United States v. Collins ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 7, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 15-3084
(D.C. No. 2:05-CR-20087-JWL-3)
HOWARD COLLINS, (D. Kan.)
Defendant - Appellee.
_________________________________
ORDER
_________________________________
Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
_________________________________
This matter is before the court on the appellee’s Petition for Panel Rehearing.
Upon consideration, the petition is granted on a limited basis and to the extent of the
changes made in the revised opinion attached to this order. The original panel opinion is
hereby withdrawn, and the clerk is directed to issue the attached revised decision nunc
pro tunc to February 14, 2017.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
FILED
United States Court of Appeals
Tenth Circuit
February 14, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 15-3084
HOWARD COLLINS,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:05-CR-20087-JWL-3)
Richard A. Friedman, Attorney, Appellate Section, Criminal Division, United
States Department of Justice, Washington, D.C. (James A. Brown, Office of the
United States Attorney for the District of Kansas, Topeka, Kansas; Scott C. Rask,
Office of the United States Attorney for the District of Kansas, Kansas City,
Kansas, with him on the briefs), for Plaintiff-Appellant.
Daniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender, Kansas
City, Kansas (Melody Bannon, Chief Federal Public Defender, Kansas Public
Defender, Kansas City, Kansas, with him on the brief), for Defendant-Appellee.
Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
HOLMES, Circuit Judge.
Howard Collins was serving a term of supervised release as part of his
sentence for knowingly and intentionally distributing more than five grams of a
mixture or substance containing cocaine base (i.e., crack cocaine), in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). His supervised release was revoked after
he failed several drug tests. He was reincarcerated and received a new term of
supervised release. Upon his release from prison, his supervised release was
revoked a second time after he again failed multiple drug tests and failed to
participate in a required substance-abuse program. Following his second
revocation, the district court sentenced Mr. Collins to twelve months’
imprisonment, having determined that the maximum term of imprisonment that it
could impose under 18 U.S.C. § 3583(e)(3) was one year. Exercising jurisdiction
under 28 U.S.C. § 1291, we reject this application of § 3583(e)(3), vacate Mr.
Collins’s sentence, and remand for resentencing.
I
An undercover agent of the Kansas Bureau of Investigation arranged
through an informant to conduct three transactions involving the sale of crack
cocaine. On November 6, 2003, the agent purchased 7.11 grams of crack cocaine
at a roadside park near Baxter Springs, Kansas. Mr. Collins and the informant
were among the passengers in the vehicle from which the agent made the
purchase. Following the first transaction, the informant supplied the agent with
two telephone numbers to arrange subsequent drug purchases. On November 13,
2
2003, after calling one of the telephone numbers and speaking with Mr. Collins,
the agent purchased 4.66 grams of crack cocaine in the parking lot of a shopping
mall in Pittsburg, Kansas. On December 9, 2003, after calling both telephone
numbers, the agent conducted a third transaction, this time purchasing 5.47 grams
of crack cocaine from Mr. Collins and two other males in the shopping mall in
Pittsburg. In an interview in November 2005, Mr. Collins recalled selling crack
cocaine on at least five other occasions.
On August 17, 2005, Mr. Collins was indicted along with two other men on
charges of conspiracy to distribute and possess with intent to distribute more than
fifty grams of a mixture or substance containing cocaine base, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and three counts of knowingly and
intentionally distributing more than five grams of a mixture or substance
containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii).
Upon entering into a plea agreement, Mr. Collins was convicted on one count of
distribution. The district court imposed a sentence of eighty-four months’
imprisonment to be followed by four years of supervised release. Over the course
of the next two years, for reasons not material here, the district court reduced Mr.
Collins’s prison term to sixty months; his supervised release term remained
unchanged.
After completing his prison sentence, Mr. Collins failed several drug tests
in October 2010 and his supervised release was revoked the following July. As a
3
result of this revocation, Mr. Collins was reincarcerated for a term of eighteen
months and sentenced to a new three-year term of supervised release. Upon his
second release from prison, Mr. Collins was found in possession of a controlled
substance, failed several drug tests, and was terminated from a substance-abuse
treatment program. At a revocation hearing on March 2, 2015, Mr. Collins
admitted to these supervised release violations, and the district court revoked his
second supervised release term.
Following this second revocation, the district court sentenced Mr. Collins
to twelve months’ imprisonment to be followed by a two-year term of supervised
release. In sentencing Mr. Collins, the district court determined that the statutory
maximum term of imprisonment that it could impose under 18 U.S.C.
§ 3583(e)(3) was one year, believing that it was restricted by the maximum
supervised release term that was authorized for the violation forming the basis for
(i.e., resulting in) the first revocation of supervised release, rather than the
maximum term authorized for the original offense of conviction (i.e., three years).
The government timely appealed from the district court’s final judgment.
II
The sole issue the government raises on appeal is whether the district court
erred in sentencing Mr. Collins to twelve months’ imprisonment under an
ostensible one-year statutory maximum based on § 3583(e)(3), which limits
reincarceration following revocation of supervised release to the “term of
4
supervised release authorized by statute for the offense that resulted in such term
of supervised release,” 18 U.S.C. § 3583(e)(3) (emphasis added). Resolution of
this issue turns on a question of statutory interpretation: in determining the
maximum allowable term of reincarceration following a second revocation of
supervised release, does § 3583(e)(3) refer to the original criminal offense for
which the defendant was convicted or the subsequent violation of the conditions
of supervised release that resulted in his first revocation? 1
To the extent that the government challenges the district court’s sentencing
order because the court allegedly failed to apply the correct law—and “to the
extent that determining the ‘correct law’ requires us to engage in statutory
interpretation—our review is de novo.” United States v. Burkholder, 816 F.3d
1We have previously identified this open question and declined to
answer it. See United States v. Lamirand, 669 F.3d 1091, 1099 n.7 (10th Cir.
2012) (“[F]ollowing the reasoning of [defendant’s] argument, the district court
would have been obliged to look to those offenses (i.e., the supervised-release
violations), instead of his underlying drug-trafficking conviction for purposes of
determining . . . the maximum imprisonment terms provided in § 3583(e)(3). . . .
We are disinclined, however, to reach the merits of this argument.”); United
States v. Hernandez, 655 F.3d 1193, 1197 (10th Cir. 2011) (“Mr. Hernandez
presses this appeal on the express understanding that the term offense as used in
§ 3583(e) refers to his underlying criminal conviction, and that very well may be
exactly right. Indeed, we have previously assumed it is, just as we do today.”
(citations omitted)). However, at least one panel of our circuit has affirmed a
district court order under § 3583(e)(3) according to the severity of the original
offense. See United States v. Olinger, 511 F. App’x 816 (10th Cir. 2013); cf.
United States v. Kelley, 359 F.3d 1302, 1303 n.1 (10th Cir. 2004) (assuming that
§ 3583(e) refers to defendant’s underlying criminal conviction); United States v.
Swenson, 289 F.3d 676, 677 (10th Cir. 2002) (same), superseded on other
grounds by Hernandez, 655 F.3d at 1196.
5
607, 611–12 (10th Cir. 2016); accord United States v. Porter, 745 F.3d 1035,
1040 (10th Cir. 2014); United States v. Sturm, 672 F.3d 891, 897 (10th Cir. 2012)
(en banc); see also United States v. Nacchio, 573 F.3d 1062, 1087 (10th Cir.
2009) (“We review questions of statutory interpretation de novo.”).
A
1
At the outset, we provide a brief overview of the structure of 18 U.S.C.
§ 3583(e)(3) to clarify the nature of the parties’ arguments and our interpretive
inquiry. Section 3583(e)(3) allows the district court to revoke a term of
supervised release upon finding by a preponderance of the evidence that the
defendant has violated the conditions of supervised release. The district court
may then “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 . . . without credit for time previously served.” 18 U.S.C. § 3583(e)(3).
