Sentencing Commission Adopts New Guideline Amendments

The U.S. Sentencing Commission voted on April 15 to amend the U.S. Sentencing Guidelines, including significant changes to 2L1.2, 2G2.2, and conditions of supervision.

A "reader-friendly" version of the adopted amendments is available online.

These amendments will be submitted to Congress and go into effect on November 1, 2016, absent congressional action.

Unreasonable Supervised Release Condition for SORNA Offender Vacated

United States v. Salazar, No. 12-50695 (5th Cir. Feb. 24, 2014) (Higginbotham, Clement, Prado)

Salazar violated the terms of his supervised release for a suspended sentence for his conviction of third-degree sexual abuse when he failed to register as a sex offender, and he was sentenced to a prison term and an additional period of supervised release with numerous special conditions.  The panel holds that “the district court abused its discretion by imposing the challenged condition”—to refrain from purchasing, possessing, or using any sexually stimulating or sexually oriented materials—“on Salazar without demonstrating that it is reasonably related to the statutory factors.” 

At the sentencing, the district court added new conditions to Salazar’s supervised release.  The defense counsel objected to the new conditions because “they’re overly burdensome and . . . .”  Before the defense counsel could finish her sentence, the court overruled the objection.  Again, defense counsel attempted to elaborate on her objection, and the court cut her off with another “Overruled.”  The panel holds that Salazar properly preserved his objection and applies abuse of discretion review because Salazar’s attempts to object with specificity “were futile because the court failed to give his counsel a reasonable opportunity to explain her objections or ask for the rationale behind the court’s refusal to sustain them.”

As to the merits, the panel agrees with Salazar that the challenged condition is not reasonably related to the statutory supervised release factors since there is no indication that sexually-stimulating or sexually-oriented materials contributed either to his sexual abuse or SORNA offense.  The panel vacates and remands for the district court to either remove the condition or attempt to explain its applicability.  The panel does not reach Salazar’s argument that the condition was overbroad and violates his First Amendment rights.

So, keep on objecting to unreasonable terms of supervised release.  You might just end up getting them vacated!

Appeal Waiver of “Sentence” Valid and Applied to Conflict between Oral and Written Pronouncement of Supervised Release Convictions

United States v. Higgins, No. 12-30818 (5th Cir. Jan. 10, 2014) (Stewart, Jolly, Smith)

Higgins pleaded guilty to receipt of child pornography and appealed his sentence of fifteen years of imprisonment and five years of supervised release.  The panel found that he knowingly and voluntarily waived any appeal of his “sentence” (unless above the statutory maximum) and that the waiver applied to conditions of supervised release.  The appeal was dismissed.

At his rearraignment, the district court questioned Higgins about his reading and understanding of the plea agreement, and Higgins responded that there were not any provisions that he did not understand.  The plea agreement acknowledged that Higgins’ prior convictions constituted convictions of “abusive sexual conduct involving a minor or ward,” thereby subjecting him to the minimum sentence of fifteen years under 18 U.S.C. § 2252.  At sentencing, the court sentenced him to supervised release and, in the written (but not oral) pronouncement of conditions, required him to contribute to the cost of drug treatment and to warn other residents with whom he lived that they may be subject to search pursuant to his supervised release conditions.

The panel found that Higgins knowingly and voluntarily waived his appeal and that the waiver applied to his fifteen year sentence since Higgins only reserved the right to appeal any punishment imposed in excess of the statutory maximum, which was forty years with the qualifying prior conviction and twenty years without it.  Higgins also argued that the waiver did not apply to his challenge to his conditions of supervised release since the written pronouncement conflicted with and broadened the oral pronouncement.  The panel concluded that his challenge to the written judgment’s conditions of supervised release is an appeal of his “sentence.”  Since those conditions did not violate the statutory limitations of supervised release conditions, Higgins’ argument falls within the appeal waiver and was waived.

