U.S. v. Vera

• Decision Date: 08 September 2008
• Docket Number: No. 07-20516.,07-20516.
• Citation: 542 F.3d 457
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramiro VERA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

542 F.3d 457

UNITED STATES of America, Plaintiff-Appellee, v. Ramiro VERA, Jr., Defendant-Appellant.

No. 07-20516.

United States Court of Appeals, Fifth Circuit.

September 8, 2008.

John Richard Berry, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Laura Fletcher Leavitt, Asst. Fed. Pub. Def., Houston, TX, for Vera.

Appeal from the United States District Court for the Southern District of Texas.

Before GARZA and DENNIS, Circuit Judges, and MINALDI,^* District Judge.

EMILIO M. GARZA, Circuit Judge:

Ramiro Vera, Jr. appeals his sentence of 25 months of supervised release, which the district court imposed following its second revocation of Vera's supervised release. Vera contends that the supervised release term imposed by the district court exceeded the statutory maximum under 18 U.S.C. § 3583(h). Specifically, he argues that the district court erred in failing to reduce the maximum supervised release term by the term of imprisonment he received upon his first revocation. For the following reasons, we VACATE and REMAND for resentencing.

I

Vera was charged with knowingly transporting an illegal alien in violation of 8 U.S.C. § 1324. He pled guilty to the offense and was sentenced to 21 months of imprisonment and three years of supervised release.

After serving his time in custody, Vera began his first term of supervised release. About three months later, the United States Probation Office moved to revoke Vera's supervised release, alleging Vera's possession and use of a controlled substance; failure to follow the substance abuse treatment program rules; failure to report to his probation officer; and failure to follow instructions from his probation officer. Vera pled "true" to all of the violations and his supervised release was revoked. Following this first revocation, the district court sentenced Vera to six months imprisonment and 30 months of supervised release.

Vera was released from custody and began serving his second term of supervised release. Again, about three months later, the Probation Office moved to revoke Vera's supervised release, alleging essentially the same violations that led to Vera's previous revocation. Once more, Vera pled "true" to all of the violations. And once more, the district court revoked Vera's supervised release. Following the second revocation, Vera was sentenced to 11 months of imprisonment and 25 months of supervised release.

Vera filed a motion to correct his sentence under Federal Rule of Criminal Procedure 35(a). He argued that the district court should have added the six-month term of imprisonment that he received after his first revocation to the 11-month term of imprisonment that he received after his second revocation and then subtracted the sum of those two terms from the statutory maximum term of supervised release to which he was subject. Using Vera's equation, he should have received 19 months of supervised release, not the 25 months that the district court imposed. The district court denied Vera's motion. Vera appeals.

II

Vera argues that the supervised release term imposed by the district court exceeded the statutory maximum under 18 U.S.C. § 3583(h). Thus, regardless of whether Vera properly preserved an objection to his sentence, "because a sentence which exceeds the statutory maximum is an illegal sentence and therefore constitutes plain error, our review of the issue presented in this appeal will be de novo." United States v. Sias, 227 F.3d 244, 246 (5th Cir.2000).

III

Vera argues that the district court erred in calculating the maximum term of supervised release applicable to his second revocation. He argues that in calculating the maximum supervised release term the district court should have credited him for the six-month term of imprisonment he received after his first revocation.

Section 3583(h) authorizes the imposition of a new term of supervised release upon revocation of a prior term of supervised release. "When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment." 18 U.S.C. § 3583(h). In addition, § 3583(h) supplies the formula for calculating the maximum term of supervised release upon revocation: "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) (emphasis added).

The formula for determining the maximum term of supervised release that may be imposed upon revocation proceeds in two steps. First, the district court must identify the term of supervised release authorized for the defendant's original offense. Vera's original offense, transporting an illegal alien, carries a maximum ten-year sentence, 8 U.S.C. § 1324(a)(1)(B)(i), and thus is a class C felony, 18 U.S.C. § 3559(a)(3). A class C felony carries an authorized term of supervised release of "not more than three years." 18 U.S.C. § 3583(b)(2). Therefore, Vera's original offense carried an authorized supervised release term of 36 months.