However, Congress included a limiting principle in this provision:
[A] defendant whose term [of supervised release] is revoked
under this paragraph may not be required to serve on any such
revocation more than 5 years in prison if the offense that resulted
in the term of supervised release is a class A felony, more than
3 years in prison if such offense is a class B felony, more than 2
years in prison if such offense is a class C or D felony, or more
than one year in any other case[.]
Id. (emphasis added). As these plain terms reveal, the “offense that resulted in”
provision of § 3583(e)(3) operates to limit the maximum term of imprisonment
6
following the revocation of a term of supervised release. The provision is
triggered after a defendant’s term of supervised release has been revoked.
It is undisputed that this limitation on the maximum term of imprisonment
under § 3583(e)(3) relates to the original crime of conviction when a defendant’s
supervised release term is revoked the first time. At Mr. Collins’s second
supervised release revocation sentencing, however, the government maintained
that § 3583(e)(3)’s “offense that resulted in” language refers to the original crime
of conviction for the second and all subsequent revocations as well. The district
court, however, rejected this argument and instead concluded that, following a
second revocation of supervised release, the relevant “offense” under § 3583(e)(3)
is the violative conduct that gave rise to the first revocation. And the court tacitly
reasoned that the maximum authorized term of imprisonment for this conduct was
one year because it fell within § 3583(e)(3)’s catchall language—i.e., “any other
case”—inasmuch as the conduct did not constitute a class A, B, C, or D felony
offense. 2
If the government’s interpretation is correct—viz., if the statutory
maximum is based on Mr. Collins’s original offense, rather than the violative
conduct resulting in his first revocation—then the maximum term of
imprisonment that Mr. Collins could serve under subsection (e)(3) is three years,
2
Indeed, there is no indication in the record that the government ever
sought to criminally prosecute Mr. Collins for the violative conduct underlying
his first revocation of supervised release.
7
rather than the one-year maximum on which the district court based its ruling.
Put another way, the controlling maximum prison term would be three years for
the class B felony for which he was first sentenced. R., Vol. I, at 40 (listing Mr.
Collins’s offense of conviction as “distribution of more than five grams of
cocaine base” (capitalization altered)); see 21 U.S.C. § 841(b)(1)(B)(iii) (2000)
(restricting term of imprisonment for distribution of “5 grams or more of a
mixture or substance . . . which contains cocaine base” to “not . . . less than 5
years and not more than 40 years”); 3 18 U.S.C. § 3559(a)(2) (classifying an
offense with a maximum term of imprisonment of “twenty-five years or more, as
a Class B felony”). For the reasons set forth below, we agree with the
government’s interpretation and hold that, as to not only the first but also second
and subsequent revocations, § 3583(e)(3) imposes a statutory maximum prison
term based on the original criminal offense for which the defendant was
convicted.
2
To avoid confusion, we acknowledge at this early juncture that Mr. Collins
not only defends the district court’s rationale—which the government attacks on
appeal—but also advances a novel and distinct reading of § 3583(e)(3)’s
“offense” language to uphold his sentence. Like the district court’s, this reading
3
The most recent enactment of 21 U.S.C. § 841(b)(1)(B)(iii) penalizes
the distribution of “28 grams or more of a mixture . . . which contains cocaine
base.” 21 U.S.C. § 841(b)(1)(B)(iii) (2012).
8
rejects the government’s focus on the offense of conviction. If we were to adopt
it, it would effectively constitute an alternative ground for affirmance. But we do
not.
Specifically, in his appellate brief, with regard to second or subsequent
revocations, Mr. Collins argues that the term “offense” in subsection (e)(3) of
§ 3583 refers to the revocation itself, rather than the underlying violative conduct
that gave rise to the judicial act of revoking supervised release. 4 He contends that
4
Mr. Collins suggests that he advanced this same argument—viz., that
the prior revocation itself is the relevant “offense” under subsection (e)(3)—in the
district court. We are inclined to disagree, though for reasons noted infra,
whether he did or not is immaterial to the outcome of this case. The precise
contours of Mr. Collins’s arguments before the district court are admittedly
murky. However, having studied these arguments, we conclude that, insofar as
Mr. Collins raised his revocation-as-offense argument, he did so in such a skeletal
and enigmatic manner that the district court understandably did not address it. In
this regard, in both his revocation memorandum and at the final revocation
hearing, Mr. Collins repeatedly and quite explicitly indicated that his position was
that the violative conduct underlying his first revocation was the “offense that
resulted in” his second term of supervised release and this conduct (i.e.,
“offense”) should therefore constitute the basis for computing his maximum term
of imprisonment. See R., Vol. I, at 87 (Revocation Mem., filed Feb. 25, 2015)
(“In the case of a second revocation . . . the ‘offense’ is not the ‘original offense,’
but instead is the offense underlying the first revocation.” (emphasis added)); id.
at 88 (“[T]he . . . term ‘offense,’ . . . necessarily encompasses an underlying
conviction as well as a subsequent violation of supervised release.” (emphases
added)); see also R., Vol. II, at 47 (Tr. Final Revocation Hr’g, dated Mar. 2,
2015) (defense counsel stating, “[I]t’s the conduct that results in a violation; the
conduct that results in a conviction that’s your offense conduct.” (emphasis
added)); id. at 48–49 (defense counsel arguing that § 3583(e)’s cross-reference to
18 U.S.C. § 3553(a)(1) “has to mean [that a revoking court should consider] the
nature and circumstances of the offense underlying the violation”). To be sure,
with a clear understanding now on appeal that Mr. Collins is actually seeking
consideration of a theory distinct from the district court’s rationale—that is, a
(continued...)
9
his first revocation “resulted in” his second term of supervised release. And
because the statutory maximum term of imprisonment to which he could be
sentenced for his first revocation was three years (based on his original class B
felony offense and the limits imposed by subsection (e)(3)), the revocation itself
“qualified as a Class E felony offense,” Aplee.’s Br. at 12; see 18 U.S.C. §
3559(a)(5) (classifying as a class E felony “[a]n offense [for which] . . . the
maximum term of imprisonment is . . . less than five years but more than one
4
(...continued)
revocation-as-offense theory—we are able to discern stray passages in the district
court proceedings that point to an argument based on this theory. See, e.g., id.,Vol. I, at 89 (“It is the first revocation that must be used for purposes of
calculating the statutory maximum term of imprisonment under
§ 3583(e)(3) . . . .” (emphasis added)); id., Vol. II, at 54 (defense counsel stating,
“The offense is not just the underlying offense. It’s not just the underlying
conviction. It is the revocation.”).
However, Mr. Collins never fully developed this revocation-as-offense
argument before the district court. More specifically, Mr. Collins’s at best
cursory references to such an argument certainly were not sufficient to alert the
district court to its presence in the sentencing proceeding—especially given the
novelty of the argument. Rather, the court reasonably understood Mr. Collins’s
argument, in light of the language that he used, to be that “in this context
[offense] means in essence the violation of the earlier term of supervised release
which led to the imposition of the term of supervised release which is now being
revoked.” Id. at 62. And, responding to that argument, the district court
“conclu[ded] . . . that [C]ongress considered the offense here to mean the
violation which led to the revocation in question.” Id. at 64–65. It is this
interpretation of § 3583(e)(3)—and not Mr. Collins’s distinct statutory
reading—that forms the basis for the court’s sentencing order and constitutes the
predicate for the government’s challenge on appeal, and therefore we focus the
bulk of our analysis on it. Ultimately, the distinction between the two arguments
is irrelevant, however, because our interpretation of § 3583(e)(3) effectively and
necessarily rejects both the district court’s and Mr. Collins’s interpretation of the
statute.
10
year”). And the maximum term of imprisonment that subsection (e)(3) allows for
a class E felony is one year. See § 3583(e)(3) (listing the maximum imprisonment
terms for felony classes A–D, and noting that the maximum term “in any other
case” is “one year”).
To frame and elucidate our subsequent detailed discussion of the issues
presented in this appeal, we reject at the outset as fundamentally misguided Mr.
