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United States v. Anderson, 07-50145 (2008)

Court: Court of Appeals for the Ninth Circuit Number: 07-50145 Visitors: 14
Filed: Mar. 25, 2008
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 07-50145 Plaintiff-Appellee, D.C. No. v. CR-89-00670-DSF- JIMMY ANDERSON, 01 Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding Argued and Submitted March 5, 2008—Pasadena, California Filed March 25, 2008 Before: John R. Gibson,* Diarmuid F. O’Scannlain, and Susan P. Graber, Circuit Judges
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                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 07-50145
                Plaintiff-Appellee,                 D.C. No.
               v.                              CR-89-00670-DSF-
JIMMY ANDERSON,                                        01
             Defendant-Appellant.
                                                   OPINION

         Appeal from the United States District Court
            for the Central District of California
          Dale S. Fischer, District Judge, Presiding

                   Argued and Submitted
             March 5, 2008—Pasadena, California

                       Filed March 25, 2008

  Before: John R. Gibson,* Diarmuid F. O’Scannlain, and
             Susan P. Graber, Circuit Judges.

                    Opinion by Judge Graber




   *The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

                                 3003
                  UNITED STATES v. ANDERSON               3005


                         COUNSEL

Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.

Terri K. Flynn and Nancy B. Spiegel, Assistant United States
Attorneys, Los Angeles, California, for the plaintiff-appellee.


                         OPINION

GRABER, Circuit Judge:

   Defendant Jimmy Anderson appeals the district court’s
imposition of a 3-year term of supervised release after revoca-
tion of a 90-day term of supervised release. Defendant argues
that the court’s authority to reimpose a term of supervised
3006                  UNITED STATES v. ANDERSON
release under 18 U.S.C. § 3583(e) (1993)1 was limited to the
duration of the revoked term. We review de novo a district
court’s application of the supervised release statute, United
States v. Cade, 
236 F.3d 463
, 465 (9th Cir. 2000), and affirm.

   In 1989, Defendant pleaded guilty to armed robbery in vio-
lation of 18 U.S.C. § 2113. The district court sentenced
Defendant to 63 months’ imprisonment plus a 5-year term of
supervised release, the maximum term of supervised release
authorized under 18 U.S.C. § 3583(b)(1). The district court
revoked the supervised release when Defendant violated its
terms and sentenced Defendant to 6 months’ imprisonment
plus a 3-year term of supervised release. After being released
from prison, Defendant again violated the terms of his super-
vised release, and the district court sentenced Defendant to 7
months’ imprisonment and a 3-month term of supervised
release. Defendant once again violated the terms of his super-
vised release. On this third occasion, the court sentenced
Defendant to 89 days’ imprisonment and a 3-year term of
supervised release. Defendant timely appeals the 3-year term
of supervised release.

   His argument on appeal is that the district court erred
because, under 18 U.S.C. § 3583(e), the court was limited to
the term of supervised release that it revoked minus any time
in custody. In other words, according to Defendant, because
the court revoked a 3-month term of supervised release and
sentenced Defendant to 89 days’ imprisonment, the maximum
term of supervised release that the court could have imposed
was a term of one day. We disagree.

  Under the Sentencing Reform Act of 1984, a district court’s
authority to revoke a term of supervised release was governed
  1
    All references to 18 U.S.C. § 3583 in this opinion are to the statute in
effect before Congress amended it with the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 1831,
2016-17, 2130-31.
                  UNITED STATES v. ANDERSON                   3007
by 18 U.S.C. § 3583(e)(3), which authorized a district court
to “revoke a term of supervised release, and require the per-
son to serve in prison all or part of the term of supervised
release without credit for time previously served on postre-
lease supervision.” The statute did not explicitly authorize
postrevocation supervised release. In 1994, Congress
amended the supervised release statute and gave district
courts the authority to order postrevocation supervised release
under 18 U.S.C. § 3583(h). But courts “attribute postrevoca-
tion penalties to the original conviction.” Johnson v. United
States, 
529 U.S. 694
, 701 (2000). Consequently, where, as
here, a defendant’s conviction occurred before the 1994
amendment, the district court’s authority to impose postrevo-
cation penalties is governed by the pre-amendment version of
§ 3583. See 
id. at 702
(holding that § 3583(h) was not retroac-
tive).

   In 
Johnson, 529 U.S. at 713
, the Supreme Court held that,
“in applying the law as before the enactment of subsection
(h), district courts have the authority to order terms of super-
vised release following reimprisonment.” The Court reasoned:

       Prisoners may, of course, vary in the degree of
    help needed for successful reintegration. Supervised
    release departed from the parole system it replaced
    by giving district courts the freedom to provide
    postrelease supervision for those, and only those,
    who needed it. Congress aimed, then, to use the dis-
    trict courts’ discretionary judgment to allocate super-
    vision to those releasees who needed it most. But
    forbidding the reimposition of supervised release
    after revocation and reimprisonment would be fun-
    damentally contrary to that scheme. A violation of
    the terms of supervised release tends to confirm the
    judgment that help was necessary, and if any pris-
    oner might profit from the decompression stage of
    supervised release, no prisoner needs it more than
    one who has already tried liberty and failed. He is
3008                UNITED STATES v. ANDERSON
      the problem case among problem cases, and a Con-
      gress asserting that “every releasee who does need
      supervision will receive it,” seems very unlikely to
      have meant to compel the courts to wash their hands
      of the worst cases at the end of reimprisonment.

