United States v. Collins

• Citation: 859 F.3d 1207 (Mem)
• Decision Date: 14 February 2017
• Docket Number: No. 15-3084,15-3084
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Howard COLLINS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

859 F.3d 1207 (Mem)

UNITED STATES of America, Plaintiff–Appellant,

v.Howard COLLINS, Defendant–Appellee.

No. 15-3084

United States Court of Appeals, Tenth Circuit.

February 14, 2017

Richard A. Friedman, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (James A. Brown, Office of the United States Attorney for the District of Kansas, Topeka, Kansas; Scott C. Rask, Office of the United States Attorney for the District of Kansas, Kansas City, Kansas, with him on the briefs), for Plaintiff-Appellant.

Daniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender, Kansas City, Kansas (Melody Bannon, Chief Federal Public Defender, Kansas Public Defender, Kansas City, Kansas, with him on the brief), for Defendant-Appellee.

Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.

ORDER

This matter is before the court on the appellee's Petition for Panel Rehearing . Upon consideration, the petition is granted on a limited basis and to the extent of the changes made in the revised opinion attached to this order. The original panel opinion is hereby withdrawn, and the clerk is directed to issue the attached revised decision nunc pro tunc to February 14, 2017.

HOLMES, Circuit Judge.

Howard Collins was serving a term of supervised release as part of his sentence for knowingly and intentionally distributing more than five grams of a mixture or substance containing cocaine base (i.e., crack cocaine), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). His supervised release was revoked after he failed several drug tests. He was reincarcerated and received a new term of supervised release. Upon his release from prison, his supervised release was revoked a second time after he again failed multiple drug tests and failed to participate in a required substance-abuse program. Following his second revocation, the district court sentenced Mr. Collins to twelve months' imprisonment, having determined that the maximum term of imprisonment that it could impose under 18 U.S.C. § 3583(e)(3) was one year. Exercising jurisdiction under 28 U.S.C. § 1291, we reject this application of § 3583(e)(3), vacate Mr. Collins's sentence, and remand for resentencing.

I

An undercover agent of the Kansas Bureau of Investigation arranged through an informant to conduct three transactions involving the sale of crack cocaine. On November 6, 2003, the agent purchased 7.11 grams of crack cocaine at a roadside park near Baxter Springs, Kansas. Mr. Collins and the informant were among the passengers in the vehicle from which the agent made the purchase. Following the first transaction, the informant supplied the agent with two telephone numbers to arrange subsequent drug purchases. On November 13, 2003, after calling one of the telephone numbers and speaking with Mr. Collins, the agent purchased 4.66 grams of crack cocaine in the parking lot of a shopping mall in Pittsburg, Kansas. On December 9, 2003, after calling both telephone numbers, the agent conducted a third transaction, this time purchasing 5.47 grams of crack cocaine from Mr. Collins and two other males in the shopping mall in Pittsburg. In an interview in November 2005, Mr. Collins recalled selling crack cocaine on at least five other occasions.

On August 17, 2005, Mr. Collins was indicted along with two other men on charges of conspiracy to distribute and possess with intent to distribute more than fifty grams of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and three counts of knowingly and intentionally distributing more than five grams of a mixture or substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Upon entering into a plea agreement, Mr. Collins was convicted on one count of distribution. The district court imposed a sentence of eighty-four months' imprisonment to be followed by four years of supervised release. Over the course of the next two years, for reasons not material here, the district court reduced Mr. Collins's prison term to sixty months; his supervised release term remained unchanged.

After completing his prison sentence, Mr. Collins failed several drug tests in October 2010 and his supervised release was revoked the following July. As a result of this revocation, Mr. Collins was reincarcerated for a term of eighteen months and sentenced to a new three-year term of supervised release. Upon his second release from prison, Mr. Collins was found in possession of a controlled substance, failed several drug tests, and was terminated from a substance-abuse treatment program. At a revocation hearing on March 2, 2015, Mr. Collins admitted to these supervised release violations, and the district court revoked his second supervised release term.