Collins’s novel revocation-as-offense argument. It necessarily fails under the
same reasoning that we employ infra in rejecting the district court’s construction
of § 3583(e)(3): in short, it is clear to us that Congress did not intend the term
“offense” in § 3583(e)(3) to mean anything other than the offense for which a
defendant was originally convicted. Furthermore, we are able to reject it with
even greater force because Mr. Collins posits a meaning of “offense” that is even
more detached from the patent focus of that statutory term—a defendant’s
culpable conduct—than the district court’s (erroneous) interpretation. As we
discuss in further detail infra, the term “offense” ordinarily contemplates an
individual’s criminal activity. 5 See, e.g., Kellogg Brown & Root Servs., Inc. v.
5
Consistent with the legal principles explicated herein, we take into
account every element of § 3583(e)(3)’s phrase “offense that resulted in,” and
evaluate those elements in their broader statutory context. However, it is beyond
peradventure that the term “offense” is a central key to resolving the question
before us, because its meaning will necessarily shed light on the class of felony
(if any) at issue. And, once that class is identified, the plain terms of
§ 3583(e)(3) answer the question—viz., specify the maximum term of
imprisonment. Consequently, it is both wise and proper to devote considerable
(continued...)
11
United States, ex rel. Carter, --- U.S. ----, 135 S. Ct. 1970, 1976 (2015)
(explaining that the “term ‘offense’ is most commonly used to refer to crimes”);
Offense, B LACK ’ S L AW D ICTIONARY (10th ed. 2014) (defining the term “offense”
as “[a] violation of the law; a crime, often a minor one”). Though flawed, the
district court’s statutory construction—which considers (in second or subsequent
revocations) an “offense” to be the defendant’s violative conduct that gave rise to
the prior revocation—at least has the virtue of focusing on a defendant’s culpable
conduct.
By contrast, in arguing that the “offense” is the revocation itself, Mr.
Collins dramatically shifts the lens to the conduct of the court, which is
empowered to effect the revocation. See 18 U.S.C. § 3583(e)(3) (“The court
may . . . revoke a term of supervised release . . . .” (emphasis added)); id.§ 3583(i) (discussing “[t]he power of the court to revoke a term of supervised
release for violation of a condition of supervised release” (emphasis added));
Parole Revocation, B LACK ’ S L AW D ICTIONARY , supra (defining parole revocation
as “[t]he administrative or judicial act of returning a [defendant] to prison”).
More specifically, under Mr. Collins’s view, the term “offense” is completely
detached from the underlying individual conduct that resulted in supervised
release: viz., the maximum sentence of imprisonment on a second or successive
5
(...continued)
attention to discerning the meaning of the component term “offense.”
12
revocation of supervised release is based not on the defendant’s criminal conduct
underlying the conviction, nor even on the defendant’s violative conduct
underlying the prior revocation, but rather on the court’s conduct in revoking
supervised release. Mr. Collins has not identified any judicial decision that has
adopted this novel interpretation of § 3583(e)(3), and we are not aware of any. At
bottom, we find it meritless.
In sum, Mr. Collins’s revocation-as-offense argument necessarily fails
under the same reasoning that we employ infra in rejecting the district court’s
construction of the term “offense” in § 3583(e)(3). And it does so with even
greater force because it is detached from the patent focus of that statutory
term—the culpable conduct of the defendant. We now explicate our
understanding of § 3583(e)(3) relative to the dispute before us.
3
Our “primary task in interpreting statutes [is] to determine congressional
intent.” Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1245 (10th
Cir. 2009) (quoting Russell v. United States, 551 F.3d 1174, 1178 (10th Cir.
2008)). In doing so, we begin “where all such inquires must begin: with the
language of the statute itself.” First Nat’l Bank of Durango v. Woods (In re
Woods), 743 F.3d 689, 694 (10th Cir. 2014) (quoting Ransom v. FIA Card Servs.,
N.A., 562 U.S. 61, 69 (2011)); see also United States v. West, 671 F.3d 1195,
1199 (10th Cir. 2012) (stating that “we first and foremost look to the statute’s
13
language to ascertain Congressional intent”). “It is well established that ‘when
the statute’s language is plain, the sole function of the courts—at least where the
disposition required by the text is not absurd—is to enforce it according to its
terms.’” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (quoting Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)); cf.
Antonin Scalia & Bryan A. Garner, R EADING L AW : T HE I NTERPRETATION OF
L EGAL T EXTS 56 (2012) (“[T]he purpose [of a statute] must be derived from the
text, not from extrinsic sources such as legislative history or an assumption about
the legal drafter’s desires.”). In other words, “[w]e will look beyond the plain
language of a statute only if the result is an absurd application of the law.”
United States v. Brown, 529 F.3d 1260, 1265 (10th Cir. 2008); see also United
States v. Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010) (“If the terms of the
statute are clear and unambiguous, the inquiry ends and we simply give effect to
the plain language of the statute.” (quoting Toomer v. City Cab, 443 F.3d 1191,
1194 (10th Cir. 2006))).
We do, however, construe statutory language within its broader context.
See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a
fundamental canon of statutory construction that the words of a statute must be
read in their context and with a view to their place in the overall statutory
scheme.”); accord Kunz v. United Sec. Bank (In re Kunz), 489 F.3d 1072, 1077
(10th Cir. 2007). Indeed, “the meaning of statutory language, plain or not,
14
depends on context.” In re Woods, 743 F.3d at 694 (quoting United States v.
Villa, 589 F.3d 1334, 1343 (10th Cir. 2009)). “[N]o statute is an island unto
itself. We can look around to provide substance and context to a potentially
unclear term.” United States v. Brune, 767 F.3d 1009, 1022 (10th Cir. 2014). In
total, “[t]he plainness or ambiguity of statutory language is determined by
reference to the language itself, the specific context in which that language is
used, and the broader context of the statute as a whole.” Salazar v. Butterball,
LLC, 644 F.3d 1130, 1137 (10th Cir. 2011) (quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997)).
To begin our inquiry, Congress’s specific choice of words in
§ 3583(e)(3)—that is, “the offense that resulted in the term of supervised
release”—is noteworthy. The term “offense” traditionally refers to crimes. See
Kellogg, 135 S. Ct. at 1976 (explaining that the “term ‘offense’ is most commonly
used to refer to crimes”); see, e.g., Offense, B LACK ’ S L AW D ICTIONARY , supra
(defining the term “offense” as “[a] violation of the law; a crime, often a minor
one”); Offense, W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1566 (2002)
(defining “offense” as “an infraction of law: CRIME, MISDEMEANOR”); see
also 22 C.J.S. Criminal Law § 3, at 4 (1989) (“The terms ‘crime,’ ‘offense,’ and
‘criminal offense’ are all said to be synonymous, and ordinarily used
interchangeably. ‘Offense’ may comprehend every crime and misdemeanor, or
may be used in a specific sense as synonymous with ‘felony,’ or with
15
‘misdemeanor,’ as the case may be, or as signifying a crime of lesser grade, or an
act not indictable, but punishable summarily or by the forfeiture of a penalty.”).
The Supreme Court, although noting that “the term ‘offense’ is sometimes
used more broadly” and is “not necessarily synonymous” with the word “crime,”
affirmatively stated that it has this specific meaning within the context of Title
18—the title at issue here. Kellogg, 135 S. Ct. at 1976 (noting that, while the
term offense is sometimes used to refer to noncriminal conduct, “that is not how
the word is used in Title 18” (emphasis added)); cf. id. (“Although the term
appears hundreds of times in Title 18, neither respondent nor the Solicitor
General, appearing as an amicus in support of respondent, has been able to find a
single provision of that title in which ‘offense’ is employed to denote a civil
violation.”). Moreover, the Court noted that when Title 18 was enacted, “the very
first provision, what was then 18 U.S.C. § 1, classified all offenses as crimes.”
Id. at 1977. In contrast, violative conduct resulting in the revocation of
supervised release—although “often lead[ing] to reimprisonment”—“need not be
criminal.” Johnson v. United States, 529 U.S. 694, 700 (2000).
