United States v. Marshall

• Decision Date: 26 March 2020
• Docket Number: 18-2267,No. 18-2267
• Citation: 954 F.3d 823
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward MARSHALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

954 F.3d 823

UNITED STATES of America, Plaintiff-Appellee,

v.Joseph Edward MARSHALL, Defendant-Appellant.

No. 18-2267

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 26, 2020

ON BRIEF AND PETITION FOR REHEARING EN BANC: Richard M. Helfrick, Benton C. Martin, FEDERAL COMMUNITY DEFENDER, Detroit, Michigan, for Appellant. ON BRIEF: Julie A. Beck, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: SUTTON, BUSH, and READLER, Circuit Judges.

AMENDED OPINION

SUTTON, Circuit Judge.

"Wisdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters Nat'l Bank & Tr. Co. , 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting). Joseph Marshall asked a district court to terminate his supervised release ahead of schedule. The district court denied the request and Marshall appealed. When we looked at the case the first time, we rejected the appeal for lack of jurisdiction. On rehearing, we recognize that we have subject-matter jurisdiction over the appeal under 28 U.S.C. § 1291 and deny the claim on the merits.

I.

In 2008, Marshall pleaded guilty to conspiring to distribute oxycodone. United States v. Marshall , No. 6:07-cr-00111-DCR-REW (E.D. Ky. June 2, 2008). A district court sentenced him to 118 months of prison plus six years of supervised release. After completing his prison sentence, Marshall began supervised release in 2016. Even though required to stay in Kentucky, Marshall moved to Illinois, violating a release condition. To simplify things, the sentencing district court transferred jurisdiction over his supervised release to the Northern District of Illinois. The district court briefly revoked Marshall's release as punishment for the violation. It then imposed another five years of supervised release, to run concurrently with the nearly six years remaining on his initial sentence.

Marshall started the new term in April 2016. Later that year he moved again, this time to Michigan and this time with permission. The Northern District of Illinois transferred his case to the Eastern District of Michigan. For the next year, Marshall made positive strides, and the probation office took notice. It recommended an early end to his supervised release. Marshall filed an unopposed motion to end the supervision. But the court denied his request, reasoning that Marshall had completed little of the release term and had violated the conditions before. Marshall appealed.

II.

What statute provides us with jurisdiction to review a district court's decision to deny a motion for early termination of supervised release? Two possibilities come to mind: 18 U.S.C. § 3742, the statute that permits us to review "an otherwise final sentence," and 28 U.S.C. § 1291, the statute that provides a general grant of appellate jurisdiction to review "final" judgments.

In United States v. Bowers , the defendant asked the district court to reduce his sentence in a different setting, namely under 18 U.S.C. § 3582(c)(2). 615 F.3d 715, 717–19 (6th Cir. 2010). That statute gives district courts discretion to reduce certain defendants' sentences in light of retroactive changes to the sentencing guidelines. Id. When the district court rejected his motion and declined to reduce Bowers' sentence, he appealed. Id. We recognized that § 1291 or § 3742(a) might provide us with "jurisdiction" over Bowers' appeal, id. at 718, whether because it involved a "final decision" under § 1291 or because it involved an "otherwise final sentence" under § 3742(a), see id. at 718–19, 722.

In trying to sort this out, we noted that the courts agreed that Congress enacted § 3742 in 1984 to serve as "the exclusive avenue through which a party can appeal a sentence." Id. at 719 (quotation omitted). Why? Because § 3742(a) describes just four sentencing errors a defendant may challenge. A defendant may appeal his sentence if it

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a). If we allowed defendants to appeal their sentences under § 1291, we reasoned, that might allow them to "circumvent the conditions imposed by 18 U.S.C. § 3742." Bowers , 615 F.3d at 719 (quotation omitted). Section 3742 as a result "tightly circumscribed" our "jurisdiction to hear appeals of ‘sentences.’ " Id.

Looking beyond direct appeals, we noted that all circuits but one, in decisions starting in the early 1990s, had agreed that § 3742(a) governed the "jurisdiction" of appeals of a different sort for reducing a sentence: Criminal Rule 35(b) motions.

