U.S. v. Woodrup

• Decision Date: 18 June 1996
• Docket Number: No. 95-5284,95-5284
• Citation: 86 F.3d 359
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricky Lee WOODRUP, a/k/a Ricky Lee Woddrup, a/k/a Lee Woodrup, a/k/a Ricky L. Woodrup, a/k/a Rodney Woodrup, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 359

86 F.3d 359

UNITED STATES of America, Plaintiff-Appellee, v. Ricky Lee WOODRUP, a/k/a Ricky Lee Woddrup, a/k/a Lee

Woodrup, a/k/a Ricky L. Woodrup, a/k/a Rodney

Woodrup, Defendant-Appellant.

No. 95-5284.

United States Court of Appeals, Fourth Circuit.

Argued March 4, 1996.

Decided June 18, 1996.

ARGUED: George Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. J. Gaston B. Williams, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Ted F. Mitchell, Third Year Law Student, Raleigh, North Carolina, for Appellee.

Before LUTTIG, Circuit Judge, CHAPMAN, Senior Circuit Judge, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Senior Judge CHAPMAN and Senior Judge CLARKE joined.

OPINION

LUTTIG, Circuit Judge:

Appellant Ricky Woodrup, while under a term of supervised release imposed upon a conviction for breaking and entering, vaulted over the teller counter of the Southern National Bank in Spring Lake, North Carolina, removed the cash from the teller's drawer, and then fled after being confronted by a teller. Woodrup was arrested approximately seven minutes later at a nearby motel. He was subsequently tried and convicted of bank robbery in violation of 18 U.S.C. § 2113(a).

One of the conditions of the supervised release imposed upon Woodrup's conviction for breaking and entering was that he not commit a crime during the term of supervision. See 18 U.S.C. § 3583(d) ("The court shall order, as an explicit condition of supervised release, that the defendant not commit another Federal, State, or local crime during the term of supervision...."). Consequently, in a proceeding after his conviction for bank robbery but before he was sentenced for that offense, Woodrup's supervised release was revoked, and he was sentenced to 24 months in prison. Woodrup thereafter received a consecutive 240 month sentence for the bank robbery conviction itself, the district court having summarily denied his motion to vacate the conviction on grounds of double jeopardy.

On this appeal, Woodrup challenges not his bank robbery conviction, but only the 240 month sentence imposed for that offense, as unconstitutional under the Double Jeopardy Clause of the Fifth Amendment. ¹ He challenges, alternatively, the sufficiency of the evidence supporting his conviction for bank robbery. Finding no merit in either claim, we affirm the judgment of the district court.

I.

Woodrup first contends that, because the term of imprisonment imposed for violation of the conditions of his supervised release constituted punishment for his bank robbery, the subsequent punishment imposed for his bank robbery conviction violates the Double Jeopardy Clause's proscription against successive punishments for the same offense. ² We disagree with the premise of Woodrup's contention, and therefore with his ultimate conclusion that the punishment on his bank robbery conviction is unconstitutional.

The sentence imposed upon revocation of a term of supervised release is an authorized part of the original sentence, just as the term of supervised release is an authorized part of the original sentence for commission of the felony or misdemeanor, see 18 U.S.C. § 3583(a). As the Sentencing Commission has explained, a violation of supervised release is a "breach of trust" in connection with the original sentence and the resulting sentence a punishment incident to the original offense:

While the nature of the conduct leading to the revocation would be considered in measuring the extent of the breach of trust, imposition of an appropriate punishment for any new criminal conduct would not be the primary goal of a revocation sentence. Instead, the sentence imposed upon revocation would be intended to sanction the violator for failing to abide by the conditions of the court-ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense.

