Revocation Sentence Vacated as Plainly Unreasonable; Panel Purports to Limit Holding to Cases "Indistinguishable . . . In All Material Respects"

United States v. Willis, No. 08-10018 (5th Cir. Mar. 24, 2009) (Jolly, Smith, Owen)

In 1998, Willis was convicted of two counts of being a felon in possession of a firearm. "The two counts were premised on Willis’s simultaneous possession of two firearms and were, therefore, multiplicitous in violation of the Fifth Amendment’s prohibition against double jeopardy." Unfortunately, Willis never objected to the indictment, and he did not raise the issue on direct appeal or in two subsequent § 2255 petitions.

After serving his sentences on the two counts---which ran concurrently---Willis commenced serving two concurrent terms of supervised release. He violated, and was revoked. Willis raised the multiplicity argument at the revocation hearing, asking that a sentence be imposed for just one of the revoked terms. The district court rejected Willis's argument, and sentenced him to two consecutive 24-month terms of imprisonment.

Willis appealed. He did not challenge the underlying convictions or sentences; as the court points out, "[i]t is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence." Instead, Willis argued that the second of the two revocation sentences was unreasonable because it was multiplicitious.

The court held that the second sentence was plainly unreasonable (and, for that reason, declined for at least the second time "to decide whether to subject revocation sentences to the 'unreasonable' or the 'plainly unreasonable' standard of review"):

There is no question but that the second revocation sentence is multiplicitous in its own right. We do not hold, however, that the second revocation sentence is not a legal sentence. That revocation sentence stems from one of the two original sentences; that original sentence, which Willis has already served, remains undisturbed and therefore legal. If the original sentence is legal, then the revocation sentence, which depends upon it, is also legal. Our opinion does not question the revocation sentence’s legality.

We question instead the mere fact of the second revocation sentence, which would require that Willis serve two revocation sentences, consecutively, as a penalty for what all parties now agree was only one offense. The second revocation sentence would therefore have the practical effect of incarcerating Willis for an additional twenty-four months. We especially note that the original sentence, including the term of supervised release, was imposed to run concurrently. The fact of its multiplicity, although legal, is, under all circumstances present, plainly unreasonable.

Intriguingly, the court goes on to not only emphasize the narrowness of its holding, but also to "limit the precedential value of our holding to cases presenting indistinguishable facts in all material respects." Which of course prompts two questions: 1) Can a panel (or even the court sitting en banc, for that matter) do that? 2) Given the narrowness of the holding, is such a purported limit even necessary?