Supervised Release Conditions for Sex Offenders Affirmed (Mostly)

United States v. Tang, No. 12-20043 (May 16, 2013) (Jolly, Garza, Owen) (per curiam)
United States v. Ellis, No. 12-10162 (May 20, 2013) (Jolly, Garza, Owen) (per curiam)

This pair of opinions (at first unpublished, and then published on June 21^st) confirms what was already pretty obvious: district courts have great discretion in imposing supervised release conditions and, when it comes to sex offenders, almost no condition imposes a greater deprivation of liberty than necessary. Nonetheless, keep on making those objections!

First, we’ll start with the two supervised release conditions that were vacated:
(1) The panel vacated Tang’s Internet ban since Tang’s current and prior offenses did not involve a computer or the Internet and the liberty deprivation was too great. Tang was convicted of failing to register as a sex offender. His underlying conviction was for assault with intent to commit sexual abuse.

(2) The panel vacated Tang’s restriction on dating someone with minor children because the oral pronouncement of sentence said he will not cohabitate with anyone who has children under the age of 18 unless the probation officer approves, but the written judgment also prohibited dating. The district court abused its discretion by including the additional dating restriction that wasn’t part of the oral pronouncement.
Both Tang and Ellis objected to conditions requiring mental health and/or sex offender treatment programs, but the panel affirmed stating that the objections were not ripe because neither defendant had been subjected (yet) to intrusive or objectionable procedures. The proper remedy, the panel concluded, would be to petition the district court for a modification of conditions after Probation mandates an objectionable procedure.

Tang’s restriction on contact with minors was affirmed because it was related to his history and not greater than necessary since he can request permission to have contact with minors.

Other conditions that were affirmed for Ellis, who was convicted of possessing child pornography and who—according to agent testimony at sentencing—allegedly molested his minor nephew:
(1) Restriction on computers and Internet;

(2) Restriction on contact with minors (including by telephone, by internet, through third parties, and access to or loitering by "places where children may frequently congregate");

(3) Restriction on not dating or befriending anyone with minor children without prior permission of the probation officer (since evidence that Ellis used a close relationship to reach children to abuse them);

(4) Ban on sexually-stimulating materials (since Fifth Circuit requires a common-sense application of this condition).Additionally, with limited reasoning, the panel dismissed as not plain error Ellis’s vagueness challenge to the restriction not to date or "befriend" someone with minor children and Tang’s argument that the district court unconstitutionally delegated its authority to the Probation Office to determine length of treatment and contact with minors.

But don’t despair! Remember that the Fifth Circuit recently vacated a condition prohibiting indirect contact with minors in United States v. Windless.

Cannot Rely on Bare Arrest Records in Sentencing; Prohibiting Indirect Conduct with Minors was Substantively Unreasonable

United States v. Windless, No. 12-60370 (June 12, 2013) (Higginbotham, Owen, Graves)

The panel found reversible error in the district court’s sentencing of Windless, who had failed to register under SORNA. The district court explicitly referenced Windless’ arrest record in sentencing him at the top of the Guidelines and fashioning his conditions of supervised release. Three of these five arrests were "bare" in that they were not accompanied by a description of the alleged conduct. One arrest had a description of conduct suggesting his guilt, and the last arrest had a description of conduct suggesting his innocence. "The district court attempted to justify its reliance by distinguishing between ‘special conditions’ of release and a defendant’s ‘sentence.’" The panel reversed, stating "that distinction is illusory: supervised release and its conditions are part of a defendant’s sentence." The same due process concerns apply to both. "[W]hether ordering a term of imprisonment or conditions of supervised release, a district court may not rely on bare arrest records."

The panel also vacated a special condition of release prohibiting the defendant from having "direct or indirect contact" with a minor "unless accompanied by an adult who has been approved in advance by the probation officer." The panel found this condition to be substantively unreasonable under these circumstances. "[T]o forbid all ‘indirect’ contact works a serious restriction on liberty, making a trip to the grocery store or a place of worship a trip that may end in imprisonment via revocation sentence."

