Wednesday, February 18, 2009

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."



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