U.S. v. Reese

• Decision Date: 14 December 1995
• Docket Number: No. 92-4330,92-4330
• Citation: 71 F.3d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael REESE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 582

71 F.3d 582

64 USLW 2406

UNITED STATES of America, Plaintiff-Appellee, v. Michael REESE, Defendant-Appellant.

No. 92-4330.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 13, 1993.

Decided Dec. 14, 1995.

Joseph P. Schmitz, Asst. U.S. Atty. (argued and briefed), Cleveland, OH, for Plaintiff-Appellee.

Debra K. Migdal (argued and briefed), Federal Public Defender's Office, Cleveland, OH, for Defendant-Appellant.

Before: BOGGS and SUHRHEINRICH, Circuit Judges; and WEBER, District Judge. ^*

BOGGS, Circuit Judge.

Michael Reese pleaded guilty to conspiring to distribute cocaine, and was sentenced to a prison term, to be followed by five years of supervised release. Under the law that existed at the time Reese was sentenced, the district judge had discretion as to the amount of additional prison time to impose if Reese were to be found in possession of a controlled substance during the period of his supervised release, up to the total period of supervised release. That statute was changed after Reese was sentenced. Under the new law, judicial discretion was superseded by a mandatory minimum prison term of one-third of the term of supervised release for any person found in possession of a controlled substance during the period of his supervised release. 18 U.S.C. Sec. 3583(g) (1988).

In time, Reese began his supervised release period, and then tested positive thirteen separate times for use of a controlled substance. As a result, the district judge revoked his supervised release and imposed on him the mandatory minimum prison term that the new law required. Reese believes that he might have received a shorter punishment for violating supervised release if the judge had been permitted to exercise discretion. Therefore, he appeals from that punishment, arguing that the Ex Post Facto Clause of the Constitution prevents application of the new law to him. We hold that the prison term required by the new statute was imposed for the new drug offense, not for the original crime. Thus, for the reasons set forth below, we reject Reese's constitutional claim and affirm the district court.

I

Reese was convicted of violating 21 U.S.C. Sec. 846 (1982), in that he participated in a conspiracy beginning as early as May 24, 1988, to distribute at least four ounces (about 113 grams) of cocaine. Section 846's maximum punishment at that time could not exceed that set forth for violations of the underlying statute. In his case, the statute underlying Section 846 was 21 U.S.C. Sec. 841 (1982 & Supp. V 1988). Because Reese had conspired to distribute less than 500 grams of cocaine, he was sentenced under 21 U.S.C. Sec. 841(b)(1)(C) (1982 & Supp. V 1988). Section 841(b)(1)(C) provided that a violation could be punished by up to twenty years in prison and at least three years of supervised release. On November 18, 1988, Reese was sentenced to 33 months of imprisonment and a five year term of supervised release. Under 18 U.S.C. Sec. 3583 (Supp. V 1988), as it existed at the time Reese committed his offense, a violation of the terms of supervised release could result in its revocation and conversion into a prison term subject to certain constraints. Because Reese was convicted of a Class B felony (defined as a felony punished by twenty years or more of imprisonment), under 18 U.S.C. Sec. 3559(a)(1)(B) (Supp. V 1988), a revoked term of supervised release could not be converted into a prison term of more than three years. 18 U.S.C. Sec. 3583(e)(4) (Supp. V 1988). The judge revoking supervised release, however, was free to use his discretion under Section 3583 to substitute any term of imprisonment less than three years.

On December 31, 1988, a new statute, concerning criminals who violate the terms of their supervised release, became effective:

Possession of controlled substances.--If the defendant [while on supervised release, after serving his prison term] 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) (1988) (emphasis added). ¹ Thus, for someone like Reese who was sentenced to five years of supervised release, the new law required the court to impose a minimum twenty-month prison term if, during the period of his supervised release, he was found to be in possession of a controlled substance. Prior to this law, a court was free to exercise its own discretion, subject to a statutory maximum and with the advice of the sentencing guidelines, when imposing punishment for a violation of supervised release.