We are hard-pressed to conclude that Congress intended for the term
“offense” in subsection (e)(3)’s phrase “offense that resulted in” to include such
violative conduct, which may not even involve a crime. Instead, for reasons
detailed further infra, we are confident that Congress meant for the term
“offense” in that statutory phrase to refer, in all instances, to the crime that
16
caused a defendant to be placed on supervised release in the first place—that is,
the defendant’s original crime of conviction. And, consequently, courts should
employ that offense in determining the maximum authorized term of
imprisonment upon revocation—not only for the first revocation, but also for the
second or subsequent one.
We are not alone in reaching this conclusion. More specifically, our
decision is informed by two of our sibling circuits—the First and Seventh
Circuits—which have explicitly held that, upon the revocation of a subsequent
term of supervised release, the statutory maximum prison sentence under
§ 3583(e)(3) is based on the original crime of conviction. See United States v.
Ford, 798 F.3d 655, 663 (7th Cir. 2015) (“The phrase ‘the offense that resulted in
the term of supervised release’ refers to the offense for which the defendant was
initially placed on supervised release.”); United States v. Tapia-Escalera, 356
F.3d 181, 185 (1st Cir. 2004) (“[W]here a second violation of conditions occurs,
[the offense that resulted in] language necessarily refers back to the original
offense of conviction . . . .”). We join our sibling circuits in concluding that the
term “offense” in § 3583(e)(3) refers to the original offense of conviction.
Moreover, two other circuits, in rejecting slightly different arguments
raised by defendants challenging prison terms based on successive revocations,
have affirmatively stated that the “offense” referred to in § 3583(e)(3) is the
offense of conviction. See United States v. Cunningham, 800 F.3d 1290, 1292
17
(11th Cir. 2015) (“The ‘term of supervised release’ identified by § 3583(e)(3) is
that ‘authorized by statute for the offense.’ This plainly refers to the underlying
criminal offense resulting in conviction.”); United States v. Williams, 675 F.3d
275, 279 (3d Cir. 2012) (“Subsection (e)(3) refers to the ‘term of supervised
release authorized by statute for the offense that resulted in such term of
supervised release.’ This language unambiguously sets the maximum prison
sentence by reference to the length of supervised release statutorily authorized for
the conviction offense . . . .”). 6
We further note that other circuits, while not explicitly addressing the issue
before us, have assumed that the statutory maximums in § 3583(e)(3) are set by a
defendant’s underlying criminal conviction when considering the propriety of a
6
The defendants in Cunningham and Williams argued that § 3583(h)
provides the relevant “term of supervised release authorized by statute for the
offense,” 18 U.S.C. § 3583(e)(3). See Cunningham, 800 F.3d at 1291; Williams,
675 F.3d at 279. In other words, they argued that subsection (h) establishes a cap
on the length of postrevocation imprisonment under subsection (e)(3). Both
courts found this argument at odds with the plain meaning and structure of
§ 3583, concluding that the length of postrevocation imprisonment is determined
by reference to the term of supervised release authorized by statute for the offense
of conviction, and therefore is not limited by the supervised release term
stemming from any prior violation resulting in revocation (i.e., the term
authorized by subsection (h)). See Cunningham, 800 F.3d at 1292; Williams, 675
F.3d at 279. “Indeed, subsections (b) and (h) establish a ‘term of supervised
release’ for different purposes: subsection (b) defines the term of supervised
release for the original offense, and subsection (h) defines the term of a
supervised release tail [i.e., the term of supervised release following a term of
postrevocation imprisonment]. Subsection (e)(3) clearly fixes the term of
post-revocation imprisonment according to the former . . . .” Williams, 675 F.3d
at 279.
18
sentence of imprisonment following a second (or third) revocation of supervised
release. See United States v. Spencer, 720 F.3d 363, 370 (D.C. Cir. 2013)
(affirming the defendant’s two-year prison sentence following second revocation
of supervised release for class C felony where defendant had served fourteen-
month term for prior revocation); United States v. Hampton, 633 F.3d 334, 339
(5th Cir. 2011) (affirming two-years’ imprisonment following second revocation
and noting that, in the case of a class D felony offense of conviction,
Ҥ 3583(e)(3) imposes a two-year per-revocation cap on revocation
imprisonment” (emphasis added)); United States v. Epstein, 620 F.3d 76, 78 (2d
Cir. 2010) (affirming a two-year prison sentence following a second revocation
and noting that “18 U.S.C. § 3583 permits a court to impose a maximum sentence
of two years for violations of conditions of supervised release for which the
underlying offense was a class C or D felony” (emphasis added)); United States v.
Knight, 580 F.3d 933, 936–37 (9th Cir. 2009) (finding that “[u]nder § 3583(e)(3)
the maximum term of imprisonment that [the defendant] could receive upon [his
third] revocation of . . . supervised release was two years” based on his original
class C felony offense of conviction); United States v. Lewis, 519 F.3d 822, 825
(8th Cir. 2008) (“Section 3583(e)(3) was in effect in October 2003 when [the
defendant] committed the class C felony which produced his first period of
supervised release, and its plain language permitted imposition of a prison
sentence of up to 2 years for his second revocation . . . .”); United States v.
19
Hager, 288 F.3d 136, 137 (4th Cir. 2002) (affirming two-year prison term
following second revocation, “the maximum available under § 3583(e)(3) for an
underlying Class D felony” (emphasis added)), superseded on other grounds by
statute, PROTECT Act, Pub. L. No. 108-21, § 101(1), 117 Stat. 650, 651 (2003),
as recognized in United States v. Ware, 639 F. App’x 919, 920 (4th Cir. 2016). 7
Broadening our analytical lens, we turn to related Supreme Court caselaw
for guidance; it only reinforces our interpretation of the plain meaning of
§ 3583(e)(3). Specifically, in Johnson v. United States, the Court held that the
penalty for violating terms of supervised release “relate[s] to the original
offense,” 529 U.S. at 701; see id. at 699–700 (rejecting the notion that
“revocation of supervised release ‘imposes punishment for defendants’ new
offenses for violating the conditions of their supervised release.’” (quoting United
States v. Page, 131 F.3d 1173, 1176 (6th Cir. 1997))). In other words, the penalty
for revocation is an enhancement of the punishment for the original offense, not a
punishment for violating supervised release. The principle set forth in Johnson
7
A panel of the Sixth Circuit reached a similar conclusion in affirming
a sentence following a second revocation of supervised release. The court
rejected the defendant’s argument that “his previous post-revocation sentence—
seven months’ imprisonment and twelve months’ supervised release—set the
outer boundaries for his second revocation proceedings.” United States v.
Burrell, 455 F. App’x 667, 668 (6th Cir. 2012). The panel stated that, “[b]ecause
[the defendant’s] underlying conviction . . . authorized a supervised release period
of not less than two years and qualified as a Class D felony, the district court had
the post-revocation discretion to sentence [him] to up to two years of
imprisonment, 18 U.S.C. § 3583(e)(3).” Id. at 669 (emphasis added) (citations
omitted).
20
allows us to draw the inference that any reference to an “offense that resulted in
the term of supervised release,” 18 U.S.C. § 3583(e)(3), is meant to refer to the
offense for which the defendant was first sentenced to supervised release.
We find further support in drawing this inference from the “serious
constitutional questions” created by “construing revocation and reimprisonment
as punishment for the violation of the conditions of supervised release.” Johnson,
529 U.S. at 700. For instance, treating revocation as punishment for violating the
conditions of supervised release may present serious concerns related to the Fifth
Amendment prohibition against double jeopardy. In this regard, “[w]here the
acts of violation are criminal in their own right, they may be the basis for separate
prosecution, which would raise an issue of double jeopardy if the revocation of
supervised release were also punishment for the same offense.” Id.Moreover, though the violative conduct resulting in a revocation may be
criminal, it need only be established by a judge by a preponderance of evidence,
instead of by a jury beyond a reasonable doubt. Compare 18 U.S.C. § 3583(e)(3)
(providing that a court may revoke supervised release and require the defendant to
serve a term of imprisonment if it “finds by a preponderance of the evidence that
the defendant violated a condition of supervised release”), with In re Winship,
397 U.S. 358, 364 (1970) (holding that “the Due Process Clause protects the
accused against [criminal] conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged”).
