United States v. Jermaine Jones , 833 F.3d 341 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1636
___________
UNITED STATES OF AMERICA
v.
JERMAINE JONES,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-99-cr-00776-001)
District Judge: Honorable John R. Padova
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 1, 2016
Before: SMITH and HARDIMAN, Circuit Judges.*
(Filed: August 17, 2016)
Joseph T. Labrum, III
Robert A. Zauzmer
Zane David Memeger
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Maria K. Pulzetti
Brett G. Sweitzer
Leigh M. Skipper
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
____________
OPINION OF THE COURT
____________
*
The Honorable Dolores K. Sloviter assumed inactive
status on April 4, 2016, after the submission date of this case,
but before filing of the opinion. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d) and Third
Circuit I.O.P. Chapter 12.
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HARDIMAN, Circuit Judge.
After serving a fifteen-year federal prison sentence for
being an armed career criminal who unlawfully possessed a
firearm, Appellant Jermaine Jones was released to serve a
five-year period of supervised release. A year later, he was
arrested on drug charges. In response to this arrest, the
District Court revoked Jones’s supervised release and
sentenced him to an additional forty months in prison. In this
appeal, Jones argues that his sentence exceeds the statutory
maximum because his crime of conviction should have been
deemed a Class C felony instead of a Class A felony under 18
U.S.C. § 3583(e). For the reasons that follow, we will affirm.
I
In April 1999, a Norristown, Pennsylvania police
officer approached Jones as he drank a beer on a public
sidewalk in violation of a local ordinance. Jones fled, but was
apprehended by police who discovered a gun in the area and
concluded that Jones had discarded it. Jones was indicted
under 18 U.S.C. §§ 922(g)(1) and 924(e) and charged with
possession of a firearm by a convicted felon. In June 2000,
Jones was found guilty by a jury.
The Government sought to have Jones sentenced under
the Armed Career Criminal Act (ACCA), which requires a
sentence of at least 180 months for anyone convicted under §
922(g) who has three or more predicate convictions for either
a “violent felony” or “serious drug offense.” 18 U.S.C. §
924(e). The Government argued that Jones had amassed four
predicate offenses: a robbery conviction, an aggravated
assault conviction, and two controlled substances convictions.
Over objection, the District Court agreed that ACCA applied
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and imposed the statutory mandatory minimum plus five
years’ supervised release. We affirmed Jones’s judgment of
conviction and sentence on direct appeal, United States v.
Jones, 48 F. App’x 835 (3d Cir. 2002) (per curiam), and the
District Court denied habeas relief, Jones v. United States,
2000 WL 34075804 (E.D. Pa. Oct. 23, 2003).
Jones was released from federal custody on October 9,
2013. A little over a year later, his probation officer reported
that Jones had been arrested on state drug charges. After
holding several hearings, the District Court determined that
Jones had violated the terms of his supervised release and
decided to revoke supervision and order him returned to
prison.
In March 2015, the District Court held a hearing to
determine the length of Jones’s sentence. Under 18 U.S.C. §
3583(e)(3), the maximum permissible revocation sentence
depends on the classification of “the offense that resulted in
the term of supervised release.” The Government argued that
Jones’s underlying offense is a Class A felony, which
authorized a maximum revocation sentence of five years’
imprisonment. Relying on Alleyne v. United States, 133 S. Ct.
2151 (2013), Jones countered that he was subject to no more
than two years’ imprisonment because his offense is properly
categorized as a Class C felony.
The District Court rejected Jones’s argument as an
attempt to apply Alleyne retroactively and classified his
offense a Class A felony. After granting a downward
departure, the Court imposed a revocation sentence of forty
months’ imprisonment. Jones appealed.
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II
The District Court had jurisdiction under 18 U.S.C. §§
3231 and 3583. We have jurisdiction under 28 U.S.C. § 1291and 18 U.S.C. § 3742.
The parties dispute our standard of review. The crux of
their disagreement is whether Jones preserved the argument
he advances on appeal by raising it in the District Court.