U.S.S.G. Ch. 7, Pt. A, p 3(b) (emphasis added); see also id. at Pt. B, Intro. Commentary; 18 U.S.C. § 3583(e)(3) (providing that the term of imprisonment imposed upon revocation of supervision is a function of the particular offense for which the supervision was imposed). It is for this reason that the Commission requires the sentence imposed upon revocation of supervised release to run consecutively to any sentence for the conduct that was "the basis of the revocation of probation or supervised release." U.S.S.G. § 7B1.3(f). Indeed, because punishment for violating the terms of supervised release is punishment for the original offense, we have held that the Ex Post Facto Clause prohibits legislative changes in the terms and conditions of supervised release--including the length of imprisonment imposed for a violation of supervised release--following the commission of the original offense. United States v. Parriett, 974 F.2d 523, 526 (4th Cir.1992) (rejecting argument that "revocation of [the defendant's] supervised release was not ordered as punishment for his initial crimes, but instead, as punishment for his possession of drugs during the term of his supervised release"); see also United States v. Meeks, 25 F.3d 1117 (2nd Cir.1994).

That the sentence imposed upon revocation of supervision is punishment for the original offense is further confirmed by the fact that the full panoply of constitutional protections afforded a criminal defendant is not required for the revocation of supervised release. See, e.g., 18 U.S.C. § 3583(e)(3) (providing that a violation of supervised release need only be proven by a preponderance of the evidence); compare United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993) (noting that nonsummary criminal contempt is "a crime in the ordinary sense" for which ordinary "constitutional protections" apply (citations omitted)). As was true of the enhancement at issue in Witte v. United States, --- U.S. ----, ----, 115 S.Ct. 2199, 2206, 132 L.Ed.2d 351 (1995), the consideration of the "offender-specific information" of Woodrup's bank robbery at the proceeding to revoke the term of supervision imposed for his breaking and entering offense "without the procedural protections attendant at a criminal trial ... necessarily impl[ies] that such consideration [did] not result in 'punishment' for such conduct." ³

In the analogous contexts of probation and parole, ⁴ the courts of appeals, reasoning from the like fact that a sentence imposed upon the revocation of probation or parole is not punishment for the conduct prompting the revocation, but, rather, a modification of the original sentence for which the probation or parole was authorized, Ralston v. Robinson, 454 U.S. 201, 220 n. 14, 102 S.Ct. 233, 245 n. 14, 70 L.Ed.2d 345 (1981); see also United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980); id. at 148, 101 S.Ct. at 443 (Brennan, J., dissenting), have consistently held that the subsequent criminal prosecution and punishment for conduct which previously served as the basis for a revocation of probation or parole does not offend the Double Jeopardy Clause of the Fifth Amendment. See, e.g., United States v. Hanahan, 798 F.2d 187, 189 (7th Cir.1986); Bible v. Arizona, 449 F.2d 111, 112-13 (9th Cir.1971), cert. denied, 405 U.S. 994, 92 S.Ct. 1268, 31 L.Ed.2d 463 (1972); see generally Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) ("[R]evocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations."); cf. United States v. Grisanti, 4 F.3d 173, 176 (2d Cir.1993) (bail revocation followed by criminal prosecution). We believe that the same must be true in the context of revocations of supervised release. It is of no moment that, as Woodrup contends, Appellant's Br. at 13-15, the sentence imposed upon revocation of supervised release is "in addition to the period of imprisonment" already served, even if the defendant has served the maximum term authorized for the original substantive offense (exclusive of the term of supervision), rather than merely the reinstatement of an unserved sentence. The sentence is no less punishment for the original offense for which the term of supervised release was imposed.

Because the punishment imposed upon Woodrup for violating the terms of his supervised release is properly considered punishment for his previous offense of breaking and entering, not for his subsequent offense of bank robbery, the punishment imposed for this latter offense is not barred by the Double Jeopardy Clause.

On the mistaken understanding that the sentence imposed upon the revocation of his supervised release constituted punishment for his bank robbery, Woodrup contends that United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), requires invalidation of the sentence he received on his bank robbery conviction. In Dixon, the Court held that a criminal contempt prosecution for violating conditions of bond barred a subsequent prosecution for the offense on which the criminal contempt conviction was based because the two offenses satisfied the same elements test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Because Dixon had not been previously convicted, however, the sentence imposed for Dixon's criminal contempt could only have been punishment for the conduct that gave rise to the contempt--the same cocaine possession for which the government had again sought to prosecute him--and therefore Dixon's subsequent prosecution for cocaine possession necessarily met Blockburger 's same elements test.

In a case such as the one...