U.S. v. Withers, 96-1276

• Decision Date: 07 November 1997
• Docket Number: No. 96-1276,96-1276
• Citation: 128 F.3d 1167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alice WITHERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1167

128 F.3d 1167

UNITED STATES of America, Plaintiff-Appellee, v. Alice WITHERS, Defendant-Appellant.

No. 96-1276.

United States Court of Appeals Seventh Circuit.

Argued May 13, 1997.

Decided Nov. 7, 1997.

Gil M. Soffer (argued), Barry Rand Elden, Chief of Appeals, Office of the U.S. Atty. Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Mary M. Rowland (argued), Paul Flynn, Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before COFFEY, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

This case requires us to resolve whether the Ex Post Facto Clause of the United States Constitution was violated by applying 18 U.S.C. § 3583(h) to impose a term of supervised release upon Alice Withers after the revocation of her original term of supervised release--even though Withers committed her criminal conduct before the statute's enactment. It also provides us with the opportunity to reconsider our decision in United States v. Beals, 87 F.3d 854 (7th Cir.1996), ¹ where we determined that such an application of § 3583(h) was unconstitutional. We now reconsider Beals and affirm the district court's denial of Withers' motion to correct her sentence.

I. HISTORY

We assume familiarity with the facts of Withers' underlying conviction for possession with intent to distribute cocaine, which are set out in United States v. Withers, 972 F.2d 837 (7th Cir.1992).

On September 8, 1989, Withers was sentenced to 80 months imprisonment and 5 years of supervised release. Withers completed her term of incarceration on March 17, 1995 and began serving her supervised release. The typical conditions of Withers' supervised release required her to remain within the boundaries of the Northern District of Illinois (unless her probation officer consented to a leave), not associate with known felons, submit truthful monthly reports, and not commit any new crimes. Withers violated these conditions by: visiting an acquaintance serving time in the federal correctional facility at Oxford, Wisconsin; failing to report these visits to her probation officer; and, falsifying information on a visitation slip at the Oxford prison.

In November 1995, the district court found Withers in violation of her supervised release, sentenced her to seven months imprisonment, and imposed a new term of supervised release following her incarceration pursuant to 18 U.S.C. § 3583(h). At that time, Withers requested that the district court terminate her new term of supervised release, which the court refused to do. Withers filed a subsequent motion to correct the sentence claiming that the district court could not have imposed the new term of supervised release under the controlling law at the time of her original sentencing. The district court denied this motion, which we now address.

II. ANALYSIS

In 1994, Congress enacted 18 U.S.C. § 3583(h), which expressly provided district courts with the power to impose a new term of supervised release following the revocation of an original term of supervised release and an additional term of imprisonment. ² Before § 3583(h), the circuits were split on whether a court could impose an additional sentence of supervised release under the old version of 18 U.S.C. § 3583(e)(3), ³ and we had ruled that § 3583(e)(3) did not permit a court to levy an additional term of supervised release. See United States v. McGee, 981 F.2d 271, 274 (7th Cir.1992). Compare, e.g., United States v. Malesic, 18 F.3d 205, 206-08 (3d Cir.1994) (joining the majority of circuits in refusing to impose a new term of supervised release), and United States v. Tatum, 998 F.2d 893, 894-96 (11th Cir.1993) (same), with United States v. O'Neil, 11 F.3d 292, 301 (1st Cir.1993) (permitting the imposition of a new term of supervised release), and United States v. Schrader, 973 F.2d 623, 624-25 (8th Cir.1992) (same).

Withers claims that the district court's retroactive application of § 3583(h) to impose her renewed term of supervised release violated the Ex Post Facto Clause. "Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed," violates the Ex Post Facto Clause of the United States Constitution. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (opinion of Chase, J.); see also U.S. Const. art. I, § 9, cl. 3; Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987). Two elements must be present for a law to fall within this prohibition: (1) "the law 'must be retrospective, that is, it must apply to events occurring before its enactment,' " Miller, 482 U.S. at 430, 107 S.Ct. at 2451(quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)); and (2) 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); ⁴ see also Lynce v. Mathis, --- U.S. ----, ----, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997); United States v. Brady, 88 F.3d 225, 228 & n. 1 (3d Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 773, 136 L.Ed.2d 718 (1997). Withers maintains that the district court's application of § 3583(h) was retrospective because her offense conduct-- i.e., her cocaine possession--occurred before the enactment of § 3583(h), and that this enactment changed rather than clarified the prior law. She also asserts that the application of § 3583(h) disadvantaged her because under the old law she could not have been sentenced to an additional term of supervised release after the revocation of her original term of supervised release and the completion of the additional seven months of imprisonment.

