U.S. v. Stewart

• Citation: 7 F.3d 1350
• Decision Date: 12 October 1993
• Docket Number: No. 92-2694,92-2694
• Parties: UNITED STATES of America, Appellee, v. Kurt STEWART, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1350

7 F.3d 1350

UNITED STATES of America, Appellee, v. Kurt STEWART, Appellant.

No. 92-2694.

United States Court of Appeals,

Eighth Circuit.

Submitted May 11, 1993.

Decided Oct. 12, 1993.

Alan J. Sheppard, Fargo, ND, argued, for appellant.

Gary Annear, First Asst. U.S. Atty., Fargo, ND, argued, for appellee.

Before JOHN R. GIBSON, Circuit Judge, LAY, Senior Circuit Judge, and FAGG, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Kurt Stewart appeals from the district court's revocation of his supervised release. The sole issue on appeal is whether the district court erred in imposing not only a term of eighteen months imprisonment, but also an additional term of twenty-four months supervised release. We reverse and remand.

A jury found Stewart guilty on charges of using a telephone to facilitate a conspiracy to distribute cocaine and conspiracy to distribute cocaine in violation of 21 U.S.C. § 843(b) (1988) and 21 U.S.C. § 846 (Supp. III 1991). On July 28, 1988, the district court sentenced him to thirty-eight months imprisonment followed by three years supervised release. Stewart served his term of imprisonment and was released in April of 1991. On May 29, 1992, Stewart's probation officer filed a petition stating that Massachusetts authorities had arrested Stewart at Logan Airport and charged him with attempting to smuggle thirty pounds of marijuana, and that this arrest violated the standard conditions of his supervised release.

On July 13, 1992, the district court revoked Stewart's supervised release and ordered that Stewart be imprisoned for an additional eighteen months. The court also added a twenty-four month term of supervised release, and directed that Stewart complete 120 hours of community service during the supervision. In so doing, the district judge apparently relied on United States v. Boling, 947 F.2d 1461 (10th Cir.1991), a case which approved the a district court's imposition of both incarceration and a further period of supervised release following revocation of supervised release.

Stewart does not question the district court's revocation of his supervised release or imposition of the eighteen month prison sentence. On appeal, Stewart argues only that the additional term of supervised release and community service is not authorized by 18 U.S.C. § 3583 (Supp. III 1991).

Section 3583(e) provides that, after considering a number of defined factors, a district court may terminate supervised release, § 3583(e)(1), extend supervised release or modify its conditions, § 3583(e)(2), "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 post-release supervision ...," § 3583(e)(3), or place the person in home confinement, § 3583(e)(4). Section 3583(g) requires that the court "terminate" the supervised release of a person found in possession of a controlled substance and impose a prison term of not less than one third of the term of supervised release.

The district judge did not explicitly state the statutory basis for his order, but did explain that he "reach[ed] that conclusion based on a recent Tenth Circuit case, [ United States] v. Boling." Therefore, we assume that the district court here employed the same principles as the district court in Boling. In Boling, the district court revoked a defendant's two year term of supervised release and imposed a prison term of fifteen months followed by a fourteen month term of supervised release. Boling, 947 F.2d at 1461. The Tenth Circuit affirmed, holding that section 3583(e)(3) authorized the two-year prison term and that section 3583(e)(2) authorized the additional term of supervised release as an "extension" of the original term. Id. at 1463. The Tenth Circuit rejected the view of several other circuits that the disjunctive language in section 3583(e) did not allow the court to combine the several options offered there and concluded that it was Congress' intent to give the courts "flexibility" in administering supervised release. Id. at 1463-64. In this circuit, we have not decided "whether the district court can revoke a defendant's term of supervised release and impose a new term of prison and supervised release that together is longer than the original term of supervised release...." United States v. Schrader, 973 F.2d 623, 625 (8th Cir.1992).