Id. at 709-10
(citations omitted).

   [1] Johnson thus held that a district court can impose a
term of supervised release following postrevocation reimpri-
sonment. Since Johnson, we have not addressed whether, and
to what extent, a court is limited in doing so, particularly
where, as here, a court revokes a defendant’s supervised
release several times.

   [2] Section 3583(e)(3) authorizes a district court to “revoke
a term of supervised release, and require the person to serve
in prison all or part of the term of supervised release without
credit for time previously served on postrelease supervision.”
(Emphasis added.) The text of § 3583(e)(3) thus implies that
a court is limited in imposing postrevocation penalties by the
term of supervised release being revoked. But that interpreta-
tion would run counter to Johnson’s holding that postrevoca-
tion penalties are “attribute[d] . . . to the original 
conviction.” 529 U.S. at 701
(emphasis added). Although Johnson did not
involve repeated revocations of supervised release, we hold
that, under Johnson, “original” means “original”2 —
postrevocation penalties are limited to the term of supervised
release imposed as part of a defendant’s sentence at convic-
tion. In so holding, we agree with the Seventh Circuit that,
“according to Johnson, a district court may, upon revoking a
term of supervised release under § 3583(e)(3), sentence a
defendant to serve a combined term of reimprisonment and
additional supervised release, so long as that sentence does
  2
    See Webster’s Third New International Dictionary 1591 (unabridged
ed. 1993) (defining “original” as “the source or cause from which some-
thing arises”).
                  UNITED STATES v. ANDERSON                       3009
not exceed the original term of supervised release.” United
States v. Russell, 
340 F.3d 450
, 454 (7th Cir. 2003).

   The rationale of Johnson supports cabining a district
court’s authority by the original term of supervised release.
As Johnson explained, a defendant who violates the terms of
supervised release confirms the district court’s judgment that
the defendant needs additional assistance to reintegrate into
society, and Congress intended § 3583(e)(3) to allow a district
court to use its discretionary judgment to allocate supervision
to those releasees who need it most. Just as Congress was
unlikely to have meant to compel courts to wash their hands
of the worst cases at the end of reimprisonment, 
Johnson, 529 U.S. at 709-10
, Congress also was unlikely to have intended
to limit a district court’s ability to supervise those defendants
by a term of supervised release divorced from their original
convictions, see 
id. at 700
(describing “postrevocation sanc-
tions as part of the penalty for the initial offense”).

   Defendant points to Johnson’s discussion of the “balance”
remaining on a revoked term of supervised release to argue
that a postrevocation term of supervised release cannot exceed
the term that preceded it. He takes this term out of context.
Johnson stated:

        As it was written before the 1994 amendments,
    subsection (3) did not provide (as it now does) that
    the court could revoke the release term and require
    service of a prison term equal to the maximum
    authorized length of a term of supervised release. It
    provided, rather, that the court could “revoke a term
    of supervised release, and require the person to serve
    in prison all or part of the term of supervised release
    . . . .” So far as the text is concerned, it is not a “term
    of imprisonment” that is to be served, but all or part
    of “the term of supervised release.” But if “the term
    of supervised release” is being served, in whole or
    part, in prison, then something about the term of
3010              UNITED STATES v. ANDERSON
    supervised release survives the preceding order of
    revocation. While this sounds very metaphysical, the
    metaphysics make one thing clear: unlike a “termi-
    nated” order of supervised release, one that is “re-
    voked” continues to have some effect. And since it
    continues in some sense after revocation even when
    part of it is served in prison, why can the balance of
    it not remain effective as a term of supervised
    release when the reincarceration is 
over? 529 U.S. at 705-06
(emphasis added). Examined in full, the
passage cuts against Defendant. The balance remaining after
revocation is not just of any preceding term of supervised
release, but the term of supervised release discussed in
§ 3583(e)(3), which the Court identified as “the term of super-
vised release originally imposed.” 
Id. at 712.
   [3] Finally, in situations involving numerous revocations, a
district court also is limited by the amount of postrevocation
time a defendant has spent in custody. The supervised release
statute authorizes a district court to order a defendant “to
serve in prison all or part of the term of supervised release”
originally imposed, § 3583(e)(3); see also 
Johnson, 529 U.S. at 712
(“Section 3583(e)(3) limits the possible prison term to
the duration of the term of supervised release originally
imposed.”).

   [4] Defendant already has served in prison part of his origi-
nal term of supervised release. That original term was 5 years,
or 60 months. After the three revocations of supervised
release, Defendant served 6, 7, and 3 months’ imprisonment,
respectively. Consequently, the district court could impose no
more than 44 months of supervised release. The 3-year (36-
month) term thus was permissible.

  AFFIRMED.

Source:  CourtListener

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