U.S. v. O'Neil

• Decision Date: 10 September 1993
• Docket Number: No. 93-1325,93-1325
• Citation: 11 F.3d 292
• Parties: UNITED STATES of America, Appellee, v. Shaun K. O'NEIL, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 292

11 F.3d 292

62 USLW 2450

UNITED STATES of America, Appellee, v. Shaun K. O'NEIL, Defendant, Appellant.

No. 93-1325.

United States Court of Appeals First Circuit.

Heard Sept. 10, 1993.

Decided Dec. 15, 1993.

William Maselli, Auburn, ME, for defendant, appellant.

Michael M. DuBose, Asst. U.S. Atty., Portland, ME, with whom Jay P. McCloskey, U.S. Atty., Bangor, ME, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and BARBADORO, ^* District Judge.

SELYA, Circuit Judge.

Concluding, as we do, that several courts of appeals have read the supervised release revocation provision (SRR provision), 18 U.S.C. Sec. 3583(e)(3) (1988 & Supp. III 1991), in too crabbed a manner, we hold today that this statute permits a district court, in resentencing a person who has violated the conditions of his or her original term of supervised release, to impose a new term of supervised release in conjunction with an additional prison term, subject to certain restrictions limned in the statute itself. Because we are staking out a position at variance with the majority view, we write at some length to explain our rationale.

I. BACKGROUND OF THE CASE

After having broken into a post office and stolen mail in violation of 18 U.S.C. Secs. 1708, 2115 (1988), defendant-appellant Shaun K. O'Neil pleaded guilty to a class D felony. On November 9, 1990, the district court sentenced him to serve twenty-one months in prison (the top of the applicable guideline sentencing range), followed by three years of supervised release (the maximum allowed by statute). We affirmed the sentence. See United States v. O'Neil, 936 F.2d 599 (1st Cir.1991).

Soon after his release from the penitentiary, appellant committed several significant violations of the supervised release conditions, e.g., stealing a firearm while intoxicated. Dubbing appellant a "walking juvenile crime wave" who posed "a serious danger to the public," the district judge revoked the original term of supervised release and sentenced appellant to an additional twenty-four months in prison, to be followed by a new three-year supervised release term. O'Neil appeals, asking that we vacate his sentence and remand for resentencing. His principal allegation is that the reimposition of supervised release exceeds the district court's statutory authority.

II. THE STATUTE

Passed as part of the Sentencing Reform Act of 1984, 18 U.S.C. Secs. 3551-3559, 3561-3566, 3571-3574, 3581-3586, & 28 U.S.C. Secs. 991-98 (1988 & Supps.), the supervised release alteration statute, 18 U.S.C. Sec. 3583(e), of which the SRR provision is a part, authorizes a court to alter a term of supervised release in a number of ways. A court may:

(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release ...;

(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term 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, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony; or

(4) order the person to remain at his place of residence during nonworking hours....

18 U.S.C. Sec. 3583(e) (emphasis supplied). The present controversy centers on the third of these four options.

The alteration statute empowers a resentencing court, in certain circumstances, to elongate a previously imposed term of supervised release, 18 U.S.C. Sec. 3583(e)(2), or, in other circumstances, to revoke supervision and impose imprisonment in lieu of supervision, id. at Sec. 3583(e)(3). What is unclear, and what has confounded the courts, is whether an intermediate resentencing option exists: Does the statute allow a court to revoke supervision and, in effect, restructure the defendant's sentence by imposing a combination of imprisonment plus further supervision?

