U.S. v. Page

• Decision Date: 04 March 1998
• Docket Number: 96-4345,Nos. 96-4329,s. 96-4329
• Citation: 131 F.3d 1173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas PAGE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daryl FULLUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1173

131 F.3d 1173

UNITED STATES of America, Plaintiff-Appellee, v. Thomas PAGE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Daryl FULLUM, Defendant-Appellant.

Nos. 96-4329, 96-4345.

United States Court of Appeals, Sixth Circuit.

Argued June 2, 1997.

Decided Dec. 2, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied March 4, 1998.

Steven S. Nolder (argued and briefed), Federal Public Defender's office, Columbus, OH, for Defendants-Appellants.

David J. Bosley (argued and briefed), Office of the U.S. Attorney, Columbus, OH, for Plaintiff-Appellee.

Before: MERRITT, CONTIE and SUHRHEINRICH, Circuit Judges.

CONTIE, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. MERRITT, J. (pp. 1181-1185), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CONTIE, Circuit Judge.

Defendants-appellants, Thomas Page and Daryl Fullum, appeal the district court's imposition of a subsequent term of supervised release as part of their sentences for violating the conditions of their original terms of supervised release. Both defendants pled guilty to distribution of cocaine and were sentenced to a term of imprisonment to be followed by a term of supervised release. After serving their prison terms, they were released from incarceration and began serving their terms of supervised release. Both defendants Page and Fullum then violated the conditions of their supervised release. The United States petitioned that their supervised release be revoked due to the violations, and the district court granted the petitions. Fullum was sentenced to eight months' imprisonment for violating the conditions of his supervised release to be followed by the remaining portion of his original five-year term of supervised release. Page was sentenced to six months' imprisonment to be followed by the remaining portion of his original three-year term of supervised release. Defendants agree that the district court had the authority to revoke their supervised release and to sentence them to jail for violating the conditions of their supervised release pursuant to 18 U.S.C. § 3583(e)(3). However, they contend that after their release from prison, the imposition of the remainder of their terms of supervised release pursuant to 18 U.S.C. § 3583(h) violates the Ex Post Facto Clause because § 3583(h) was passed after they were initially sentenced for their drug offenses, and it increases their punishment. Defendant Fullum raises two additional arguments: (1) that the district court in its initial sentence incorrectly classified his offense as a Class B rather than as a Class C felony; and (2) that his term of supervised release must be reduced from five years to three years due to the error in the classification of his offense.

I. Ex Post Facto Argument

This consolidated appeal arises because Congress recently amended several statutes governing supervised release that alter previous law. The first statute at issue is 18 U.S.C. § 3583(h); the amendment, subsection (h), enables a district court to reinstate the remainder of the original term of supervised release as part of the sentence imposed after a defendant has violated the conditions of his original term of supervised release and has been imprisoned for the violations. Prior to being amended by subsection h, the statute stated that the court could "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release...." 18 U.S.C. § 3583(e)(3). This court interpreted the language of the prior statute in United States v. Truss, 4 F.3d 437 (6th Cir.1993), and held that although section 3583(e)(3) permitted the court to impose imprisonment after revoking a term of supervised release, it did not permit the court to impose a subsequent term of supervised release after the term of imprisonment had been served. Thus, under prior case law in this circuit, although defendants could have been imprisoned for violating the conditions of their supervised release, no subsequent term of supervised release could have been imposed after their prison term ended.

