U.S. v. Shorty

• Decision Date: 30 October 1998
• Docket Number: No. 98-2343,98-2343
• Citation: 159 F.3d 312
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rob SHORTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 312

159 F.3d 312

UNITED STATES of America, Plaintiff-Appellee, v. Rob SHORTY, Defendant-Appellant.

No. 98-2343.

United States Court of Appeals Seventh Circuit.

Argued Sept. 15, 1998.

Decided Oct. 30, 1998.

K. Tate Chambers (argued), Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Thomas W. Patton (argued), Office of the Federal Public Defender, Springfield, IL; George F. Taseff, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before BAUER, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Rob Shorty appeals the sentence imposed as a result of the revocation of his supervised release, claiming that 18 U.S.C § 3583(h), which permits a court to revoke a defendant's supervised release and resentence the defendant to a combination of imprisonment and supervised release, violates the Ex Post Facto Clause of the United States Constitution. Shorty argues that § 3583(h) should not be applied to him because Congress enacted the statutory provision after he committed the underlying offense. Shorty believes, at minimum, his case is distinguishable from the facts underlying our decision in United States v. Withers, 128 F.3d 1167 (7th Cir.1997), cert. denied, --- U.S. ----, 119 S.Ct. 79, 142 L.Ed.2d 62 (1998) (No. 97-8626) and, at most, believes we should reconsider our decision in that case in light of differing conclusions reached by other circuits on this topic. ¹ We do not believe Shorty's situation is distinguishable from that in Withers and are not persuaded to reverse that case. Therefore, we affirm the district court's sentence and reaffirm our conclusion in Withers that § 3583(h) as applied does not violate the Ex Post Facto Clause.

I. History

In 1992, Shorty pleaded guilty to conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a), 846. The District Court for the Central District of Illinois, Peoria Division sentenced him to 70 months imprisonment and three years of supervised release. After serving his term of imprisonment, Shorty began serving the three years of supervised release. As a condition of supervised release, the district court forbad Shorty from engaging in several activities, including: (1) owning, purchasing, or possessing a firearm, ammunition, or other dangerous weapon; (2) using alcohol to excess; and (3) purchasing, possessing, using, distributing, or administering any narcotic or other controlled substance. Shorty's probation officer filed a petition alleging Shorty violated the conditions of his supervised release by possessing a firearm, driving under the influence of alcohol, and possessing heroin. Shorty admitted to the possession of heroin, and the government dropped the charges stemming from the other violations. Following the United States Sentencing Guidelines, the district court sentenced Shorty to 21 months imprisonment and an additional three years of supervised release. Shorty appealed.

II. Standard of Review

During his supervised release revocation and sentencing hearing, Shorty did not raise the issue that the sentence proscribed by the district court violated the Ex Post Facto Clause. The "failure to raise an issue before the district court results in a waiver of that issue on appeal." United States v. Livingston, 936 F.2d 333, 335 (7th Cir.1991) (quoting United States v. Holguin, 868 F.2d 201, 205 (7th Cir.1989)). When a party has waived an issue in this manner, he may not raise arguments based on the issue for the first time on appeal unless "plain error" occurred. See United States v. Marvin, 135 F.3d 1129, 1135 (7th Cir.1998) (citing United States v. Whaley, 830 F.2d 1469, 1476 (7th Cir.1987)). The plain error doctrine "allows appellate courts to correct only 'particularly egregious errors' for the purpose of preventing a miscarriage of justice." Id. The error must be "conspicuous, at least in hindsight." United States v. Wynn, 845 F.2d 1439, 1443 n. 8 (7th Cir.1988) (quoting United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984)).

We believe the sentence imposed by the district court did not constitute "plain error." However, we do not need to "rest our holding on that ground." Marvin, 135 F.3d at 1135. Assuming Shorty had properly preserved this issue for appeal, we would, nonetheless, affirm his sentence.

III. Analysis

Shorty argues that we should overturn our prior decision in Withers, in which we held that § 3583(h) does not violate the Ex Post Facto Clause, in light of the split among the circuits as exemplified by United States v. Lominac, 144 F.3d 308 (4th Cir.1998) (holding that application of § 3583(h) to a defendant convicted before Congress enacted the provision violates the Ex Post Facto Clause because its application increases the amount of punishment the defendant could receive for the original offense).