The second step is to subtract from the originally authorized supervised release term "any term of imprisonment that was imposed upon revocation of supervised release." § 3585(h). The dispute in this case involves the second step.

Vera argues that the phrase "less any term of imprisonment that was imposed upon revocation of supervised release" means that the maximum allowable supervised release term following multiple revocations must be reduced by the aggregate length of any terms of imprisonment that have been imposed upon revocation. In his case, that would include both the six-month term of imprisonment he received after his first revocation and the 11-month term of imprisonment he received after his second revocation, for a total of 17 months. Subtracting this total (17) from the originally authorized term of supervised release (36), the maximum term of supervised release on Vera's second revocation was 19 months, not the 25 months imposed by the district court.

The Government argues that "any term of imprisonment that was imposed upon revocation of supervised release" refers only to the term of imprisonment imposed on the current revocation, and nothing more. On the Government's view, the district court was correct to subtract only the 11-month term of imprisonment imposed upon Vera's second revocation and thus to calculate Vera's maximum term of supervised release at 25 months.

Our sister circuits that have addressed this issue agree with Vera. The Government, on the other hand, has not cited any circuit decision interpreting § 3583(h) in the manner it suggests.

In United States v. Maxwell, the Fourth Circuit explained:

When the word "any" is properly read in its § 3583(h) statutory context, Webster's Third New International Dictionary provides that the word "any" means "all." See id. at 97 (2d ed.1981). Specifically, Webster's Third New International Dictionary provides that when the word "any" is "used as a function word to indicate the maximum or whole of a number or quantity," for example, "give me [any] letters you find" and "he needs [any] help he can get," the word "any" means "all." Id. Here, the word "any" in the phrase "less any term of imprisonment that was imposed upon revocation of supervised release," § 3583(h) (emphasis added), is obviously used as a function word to indicate the maximum or whole of a number or quantity just as the word "any" is used in the dictionary examples quoted above.

285 F.3d 336, 341 (4th Cir.2002). Based on these observations, the Fourth Circuit held that "the plain meaning of the phrase `less any term of imprisonment that was imposed upon revocation of supervised release' in § 3583(h) is that the prison term in the current revocation sentence, together with all prison time imposed under any prior revocation sentence or sentences, must be aggregated." Id.

In an earlier decision, the Eighth Circuit reached the same conclusion: "We conclude that the plain meaning of the reference to `any term of imprisonment' includes the prison term in the current revocation sentence together with all prison time served under any prior revocation sentence(s)." United States v. Brings Plenty, 188 F.3d 1051, 1054 (8th Cir.1999). The Eighth Circuit found "strong support" for its holding in the legislative history of the 1994 amendments to § 3583, discussing a bill which also contained the "any term of imprisonment" language currently used in § 3583(h). Id. In discussing the practical effect of the legislation, the bill sponsor offered the example of a defendant who had been revoked multiple times and received multiple imprisonment terms and then explained that "under [the amendments], a defendant would always be credited for incarceration time against both the cap on re-imprisonment and the maximum authorized period of supervised release." Id. (alteration in original; emphasis added) (quoting 137 Cong. Rec. S7769-72 (daily ed. June 13, 1991)).

The Eleventh Circuit relied on the same legislative history and reached the same conclusion as the Fourth and the Eighth Circuit. The Eleventh Circuit explained:

The relevant legislative history and case law from other circuits indicate that subsection (h) was intended to provide credit for the aggregate of prison terms served on prior revocations toward the maximum amount of supervised release permitted by statute. Upon multiple revocations, subsection (h) authorizes the imposition of an additional term of supervised release, up to the statutory maximum, "less any term of imprisonment that was imposed upon revocation of supervised release." 18 U.S.C. § 3583(h). Accordingly, we hold that, under subsection (h)...