21
Revocation hearings, therefore, lack the same Sixth Amendment protections
accorded a defendant who is the subject of a criminal prosecution, even though
the underlying violative conduct may be criminal in nature. See, e.g., United
States v. Granderson, 511 U.S. 39, 48 (1994) (“[T]he Government prosecuted him
for cocaine possession and afforded him the full constitutional protections of a
criminal trial, rather than the limited protections of a revocation hearing.”); see
also United States v. Meeks, 25 F.3d 1117, 1121 (2d Cir. 1994) (“[M]ost of the
fundamental constitutional procedural protections that are normally applicable to
a criminal prosecution are not required for supervised-release proceedings as a
matter of constitutional law.”), abrogated on other grounds by Johnson, 529 U.S.
at 711.
However, “[t]reating postrevocation sanctions as part of the penalty for the
initial offense . . . avoids these [constitutional] difficulties.” Johnson, 529 U.S. at
700 (emphasis added); see, e.g., United States v. Wyatt, 102 F.3d 241, 242 n.1,
244–45 (7th Cir. 1996) (rejecting the defendant’s “double jeopardy argument” and
noting that it “rests on the mistaken premise that the revocation of his term of
supervised release—which was imposed as part of the sentence for his marijuana
conviction—constituted a punishment for his possession of firearms”; though his
supervised release “was revoked as a result of his possession of firearms,” “the
proper understanding of a revocation of supervised release is simply that by
engaging in prohibited conduct (criminal or not) during the term of supervised
22
release, a defendant triggers a condition that permits modification of the terms of
his original sentence” (emphasis added)); Meeks, 25 F.3d at 1122 (noting, where
revocation is interpreted as relating to the initial offense of conviction, that “the
defendant may be both punished for the supervised-release violation and
prosecuted criminally for the same conduct without implicating principles of
double jeopardy”).
But these constitutional difficulties are not overcome, much less avoided, if
we construe the “offense that resulted in” language of § 3583(e)(3) as referring to
the violative conduct resulting in revocation. On the contrary, doing so places us
squarely at odds with the Fifth and Sixth Amendments. In sum, our interpretation
of § 3583(e)(3)—that the “offense that resulted in” language is meant to refer to
the crime for which the defendant was first sentenced to supervised
release—avoids serious constitutional difficulties.
Interpreting § 3583(e)(3) within the entire statutory scheme of Title 18
further evinces an intention to limit the meaning of “offense” to crimes of
conviction. More specifically, it follows from § 3583(a) of Title 18 that the term
“offense” in § 3583(e)(3) must refer to the original offense of conviction. See 18
U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment
for a felony or a misdemeanor, may include as a part of the sentence a
requirement that the defendant be placed on a term of supervised release after
imprisonment . . . .”). Section 3583(a) authorizes supervised release “for a felony
23
or a misdemeanor,” that is, crimes. Id. (emphasis added); see, e.g., Felony,
B LACK ’ S L AW D ICTIONARY , supra (defining “felony” as “[a] serious crime
usu[ally] punishable by imprisonment for more than one year or by death”
(emphasis added)); Misdemeanor, B LACK ’ S L AW D ICTIONARY , supra (defining
“misdemeanor” as “[a] crime that is less serious than a felony and is usu[ally]
punishable by fine, penalty, forfeiture, or confinement (usu[ally] for a brief term)
in a place other than prison (such as a county jail)” (emphasis added)). Because
many supervised release violations are noncriminal, see, e.g., Meeks, 25 F.3d at
1122 (noting the frequency of revocation hearings for conduct that is “not a
criminal offense”), and because a term of supervised release is only authorized for
crimes (i.e., misdemeanors or felonies) under § 3583(a), it follows that a
noncriminal violation of supervised release could not be an “offense” under
§ 3583(e)(3). In other words, noncriminal violations cannot themselves “result[ ]
in the term of supervised release,” § 3583(e)(3).
Furthermore, as Kellogg indicated, other provisions of Title 18 use the
word “offense” to refer to expressly criminal activity. See, e.g., 18 U.S.C. § 16(defining “crime of violence” to mean an “offense” with certain characteristics);
id. § 921(a)(33)(A) (defining “misdemeanor crime of domestic violence” to mean
an “offense”). The titles of various provisions of the criminal code confirm this
interpretation. See, e.g., id. § 19 (section titled “Petty offense defined”); id. § 24
(section titled “Definitions relating to Federal health care offense”); id.
24
§§ 1341–51 (chapter titled “Mail Fraud and Other Fraud Offenses”); id.
§§ 3271–72 (chapter titled “Extraterritorial Jurisdiction over Certain Trafficking
in Persons Offenses”). These provisions, along with § 3583(a)’s limitation of
supervised release terms to punishment for felonies or misdemeanors, indicate
that Congress intended to restrict the meaning of the term “offense” throughout
Title 18, and more specifically in § 3583(e)(3), to crimes.
In sum, based on the foregoing, we conclude—as to all supervised release
revocations, including the second one, as here—that § 3583(e)(3) imposes a
statutory maximum prison term based on the original criminal offense of
conviction, not on the violative conduct resulting in the prior supervised release
revocation. Therefore, the maximum authorized term here is three years, given
that Mr. Collins was originally convicted of a class B felony.
B
In arguing against this outcome, Mr. Collins employs his novel view that
the “offense that resulted in” language of § 3583(e)(3) imposes a statutory
maximum based on his first revocation itself, which was purportedly the
“offense.” He argues that this view conforms to the statutory history of
subsections (e)(3) and (h) of § 3583, as well as subsection (e)’s cross-reference to
18 U.S.C. § 3553(a)(1). The district court relied on similar arguments in finding
that § 3583(e)(3) imposes a statutory maximum based on the violative conduct
25
that gave rise to the prior revocation, not on the original crime of conviction. We
are not persuaded.
Mr. Collins contends that “the offense that resulted in the term of
supervised release” must be referring to his first revocation, rather than his
original offense of conviction, because but for his first revocation, he would not
have been serving the term of supervised release that was revoked a second time.
More specifically, he argues that under § 3583(e)(3), the phrase “resulted in” is
referring to actual causation, which must be both “the necessary and sufficient
cause of Mr. Collins’s second term of supervised release.” Aplee.’s Br. at 14–15.
In support of his causation argument, Mr. Collins points to a decision from
the Supreme Court—Burrage v. United States, --- U.S. ----, 134 S. Ct. 881(2014)—addressing the causation requirement imposed by 21 U.S.C.
§ 841(b)(1)(C). 8 In Burrage, the Court began with the observation that causation
generally “consist[s] of two constituent parts: actual [i.e., but-for] cause and legal
[i.e., proximate] cause.” Id. at 887. Although holding that § 841(b)(1)(C)’s
“results from” language “imposes . . . a requirement of actual causality,” the
8
The statutory provision at issue in Burrage specifically provides that
In the case of a controlled substance in schedule I or II, . . . such
person shall be sentenced to a term of imprisonment of not more
than 20 years and if death or serious bodily injury results from
the use of such substance shall be sentenced to a term of
imprisonment of not less than twenty years or more than life . . . .