So, keep an eye out for any reliance on bare arrest records or overly broad and unreasonable conditions of supervised release. The Fifth Circuit might just agree with you.

Imposition of 3-Years Supervised Release for Illegal Reentry Affirmed Despite District Court’s Erroneous Belief that Supervised Release Was Mandatory (Plain Error)

United States v. Cancino-Trinidad, No. 11-41344 (Stewart, Smith, Weiner)

Cancino-Trinidad pled guilty to illegal reentry and was sentenced to 32 months’ imprisonment and three years’ supervised release. He had a lengthy criminal history (28 convictions) and was re-arrested less than 3 months after his deportation.

The PSR included language from the pre-November 1, 2011 version of the Guidelines that the guideline range for a term of supervised release is at least two years but not more than three years. The amended USSG § 5D1.1, which was effective at the time of sentencing, provided that a "court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien . . . ."

At sentencing, the PSR was not modified to reflect the new range, and neither the court nor the government noted that the amended guideline rendered the imposition of supervised release discretionary. The panel found that it was plain error for the court to adopt a PSR with an incorrect supervised release range. The panel was not convinced, however, that this error affected his substantial rights since the court implied that supervised release would have a deterrent effect by resulting in greater criminal penalties should Cancino-Trinidad return. While Cancino-Trinidad raised the possibility that the court may have reached a different result had it realized that the imposition of supervised release was discretionary and even discouraged in such circumstances, the panel found that this did not rise to the requisite "probability." The panel even noted that had Cancino-Trinidad made such a showing, this was not an instance meriting the panel’s discretion to remand for resentencing. Lastly, the panel found that since the three years of supervised release was within the Guideline range, it was accorded the presumption of reasonableness, and was reasonable.

Alien Is "Released from Imprisonment," for Supervised Release Purposes, When He Is Transferred from BOP to ICE Custody to Await Removal

United States v. Garcia-Rodriguez, Nos. 09-20406 & 09-40635 (5th Cir. May 2, 2011) (per curiam) (Smith, DeMoss, Owen)

Title 18 U.S.C. § 3624(e) instructs that a "term of supervised release commences on the day the person is released from imprisonment."  Seems straightforward enough.  But what if the person is an alien, completes his sentence, and is transferred from BOP to ICE custody and remains in administrative detention pending his removal from the country?  When is he released from imprisonment?

The court holds that "a straightforward reading of the applicable statute [§ 3624] shows that administrative detention by ICE is not the same as imprisonment by the BOP."

The statutory language of subsections (a) and (e) makes several things clear. First, imprisonment ends upon a prisoner’s release from the custody of “the Bureau of Prisons.” See id. § 3624(a), (e). Second, any other term of imprisonment must be “in connection with a[separate] conviction” for a “crime” if such imprisonment is to toll the term of supervised release. Id. § 3624(e). Third, the release shall be made “to the supervision of a probation officer.” Id. And finally, only the specific terms “imprisonment” or “imprisoned” are used, not the term administrative detention or other specific types of custody. Id. § 3624(a), (e).

"Moreover," the court added, "it is clear under federal immigration law that administrative detention of an alien is not the same as imprisonment for a crime."  Consequently, "administrative detention by ICE does not qualify as imprisonment and that, for purposes of § 3624(e), Garcia was 'released from imprisonment' the moment he was transferred from BOP custody to ICE custody to await deportation."

Why does this matter?  Because of the tolling provision found in § 3583(i), which permits a court to revoke a term of supervised release within a reasonably necessary period after the term expires, if a warrant or summons issued before the expiration of the term.  In this case, Garcia's 3-year term of supervsised release was revoked after it expired.  The question was whether the revocation warrant issued before the term expired, a question which turned on when he was released from imprisonment.  As it happens, it wasn't clear from the record exactly when Garcia was transferred from BOP to ICE custody, so the court remanded for findings on that point.