Id. at 719–20. Seeing no "countervailing considerations that would justify treating these two discretionary sentence-reduction provisions differently," we decided that § 3742(a) limited our jurisdiction to hear Bowers' appeal. Id. at 722 ; see Sarah E. Welch, Comment, Reviewing Leniency: Appealability of 18 U.S.C. § 3582(c)(2) Sentence Modification Motions , 85 U. Chi. L. Rev. 1269, 1286–90 (2018). And since he failed to satisfy § 3742(a)'s conditions, we held that we lacked jurisdiction over the appeal. Id. at 726–28.

In the years just before Bowers , and most conspicuously in the years after it, the Supreme Court has become increasingly careful about the different uses of "jurisdiction." It's a "word," the Court has come to realize, of "many, too many, meanings." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quotation omitted). Above all else, the Court has insisted that we exercise caution before using the word to characterize a federal statute as limiting a federal court's subject matter jurisdiction. See, e.g. , Arbaugh v. Y&H Corp. , 546 U.S. 500, 510–13, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; Henderson v. Shinseki , 562 U.S. 428, 434–36, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ; Gonzalez v. Thaler , 565 U.S. 134, 141–143, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) ; United States v. Kwai Fun Wong , 575 U.S. 402, 408–11, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015) ; Fort Bend County v. Davis , ––– U.S. ––––, 139 S. Ct. 1843, 1849–50, 204 L.Ed.2d 116 (2019).

That is not lawyerly precision for its own sake. If we lightly treat federal statutes as placing limits on our subject-matter jurisdiction, we end up creating all kinds of needless complications for processing civil and criminal cases, including "harsh consequences" in many of them. Fort Bend , 139 S. Ct. at 1849 (alteration omitted). It can be especially harsh for the parties, as no one may forfeit or waive a court's subject-matter jurisdiction at the trial level—leading to new arguments on appeal, unanticipated debates on appeal, and outcome-changing results on appeal. Arbaugh , 546 U.S. at 514, 126 S.Ct. 1235 ; Kwai Fun Wong , 575 U.S. at 409, 135 S.Ct. 1625. And it can be difficult for the courts, as we "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party," even indeed in the face of a confession of error. Arbaugh , 546 U.S. at 514, 126 S.Ct. 1235 (citation omitted); Henderson , 562 U.S. at 434, 131 S.Ct. 1197.

It's usually a mistake, as one case after another now shows, to treat a statutory limit on our power as a statutory limit on our subject-matter jurisdiction. More often than not, the Court has explained, what might seem to be a limit on our subject-matter jurisdiction amounts to a "mandatory claim-processing rule" or a mandatory limit on our authority to grant a certain form of relief. Fort Bend , 139 S. Ct. at 1849. These rules of course still constrain a court's authority, but they are waivable and forfeitable limits on that authority. Id. They are meant to "promote the orderly progress of litigation," not to eliminate or expand "the classes of cases a court may entertain." Id. at 1848–49 (quotation omitted). And they are limits we have no obligation to bring up on our own.

Hoping to make it easier to distinguish between such statutory limitations and to discourage most of them from being treated as restraints on our subject-matter jurisdiction, the Court created a clear-statement rule. Only "[i]f the Legislature clearly states that a prescription counts as jurisdictional," the Court explained, may we treat it as a limit on our subject-matter jurisdiction. Id. at 1850 (quotation omitted) (alteration omitted).

Bowers , on reflection, used "jurisdiction" in its traditional sense, not its subject-matter jurisdiction sense—just like most of the cases from that era and just like the many pre- Arbaugh cases dealing with § 3742. Bowers never mentions Arbaugh . The opinion never says whether § 3742(a) creates non-forfeitable and non-waivable limits or whether it creates limits that we must raise on our own. The opinion also does not apply a clear-statement rule in determining whether § 3742(a) limits the subject-matter jurisdiction of the federal courts.

On top of these considerations rest several others that suggest § 3742(a) imposes a mandatory limit on our power, not a subject-matter jurisdiction limit on our power. The statute shares qualities that look like a mandatory claim-processing rule. Cf. Manrique v. United States , ––– U.S. ––––, 137 S. Ct. 1266, 1271, 197 L.Ed.2d 599 (2017). Congress enacted § 3742(a) to establish a "limited practice of appellate review of sentences in the Federal criminal justice system." Bowers , 615 F.3d at 719 (quotation...