Thursday, January 13, 2011

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 . . .

Prior to the PROTECT Act, the revocation imprisonment limits listed in 18 U.SC. § 3583(e)(3) were held to be aggregate limits.  That is, a defendant convicted of a Class B felony, for example, could not receive, in the aggregate, more than 3 years of imprisonment over over the course of multiple revocations.

But as the court holds in Shabazz, the PROTECT Act changed all that by adding the following italicized language to § 3583(e)(3): "a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than" 1 to 5 years in prison, depending on the class of offense.  With the addition of that language, the revocation imprisonment maximums are now per-revocation maximums, not aggregate maximums.  So our Class B felon, for example, can receive up to 3 years' imprisonment each time he's revoked.

The defendant in Hampton conceded that point, but argued that language elsewhere in § 3583(e)(3) creates an aggregate imprisonment maximum.  Specifically, the portion which says that the court may, upon revoking a term of supervised release, "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[.]"  So, the argument goes, our Class B felon could not receive, in the aggregate, more than 5 years' incarceration in total over the course of multiple revocations—5 years being the maximum authorized supervised release term for a Class B felony. The court didn't agree, holding instead that § 3583(e)(3) "does not require th[e] court to credit the defendant for prior terms of revocation imprisonment."

So does that mean that a defendant could conceivably end up in an endless cycle of revocation and reimprisonment?  It depends.  Recall the Fifth Circuit's decision in United States v. Vera, interpreting § 3583(h).  That provision 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).  Vera held that the italicized language requires aggregation of all revocation imprisonment terms.  For an example, let's return to our proverbial Class B felon: if he gets 3 years imprisonment on his first revocation, and 3 years on his second, he cannot receive any additional supervised release.  But if he gets, say, 2 years on his first and 2 years on his second, he can still get another year of supervised release; if he violates again, he can get up to 3 years of imprisonment.  Hampton thus observes,
Section 3583(h) . . . acts as a cap on the aggregate amount of post-revocation supervised release a defendant may receive. This, in turn, imposes an indirect limit on the aggregate amount of revocation imprisonment. Once a defendant has received as much revocation imprisonment as § 3583(b) authorizes for supervised release, the defendant is no longer eligible for post-revocation supervised release. Because the defendant will no longer be eligible for supervised release, she cannot be at risk for “an endless cycle of consecutive terms of imprisonment and supervised release based on a single underlying offense.”
And that last sentence is true.  Except when it's not.  And that's in the case of any offense carrying a maximum supervised release term of life (e.g., the more common Title 21 drug offenses, terrorism offenses, child sex and pornography offenses).  For those offenders, it is theoretically possible to end up serving a life sentence on the installment plan, even if the maximum punishment for the original offense is something less than life.

Sounds problematic, doesn't it?  Especially when the facts giving rise to a revocation are not alleged in an indictment, not admitted by the defendant, and not found by a jury beyond a reasonable doubt.  Not to mention the fact that revocation sanctions are additional punishment for the original offense, not punishment for the violation conduct.  Well, as Hampton notes, the Fifth Circuit shot down that Apprendi argument in United States v. Hinson, 429 F.3d 114 (2003) (as have other circuits).  But given the potential for serving life a little at a time, I wouldn't be surprised to see some defendants ask the Supreme Court for its opinion on the matter.

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