Sentencing Commission Promulgates Guidelines Amendments for November 2011

Last week the Sentencing Commission issued this press release announcing a new crop of Guidelines amendments. Absent Congressional action, the amendments will take effect on November 1, 2011.  There's some good and some bad for defendants, with changes affecting illegal reentry, firearms, supervised release, mitigating role, health care fraud, and more. The Sentencing Resource Counsel Project has prepared a helpful summary of the amendments, which have not yet been posted on the Commission's website.  For bootleg redlines of the amendments, make your way over here.

Proposed Guidelines Amendments and Requests for Comment

As Professor Berman highlighted last week, the Sentencing Commission has published for public comment a raft of proposed amendments to the Guidelines.  A few of these proposals could be quite significant for those of us in border districts, as well as anyone who represents alien defendants (which is pretty much everyone these days).  There are also some requests for comment on matters perennial (mitigating role for drug mules) and emerging (cross-border gun smuggling).  I'll highlight a few of the bigger ones.

Supervised Release
The Guidelines currently recommend that a court include a term of supervised release whenever a defendant is sentenced to more than one year's imprisonment (and, of course, whenever required by statute). Turns out that, according to a recent Commission study, "supervised release is imposed in almost every case, including in more than 99 percent of cases where the guidelines require imposition of a term of supervised release but there is no statutory requirement to do so."  What's more, "[s]upervised release is imposed in more than 91 percent of cases in which the defendant is a non-citizen[,]" and non-citizens account for nearly half of all federal offenders.

The Commission wants to know whether this is a good idea.  (Although it puts it more bureaucratically: "The Commission is considering whether revisions to the supervised release guidelines would help courts and probation offices focus limited supervision resources on offenders who need supervision.")  To that end, it is floating a few ideas: raising or even eliminating the threshold term of imprisonment that would trigger a recommended term of supervised release, reducing the recommended terms of supervised release, and even doing away with the recommendation entirely unless an applicable statute requires a term of supervised release in the case.  Along with these changes, courts would be encouraged to take a defendant's criminal history into account when making the supervised release determination, recognizing (in accord with that study) that the less serious a defendant's criminal history, the more likely it is that he will successfully complete supervision.

Perhaps the most significant proposed change to the supervised release guidelines is to recommend against imposing a term of supervised release on an alien defendant who is likely to be deported and unlikely to be allowed to return to the United States legally.  The proposal recognizes that a term of supervised release is absurd unnecessary in such cases, because the prospect of an illegal reentry charge provides adequate deterrance to an alien's possible unlawful return.

More proposed amendments and requests for comment after the jump . . .
Read more »

Revocation Aggregation

United States v. Shabazz, No. 10-10553 (5th Cir. Jan. 6, 2011; rev. Jan. 12, 2011) (King, Stewart, Owen)

United States v. Hampton, No. 10-10035 (5th Cir. Jan. 6, 2011) (King, Stewart, Owen)

In these cases, the court addresses an issue concerning revocation imprisonment terms that has been lurking since the passage of the PROTECT Act in 2003.  Namely, is there an aggregate limit on the amount of imprisonment that a defendant can receive over the course of multiple supervised release revocations?  As the answer to this question necessarily involves tedious forays into the text, structure, and amendment history of 18 U.SC. § 3583, I'll spare you the "why" and just stick with the bottom line.  And the answer: yes, albeit indirectly, but not if a defendant was convicted of an offense carrying a maximum supervised release term of life.  Details after the jump . . .

Read more »

For Purposes of Supervised-Release Tolling Provision, "Imprisonment" Includes Pretrial Detention

United States v. Molina-Gazca, Nos. 08-50619, 08-50620 (5th Cir. June 11, 2009) (Jones, Elrod, Guirola, D.J.)

Prefatory disclosure: I did some work on this case.

Under 18 U.S.C. § 3583(i), a district court does not have jurisdiction to revoke a term of supervised release after it expires, unless a warrant or summons issued before the expiration of the term. A separate statute, § 3624(e), provides that "[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." Given those provisions, and the following sequence of events, did the district court have jurisdiction to revoke Molina's terms of supervised release?

