United States v. Polydore

• Decision Date: 25 September 2012
• Docket Number: No. 10-40192,10-40192
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee v. GREGORY POLYDORE, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee

v.GREGORY POLYDORE, Defendant-Appellant

No. 10-40192

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Dated: September 25, 2012

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:07-CR-101

Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.

PER CURIAM:^*

On September 15, 2004, Defendant Gregory Polydore pleaded guilty to conspiracy to defraud the United States (wire fraud), in violation of 18 U.S.C. § 371. Polydore was sentenced to 15 months imprisonment, a $3,000 fine, $75,643 in restitution and three years of supervised release. Polydore completed his term of imprisonment and began serving his term of supervised release on September 6, 2006.

In June 2008, Polydore's supervised release was revoked and he was sentenced, inter alia, to one day of imprisonment and 30 months of supervised release, the first six months of which were to be served in home detention with electronic monitoring.

In January 2010, Polydore's supervised release was revoked a second time following his failure to adhere to certain conditions of the supervised release imposed following his first revocation. This second revocation is the subject of Polydore's instant appeal. At his second revocation hearing, Polydore was sentenced to six months imprisonment and 29 months of supervised release. On July 30, 2010, Polydore was released from prison, but his case is not moot because he is still serving his 29-month term of supervised release. United States v. Larez-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).

Polydore challenges the 29-month supervised release term imposed as part of his current revocation sentence, contending that the district court erred by failing to give him credit for the six-month term of home detention imposed as part of his first revocation sentence when calculating the maximum term of supervised release that may be imposed as part of his second revocation sentence. Under 18 U.S.C. § 3583(h), following the revocation of supervised release and the imposition of a term of imprisonment, a district court may require the defendant to serve an additional term of supervised release. 18 U.S.C. § 3583(h).¹ However, this additional term of supervised release may not exceed the maximum term of supervised release for the original offense less anyterm of imprisonment imposed on revocation. Id. A term of imprisonment that was imposed following a prior revocation also must be deducted from the maximum term of supervised release. United States v. Vera, 542 F.3d 457, 462 (5th Cir. 2008).

This court reviews de novo whether a defendant received a sentence in excess of the statutory maximum. Vera, 542 F.3d at 459; United States v. Ferguson, 369 F.3d 847, 849 (5th Cir. 2004) ("[W]e review de novo a sentence that allegedly exceeds the statutory maximum term"). A sentence that exceeds the statutory maximum is an illegal sentence and, we held in Vera, constituted plain error. 542 F.3d at 459.

In Vera, we held that "under 3583(h) the maximum allowable supervised release following multiple revocations must be reduced by the aggregate length of any terms of imprisonment that have been imposed upon revocation." Id. at 462 (internal quotation marks omitted). Thus, any terms of imprisonment imposed in Polydore's first and second revocation must be aggregated and subtracted from the maximum allowable term of supervised release.

Polydore's underlying offense carried a maximum statutory penalty of five years of imprisonment, which makes it a Class D felony. 18 U.S.C. § 371; 18 U.S.C. § 3559(a)(4). The maximum term of supervised release for a Class D felony is 36 months. See 18 U.S.C. § 3583(b)(2). Following the instant revocation, Polydore was sentenced to six months imprisonment and 29 months supervised release. He previously was sentenced to one day imprisonment following the June 2008 revocation of his supervised release. The government contends that the district court correctly applied the statute and our caselaw holding that only the sum of these two prior terms of imprisonment are subtracted from the 36-month maximum term of supervised release, leaving 29 months and 29 days as the maximum available term of supervised release.Thus, the imposition of a 29-month term of supervised release following the instant revocation would not be erroneous. We agree.