21 U.S.C. § 841(b)(1)(C) (emphasis added).
26
Court declined to decide whether a proximate-cause requirement also flows from
the statutory phrase. Id. at 887. We subsequently held that identical “results
from” language in 21 U.S.C. § 841(b)(1)(E) did not embody a proximate-cause
requirement. See Burkholder, 816 F.3d at 621 (“[Section] 841(b)(1)(E)’s
provision that ‘death . . . results from the use’ of a Schedule III controlled
substance requires only proof of but-for causation.”). 9
Mr. Collins contends that the district court’s first revocation is the offense
that “resulted in” his second term of supervised release because, but for that
revocation, the term of supervised release that Mr. Collins ultimately violated
would not have existed. If we accept Mr. Collins’s argument that § 3583(e)(3)’s
use of the phrase “resulted in” refers to his first revocation as the independently
sufficient, actual cause of his second term of supervised release, we would be
forced to overlook Johnson. As discussed supra, Johnson held that
“postrevocation penalties relate to the original offense,” 529 U.S. at 701
9
Distinct from “actual cause” or “but-for cause,” “proximate cause” or
“legal cause” means that the cause must be “legally sufficient to result in liability;
an act or omission that is considered in law to result in a consequence, so that
liability can be imposed on the actor.” Proximate Cause, B LACK ’ S L AW
D ICTIONARY , supra. As we recited in Burkholder, “proximate cause principles
inject a foreseeability element into [a] statute.” 816 F.3d at 613 (alteration in
original) (quoting Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or.,
515 U.S. 687, 713 (1995) (O’Connor, J., concurring)); see also In re Antrobus,
519 F.3d 1123, 1126–27 (10th Cir. 2008) (Tymkovich, J., concurring) (where “the
harm must ‘proximately’ result from the crime,” examining the record to discern
whether the defendant’s “crime was a reasonably foreseeable result of the illegal
[conduct]”). Mr. Collins has made an argument only with respect to but-for
causation, not proximate causation.
27
(emphasis added), and are not punishments for the violation of conditions of
supervised release (or, as relevant here, for the district court’s revocation of a
prior term of supervised release). Thus, Johnson strongly suggests that the but-
for cause here—i.e., the offense that “resulted in” the term of supervised
release—must be the offense of conviction. Id.Moreover, it does not logically follow that a but-for analysis necessarily
will lead to only the first revocation. The district court’s revocation was not
independently sufficient to warrant Mr. Collins’s second term of supervised
release. See Burkholder, 816 F.3d at 620 n.10 (“An event or condition is
sufficient if its existence means that another event or condition will occur. An
event or condition is necessary if, in its absence, another event or condition could
not occur.”); see, e.g., United States v. White, 765 F.3d 1240, 1246 n.4 (10th Cir.
2014) (“The ‘based on’ clause is but one of two necessary but not sufficient
conditions that must be satisfied before a district court is authorized to reduce a
defendant’s sentence under § 3582(c)(2) . . . .”). In other words, but for Mr.
Collins’s original offense for which he was convicted, he could not have been
sentenced to a term of imprisonment or supervised release on his first or any
subsequent revocation. Burrage’s reasoning does not artificially limit
§ 3583(e)(3) to the most recent event in the chain of actual causality. And, as
noted, imposing such a limitation here would contradict Johnson. Therefore, Mr.
Collins’s reliance on Burrage is misplaced.
28
Nor is Mr. Collins’s position helped by § 3583(e)’s cross-reference to the
sentencing factors set forth in § 3553(a)(1). As a preliminary matter, under
§ 3583(e), the court must “consider[ ] the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)” before imposing a
prison sentence following the revocation of supervised release. 18 U.S.C.
§ 3583(e). As relevant here, subsection (a)(1) of § 3553 requires the court to
consider “the nature and circumstances of the offense,” in the singular;
subsection (a)(4)(B) requires the court to consider “the applicable guidelines or
policy statements issued by the Sentencing Commission” “in the case of a
violation of probation or supervised release.”
In an apparent defense of the district court’s rationale, 10 Mr. Collins
contends that § 3583(e)’s cross-reference to § 3553(a)(1) evinces Congress’s
intent that the term “offense” in subsection (e)(3)—which is also used in
subsection (a)(1)— refers to violations of supervised release with regard to
second or subsequent revocations. Mr. Collins’s reliance on this cross-reference,
however, is misguided for two salient reasons. First, as noted, Kellogg instructs
that the term “offense,” at least as it is used in Title 18, refers to criminal
10
Notably, Mr. Collins casts aside his revocation-as-offense argument
here, and instead contends, in the context of the cross-reference, that “offense”
means “the violation conduct.” Aplee’s Br. at 23; see id. (“[T]he district court
revoked Mr. Collins’s supervised release and imposed punishment based on the
nature and circumstances of his violation conduct . . . .”). However, the term
“offense” simply cannot sustain the multiple meanings that Mr. Collins assigns it.
29
conduct. See Kellogg, 135 S. Ct. at 1976. Therefore, Congress’s use of the term
“offense” in subsection (e)(3) of § 3583 and subsection (a)(1) of § 3553 must
refer to a crime for which the defendant was convicted, not violative conduct
resulting in revocation. Second, consistent with principles of statutory
interpretation, § 3583(e)’s cross-reference to § 3553(a)(1) should not be
interpreted as referring to the transgression leading to revocation when the
statute’s cross-reference to § 3553(a)(4)(B) already does so. 11 See TRW Inc. v.
11
Subsection (a)(4) directs courts to consider the policy statements and
sentencing ranges laid out in the United States Sentencing Guidelines Manual
(“Guidelines” or “U.S.S.G.”) in determining the appropriate sentence following a
violation of supervised release conditions. See 18 U.S.C. § 3553(a)(4)(B) (“The
court, in determining the particular sentence to be imposed, shall consider . . . [,]
in the case of a violation of probation or supervised release, the applicable
guidelines or policy statements issued by the Sentencing Commission . . . .”).
Those policy statements in turn explicitly direct courts to consider the nature of
the defendant’s postsentencing, postincarceration, supervised release misconduct
in determining the appropriate sanction upon revocation of supervised release.
See U.S.S.G. Ch. 7, Pt. A. More specifically, these Guidelines policy statements
“provide[] for three broad grades of violations,” and these grades classify only
supervised release misconduct. U.S.S.G. Ch. 7, Pt. A, introductory cmt. (3)(b);
see id. § 7B1.1(a) (prescribing “three grades of . . . supervised release
violations”). And the only variable other than such misconduct (with its
associated grade) that affects the advisory sentencing ranges prescribed by the
policy statements is the defendant’s criminal history at the time of the original
criminal sentencing—viz., notably, the ranges are not affected by the offense of
conviction itself. See id. § 7B1.4(a) (Revocation Table) (noting that “[t]he
criminal history category is the category applicable at the time the defendant
originally was sentenced to a term of supervision.” (emphasis added)); see also
United States v. McBride, 633 F.3d 1229, 1232 (10th Cir. 2011) (“These policy
statements serve essentially the same role as the now-advisory sentencing
guidelines issued by the Commission. They represent an expert assessment of
appropriate sentencing practices, often informed by empirical data regarding
actual sentencing practices.”).
30
Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of statutory
construction’ that ‘a statute ought, upon the whole, to be so construed that, if it
can be prevented, no clause, sentence, or word shall be superfluous, void, or
insignificant.’” (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001))); see also
Elwell v. Okla. ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1307 (10th
Cir. 2012) (“[W]e are always hesitant to assume Congress included pointless
language in its statutory handiwork.”); Scalia & Garner, supra, at 174 (“If
possible, every word and every provision is to be given effect (verba cum effectu
sunt accipienda). None should be ignored. None should needlessly be given an
interpretation that causes it to duplicate another provision or to have no
consequence.” (footnote omitted)). As § 3583(e) requires consideration of both
subsection (a)(1) and subsection (a)(4)(B) of § 3553, the requirement can be
reasonably interpreted to refer to the offense of conviction (i.e., subsection (a)(1))
and the transgression of revocation (i.e., subsection (a)(4)) separately, and we in
fact so interpret these provisions. 12 Conversely, construing the cross-reference to
12
Indeed, the Guidelines clearly distinguish between the statutorily
authorized maximum term of postrevocation imprisonment, i.e., the caps set by 18
U.S.C. § 3583(e)(3) based on the offense of conviction, and the advisory range of
postrevocation imprisonment that is based on the nature of the supervised release
violation resulting in revocation. See U.S.S.G. § 7B1.4(b)(1) (“Where the
statutorily authorized maximum term of imprisonment that is imposable upon
revocation is less than the minimum of the applicable range, the statutorily
authorized maximum term shall be substituted for the applicable range[.]”); see
also id. Ch. 7, Pt. A, introductory cmt. (3)(b) (noting that “the term of
imprisonment that may be imposed upon revocation of supervised release is
(continued...)
