United States v. Ricardo Olmedo, Jr. , 342 F. App'x 461 ( 2009 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                 FILED
    U.S. COURT OF APPEALS
    No. 08-16835                ELEVENTH CIRCUIT
    AUGUST 14, 2009
    Non-Argument Calendar
    THOMAS K. KAHN
    ________________________
    CLERK
    D. C. Docket No. 07-20107-TP-DMM
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RICARDO OLMEDO, JR.,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________
    (August 14, 2009)
    Before BLACK, BARKETT and HULL, Circuit Judges.
    PER CURIAM:
    Ricardo Olmedo, Jr., appeals his sentence of 24 months’ imprisonment
    followed by 30 months’ supervised release, imposed under 18 U.S.C. § 3583(e)(3)
    after the district revoked his prior supervised release term. After review, we
    affirm.
    I. BACKGROUND
    After trial, a jury convicted Olmedo of conspiracy to possess with intent to
    distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I),
    possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)
    and 18 U.S.C. § 2 (Count 2), and possession with intent to distribute cocaine in
    interstate commerce, in violation of 18 U.S.C. §§ 2 and 1952(a)(3) (Count 3). In
    1990, the district court sentenced Olmedo to 272 months’ imprisonment on Counts
    1 and 2 and 60 months’ imprisonment on Count 3, all terms to run concurrently.
    Olmedo also received sentences of five years’ supervised release on Counts 1 and
    2 and two years’ supervised release on Count 3, all terms to run concurrently. The
    terms of his supervised release prohibited him from committing any federal, state,
    or local crimes.
    In October 2007, after his release from prison, Olmedo’s probation officer
    petitioned the district court for revocation of Olmedo’s supervised release. The
    probation officer alleged that Olmedo violated the terms of his supervised release
    when he was arrested in September 2007 for possession with intent to distribute
    2
    500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1).
    After a hearing, the district court found that Olmedo had violated the terms
    of his supervised release and revoked Olmedo’s supervised release. The district
    court sentenced Olmedo to 24 months’ imprisonment, to be followed by 30
    months’ supervised release. This sentence was to run consecutive to Olmedo’s
    sentence for the September 2007 drug possession offense, to which Olmedo had
    pled guilty but had not yet been sentenced. Olmedo objected to the imposition of
    supervised release and to the court’s decision to run the 24-month imprisonment
    sentence consecutive to a sentence he had not yet received.
    Olmedo then filed a motion to correct illegal sentence, pursuant to Federal
    Rule of Criminal Procedure 35(a), arguing that his sentence violated the Ex Post
    Facto Clause of the U.S. Constitution by imposing a new term of supervised
    release following the original term of imprisonment. The government opposed the
    motion.
    The district court denied Olmedo’s motion. Olmedo appeals his sentence
    and the denial of his Rule 35(a) motion.
    II. DISCUSSION
    To understand Olmedo’s arguments, we first discuss 18 U.S.C. § 3583,
    entitled “Inclusion of a term of supervised release after imprisonment.” At the
    3
    time of Olmedo’s 1990 conviction, § 3583(e)(3) was the only subsection that
    detailed what a district court could do upon revocation of supervised release. See
    18 U.S.C. § 3583 (1988). In 1990, § 3583(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
    the time previously served on postrelease supervision, if it finds by a
    preponderance of the evidence that the person violated a condition of
    supervised release . . . .
    
