United States v. Wing

• Citation: 682 F.3d 861,12 Cal. Daily Op. Serv. 6911,2012 Daily Journal D.A.R. 8490
• Decision Date: 21 June 2012
• Docket Number: No. 11–30017.,11–30017.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michelle WING, Defendant–Appellant.

682 F.3d 861

12 Cal. Daily Op. Serv. 6911

2012 Daily Journal D.A.R. 8490

UNITED STATES of America, Plaintiff–Appellee,

v.Michelle WING, Defendant–Appellant.

No. 11–30017.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 2011.

Filed June 21, 2012.

John Rhodes, Federal Defenders of Montana, Missoula, MT, for the defendant-appellant.

J. Bishop Grewell, U.S. Attorney's Office, Helena, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:01–cr–00037–DWM–1.

Before: M. MARGARET McKEOWN and RICHARD C. TALLMAN, Circuit Judges, and BARRY TED MOSKOWITZ, District Judge.^*

OPINION

MOSKOWITZ, District Judge:

Michelle Wing appeals the district court's revocation of her second term of supervised release, which had not yet commenced, based on newly discovered violations of conditions of her previously revoked first term of supervised release. Wing contends that the district court lacked jurisdiction to revoke her second term of supervised release. In this matter of first impression, we conclude that a district court lacks jurisdiction under 18 U.S.C. § 3583(e)(3) to revoke a term of supervised release based on newly discovered violations of a previously revoked term of supervised release. Accordingly, we REVERSE and REMAND.

I

On August 8, 2001, a grand jury in the District of Montana returned an indictment against Michelle Wing, charging her with one count of bank embezzlement in violation of 18 U.S.C. § 656. On October 18, 2001, Wing entered a plea of guilty to the charge and was thereafter sentenced to six months in prison followed by five years of supervised release.

Wing's term of supervised release commenced on February 11, 2004. On April 24, 2008, Wing's probation officer filed a petition to revoke Wing's supervised release. The petition alleged that Wing had violated the conditions of supervised release by: (1) providing her probation officer with a falsified document; (2) failing to obtain approval of her probation officer before making payments to the Washington State Employment Security Division; (3) incurring new debt with the purchase of a home and a vehicle without the advance approval of the probation officer; and (4) failing to submit timely monthly reports to her probation officer.

On June 6, 2008, the Montana district court found that Wing had committed all of the violations alleged in the petition. The district court revoked Wing's supervised release and sentenced her to 3 months of imprisonment followed by 33 months of supervised release. Wing self-reported to prison on August 29, 2008.

On November 18, 2008, a grand jury in the Eastern District of Washington returned a 22–count indictment charging Wing with bank fraud, conspiracy, and identity theft, based on conduct that took place between June 1, 2006, and July 31, 2008.

On November 25, 2008, Wing's probation officer filed a petition with the Montana district court to revoke Wing's second term of supervised release, which was scheduled to commence the very next day, based on Wing's commission of the crimes alleged in the Eastern District of Washington case in addition to other violations (leaving the district of supervision without permission of the probation officer, failing to submit truthful and complete monthly reports, and failing to notify the probation officer of any change in employment). That same day, the Montana district court issued a warrant for Wing's arrest.

On November 26, 2008, Wing was released from prison and was immediately arrested on the district court's warrant. Before appearing for her revocation hearing in Montana, Wing was transferred to the Eastern District of Washington to face the criminal charges in that case. Wing ultimately pled guilty to a number of counts in the Eastern District of Washington case and was sentenced to 86 months of imprisonment and a five-year term of supervised release.

On November 20, 2009, Wing appeared before the Montana district court for a supervised release revocation hearing. During the hearing, Wing admitted to the violations alleged in the petition. Based on these violations of conditions of the first term of supervised release, the Montana district court revoked the second term of supervised release and imposed a sentence of 33 months of imprisonment to run consecutively to the sentence imposed in the Eastern District of Washington.¹ The court did not impose an additional term of supervised release, reasoning that Wing would be under the supervised release of the sentence imposed in the Eastern District of Washington.

On November 25, 2009, Wing appealed the Montana district court's revocation of her second term of supervised release. Wing argued on appeal that the district court lacked jurisdiction to revoke her term of supervised release because the term had not yet commenced. This court remanded the case because Wing had not presented her jurisdictional argument before the district court.

On remand, the district court ordered the parties to submit briefs on the jurisdictional argument raised on appeal. In an order filed on January 18, 2011, the court held that it had jurisdiction to revoke Wing's second term of supervised release, reasoning that if it had known of the additional violations at the time it revoked Wing's first term of supervised release, the court would not have sentenced Wing to only a three-month term of imprisonment:

In this regard, the second revocation sentence relates back to the Court's original revocation hearing and accounts for the additional violations that were significant breaches of the Court's trust, but were not known to the Court at that time. Simply put, the revocation challenged here pertained to the first term of supervised release.

Relying on language in Johnson v. United States, 529 U.S. 694, 704, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), the district court reasoned that the first term of supervised release “retain[ed] vitality” and “continued to have some effect” even though it had been revoked. Therefore, the court held that it had jurisdiction to “adjust[ ] Wing's first revocation sentence by imposing a subsequent sentence that considered the full scope of her breaches of trust, as well as the need to protect the public from further crimes by her.”

II

We review de novo whether a district court has jurisdiction to revoke a term of supervised release. United States v. Ignacio Juarez, 601 F.3d 885, 888 (9th Cir.2010).

III

The issue before us is whether, under 18 U.S.C. § 3583, a district court has jurisdiction to revoke a future term of supervised release based upon newly discovered violations of conditions of a past term of supervised release. We have not located any reported decisions addressing this issue under the current version of the statute. As in all statutory interpretation cases, we look first to the language of the statute. We have examined the statutory scheme governing supervised release as well as the sentencing scheme for violations of supervised release, and conclude that the district court lacked jurisdiction to revoke Wing's second term of supervised release.

A. Statutory Structure: 18 U.S.C. § 3583

In 18 U.S.C. § 3583, Congress has established a scheme where separate and distinct terms of supervised release may be imposed upon a repeat offender of supervisedrelease conditions. Each term has its own conditions as well as its own beginning and end (either by termination or revocation). This statutory scheme leads us to conclude that once a term of supervised release has been revoked, a later-discovered violation of a condition of that term cannot form the basis of a revocation of a subsequent term of supervised release.

A district court's authority to impose, modify, terminate, or revoke supervised release derives from § 3583. Subsections 3583(a)-(d) bestow upon district courts the power to impose supervised release, outline the factors to be considered when doing so, limit the length of terms of supervised release, and list the conditions of release that a court may order. Subsections (e) and (g)-(i) govern the modification, termination, and revocation of supervised release as well as the sanctions courts may impose upon revocation.

Our focus is on subsection (e), which gives a district court authority to modify, terminate, or revoke supervised release. Under subsection (e), a court may, after considering enumerated factors set forth in § 3553(a): (1) terminate a term of supervised release and discharge the defendant at any time after the expiration of one year of supervised release (§ 3583(e)(1)); (2) extend a term of supervised release (if less than the maximum authorized term was previously imposed) and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release (§ 3583(e)(2)); or (3) revoke a term of supervised release. (§ 3583(e)(3)).

In 2000, when Wing committed her crimes of conviction, subsection (e)(3) provided in relevant part that the district court may:

revoke a term of supervised release, and 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 of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve 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...