• November 3, 2003: Molina commences serving two concurrent three-year terms of supervised release.
• July 8, 2005: Molina is arrested in New Mexico and charged with several felonies. He is detained pending trial.
• November 2, 2006: Molina's supervised release terms expire.
• November 15, 2006: Molina is convicted of the state charges.
• May 3, 2007: A revocation warrant issues, evidently in response to the United States' motion to revoke Molina's TSR. The motion relied on Molina's new conviction as the basis for revocation.
• September 24, 2007: Molina is sentenced to 39 years' imprisonment, with credit for the time he served in pretrial custody.
• At some point after that, the district court revoked both of Molina's terms of supervised release, and sentenced him to two concurrent terms of 15 months' imprisonment, to run consecutive to his state sentence.
  

Molina argued that "a conviction within the period of supervised release is necessary to trigger the tolling provision under § 3624(e)." The court disagreed, relying on the "unambiguous" text of the statute:

Congress could have elected to restrict the application of § 3624(e) in the manner Molina-Gazca suggests. For example, Congress could have limited tolling to periods of imprisonment in connection with a conviction that “occurs during supervised release.” However, § 3624(e) makes no distinction between pre-trial or postconviction periods of imprisonment, but instead requires that “any period” of imprisonment be “in connection with a conviction” for tolling to apply. The phrase “imprisoned in connection with a conviction” plainly lacks any temporal limitation.

This construction, Molina noted, could "leave[] a defendant in a state of 'jurisdictional limbo' while the district court waits to see if a conviction will actually occur." Despite acknowledging this possibility, the court nevertheless concluded that "[t]o the extent that Congress’s omission of a causal or temporal term results in uncertainty as to a defendant’s status, our role is not to imply those limits when Congress could have done so in the first instance."

Finally, Molina argued that detention and imprisonment are understood to be two different things, and that by using the term "imprisonment," § 3624(e) does not reach back to include a period of pretrial detention once a defendant is convicted and sentenced. The Ninth Circuit has so held, meaning that periods of pretrial detention are excluded from § 3624(e). The Sixth Circuit has held otherwise, concluding that the Ninth Circuit's interpretation would render the "in connection with" clause superfluous. The court here chose to follow the Sixth Circuit, pointing also to one statute, 18 U.S.C. § 3041, that "would seem to reject an imprisonment-detention distinction by providing that offenders may be 'arrested and imprisoned or released as provided in chapter 207 of this title ['Release and Detention of a Defendant Pending Judicial Proceedings'], as the case may be, for trial before such court of the United States as by law has cognizance of the offense.'"

Ultimately, the court held that "[p]retrial detention falls within 'any period in which the person is imprisoned' and tolls the period of supervised release, provided a conviction ultimately occurs. This plain meaning interpretation of § 3624(e) gives effect to all of its terms."

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?

Maximum Supervised Release Terms In 21 U.S.C. § 841 Trump Lower Maximums in 18 U.S.C. § 3583 When New Sentence Is Imposed on Revocation of Release

United States v. Jackson, No. 07-51229 (5th Cir. Feb. 12, 2009) (Garwood, Garza, Owen)

Title 21 U.S.C. § 841(b)(1) requires minimum terms of supervised release, but establishes no maximum term. Section (b)(1)(C), for example, requires a supervised release term of "at least 3 years" (assuming no prior felony drug convictions). But 18 U.S.C. § 3583(b)(2)---the statute captioned "Inclusion of a term of supervised release after imprisonment"---declares that, "[e]xcept as otherwise provided, the authorized term[] of supervised release [is] . . . not more than three years" for the class of felonies into which § 841(b)(1)(C) falls. In United States v. Kelly, the Fifth Circuit reconciled these two provisions by holding that the required term of supervised release for a violation of § 841(b)(1)(C) was three years---no more, no less. (Meaning five was right out.)

