, 114 S.Ct. 1483, 1497-98, 128 L.Ed.2d 229 (1994). Second, it helps "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-964, 67 L.Ed.2d 17 (1981) ("Weaver"); see also Miller, 482 U.S. at 430, 107 S.Ct. at 2451.

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Calder v. Bull, 3 U.S. at 390, 1 L.Ed. 648 (emphasis omitted). In Miller, the Court articulated a two-pronged test for determining when application of a statute violates the constitutional prohibition. Before a statute may be said to be an ex post facto law, "first, the law 'must be retrospective, that is, it must apply to events occurring before its enactment'; and second, 'it must disadvantage the offender affected by it.' " Miller, 482 U.S. at 430, 107 S.Ct. at 2451 (quoting Weaver, 450 U.S. at 29, 101 S.Ct. at 964). With respect to retrospectivity, "[t]he critical question is whether the law changes the legal consequences of acts completed before its effective date." Weaver, 450 U.S. at 31, 101 S.Ct. at 965. The "events" and completed "acts" referred to in Miller and Weaver are the defendant's underlying crime, whether or not a plea of guilty or conviction with respect to that crime occurred after the effective date of the new law. See, e.g., Weaver, 450 U.S. at 30, 101 S.Ct. at 965; United States v. Parriett, 974 F.2d 523, 525-26 (4th Cir.1992).

This Court has not heretofore addressed the ex post facto implications of applying Sec. 3583(g) to a defendant whose original offense conduct predated the enactment of Sec. 3583(g) but whose violation of the terms of the supervised release occurred after the effective date of that section. In the present case, the government properly concedes that Meeks meets the second prong of the Miller test, i.e., that he is disadvantaged by the change in the law. See generally Miller, 482 U.S. at 429-35, 107 S.Ct. at 2450-53 (retroactive application of a law that imposes a mandatory minimum sentence in place of a flexible range of punishment disadvantages the defendant); United States v. Paskow, 11 F.3d 873, 877 (9th Cir.1993). The only question, therefore, is whether Sec. 3583(g) changes the legal consequences of acts completed before its effective date.

Two lines of cases provide conflicting guidance. The first focuses on statutes that increase the penalties for repeat or habitual offenders. The second focuses on statutes that alter the consequences of violations of parole.

With respect to statutes that increase the penalties for repeat or habitual offenders some of whose convictions predate the effective date of the penalty increase, the Supreme Court has held that such statutes are not ex post facto laws, reasoning that they merely increase punishment for the crimes committed after the date of the statute. For example, in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), the Supreme Court was presented with an ex post facto challenge to a fourth-offender statute that permitted a judge to impose a life term of imprisonment when a defendant was shown to have at least three prior convictions. The Court rejected the constitutional challenge, holding that "[t]he sentence as a fourth offender or habitual criminal is not to be viewed as ... additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." Id. at 732, 68 S.Ct. at 1258.

We followed this approach in Covington v. Sullivan, 823 F.2d 37 (2d Cir.1987). Covington had pleaded guilty in state court in 1978 to attempted criminal possession of a weapon in the third degree. In 1980, the New York legislature amended its laws and classified criminal possession of a weapon in the third degree as a violent felony offense. Under the law in effect at that time, repeat violent felony offenders were subject to enhanced penalties. In 1981, Covington committed a homicide, and he eventually pleaded guilty to manslaughter, a violent felony; because of his prior...