    Id. In 1994,
    Congress amended § 3583, adding subsection (h). Subsection (h)
    explicitly provides a district court with the authority to order a term of supervised
    release after a revocation and reimprisonment. 18 U.S.C. § 3583(h) (1994)
    (providing that “[w]hen a term of supervised release is revoked and the defendant
    is required to serve a term of imprisonment that is less than the maximum term of
    imprisonment authorized under subsection (e)(3), the court may include a
    requirement that the defendant be placed on a term of supervised release after
    imprisonment”).
    Olmedo first argues that “where, as here, the defendant’s original conviction
    occurred prior to the 1994 amendment, the district court’s authority to impose post-
    revocation penalties is governed by the pre-amendment version of § 3583.”1 In
    1
    We review the legality of a sentence imposed pursuant to revocation of a term of
    supervised release de novo. United States v. Pla, 
    345 F.3d 1312
    , 1313 (11th Cir. 2003).
    4
    other words, Olmedo argues that subsection (h), added in 1994, does not apply to
    his case. Recognizing a potential ex post facto problem with applying a 1994
    statute to Olmedo’s 1990 conviction, the district court refused to apply subsection
    (h) to Olmedo. The government does not challenge this point on appeal. In fact,
    the government goes a step further, conceding that the relevant part of the pre-
    amendment version of § 3583 (subsection (e)(3)) governs Olmedo’s case. Thus,
    the question is whether § 3583(e)(3), before § 3583(h) was added, authorized the
    district court to impose supervised release after a revocation and reimprisonment.
    We answered this question “no” in United States v. Tatum, 
    998 F.2d 893
    ,
    895-96 (11th Cir. 1993). This Court reasoned in Tatum that § 3583(e)(3) permitted
    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.’” 
    Id. at 894
    (quoting
    18 U.S.C. § 3583(e)(3)). Once revoked, however, the term of supervised release
    no longer exists to be modified or extended, and nothing in § 3583(e) stated that
    the district court could impose a new term of supervised release. 
    Id. We therefore
    joined the majority of our sister circuits in concluding that, pre-amendment, §
    3583(e)(3) did not allow a district court to impose post-revocation supervised
    release. 
    Id. 5 Olmedo’s
    problem is that the Supreme Court subsequently decided Johnson
    v. United States, 
    529 U.S. 694
    , 703-13, 
    120 S. Ct. 1795
    , 1802-07 (2000), which
    expressly disagreed with Tatum and held that the pre-amendment version of § 3583
    (specifically subsection (e)(3)) authorized a new term of supervised release after
    revocation and reimprisonment. The Supreme Court in Johnson noted that nine
    circuits, including this Court in Tatum, had held that pre-amendment § 3583(e)(3)
    did not empower a district court to impose supervised release after a revocation
    and reimprisonment, but that two circuits found that pre-amendment § 3583(e)(3)
    did grant the district courts that power. 
    Johnson, 529 U.S. at 698
    n.2, 120 S. Ct. at
    1799 
    n.2.
    In Johnson, the Supreme Court agreed with the two circuits that held that the
    district court had that power. The Supreme Court first pointed out that, because
    Johnson’s original offense occurred before the amendment’s effective date in 1994,
    § 3583(h) did not apply to his case.2 
    Id. at 702,
    120 S. Ct. at 1802. “The case
    turns, instead, simply on whether § 3583(e)(3) permitted imposition of supervised
    2
    Petitioner Johnson was convicted of a felony in 1993, a year before § 3583 was amended
    to include subsection (h). 
    Johnson, 529 U.S. at 697
    , 120 S. Ct. at 1799. When Johnson violated
    the terms of his supervised release, the district court revoked his supervised release and
    sentenced him to 18 months’ imprisonment and 12 months’ supervised release. 
    Id. at 698,
    120
    S. Ct. at 1799.
    6
    release following a recommitment.” 
    Id. at 702-03,
    120 S. Ct. at 1802. The
    Supreme Court concluded that it did, as follows:
    In sum, from a purely textual perspective, the more plausible reading
    of § 3583(e)(3) before its amendment and the addition of subsection
    (h) leaves open the possibility of supervised release after
    reincarceration. Pre-Guidelines practice, linguistic continuity from
    the old scheme to the current one, and the obvious thrust of
    congressional sentencing policy confirm that, in applying the law as
    before the enactment of subsection (h), district courts have the
    authority to order terms of supervised release following
    reimprisonment.
    
    Id. at 713,
    120 S. Ct. at 1807 (emphasis added). Thus, Johnson in effect overruled
    Tatum.
    Accordingly, the district court here did not err in finding that Johnson’s
    interpretation of § 3583(e)(3) controlled Olmedo’s case.3 Nor is there an ex post
    facto problem in applying Johnson because it applied § 3583 as it existed at the
    time of Olmedo’s original 1990 conviction (containing subsection (e)(3) and not
    subsection (h)).4
    3
    We also note that, in Johnson, the Supreme Court indicated that the combined length of
    the new imprisonment and supervised release terms could not exceed the original supervised
    release term that provided the foundation for the new terms. 
    Johnson, 529 U.S. at 705-06
    , 120 S.
    Ct. at 1803. However, this is not an issue in this case, as Olmedo’s combined 54-month term on
    revocation was less than his original 60-month supervised release term.
    4
    Because the district court did not apply § 3583(h)—the 1994, post-amendment version
    of § 3583—we need not reach any ex post facto issue as to § 3583(h).
    7
    Olmedo also argues that, pursuant to the language of § 3583(e)(3) and
    United States v. Williams, 
    425 F.3d 987
    (11th Cir. 2005), his maximum allowable
    supervised release term should be reduced by the amount of time he already had
    spent under supervised release. Olmedo’s reliance on Williams is misplaced.
    Williams requires the district court to give Olmedo credit for revocation time
    served in prison for previous violations of supervised release. 
    See 425 F.3d at 989
    .
    However, Olmedo does not assert, and the record does not reveal, that he had a
    previous violation of supervised release or had served any previous prison time for
    a violation of supervised release. Instead, given the plain language of §
    3583(e)(3), the district court was not required to consider Olmedo’s time served on
    “postrelease supervision.” See 18 U.S.C. § 3583(e)(3) (1988); 
    Williams, 425 F.3d at 989
    .
    For the foregoing reasons, we conclude that Olmedo has not shown that the
    district court erred in imposing his sentence of 24 months’ imprisonment followed
    by 30 months’ supervised release. Therefore, we affirm.5
    AFFIRMED.
    5
    Olmedo also states that he wishes to preserve his argument that the district court
    improperly imposed a sentence to run consecutive to a sentence that was not yet imposed.
    However, as the district court found and Olmedo correctly notes in his brief, this argument is
    foreclosed by this Court’s precedent. See United States v. Andrews, 
    330 F.3d 1305
    , 1306-07
    (11th Cir. 2003) (concluding that a district court has the authority to impose a federal sentence
    consecutive to an unimposed, future sentence).
    8
    

Document Info

Docket Number: 08-16835

Citation Numbers: 342 F. App'x 461

Judges: Black, Barkett, Hull

Filed Date: 8/14/2009

Precedential Status: Non-Precedential

Modified Date: 10/19/2024