Enter Congress, which in 2002 amended § 841(b)(1)'s supervised release provisions to read, "[n]otwithstanding section 3583 of Title 18, any sentence imposing a term of imprisonment under this paragraph shall . . . impose a term of supervised release of at least" a certain number of years---still three in the case of (b)(1)(C). In light of that amendment, the court here expressly overrules Kelly, holding that the the maximum supervised release terms in § 841---meaning life---control over the lower limits in § 3583(b).

Which brings us to this case. In 2004, Jackson was convicted of possessing marijuana with the intent to distribute it, in violation of § 841(b)(1)(C). He got 30 months' imprisonment and 3 years' supervised release. While on supervised release, Jackson pleaded guilty to assualting his girlfriend. That, among other violations of the terms of his release, got his release revoked. Hence a 15-month imprisonment term, to be followed by 7 more years of supervised release.

Jackson challenged the 7-year release term on appeal. He conceded that Kelly was no longer good law and that there is no maximum term of supervised release available at the original sentencing for a violation of § 841. But he argued that the § 3583(b) maximums nevertheless apply at a revocation sentencing, for three reasons. The court rejected all three.

"First, he contend[ed] that application of a life-term would render § 3583(h) inoperable because § 3583(h) instructs the district court to subtract 'any term of imprisonment that was imposed upon revocation' from the proposed new term of supervised release. According to Jackson, if the proposed new term of release was life (as permissible under § 841), then it would be impossible to subtract any numerical figure from that term." Second, Jackson argued that Congress could have expressly imported the § 841 maximums into § 3583 if it had wanted to, but it did not.

The court rejected both of these arguments as "contrary to the plain meaning of § 3583(h)[,]" which provides that "[a] court may reimpose up to 'the term of release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation.'" In this case, the statute for the underlying offense---§ 841(b)(1)(C)---allows up to a life term of supervised release. Thus, under the plain meaning of § 3583(h), the maximum release term Jackson faced on revocation was life minus the term of revocation imprisonment.

Jackson's third argument was that "imposing a new term of supervised release that is longer than his original term of three years might violate the Double Jeopardy clause because he had a 'legitimate expectation of finality in his original sentence.'" Not so, said the court:

Post-revocation sanctions are not a separate penalty for purposes of the Double Jeopardy clause—they are part of the penalty for the original offense. Johnson v. United States, 529 U.S. 694, 700–01 (2000). Jackson could not have had a “legitimate expectation of finality” in his original term of supervised release, as the statutory framework clearly authorizes a new and potentially longer term of supervised release upon revocation. See § 3583(h).

In addition to his statutory arguments, Jackson also challenged the seven-year release term as unreasonable, for two reasons. First, he argued that the release term had nothing to do with the concerns of § 841. The court responded with this odd non-sequitur:

Jackson cites to no authority requiring a nexus between the type of release violation and the underlying purpose of the original statute. As noted above, post-revocation sanctions are considered part of the penalty for the original offense. Johnson, 529 U.S. at 700–01.

Jackson next argued that the release term was longer than necessary to address the seriousness of his violation conduct. To which the court replied, "Given Jackson’s past assault of the former girlfriend, the district court’s determination that Jackson posed a legitimate threat was reasonable."

Fives Reject Supervised Release Condition Prohibiting Defendant From Living With Anyone Other Than a Spouse or Blood Relative

United States v. Woods, No. 07-51491 (5th Cir. Oct. 28, 2008) (per curiam) (King, Higginbotham, Wiener)

Woods was convicted of crack and retaliation offenses. In addition to a prison sentence, the district court also imposed a five-year term of supervised release. The conditions of supervised release included a prohibition on associating with felons, criminals, and several specific individuals who were involved in Woods's criminal activity. Additionally, a "residency condition" prohibited Woods "from residing 'with anyone that [she is] not ceremonially married to or related to by blood during the term of [her] supervised release[.]'" The district court "justified the residency condition on the ground that Woods needs stability in her home[,]" citing "a number of destabilizing factors in Woods’s life that ostensibly led to her criminal behavior[.]"

