United States v. Rodriguez, 14–47–cr.

• Decision Date: 24 December 2014
• Docket Number: No. 14–47–cr.,14–47–cr.
• Citation: 775 F.3d 533
• Parties: UNITED STATES of America, Appellee, v. Samuel RODRIGUEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

775 F.3d 533

UNITED STATES of America, Appellee,
v.
Samuel RODRIGUEZ, Defendant–Appellant.

No. 14–47–cr.

United States Court of Appeals,
Second Circuit.

Argued: Dec. 10, 2014.
Decided: Dec. 24, 2014.

Matthew Keller (Joseph A. Grob, on the brief), Joseph A. Grob, P.C., New York, NY, for Defendant–Appellant.

Michael D. Maimin (Brian A. Jacobs, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

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Before: CABRANES, WESLEY, and HALL, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

This appeal presents the question of whether 18 U.S.C. § 3583(h), ¹ which covers the calculation of the maximum term of supervised release following revocation of a previous term of supervised release, requires that the term be reduced by all prior post-revocation terms of imprisonment imposed on the same underlying offense, or by only the most-recent term of imprisonment.

We hold that, when imposing the maximum term of supervised release following revocation of a previous term of supervised release, 18 U.S.C. § 3583(h) requires that the term be reduced by all post-revocation terms of imprisonment imposed with respect to the same underlying offense, not only by the most-recent term of imprisonment.

Accordingly, we REMAND the cause to the District Court for the limited purpose of entering a judgment that reduces defendant's term of supervised release by 128 days.

BACKGROUND

Defendant Samuel Rodriguez appeals the December 23, 2013, judgment of the District Court revoking his term of 20 months' supervised release and sentencing him to a two-year term of imprisonment, to be followed by a one-year term of supervised release.

To understand the basis of defendant's appeal, a brief account of his recent criminal history is required. In 2009, Rodriguez pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g),² and one count of making false statements in a matter within the jurisdiction of the United States, in violation of 18 U.S.C. § 1001. ³ Thereafter, Judge Gardephe sentenced Rodriguez principally to a 28–month term of imprisonment on each count, to run concurrently, followed by the maximum statutory three-year term of supervised release (the “2009 sentence”).

On October 6, 2010, Rodriguez completed his term of imprisonment and commenced his period of supervision by the

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United States Probation Office (“Probation Office”). On March 1, 2012, the Probation Office submitted to the District Court a petition alleging that Rodriguez had violated several conditions of his supervised release and requesting the issuance of a bench warrant for his arrest and revocation of his supervised release. On June 12, 2012, Rodriguez was arrested and subsequently detained. On July 19, 2012, Rodriguez admitted to violating the conditions of his supervision and on October 17, 2012, Judge Gardephe revoked his supervised release and sentenced him to time served following this latest arrest— i.e., 128 days' imprisonment. Judge Gardephe also imposed a new term of 20 months' supervised release, with the special condition that Rodriguez complete 18 of the 20 months at a residential substance abuse and mental health treatment facility (the “2012 sentence”).

On March 19, 2013, the Probation Office filed a petition alleging that Rodriguez had violated several conditions of his second term of supervised release. Judge Gardephe issued a summons ordering Rodriguez to appear in Court and, after he failed to appear, Rodriguez was once again arrested and thereafter detained on May 1, 2013. On June 24, 2013, Rodriguez appeared before Judge Gardephe and admitted to violating the terms of his release. On December 23, 2013, Judge Gardephe revoked Rodriguez's supervised release and sentenced him to a term of two-years' imprisonment ⁴ to be followed by a new term of one-year of supervised release, with the special condition that Rodriguez complete that one-year term at a residential drug treatment center (the “2013 sentence”). Rodriguez now challenges the 2013 sentence.⁵

On appeal, defendant argues (1) that the District Court violated 18 U.S.C. § 3583(h) when it failed to reduce the one-year term of supervised release in the 2013 sentence by the aggregate prison terms imposed for all post-conviction violations ( i.e., 128 days from his 2012 sentence and two years from his 2013 sentence), and (2) that the District Court exceeded its sentencing discretion in

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its 2013 sentence by ordering Rodriguez's new one-year term of supervised release to be served in a mandatory residential substance abuse treatment center.

DISCUSSION I. 18 U.S.C. § 3583(h)

Rodriguez concedes that he did not object to his 2013 sentence when it was imposed, and thus we review for plain error. Under plain error review, “an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant's substantial rights, which in the ordinary case means' it ‘affected the outcome of the district court proceedings'; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). The imposition of a sentence that exceeds the statutory maximum qualifies as plain error. See United States v. Cadet, 664 F.3d 27, 33 (2d Cir.2011).

Rodriguez argues, and the Government agrees, that the District Court erred in sentencing him in 2013 to an additional one-year term of supervised release because such a term does not properly account for the aggregated prison terms Rodriguez has served after repeatedly violating his supervised release requirements.⁶ Under 18 U.S.C. § 3583(h), when a district court imposes a new term of supervised release after a violation of...