31
subsection (a)(1) in § 3583(e) to refer to the transgression leading to revocation,
rather than the offense of conviction, would create a redundancy.
Finally, Mr. Collins argues that the statutory history of subsections (e)(3)
and (h) of § 3583 suggests that only subsection (h) refers to the original offense
of conviction for purposes of identifying the relevant limiting “term of supervised
release.” 13 Mr Collins’s argument is two-fold. First, he notes that, prior to 1994,
the statutory maximum in subsection (e)(3) was based on “the offense for which
the person was convicted,” 18 U.S.C. § 3583(e)(3) (1988) (emphasis added). In
12
(...continued)
limited by statute” (emphasis added) (citing 18 U.S.C. § 3583(e)(3))); cf. United
States v. Jones, --- F. App’x ----, No. 16-5036, 2017 WL 405615, at *2 (10th Cir.
Jan. 31, 2017) (“A district court may vary from the sentencing range under the
Guidelines after conducting an ‘individualized assessment’ of the facts and
considering the relevant 18 U.S.C. § 3553(a) factors.” (quoting Gall v. United
States, 552 U.S. 38, 50 (2007))); id. at *3 (“[A]lthough the sentence exceeded the
Guidelines range [for his supervised release violation], it fell within the
statutorily permitted ranges of 48 and 24 months for Mr. Jones’s § 924(c) offense
and § 922(g)(1) offense [i.e., his offenses of conviction], respectively.” (emphasis
added)). In other words, under the Guidelines policy statements referenced by 18
U.S.C. § 3553(a)(4)(B), the nature of a defendant’s misconduct resulting in
supervised release revocation is relevant solely to determining the grade of
violation for purposes of calculating the appropriate postrevocation sentencing
range under the Guidelines. This is a distinct inquiry from one related to the
maximum term of postrevocation imprisonment authorized by statute; that is
where the caps of § 3583(e)(3) are implicated.
13
We focus here on Mr. Collins’s argument as it relates to the facts of
his case—that is, in the context of a second revocation of supervised release. Mr.
Collins concedes, and indeed it is undisputed, that the “offense that resulted in the
term of supervised release,” 18 U.S.C. § 3583(e)(3), is the original offense of
conviction where the court is revoking supervised release for the first time (i.e.,
in the context of a first revocation, which is not at issue here).
32
1994, Congress amended subsection (e)(3) to limit the statutory maximum prison
sentence based on the severity of “the offense that resulted in the term of
supervised release.” 18 U.S.C. § 3583(e)(3) (1994). Mr. Collins contends that
this amendment undermines the interpretation that the government
advances—viz., that Congress intended for “offense” to refer to the original
offense of conviction.
Second, Mr. Collins notes that subsection (h)—which was added to § 3583
in 1994, at the same time as the amendment noted supra to subsection
(e)(3)—authorizes district courts to impose a new term of postrevocation
supervised release, but limits such a term to that “authorized by statute for the
offense that resulted in the original term of supervised release,” which would be
the original offense of conviction. 18 U.S.C. § 3583(h) (emphasis added). 14
Subsection (e)(3) does not include the term “original.” According to Mr. Collins,
14
Subsection (h) of § 3583 pertains to the district court’s authority to
sentence a defendant to a new term of supervised release following revocation of
a previous term. It provides the following:
When a term of supervised release is revoked and the defendant
is required to serve a term of imprisonment, the court may
include a requirement that the defendant be placed on a term of
supervised release after imprisonment. The length of such a term
of supervised release shall not exceed the term of supervised
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 of supervised
release.
18 U.S.C. § 3583(h) (emphasis added).
33
Congress’s failure to include the term “original” in its 1994 language amending
subsection (e)(3)—i.e, to expressly say “the offense that resulted in the original
term of supervised release”—at the same time that it added subsection (h), which
did include this term, suggests that the “offense” referenced in subsection (e)(3)
has a broader meaning than the “original” offense of conviction. We are not
persuaded by these arguments.
As a general matter, they are undercut by Kellogg insofar as they advocate
for “offense” in subsection (e)(3) to mean something other than a criminal
conviction. As noted, Kellogg held that the term “offense” in Title 18 refers to
crimes (i.e., misdemeanors and felonies), see 135 S. Ct. at 1976—as opposed to
violations of conditions of release or acts of revocation by the court.
More specifically, as to the first argument, prior to 1994, subsection (e)(3)
authorized 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 . . . except that a person
whose term is revoked under this paragraph may not be required
to serve more than 3 years in prison if the offense for which the
person was convicted was a Class B felony, or more than 2 years
in prison if the offense was a Class C or D felony.
21 U.S.C. § 3583(e)(3) (1988) (emphases added).
Notably, in 1994, Congress added, in all material respects, the same
language at issue here—i.e., “the offense that resulted in such term of supervised
release”—to the first clause of subsection (e)(3) immediately before the words
34
“without credit.” In doing so, Congress “expanded the sentencing court’s
authority, allowing the court to impose a revocation sentence up to the statutory
maximum even when the actual sentence of supervised release is shorter.” United
States v. Hunt, 673 F.3d 1289, 1292 (10th Cir. 2012); see also Johnson, 529 U.S.
at 705 (noting that, prior to the 1994 amendments, subsection (e)(3) did not allow
a court to impose a postrevocation prison term “equal to the maximum authorized
length of a term of supervised release”); Spencer, 720 F.3d at 366 (“The [1994]
amendments . . . extended imprisonment upon revocation up to the terms
authorized by § 3583(b), i.e., those terms ‘authorized by statute for the offense
that resulted in such term of supervised release.’”); Hampton, 633 F.3d at 339(describing the 1994 amendment as “removing the otherwise arguable limitation
that a prison term imposed could never be longer than the term of the revoked
supervised release” (emphasis added) (quoting United States v. Jackson, 329 F.3d
406, 408 n.4 (5th Cir. 2003), superseded on other grounds by statute, PROTECT
Act, Pub. L. No. 108-21, § 101(1), 117 Stat. 650, 651 (2003), as recognized in
Hampton, 633 F.3d at 338)). In other words, the 1994 amendment was
implemented to overcome a perceived limitation imposed by the first clause of
subsection (e)(3): it effectively directed sentencing courts to impose a
postrevocation term of imprisonment based on the term of supervised release
authorized by statute for the offense of conviction, rather than the term of
supervised release set by the original sentencing court.
35
Mr. Collins’s interpretation of the amendment ignores this history. He
contends that Congress intended the very same language (in all material
respects)—i.e., “the offense that resulted in the term of supervised release”—to
serve a very different purpose when Congress also added it to the limiting clause
at the end of subsection (e)(3) in place of the “offense for which the person was
convicted.” Mr. Collins suggests that, in making this change to the latter clause
in subsection (e)(3) Congress intended to broaden the meaning of “offense” from
the offense of conviction to the violative conduct resulting in revocation—or,
alternatively, the revocation itself—at least in the case of a second or successive
revocation of supervised release. However, Mr. Collins offers no support for his
position.
On the other hand, as indicated by the citations supra, every federal circuit
court (including our own) to have considered the addition of this language in the
first clause of subsection (e)(3) has concluded that it was added to remedy a
perceived limitation in the preamendment language by making the offense of
conviction the starting point for calculating the maximum authorized term of
postrevocation imprisonment: viz., the offense of conviction sets the maximum
authorized term of supervised release and, after the 1994 amendment, that term
sets the maximum authorized postrevocation term of imprisonment. 15
15
This history is particularly relevant given that Mr. Collins argues that
this amendment has meaning only if it is interpreted to broaden the meaning of
(continued...)