The Ex Post Facto Clause, U.S. C ONST. art. I, § 9, cl. 3, "forbids the application of any new punitive measure to a crime already consummated." Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). By including this prohibition in the Constitution, the Founding Fathers "aimed at [preventing] laws that 'retroactively alter the definition of crimes or increase the punishment for criminal acts.' " California Dept. of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). As we stated in Withers, for a law to run afoul of the Ex Post Facto Clause, it must (1) "be retrospective, that is, it must apply to events occurring before its enactment" and (2) "alter[] the definition of criminal conduct or increase[] the penalty by which a crime is punishable." Withers, 128 F.3d at 1169-70 (internal quotation marks and citations omitted).

Congress enacted the law under which the district court sentenced Shorty, § 3583(h), after Shorty had committed the initial crime. Thus, it clearly is retroactive. The question we addressed in Withers ² and Shorty asks us to reconsider is whether § 3583(h) increases the penalty by which his crime is punishable. We do not believe either the total amount of restraint possible under either the previous law or § 3583(h) or the speculative potential of successive revocations constitutes an ex post facto violation.

A. Punishment Under §§ 3583(e), (h)

Prior to the enactment of § 3583(h), 18 U.S.C. § 3583(e) governed the sentencing of individuals who violated the terms of their supervised release. The provision permits courts to revoke an individual's remaining supervised release and extend the period of the individual's supervised release ³ or require the individual to spend the remainder of the supervised release in prison. ⁴ 18 U.S.C. § 3583(e). The circuits split as to whether § 3583(e) allowed courts to impose an additional period of supervised release following the individual's release from prison. Compare United States v. Truss, 4 F.3d 437 (6th Cir.1993) and United States v. McGee, 981 F.2d 271 (7th Cir.1992) (finding § 3583(e)(3) does not permit courts to impose a combined sentence of imprisonment and supervised release when revoking defendant's supervised release) with United States v. St. John, 92 F.3d 761 (8th Cir.1996) (holding that § 3583(e)(3) permits courts, when revoking defendant's supervised release, to impose a combined sentence of imprisonment and supervised release). In McGee, we held that once a court revoked a defendant's supervised release and sentenced the defendant to additional imprisonment, the court could not sentence the defendant to an additional term of supervised release following the second term of imprisonment. McGee, 981 F.2d at 276. Thus, under the law of this circuit, § 3583(e) provided courts with only two options if an individual violated the terms of the supervised release--(1) imprisonment for the remainder of the initial supervised release sentence or (2) an extension of the period of supervised release.

Congress responded to the split among the circuits that had grown around § 3583(e) by enacting § 3583(h). ⁵ This provision allows courts to sentence an individual who violates the supervised release by revoking the initial punishment and imposing a new term of imprisonment only, supervised release only, or a combination of both imprisonment and supervised release. In addition, the individual receives no credit for the time already served during the original supervised release. Section 3583(h) also caps the maximum amount of total punishment:

The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.

18 U.S.C. § 3583(h). Thus, § 3583(h) provides courts with three options: (1) additional imprisonment; (2) extension of the period of supervised release; or (3) a combination of additional imprisonment plus additional supervised release, subject to the statutory cap.

On the surface these two provisions, § 3583(e) and § 3583(h), appear to be different, especially in light of McGee. However, the question under the Ex Post Facto Clause is not whether the provisions are different, but whether the new provision, when applied to the defendant, increases the amount of punishment he may receive for the crime committed before Congress enacted the provision. Shorty suggests § 3583(h) subjects him to an increase in punishment because (1) the combination of imprisonment and supervised release is "more onerous" than the either/or scenario under § 3583(e) and (2) § 3583(h), unlike § 3583(e), creates the potential for successive revocations, resulting in more prison time and supervised release.

B. Section 3583(h)

Does Not Increase the Total Amount of Restraint

Shorty Could Have Received Under § 3583(e)

Under either § 3583(e) or § 3583(h), Shorty would be...