Woods challenged the residency condition on appeal. Finding the condition a greater deprivation of liberty than is necessary to meet the statutory goals of supervised release, the court of appeals vacated the condition as an abuse of discretion.

Supervised release necessarily involves some deprivation of liberty, and "courts of appeals have affirmed discretionary conditions restricting a defendant’s intimate associations where the district court appropriately defined the prohibited association and articulated a direct connection between the condition and a sentencing goal." But "the few courts to consider a supervised release condition that broadly restricts the defendant’s right to reside with classes of people (as distinguished from individuals or groups with whom the defendant has a relevant history) have concluded that it violated the defendant’s rights."

Such was the case here. Although "the district court may impose limitations on a convict’s living arrangements to ensure that she avoids recidivism[,]" the residency restriction here was greater than necessary. The restriction forbade her from living with "potentially stabilizing individuals such as a close friend or a permanent roommate who could help her to bear the costs of her living arrangements and to care for her children." There were also less intrusive alternatives available, such as the other restrictions the district court imposed on associating with criminals, and the fact that the probation officer could petition the court for modification of the terms of release in response to particular concerns that may arise in the future. The blanket residency restriction was therefore an abuse of discretion.

Although the court of appeals vacated the residency restriction, the scope of the remand permits the district court "to fashion an alternative supervised release condition, if it chooses, not inconsistent with this opinion."

Court Must Aggregate All Revocation Imprisonment Terms When Calculating Maximum Supervised Release Term Available Under § 3583(h)

United States v. Vera, No. 07-20516 (5th Cir. Sept. 8, 2008) (Garza, Dennis, Minaldi)

When a district court revokes a defendant's supervised release and imposes a term of imprisonment, 18 U.S.C. § 3583(h) permits the court to impose an additional term of supervised release to be served following imprisonment. Subsection (h) also limits the permissible term of supervised release to that "authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." (emphasis added).

Which leads to the question presented in Vera: if a defendant has been revoked multiple times, does the italicized language refer only to the length of the term of imprisonment imposed on the instant revocation, or to the aggregate length of all of the revocation imprisonment terms?

The court holds that § 3583(h) requires aggregation. In so holding, it aligned itself with the Fourth, Eighth, and Eleventh Circuits. Those courts relied on the dictionary definition of "any," which means "all." They also pointed to the legislative history of the 1994 amendments to § 3583, in which the bill's sponsor stated that “under [the amendments], a defendant would always be credited for incarceration time against both the cap on re-imprisonment and the maximum authorized period of supervised release.” According to Vera, no other court has held otherwise.

So what did that mean for Vera, who had originally been convicted of a Class C felony? He got 6 months on his first revocation, and 11 months on his second. Under the court's construction of § 3583(h), that meant that the maximum supervised release term he could have received on the second revocation was 19 months (36 months less 17 months). The district court had given him 25 months' supervised release on the second revocation, so Vera got a remand for resentencing.

The Government had argued that a 2003 PROTECT Act change to § 3583(h) eliminated any aggregation requirement. Prior to the change, subsection (h) only allowed an additional term of supervised release if the defendant received less than the maximum revocation imprisonment term. The 2003 amendment eliminated the "less-than" requirement, so now a defendant who gets a maximum revocation imprisonment term can also receive an additional term of supervised release (provided that the original offense occurred prior to the effective date of the PROTECT Act, for obvious ex post facto reasons). Vera rejected the Government's argument, pointing out that "[t]he amendment . . . addressed when the district court could impose supervised release upon revocation, but did not alter the formula for calculating how much supervised release the district court could impose."