Although we take this opportunity to reemphasize the
responsibility of litigants to raise not just all “issues” but all
“arguments” in district court, United States v. Joseph, 730
F.3d 336, 341 (3d Cir. 2013), we need not determine whether
Jones met that responsibility in this case. Because we would
reach the same result under either standard of review, we will
apply de novo review, which is more favorable to Jones.
United States v. Williams, 675 F.3d 275, 277 (3d Cir. 2012)
(applying de novo review in interpreting 18 U.S.C. § 3583).
III
Several of our sister courts have held that “the validity
of an underlying conviction or sentence may not be
collaterally attacked in a supervised release revocation
proceeding and may be challenged only on direct appeal or
through a habeas corpus proceeding.” United States v.
Warren, 335 F.3d 76, 78 (2d Cir. 2003); see also United
States v. Francischine, 512 F.2d 827, 828–29 (5th Cir. 1975);
United States v. Torrez-Flores, 624 F.2d 776, 780 (7th Cir.
1980); United States v. Miller, 557 F.3d 910, 913 (8th Cir.
2009); United States v. Simmons, 812 F.2d 561, 563 (9th Cir.
1987); United States v. Hofierka, 83 F.3d 357, 363 (11th Cir.
1996) (per curiam). We join those courts today.
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Jones tries to escape this straightforward rule by
arguing that his appeal “does not challenge the validity of
[his] underlying conviction or sentence.” Reply Br. 6. He
characterizes his case as a challenge to “only the district
court’s determination, at revocation sentencing, that his
underlying offense is presently classified as a Class A felony
for Section 3583(e) purposes.” Id. In other words, Jones
argues that he is appealing an error the Court made in
calculating his revocation sentence rather than collaterally
attacking his original conviction or sentence. We disagree
with this characterization.
In light of Jones’s drug charges, 18 U.S.C. § 3583(e)
authorized the District Court to “revoke [his] term of
supervised release” and “require [him] 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.” 18 U.S.C. 3583(e)(3) (emphasis added). The offense
that resulted in Jones’s five-year term of supervised release
was unlawful possession of a firearm by an armed career
criminal, in violation of 18 U.S.C. §§ 922(g) and 924(e).
Jones acknowledges, as he must, that this offense was
properly classified as a Class A felony at the time of his
original conviction and sentencing. He nonetheless argues
that two recent Supreme Court cases—Johnson v. United
States, 559 U.S. 133 (2010) and Johnson v. United States, 135
S. Ct. 2551 (2015)—nullify his status as an armed career
criminal and render the “present[] classifi[cation]” of his
offense a Class C felony. Reply Br. 6.
Even if Jones were correct that his original offense
would not include an armed career criminal designation under
current law, it would have no effect on his revocation
sentence because the District Court is not tasked under
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Section 3583(e) with reconsidering an offender’s status as an
armed career criminal. 1 That determination was made in
2001, and was proper at that time. 18 U.S.C. § 3583(e)(3);
Williams, 675 F.3d at 279 (“[The] language [of Section
3583(e)(3)] unambiguously sets the maximum prison
sentence by reference to the length of supervised release
statutorily authorized for the conviction offense . . . .”). This
is consistent with the Supreme Court’s statement that
revocation sentences are part and parcel of a defendant’s
underlying conviction and punishment. Johnson v. United
States, 529 U.S. 694, 700 (2000) (“[P]ostrevocation sanctions
[are properly considered] as part of the penalty for the initial
offense . . . .”); see also United States v. Dozier, 119 F.3d
239, 241 (3d Cir. 1997) (“A sentence imposed upon
revocation of supervised release is most properly viewed as a
consequence of the original criminal conviction.”).
For these reasons, we reject Jones’s efforts to bifurcate
his original conviction and sentence from his revocation
sentence, and to characterize this appeal as a direct challenge
to a classification determination made in imposing the latter.
Accordingly, we will affirm the judgment of the District
Court.
1
Our decision in United States v. Turlington, 696 F.3d
425 (3d Cir. 2012) does not support Jones’s argument. There,
we held that the classification of Appellant’s original
conviction was not subject to change under 18 U.S.C.
§ 3583(e) based on a statutory amendment. Those
circumstances are not present here and we decline Jones’s
invitation to apply Turlington by negative implication.
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