36
In our view, it would be eminently logical to conclude that Congress had
the same starting point in mind—that is, the offense of conviction—when it added
essentially the same language in the limiting clause at the end of the same statute
in 1994. Indeed, it would be remarkable if this were not the case. See, e.g.,
Scalia & Garner, supra, at 170 (noting that “[a] word or phrase is presumed to
bear the same meaning throughout a text”); cf. Kellogg, 135 S. Ct. at 1977(“Fundamental changes in the scope of a statute are not typically accomplished
with so subtle a move.”). 16 At least one thing is sure: Mr. Collins has not offered
any authority to support an alternative reading of the statutory history. Therefore,
we reject Mr. Collins’s first argument.
15
(...continued)
“offense” beyond the offense of conviction. See Aplee.’s Br. at 28 (“If the
government is correct, Congress’s amendment to § 3583(e)(3) in 1994 meant
nothing.”). In reaching this conclusion, however, Mr. Collins ignores the plethora
of authority holding otherwise: that is, the 1994 amendments did mean
“something,” they meant at least that when imposing a postrevocation term of
imprisonment, courts were no longer limited by the term of supervised release set
by the original sentencing court.
16
The government did not make this specific argument regarding the
statutory history of § 3583, but “we are not limited to the parties’ positions on
what a statute means, because we review a question of statutory construction de
novo.” WWC Holding Co. v. Sopkin, 488 F.3d 1262, 1276 n.10 (10th Cir. 2007);
see also Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir. 2006) (“We are required to
interpret federal statutes as they are written . . . and [therefore] are not bound by
parties’ [positions].”); cf. Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90, 99
(1991) (“When an issue or claim is properly before the court, the court is not
limited to the particular legal theories advanced by the parties, but rather retains
the independent power to identify and apply the proper construction of governing
law.”).
37
As for his second one, we are not persuaded that Congress’s inclusion of
the term “original” in subsection (h) carries the interpretive significance that Mr.
Collins attributes to it: viz., we are not convinced that Congress’s failure to
include the term “original” in its 1994 language amending subsection (e)(3) when
it added subsection (h), suggests that the “offense” referenced in subsection (e)(3)
has a broader meaning, as to second or subsequent revocations, than the
“original” offense of conviction.
As a general matter, subsection (e)(3) dictates the term of imprisonment
that can be imposed following revocation, and subsection (h) dictates the term of
supervised release that can be imposed following revocation. As noted,
subsection (h) was added to § 3583 in 1994. Prior to this time, courts could not
impose an additional term of supervised release after revoking a defendant’s
original term of supervision. Given the purpose of subsection (h)—i.e., to allow
for new terms of supervised release in addition to the original term—it is not
surprising that Congress chose to include the modifier “original” when describing
the statutorily authorized term of supervised release that courts should look to
when determining the statutory maximum new term of supervised release that may
be imposed.
To advance his cause, however, Mr. Collins draws on the “general principle
of statutory construction that when ‘Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is generally
38
presumed that Congress acts intentionally and purposely in the disparate inclusion
or exclusion.’” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (quoting
Russello v. United States, 464 U.S. 16, 23 (1983)). However, “[n]o canon of
interpretation is absolute,” Scalia & Garner, supra, at 59, rather “[t]hey are guides
that ‘need not be conclusive,’” Chickasaw Nation v. United States, 534 U.S. 84,
94 (2001) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001)).
Moreover, even if we focus on canons, it is notable that Mr. Collins’s argument
ignores another equally compelling canon of interpretation that cuts against
it—viz., “[a] word or phrase is presumed to bear the same meaning throughout a
text,” Scalia & Garner, supra, at 170; see In re Woods, 743 F.3d at 697
(“recogniz[ing]” the established interpretive principle that “identical words used
in different parts of the same act are intended to have the same meaning” (quoting
Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860 (1986))); see also Brune, 767
F.3d at 1022 (noting that “no statute is an island unto itself”); Villa, 589 F.3d at
1343 (noting that the court must “consider not only the bare meaning of the [text]
but also its placement and purpose in the statutory scheme” (alteration in original)
(quoting Bailey v. United States, 516 U.S. 137, 145 (1995))).
Importantly, in this regard, Mr. Collins’s interpretation defies this canon
because it would necessarily assign a different meaning to the word “offense” as
it appears in subsections (e)(3) and (h). It is clear that, under Title 18, this word
has been used to refer to crimes, i.e., a defendant’s criminal conduct that is
39
proven beyond a reasonable doubt. See Kellogg, 135 S. Ct. at 1976. And it is
undisputed that it carries this meaning in subsection (h). Thus, adopting the
revocation-as-offense theory that Mr. Collins propounds—or even the violative
conduct approach of the district court—would not only be contrary to Title 18’s
statutory scheme, as Kellogg defines it, but it also would require us to assign the
term “offense” different meanings in subsection (e)(3) and subsection (h). Absent
some explicit, compelling grounds for doing so, we will not presume that
Congress contemplated such an extraordinary result. Cf. Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not alter the
fundamental details of a [statute] in vague terms or ancillary provisions—it does
not, one might say, hide elephants in mouseholes.” (emphasis added)).
In sum, we are convinced that the plain language and statutory context of
the “offense that resulted in” phrase in § 3583(e)(3) reveals a clear congressional
choice to establish a defendant’s offense of conviction as the relevant touchstone
for determining the statutory maximum authorized term of imprisonment,
following the first or any subsequent revocation.
C
We thus hold that the statutory maximum prison sentence under
§ 3583(e)(3) for a defendant who, like Mr. Collins, has violated a second or
subsequent term of supervised release is based on the severity of the first offense
for which he was sentenced to supervised release (i.e., the offense of conviction).
40
Therefore, the district court must resentence Mr. Collins using as its touchstone
the three-year statutory maximum for his offense of conviction (i.e., a class B
felony). 17
III
For the foregoing reasons, we VACATE Mr. Collins’s sentence and
REMAND for resentencing consistent with this opinion.
17
According to Federal Bureau of Prisons records, Mr. Collins was
released from prison on February 5, 2016. At that time, he still had to complete a
two-year term of supervised release. It is important to highlight that, as we read
controlling precedent, our instruction to the district court to resentence Mr.
Collins does not present any double-jeopardy concerns. The Double Jeopardy
Clause prohibits “sentence adjustments that upset a defendant’s legitimate
‘expectation of finality in his sentence.’” Warnick v. Booher, 425 F.3d 842, 847
(10th Cir. 2005) (quoting United States v. DiFrancesco, 449 U.S. 117, 136
(1980)). But this rule is subject to at least two caveats: (1) “[T]here can be no
reasonable expectation of finality when a statute gives the government a right to
appeal—at least not until expiration of the time for appeal to be taken,” United
States v. Earley, 816 F.2d 1428, 1433 (10th Cir. 1987) (interpreting
DiFrancesco); accord United States v. Smith, 929 F.2d 1453, 1457 (10th Cir.
1991) (“[A] criminal defendant whose sentence is appealable by the government
under a statutory provision allowing for such an appeal, remains under the
jurisdiction of the courts and can acquire no legitimate expectation in the finality
of his original sentence, at least not until the time for appeal has expired.”); and
(2) “A defendant cannot acquire a legitimate expectation of finality in a sentence
which is illegal, because such a sentence remains subject to modification.”
United States v. Rourke, 984 F.2d 1063, 1066 (10th Cir. 1992). Taken together,
these provisions allow us to conclude, with the Ninth Circuit, that “[t]here can be
no expectation of finality in sentences that are illegal and that were under
challenge by the government.” United States v. Arrellano-Rios, 799 F.2d 520,
524 (9th Cir. 1986). We have apparently not addressed a situation like this,
where a district court is directed to resentence an individual already released from
the imprisonment portion of his sentence. Nonetheless, we are confident in light
of controlling precedent that Mr. Collins has not acquired a legitimate expectation
of finality in his sentence. After all, he still must serve out the supervised release
portion of his sentence. Therefore we deem this disposition appropriate.
41