After the district court's decision in this case, the Tenth Circuit overruled Boling in United States v. Rockwell, 984 F.2d 1112, 1117 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2945, 124 L.Ed.2d 693 (1993). The Tenth Circuit recognized that the majority of circuits had decided that the disjunctive language of section 3583(e) ruled out any combining of options like that sanctioned in Boling. Id. at 1116. At the very least, the Tenth Circuit's decision in Rockwell deprives Boling, on which the district court here relied of precedential value. In addition, Rockwell follows the result reached by six other circuits. The reasoning in these cases applies to a situation like that presented here where the prison and supervised release terms imposed on revocation exceed that of the original supervised release term. ¹ We are persuaded by the reasoning of this group of cases, and read the disjunctive wording of sections 3583(e)(3) and (4) to preclude, upon revocation of supervised release, the imposition of a prison term and supervised release term which together exceed the original supervised release term. Indeed, the two disjunctive subsections contain the only possible authorization for imposing a combined prison and supervised term which exceed the original supervised release term. We thus conclude that the district court erred in imposing a new term of supervised release which, when added to the prison term imposed upon revocation of supervision, exceeded the length of the original term of supervised release.

Our analysis does not end here because Stewart urges us to overrule United States v. Schrader, arguing that it is inconsistent with Rockwell, and the other cases we have referred to above. We decline to do so because Schrader is easily harmonized with our holding in this case. In Schrader, we specifically did not address whether a district court may "combine" the options presented in section 3583(e). 973 F.2d at 625. Rather, we explored the discretion left to the district court under a single option, that described in section 3583(e)(3). Id. at 624-25. We decided that, if the district court chose to revoke supervised release and to impose a prison term shorter than the original term of supervised release, the district court could then impose an additional term of supervised release so long as the combined prison and supervised release terms did not exceed the time for supervised release imposed in the original sentence. Id. We reasoned that because the statute authorized a term of imprisonment equal in length to "all or part" of the original term of supervision, it also allowed the "less drastic sanction" of requiring a defendant to serve time equal to his original term of supervision, but to serve part of it in prison and part on supervised release. Id. We based our conclusion in Schrader entirely upon the language of section 3583(e)(3), and not on any relationship between the 3583(e) options or any statement contained in the Sentencing Guidelines. Schrader is, in this respect, distinguishable from Rockwell and the cases from the other circuits we have referred to above, and survives unaltered our conclusion in this case that the district court may not combine the options offered in section 3583(e). ²

In recent weeks, this court, speaking through three different panels, has followed Schrader. In United States v. Wagner, 999 F.2d 312 (8th Cir.1993), we followed Schrader and held that "an offender who violates the terms of supervised release may be required to serve a portion of the time remaining on his or her term of supervised release in prison and the remaining time on supervised release." Id. at 314. Similarly, we followed Schrader in United States v. Levi, 2 F.3d 842 (8th Cir.1993), holding that the sentencing judge did not combine the options of § 3583(e) when the judge revoked supervised release and sentenced the offender to nine months imprisonment for violating supervised release and an additional four months for the remaining unserved portion of his work release program. 2 F.3d at 845-846. See also United States v. Krabbenhoft, 998 F.2d 591, 593-94 & n. 2 (8th Cir.1993) (holding that distinction between Schrader and cases from other circuits was unimportant because the district court had not combined the § 3583(e) alternatives).

Only the Fourth, Fifth, and Eleventh Circuits have considered the propriety of a term of imprisonment and supervised release which exceeds the original supervised release term. We believe that the few decisions from other circuits which present the situation like that in Schrader (where the prison and supervised release terms imposed on revocation are less than the original term of supervised release) are weak authority on which to base a reconsideration of Schrader. Two of the three decisions approved of the flexibility of an approach like that we took in Schrader, and the other decision was based on the concession of the United States attorney. Although the Fourth Circuit held that the disjunctive wording of section 3583(e) prohibited a court from sentencing an offender to imprisonment and a new term of supervised release upon revocation of supervised release, the court expressed the desire for flexible sentencing rules. United States v. Cooper, 962 F.2d 339, 341-42 (4th Cir.1992). The Fifth and Eleventh Circuits focused their analysis on Congress' use of the word "revoke" in section 3583(e), reasoning that once a term of supervised release is revoked and imprisonment imposed, there is no supervised release left in...