Following this second revocation, the district court sentenced Mr. Collins to twelve months' imprisonment to be followed by a two-year term of supervised release. In sentencing Mr. Collins, the district court determined that the statutory maximum term of imprisonment that it could impose under 18 U.S.C. § 3583(e)(3) was one year, believing that it was restricted by the maximum supervised release term that was authorized for the violation forming the basis for (i.e., resulting in) the first revocation of supervised release, rather than the maximum term authorized for the original offense of conviction (i.e., three years). The government timely appealed from the district court's final judgment.

II

The sole issue the government raises on appeal is whether the district court erred in sentencing Mr. Collins to twelve months' imprisonment under an ostensible one-year statutory maximum based on § 3583(e)(3), which limits reincarceration following revocation of supervised release to the "term of supervised release authorized by statute for the offense that resulted in such term of supervised release," 18 U.S.C. § 3583(e)(3) (emphasis added). Resolution of this issue turns on a question of statutory interpretation: in determining the maximum allowable term of reincarceration following a second revocation of supervised release, does § 3583(e)(3) refer to the original criminal offense for which the defendant was convicted or the subsequent violation of the conditions of supervised release that resulted in his first revocation?¹

To the extent that the government challenges the district court's sentencing order because the court allegedly failed to apply the correct law—and "to the extent that determining the ‘correct law’ requires us to engage in statutory interpretation—our review is de novo." United States v. Burkholder , 816 F.3d 607, 611–12 (10th Cir. 2016) ; accord United States v. Porter , 745 F.3d 1035, 1040 (10th Cir. 2014) ; United States v. Sturm , 672 F.3d 891, 897 (10th Cir. 2012) (en banc); see also United States v. Nacchio , 573 F.3d 1062, 1087 (10th Cir. 2009) ("We review questions of statutory interpretation de novo.").

A

At the outset, we provide a brief overview of the structure of 18 U.S.C. § 3583(e)(3) to clarify the nature of the parties' arguments and our interpretive inquiry. Section 3583(e)(3) allows the district court to revoke a term of supervised release upon finding by a preponderance of the evidence that the defendant has violated the conditions of supervised release. The district court may then "require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term ... without credit for time previously served." 18 U.S.C. § 3583(e)(3). However, Congress included a limiting principle in this provision:

[A] defendant whose term [of supervised release] is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one year in any other case[.]

Id. (emphasis added). As these plain terms reveal, the "offense that resulted in" provision of § 3583(e)(3) operates to limit the maximum term of imprisonment following the revocation of a term of supervised release. The provision is triggered after a defendant's term of supervised release has been revoked.

It is undisputed that this limitation on the maximum term of imprisonment under § 3583(e)(3) relates to the original crime of conviction when a defendant's supervised release term is revoked the first time. At Mr. Collins's second supervised release revocation sentencing, however, the government maintained that § 3583(e)(3)'s "offense that resulted in" language refers to the original crime of conviction for the second and all subsequent revocations as well. The district court, however, rejected this argument and instead concluded that, following a second revocation of supervised release, the relevant "offense" under § 3583(e)(3) is the violative conduct that gave rise to the first revocation. And the court tacitly reasoned that the maximum authorized term of imprisonment for this conduct was one year because it fell within § 3583(e)(3)'s catchall language—i.e., "any other case"—inasmuch as the conduct did not constitute a class A, B, C, or D felony offense.²

If the government's interpretation is correct—viz. , if the statutory maximum is based on Mr. Collins's original offense, rather than the violative conduct resulting in his first revocation—then the maximum term of imprisonment that Mr. Collins could serve under subsection (e)(3) is three years, rather than the one-year maximum on which the district court based its ruling. Put another way, the controlling maximum prison term would be three years for the class B felony for which he was first sentenced. R., Vol. I, at 40 (listing Mr. Collins's offense of conviction as "distribution of more than five grams of cocaine base" (capitalization...