Although this court has never addressed the question, a minimum of six circuits have read the statute to foreclose the reimposition of a term of supervised release following revocation and imprisonment. See United States v. Truss, 4 F.3d 437, 438 (6th Cir.1993); United States v. McGee, 981 F.2d 271, 274-76 (7th Cir.1992); United States v. Koehler, 973 F.2d 132, 134-36 (2d Cir.1992); United States v. Cooper, 962 F.2d 339, 340-42 (4th Cir.1992); United States v. Holmes, 954 F.2d 270, 271-73 (5th Cir.1992); United States v. Behnezhad, 907 F.2d 896, 898-99 (9th Cir.1990); see also United States v. Gozlon-Peretz, 894 F.2d 1402, 1405 n. 5 (dictum), amended, 910 F.2d 1152 (3d Cir.1990), aff'd on other grounds, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). The Tenth Circuit came to the same conclusion belatedly, after reversing its field. See United States v. Rockwell, 984 F.2d 1112, 1117 (10th Cir.) (overruling United States v. Boling, 947 F.2d 1461 (10th Cir.1991)), cert. denied, --- U.S. ----, 113 S.Ct. 2945, 124 L.Ed.2d 693 (1993). The Eleventh Circuit has sent mixed signals. In United States v. Tatum, 998 F.2d 893, 894-95 (11th Cir.1993) (per curiam), the court embraced the majority view. A second panel, two weeks later, bowed to Tatum on stare decisis grounds; but, in a sharp departure from customary practice, all three judges expressed their profound disagreement with Tatum's holding. See United States v. Williams, 2 F.3d 363, 365 (11th Cir.1993). Thus, nine circuits in all read the SRR provision narrowly. On the other side of the ledger, the Eighth Circuit stands as a waif in the wilderness. See United States v. Schrader, 973 F.2d 623, 624-25 (8th Cir.1992) (holding that section 3583(e)(3) permits the reimposition of a term of supervised release following revocation and imprisonment); see also United States v. Levi, 2 F.3d 842, 846 (8th Cir.1993) (reaffirming Schrader).

We are called upon today to add our voice to the chorus. We approach this task mindful that, while the decision to revoke a term of supervised release is ordinarily reviewable for abuse of discretion, the quintessentially legal question of whether a post-revocation sentence exceeds statutory limits necessitates plenary review. See Rockwell, 984 F.2d at 1114; see also United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992) (holding that interpretive questions under the sentencing guidelines should be reviewed de novo ).

III. THE COMPETING INTERPRETATIONS

We start our quest by elucidating the two ways in which the SRR provision may be read as a coherent command.

A

To achieve the result reached by the majority of courts, the assiduous reader must proceed along the following lines. First, read the word "revoke" restrictively, i.e., in the sense of "cancel" or "annul," so that it does not allow either the recommencing of the previously imposed term of supervision or the commencement of a new term of supervision. Next, suppose that the word "term", when used for the second time in the SRR provision, does not imply that there is a term of supervision in existence, but merely serves to set a temporal limit on the prison sentence that may be imposed following revocation; or, put another way, that the second use of the word "term" is to be read as if it were shorthand for a more verbose phrase like "the time period equivalent to what would have been the term." Only if these interpretive steps are taken does it become clear, under the SRR provision, that a court may absolutely extinguish a term of supervised release and impose a new prison term, subject to certain statutory limitations, ¹ but, withal, may not impose any other or further supervision term.

B

The other possible parsing of the SRR provision proceeds in three phases. At the outset, consider the possibility that the word "revoke" means simply to "recall." See, e.g., Black's Law Dictionary 1322 (6th ed. 1990) (defining "revoke" as "[t]o annul or make void by recalling or taking back...."). If "revoke" is read in this way, the SRR provision is not inconsistent with the recommencement of supervised release. Next, from the fact that the SRR provision mentions a "term of supervised release" in that portion of the text following the conferral of the power to revoke, the reader plausibly can infer that the supervision term recommenced upon revocation--else there would be no term then in existence. Finally, having posited that the supervision term is alive and well, notwithstanding the court's order of revocation, the reader can conclude that, in authorizing the court to send a person to prison after revocation for "all or part of the term," the SRR provision contemplates that any remaining part of the original, recalled term will be devoted to supervision. On this reading, the SRR provision allows a court to call back a term of supervised release, recommence the term, convert all or part of it into jail time (up to the statutory limit), ² and retain any remainder as a period of non-detentive monitoring.

Before leaving these competing versions, we wish to make two preliminary points. First, we do not regard the initial step in these analyses to be indispensable. See infra Part IV(A). Second, each of the competing versions requires the reader to make a leap of faith beyond the...