On September 13, 1994, Congress, in effect, superseded this court's opinion in United States v. Truss by enacting section 3583(h), which explicitly states that the remainder of the original term of supervised release may be reinstated after imprisonment for violating the conditions of supervised release. ¹ Therefore, in the present case, after defendants violated the conditions of their supervised release, the district court acted accordingly and pursuant to section 3583(h) did the following. The district court found that defendant Fullum had violated the conditions of his supervised release and imposed a sentence of imprisonment for eight months. The court's order then stated: "It is further ordered that following defendant's term of incarceration, defendant will be placed on supervised release, said term of supervised release to expire on February 24, 1999, that being the expiration date of defendant's original term of supervised release." Likewise, the district court revoked defendant Page's term of supervised release and sentenced him to six months imprisonment. The order then stated: "Following defendant's term of incarceration, defendant will be placed on supervised release, said term of supervised release to expire on June 1, 1998, that being the expiration date for defendant's original term for supervised release." Thus, after defendants Fullum and Page complete their prison sentences for violating the conditions of their supervised release, the remaining portions of their original terms of supervised release will be reinstated with credit for the time spent in prison in accordance with 18 U.S.C. § 3583(h).

Defendants argue that the Ex Post Facto Clause of the Constitution prohibits the application of section 3583(h) to them because the amendment was passed on September 13, 1994, which was after the date on which they had been sentenced for their original crimes. They argue that this court's opinion in Truss was the law in effect in this circuit at the time of sentencing, and Truss did not interpret the prior statute to allow the imposition of a subsequent term of supervised release in their situation. They argue that because section 3583(h) imposes a harsher punishment than the law in effect at the time of their original sentencing, it violates the Ex Post Facto Clause.

The purpose of the Ex Post Facto prohibition is "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, 964, 67 L.Ed.2d 17 (1981). To fall within the prohibition of the Ex Post Facto Clause, a law must: (1) apply to events occurring before its enactment, and (2) disadvantage the offender. Id. at 29, 101 S.Ct. at 964. The change in the law must "alter[ ] the definition of criminal conduct or increase[ ] the penalty by which a crime is punishable." California Dept. of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588 (1995).

In United States v. Reese, 71 F.3d 582 (6th Cir.1995), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1053 (1996), this Court rejected an Ex Post Facto argument similar to the argument made by defendants in the present case. The defendant Reese violated the terms of his supervised release and was sentenced under section 3583(g), which was passed after he had been sentenced for his original crime and before he had committed the supervised release violation. Section 3583(g) required imposition of a specific prison sentence for defendants found possessing a controlled substance while on supervised release and eliminated the district court's discretion on the issue. Our court explained that if the new disadvantage applied to everyone who committed the predicate offense without regard to the subsequent violations, then there would clearly be an Ex Post Facto violation. Id. at 589-90. This court found that, in contrast, the application of section 3583(g) to Reese did not violate the Ex Post Facto Clause because it imposed a new sentence for the later misconduct of violating the terms of the supervised release, and therefore it did not extend the original sentence for the original offense. Id. at 590-91.

Under the reasoning in Reese, section 3583(h) may be applied to defendants Page and Fullum without violating the Ex Post Facto Clause because section 3583(h) was passed before they violated the terms of their supervised release, which precipitated their current sentences. ² Our circuit, in several recent unpublished decisions, and the Third Circuit have reached the same conclusion under similar facts. See United States v. Brown, 124 F.3d 200 (Table), 1997 WL 469536 (6th Cir. Aug.13, 1997) (unpublished); United States v. McGhee, 121 F.3d 710 (Table), 1997 WL 447630 (6th Cir. Aug. 6, 1997) (unpublished); Hanley v. United States, 95 F.3d 1152 (Table), 1996 WL 476404 (6th Cir. Aug.20, 1996) (unpublished); United States v. Brady, 88 F.3d 225 (3rd Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997). ³

The Seventh and Ninth Circuits held in similar circumstances, contrary to our decision in this case, that reimposing supervised release under section 3583(h) violates the Ex Post Facto Clause. United States v. Beals, 87 F.3d 854 (7th Cir.1996); United States v. Collins, 118 F.3d 1394 (9th Cir.1997). The Seventh Circuit reasoned that the defendant was on supervised release only because he committed the original crime; therefore, any change to consequences for violating the supervised release related back to the commission of the original crime. As part of its decision, the Seventh Circuit explicitly rejected our decision in Reese, 87 F.3d at 859, and the Ninth Circuit agreed with the Seventh. 118 F.3d at 1398.

We...