So far, so good. But counsel should also be aware of a scary footnote in the opinion noting, but not resolving, a separate question created by the PROTECT Act. Both the pre- and post-PROTECT Act versions of § 3583(e)(3) set forth the maximum imprisonment term a defendant may receive upon revocation of supervised release. "Interpreting the pre-2003 version of subsection (e)(3), courts have held that in multiple revocation cases, the maximum term of imprisonment that may be imposed upon revocation is determined on a cumulative basis and not separately each time supervised release is revoked[,]" an aggregation requirement similar to that in subsection (h). The PROTECT Act changed (e)(3) "to state that the maximum term of imprisonment upon revocation applies 'on any such revocation.'" According to Vera, "[c]ourts reviewing this amended language have concluded that the maximum term of imprisonment that can be imposed upon revocation now applies on a per revocation basis, without regard to any term of imprisonment imposed in previous revocations." (citing an Eighth Circuit case collecting other cases). The court declined to resolve that question here, because it wasn't at issue. But it did observe that the lack of a similar change to subsection (h) bolstered its reading of the statute.

Jury Unanimity as to Gun Not Required Under 922(g); TSR Condition Requiring Compliance with State Sex Offender Registration Laws OK

United States v. Talbert, No. 06-31233 (5th Cir. Sept. 25, 2006) (Higginbotham, Garza, Benavides)

Although brief, this opinion breaks new ground for the Fifth Circuit on two important issues: 1) whether the felon-in-possession statute, 18 U.S.C. § 922(g), requires jurors to unanimously agree that the defendant possessed a particular gun, and 2) whether a district court may order a defendant to comply with a state sex offender registration scheme as a condition of supervised release.

Gun Unanimity Under § 922(g)
Talbert's indictment alleged that he possessed two guns which were found in his car on the night of his arrest. At trial, the court instructed the jury, over Talbert's objection, that

[i]t is not necessary for the government to prove that the defendant possessed both firearms. It is only necessary that you find that the government has proven beyond a reasonable doubt that the defendant possessed a firearm.

On appeal, Talbert argued that this instruction

improperly allowed conviction even if the jurors were not unanimous as to which gun he actually possessed. This is not just theoretical, he asserts, because defense witnesses at his trial testified that the two guns were left in the vehicle on separate occasions, one days or weeks before the arrest and the other on the day of arrest. Consequently, he asserts, jurors may have disagreed as to which gun he knowingly possessed.

The court rejected Talbert's argument, adopting the reasoning of the First Circuit's decision in United States v. Verrecchia:

1. § 922(g) refers to "any firearm," suggesting that "any firearm" is the element and the particular firearm is the means;
2. the statutory structure and legislative history focus on felon status rather than the number of guns possessed;
3. "Usually, the only issue under § 922(g)(1) is whether the defendant possessed a gun, so there is little risk that jurors will ignore underlying factual detail."; and
4. other courts, including the Fifth Circuit, have held that unanimity on a particular firearm is not required under § 924(c).

Requiring State Sex Offender Registration as a Condition of Supervised Release
"At sentencing, the district court voiced concern about Talbert’s lengthy and serious prior criminal history, particularly his two state convictions for sex-related offenses." After asking Talbert whether he'd ever been required to register as a sex offender under state law, the court stated that it was "reserv[ing] to the probation department the right to order him to do that[.]" The written judgment "included as a 'Special Condition' of supervised release that Talbert 'shall register as a sex offender under state law if required to do so.'"

On appeal, Talbert challenged the condition itself, as well as the district court's delegation to the probation officer. The court rejected both arguments. It construed the written condition as a requirement that Talbert obey the law, which a district court may include as a condition of supervised release. (It left open the question of whether a court can required a defendant to register as a sex offender in the absense of state law requiring such registration.) As for the delegation question,

Presumably whether Talbert is required to register under state law is a mechanical, straightforward question – one the court did not address merely for lack of definitive information about Talbert’s prior sex-related convictions and state law. This, along with the fact that probation officers are often given wide discretion in enforcing conditions of supervised release–indeed, the United States Probation Office is a branch of the federal judiciary and “an investigatory and supervisory arm” of the sentencing court, see United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998)–lead us to find no error in with the discretion given here.

We'll leave for another day the question of whether application of a state sex offender registration scheme is as mechanical and straightforward as the court believes, not to mention the troubling separation-of-powers concerns raised by the grant of investigatory and quasi-prosecutorial duties to an agency within the judicial branch.