Mr. Reese began his five-year supervised-release period on April 8, 1991, and was regularly tested for drugs. He tested positive for cocaine in October and November 1991, in December 1991, and six times in March 1992. His supervised release was not immediately revoked for these infractions, but he was ordered to participate in a residential drug-treatment program. Reese completed the program in July 1992, but in October 1992 he again tested positive four times for cocaine. Consequently, the court found that Reese had violated the terms of his release, and it imposed on him the statutory minimum term of twenty months of imprisonment. At that time, the statutory maximum the judge could have imposed was the full remaining term of supervised release, which was over 40 months.

Reese contends that, in the absence of the new statute that was enacted after he committed his crime, pleaded guilty, and was sentenced, he would have faced only three to nine months of imprisonment under USSG Sec. 7B1.4(a) for drug possession while on supervised release. ² He therefore appeals from the application to him of Section 3583(g), claiming that it violates the Ex Post Facto Clause of the Constitution, "No Bill of Attainder or ex post facto Law shall be passed." U.S. Const. art. I, Sec. 9, cl. 3. ³

II

At the time that the Constitution was drafted, ex post facto laws already had a long legal history. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 389, 1 L.Ed. 648 (1798). 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, 963-65, 67 L.Ed.2d 17 (1981) (emphasis added) (citations omitted). To fall within the ex post facto prohibition, two elements must be present: (1) the law must apply to events occurring before its enactment, and (2) it must disadvantage the offender affected by it. Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). In Miller, the defendant committed his crimes in April. Harsher state sentencing guidelines were enacted in June and became effective in July. The defendant was convicted in August and was sentenced in October under the new guidelines. The Court held that, because of the Ex Post Facto Clause, the defendant should have been sentenced under the prior guidelines that had been in effect when he had committed his April crimes. Moreover, even though the prior guidelines would have allowed the judge in his discretion to impose a prison term as great as that required by the subsequent guidelines, the Court still saw an ex post facto problem because,

[i]t is plainly to the substantial disadvantage of [the defendant] to be deprived of all opportunity to receive a [lighter] sentence.... [O]ne is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old.

482 U.S. at 432, 107 S.Ct. at 2452 (quoting Dobbert v. Florida, 432 U.S. 282, 300, 97 S.Ct. 2290, 2301-02, 53 L.Ed.2d 344 (1977) and Lindsey v. Washington, 301 U.S. 397, 401-02, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937) (emphasis added)).

Miller dealt with the direct application of harsher new sentencing guidelines to crimes that were committed before the guidelines' enactment. The government maintains that Miller is inapposite here because this case deals with violations that occurred after the penalty became effective. Thus, Reese had "fair warning" in December 1988 that he would face a statutory minimum of twenty months of imprisonment if found in possession of a controlled substance while on the supervised release that did not even begin until April 8, 1991. See Miller, 482 U.S. at 430, 107 S.Ct. at 2451.

The opposing parties in this case approach the constitutional question from two different perspectives. Reese sees a new statute that became effective six months after he committed his original crime of conspiring to distribute drugs. Therefore, since the new law could not be applied retroactively to punish that crime, it also should not be used to extend the punishment that has already been meted out for that crime. By contrast, the government sees a 1988 statute that was nearly four years old when Reese violated its terms and tested positive for cocaine in October 1991 and thereafter.

In United States v. Flora, 810 F.Supp. 841 (W.D.Ky.1993), this exact legal question was considered. ⁴ The district court articulated the dilemma:

It has been argued [by the Government] that the punishment imposed by the revocation of supervised release is triggered exclusively by the parolee's violation of release conditions, and that this new penalty is only tenuously related to the substantive crimes committed by the offender many years earlier.... The application of Sec. 3583(g) ... would not be considered retrospective under this analysis....

It might instead be contended that supervised release and its attendant possibility of revocation are simply part of the whole matrix of punishment which arises out of a defendant's original crimes....

Id. at 842. That district court, citing persuasive ...