Of Withers' asserted claims, we need only address whether the application of § 3583(h) increased Withers' punishment. Even if § 3583(h) did change the prior law, we find that § 3583(h) does not inflict a harsher punishment than the old law and therefore its application does not violate the Ex Post Facto Clause.

In Beals, we held that the retroactive application of § 3583(h) violated the Ex Post Facto Clause because it "could potentially disadvantage" a defendant. Beals, 87 F.3d at 857. Beals, however, initially noted the difficulty in finding any possible disadvantage to a defendant under the new law. See id. Before § 3583(h)'s enactment, a court could revoke a defendant's supervised release and return the defendant to prison for the maximum term of supervised release for a given offense, without any credit for the time already served on supervised release. See 18 U.S.C. § 3583(e)(3) (1988). After § 3583(h)'s enactment, a court could impose the same punishment as under the old § 3583(e)(3)--i.e., it could revoke the supervised release and return the defendant to prison. The new law, however, also permitted a court to impose a sentence (for the same time period as under the old § 3583(e)(3)) that includes a combination of prison time and additional supervised release. See 18 U.S.C. § 3583(h). Under either law, the defendant is subject to the same total amount of restraint. See Brady, 88 F.3d at 228 ("[T]he maximum period of time that a defendant's freedom can be restrained is the same."). The new law simply permits a court to fill this time with a mixed sentence of imprisonment and supervised release rather than a sentence consisting solely of imprisonment. Section 3583(h), therefore, seems to benefit a defendant because "[s]pending time on supervised release is hardly worse to the defendant than spending time in prison," Beals, 87 F.3d at 857.

Nonetheless, Beals surmised that a defendant who repeatedly violated his supervised release could be disadvantaged under the new law. See id. Section 3583(h) permits a district court to impose multiple terms of supervised release, and each time a new term is imposed, the defendant receives no credit for "time previously served on postrelease supervision." See id., (quoting 18 U.S.C. § 3583(e) (1988)). Before § 3583(h), however, a defendant could only serve one term of supervised release and thus could lose the credit for only one period of time served before the revocation. See id. In other words, § 3583(h) creates the possibility that a defendant might lose credit for multiple periods of time served after the revocation of the initial term of supervised release rather than losing credit for only one period of time served prior to the revocation. Since Beals, the courts of appeals have been split regarding whether the retroactive application of § 3583(h) violates the Ex Post Facto Clause. Compare Brady, 88 F.3d at 227-28 (3d Cir.1996) (finding no ex post facto violation), and United States v. St. John, 92 F.3d 761, 766 (8th Cir.1996) (finding no ex post facto violation, but doing so against backdrop of prior Eighth Circuit law that had previously held--before the enactment of § 3583(h)--that courts could revoke supervised release, impose a prison sentence, and then require the defendant to serve an additional term of supervised release), with United States v. Collins, 118 F.3d 1394, 1397-98 (9th Cir.1997) (following Beals' reasoning in finding an ex post facto violation), and United States v. Dozier, 119 F.3d 239, 242-44 (3d Cir.1997) (finding an ex post facto violation and distinguishing Brady on the basis that the statutory structure (regarding the maximum terms of supervised release in § 3583(b) versus § 3583(e)) is different for class A felonies (like Brady's) and class D felonies (like Dozier's)).

Beals, however, did not take into account the Supreme Court's guidance from Morales, which provides that the Ex Post Facto Clause does not "forbid[ ] any legislative change that has any conceivable risk of affecting a prisoner's punishment," Morales, 514 U.S. at 507, 115 S.Ct. at 1602. See United States v. McGee, 60 F.3d 1266, 1271 (7th Cir.1995). Retroactive...