United States v. Alfred Arias ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 25, 2005
No. 05-11297
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00082-TP-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO ARIAS, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 25, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Alfredo Arias, Jr., appeals a 51-month term of supervised release that was
imposed following a revocation of his previous term of supervised release. On
appeal, Arias argues that the district court erred when it sentenced him to 9 months
of incarceration and 51 months of supervised release without granting credit for the
time Arias had previously spent at a community corrections center (“CCC”), as a
result of prior modifications to his pre-revocation term of supervised release.
Arias failed to challenge the calculation of his post-revocation supervision
before the district court, and we therefore review that court’s calculation only for
plain error. See United States v. Rodriguez, 398 F.3d 1291, 1297-1298 (11th Cir.),
cert. denied, __ U.S. __, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005). We may not
correct an error that a defendant failed to raise before the district court unless the
district court: (1) committed error, (2) that was plain, and (3) that affected
substantial rights. Id. at 1298. If these criteria are met, we may, in our discretion,
correct the plain error if it “‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (quoting United States v. Cotton, 535 U.S.
625, 631, 122 S. Ct. 1781, 1785, 152 L. Ed. 2d. 860 (2002)). Of course, when “the
explicit language of a statute or rule does not specifically resolve an issue, there
can be no plain error where there is no precedent from the Supreme Court or this
Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291
(11th Cir. 2003) (per curiam).
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Arias invokes 18 U.S.C. § 3583(e)(3) and (h) in support of his position.
Subsection (e)(3) provides that, upon revocation, a court may:
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 without credit for time previously
served on postrelease supervision, if the court . . . finds by a
preponderance of the evidence that the defendant violated a condition
of supervised release, except that a defendant whose term 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 . . . .
18 U.S.C. § 3583(e)(3).1 Subsection (h) permits a court to include an additional
term of supervised release as part of a sentence imposed upon revocation and
establishes the maximum length of such term:
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). Arias concedes that § 3583(h) does not require a district
court “to give credit for time previously served on supervised release when it
1
Arias’s convictions for possession with intent to distribute cocaine and distribution of
cocaine, both in violation of § 841(a)(1), were Class A felonies, as the maximum penalty for each
was life imprisonment. See 21 U.S.C. § 841; 18 U.S.C. § 3559. Accordingly, the term of supervised
released authorized by statute was not more than five years. See 18 U.S.C. § 3583(b)(1).
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revokes the initial term of supervised release and orders an additional prison term
followed by a new term of supervised release.” United States v. Pla, 345 F.3d
1312, 1314 (11th Cir. 2003) (per curiam).2 Indeed, “the only credit that subsection
(h) clearly enumerates is time served in prison [after] revocation of supervised
release.” Id. However, Arias argues, the time he spent in the CCC was tantamount
to imprisonment, and should therefore be credited against his post-revocation
sentence. In other words, Arias contends that district court’s “modification” of the
original terms of Arias’s supervised release, to include periods of time at the CCC,
was a de facto revocation–and the time spent at the CCC was “imprisonment” that
must therefore be credited against his current post-revocation sentence.
Assuming arguendo that § 3583(h) does, as Arias claims, entitle a defendant
to credit for incarceration served on all prior revocations of supervised release, it is
nevertheless clear that the district court did not commit plain error in calculating
Arias’s post-revocation sentence, for neither the statutory language nor controlling
precedent establish that time spent in a CCC on supervised release amounts to
“imprisonment” for purposes of § 3583(h). Arias argues that because the Bureau
of Prisons sometimes places a federal prisoner in a CCC or halfway house for the
2
In fact, this Court reached the same conclusion even when considering the language of
§ 3583(e)(3) separate and apart from the enactment of § 3583(h). See United States v. Gresham, 325
F.3d 1262, 1265-68 (11th Cir. 2003).
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final part of the prisoner’s term of incarceration, see 18 U.S.C. § 3624(c), the
requirement that Arias spend time at a CCC on supervised release should be
considered imprisonment. This argument is not persuasive, for we have held that
in the context of a probationary sentence, “residence in a halfway house is not
tantamount to imprisonment.” United States v. Chavez, 204 F.3d 1305, 1315
(11th Cir. 2000); see 18 U.S.C. § 3563(b)(11) .3
Arias also argues that the statutory language governing modification of the
conditions of supervised release does not permit a district court to require that he
reside at a CCC without effecting a revocation. Section 3583(e)(2) authorizes a
district court to “modify . . . the conditions of supervised release . . . pursuant to the
provisions of the Federal Rules of Criminal Procedure relating to the modification
of probation and the provisions applicable to the initial setting of the terms and
conditions of post-release supervision.” 18 U.S.C. § 3583(e)(2). Under § 3583(d)
the court may, subject to certain limitations, order as a condition of supervised
release “any condition set forth as a discretionary condition of probation in section
3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it
considers to be appropriate.” 18 U.S.C. § 3583(d). Arias emphasizes that
subsection (b)(11), which allows the court to require residence at a CCC, is
3
We note that Arias does not contend that the circumstances of his residence at the CCC
were actually similar to those of confinement in a jail or prison.
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excluded as a possibility because it is not enumerated in § 3583(d). At least four
circuit courts of appeals, however, have rejected this argument, finding that the
omission of subsection (b)(11) was due to a clerical error–and that district courts
retain statutory authority to impose confinement in a CCC as a condition of
supervised release. See United States v. Del Barrio, 5th Cir. 2005, __ F.3d __,
(No. 04-40835, Sept. 21, 2005); United States v. D’Amario, 412 F.3d 253, 256
(1st Cir.) (per curiam), cert. denied, __ U.S. __, __ S. Ct. __, __ L. Ed. 2d __
(2005); United States v. Griner, 358 F.3d 979, 982 (8th Cir. 2004); United States v.
Bahe, 201 F.3d 1124, 1136 (9th Cir. 2000). Thus, the district court did not effect a
revocation by modifying the conditions of Arias’s original term of supervised
release to include residence at a CCC.
Finally, Arias argues that the United States Sentencing Guidelines (the
“Guidelines”) support his position, because they provide that a term of
imprisonment ordered upon the revocation of supervised release can, in certain
circumstances, be satisfied by a term of supervised release that includes
community confinement or home detention. See U.S.S.G. § 7B1.3.4 As the
Government points out, however, Arias’s argument is not compelling because the
Guidelines also permit residence in a CCC to be imposed as a condition of
4
Arias also notes that the Guidelines sometimes permit defendants to serve portions of their
terms of imprisonment in a CCC. See U.S.S.G. § 5C1.1.
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supervised release. See U.S.S.G. §§ 5D1.3(e)(1) and 5F1.1.
In light of the foregoing, and in the absence of controlling authority to the
contrary, we conclude that the district court did not commit plain error by
declining to credit the time Arias spent at a CCC (due to modifications of the
conditions of his supervised release) against his sentence upon revocation.
AFFIRMED.
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