The issue before us is whether the first six months, served on home detention, of the 30-month term of supervised release that Polydore was sentenced to at his June 2008 revocation judgment, must be considered a term of imprisonment for the purposes of § 3583(h). If we accept Polydore's argument that the six months of home detention is a term of imprisonment for the purposes of calculating the maximum authorized term of supervised release, then the previously imposed one day term of imprisonment and the six-month term of home detention would be added to the six-month term of imprisonment imposed at his second revocation and would all be deducted from the 36-month maximum term of supervised release, leaving a maximum available term of supervised release of only 23 months and 29 days.

In United States v. Ferguson, we held that, following the revocation of supervised release, a court may not impose a term of incarceration and a term of home detention during supervised release that, when added together, would exceed the allowable maximum term of incarceration. 369 F.3d at 851—52. Following the revocation of his supervised release, the district court sentenced Ferguson to 23 months of imprisonment and imposed a term of 13 months of supervised release, the first six months of which were to be served on home detention. Id. at 848—49. Ferguson argued that the combination of the 23-month terms of imprisonment plus the six-month term of home detention exceeded the applicable statutory maximum term of 24 months of imprisonment. Id. at 850. Citing § 3563(b)(19), we noted that home detention is a condition of supervised release that a court may impose only as an alternative to incarceration. Id. at 849—51; see 18 U.S.C. § 3563(b)(19).²

Our court in Ferguson, however, did not address the precise question raised by the instant case: whether a previously imposed term of home detention is a term of imprisonment for purposes of determining the maximum term of supervised release that may be imposed following a subsequent revocation. Ferguson held that home detention may be credited against the maximum term of imprisonment that may be imposed following the revocation of supervised release. Ferguson, 369 F.3d at 849—52. We decline Polydore's invitation to expand Ferguson to hold that home detention is a term of imprisonment for the purposes of calculating the maximum term of supervised release that may be imposed upon revocation. Plain meaning analysis, the same analysis we used in Ferguson, requires this conclusion. See id. at 851—52.

The statutory language of § 3583(h) does not include home detention in the calculation for maximum supervisory release that may be imposed upon revocation. Instead, § 3583(h) imposes the following limits on supervised release: "The length 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 wasimposed upon revocation of supervised release." 18 U.S.C. § 3583(h) (emphasis added). "Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." United States v. Smith, 499 U.S. 160, 167 (1991) (internal quotation marks and citations omitted). The language of § 3583(h) makes no mention of home detention as a factor in the equation to determine the maximum term of supervised release that may be imposed upon a defendant. Moreover, Polydore has not argued that there is any contrary legislative intent. The Second Circuit has held that the language of § 3583(h) "plainly indicates that courts are only required to credit time spent in prison." United States v. Pettus, 303 F.3d 480, 484—85 (2d Cir. 2002) (holding that, for the purposes of § 3583(h), a defendant is not entitled to a credit against his reimposed term of supervised release for any time he previously spent on supervised release).

Polydore argues that any term of home detention imposed under 18 U.S.C. § 3583 is considered the equivalent of a term of imprisonment because 18 U.S.C. § 3583(e)(4) states that "an order under this paragraph [ordering home detention] may be imposed only as an alternative to incarceration" and § 18 U.S.C. § 3563(b)(19) likewise provides that home detention "may be imposed only as an alternative to incarceration." Under these two statutes, home detention is a referred to as an alternative to incarceration and, thus, home detention and imprisonment share the same time limitation.³ However, neither statute makesthe statement, nor should it be inferred, that home detention and incarceration are the same.⁴

Furthermore, though Congress made the decision to link home detention and incarceration in 18 U.S.C. § 3563(b)(19) and 18 U.S.C. § 3583(e)(4), Congress made the decision to omit home detention from the formula for post-revocation supervised release in § 3583(h). When Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion. See Pettus, 303 F.3d at 485 (internal citations omitted).

Finally, Polydore's home detention would not be considered a term of incarceration for the purposes of § 3583(h) because the terms of Polydore's home detention were not as severe as or analogous to a term of incarceration.⁵ Incarceration results in a total loss of liberty. The terms of...