United States v. Percy Dillon , 725 F.3d 362 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2653
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UNITED STATES OF AMERICA
v.
PERCY DILLON,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-93-cr-00084-002)
District Judge: Honorable Alan N. Bloch
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Argued May 15, 2013
Before: SMITH, FISHER and CHAGARES, Circuit Judges.
(Filed: August 5, 2013)
Renee Pietropaolo, Esq. (ARGUED)
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Rebecca R. Haywood, Esq.
Michael L. Ivory, Esq. (ARGUED)
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Percy Dillon appeals from the sentence imposed by the
District Court following a violation of the conditions of his
supervised release. In 1993, Dillon was convicted of three
drug-related felony counts and was sentenced to 322 months
in prison along with “a term” of five years of supervised
release. Dillon argues that by using this language, the District
Court sentenced him to a single term of supervised release,
rather than to three concurrent terms, and that it was therefore
plain error for the District Court to impose three consecutive
terms of reimprisonment and three concurrent terms of
supervised release when it revoked Dillon’s supervised
release in 2012. We will vacate Dillon’s sentence and
remand to the District Court for resentencing.
2
I.
On September 17, 1993, a jury convicted Dillon and
his co-conspirator Jerron Lollis of (1) conspiracy to distribute
more than 50 grams of crack and 500 grams of cocaine, in
violation of 21 U.S.C. § 846 (“Count One”); (2) use of a
firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (“Count Two”); and
(3) possession with intent to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Count Four”).
At a sentencing hearing on November 19, 1993, the District
Court announced its sentence:
“Pursuant to the Sentencing Reform Act of
1984 it is the judgment of the Court that the
defendant, Percy Dillon, is hereby committed to
the custody of the Bureau of Prisons to be
imprisoned for a term of 322 months. This term
consists of a term of 262 months as to Counts 1
and 4 and a term of 60 months as to Count 2 to
be served consecutively with the term imposed
at Counts 1 and 2 [sic; should be “Counts 1 and
4”].
“Upon release from imprisonment the defendant
shall be placed on supervised release for a term
of five years.”
App. at 39. Three days later, the District Court filed its
written judgment of sentence:
3
“The defendant is hereby committed to the
custody of the United States Bureau of Prisons
to be imprisoned for a term of three-hundred
and twenty-two (322) months. This term
consists of a term of two hundred and sixty-two
(262) months as to Counts 1 and 4 and a term of
sixty (60) months as to Count 2, to be served
consecutively with the term imposed at Counts
1 and 4.
“Upon release from imprisonment, the
defendant shall be on supervised release for a
term of five (5) years.”
App. at 30-31. This was the minimum possible sentence
under the then-mandatory Sentencing Guidelines. In 2008
and again in 2011, after the crack guidelines were amended
by the Sentencing Commission, Dillon’s sentence was
reduced, first to 270 months, and then to time served. 1 On
November 10, 2011, Dillon was released in the Northern
District of Texas and began his supervised release.
1
On the effective date of the second set of retroactive
amendments to the crack guidelines, Dillon had only 14
months left on his sentence. Because Dillon’s new guideline
range amounted to a 42-month reduction from his previous
sentence, Dillon ended up serving approximately 28 months
more than what was called for by his amended guideline
sentence.
4
On the evening of December 5, 2011, after spending
the day at a local shopping mall applying for jobs, Dillon
called his cousin (and former co-conspirator) Jerron Lollis
and asked him for a ride home. When Lollis arrived 45
minutes later, Dillon entered the car and immediately smelled
marijuana, confirmed with Lollis that there was marijuana in
the car, but remained in the vehicle, telling Lollis to “take me
out of here; just take me home, man.” On their way out of the
mall’s parking lot, the car was spotted and pulled over by
Officer Fred Kemp, who called for backup. When Officer
Kemp tapped on the window and Lollis rolled it down, the
officer was “immediately hit by a really strong smell of
unburned or fresh marijuana.”
After backup arrived in the person of Officer Richard
Hernandez, the situation escalated: Officer Kemp ordered
Lollis and Dillon out of the car, Lollis then revved the engine
and pulled away (with Officer Hernandez dangling from the
window), and Officer Kemp discharged his weapon in an
attempt to stop the vehicle. Once the car stopped, the officers
arrested Lollis and Dillon and recovered over 65 pounds of
marijuana from the vehicle. Lollis claimed sole responsibility
for the drugs.
Following this incident, both Dillon and Lollis were
charged with supervised-release violations. The Probation
Office alleged that Dillon violated three conditions: (1) that
he not commit another federal, state, or local crime; (2) that
he not illegally possess a controlled substance; and (3) that he
not associate with any persons involved in criminal activity or
with any persons convicted of a felony unless granted
permission to do so. After a hearing, the District Court found
5
that Dillon had not violated the first two conditions, but had
violated the third, which constituted a Grade C violation. See
U.S.S.G. § 7B1.1(a)(3).
The District Court then stated that under 18 U.S.C.
§ 3583(e)(3), “the Court may sentence [Dillon] to serve up to
five years’ imprisonment at Count 1, two years’
imprisonment at Count 2, and three years’ imprisonment at
Count 4.” App. at 180. The court also noted that under
§ 3584(a), it could impose these terms concurrently or
consecutively. It further noted that under U.S.S.G.
§ 7B1.4(a), the guidelines-recommended sentence for
Dillon’s Grade C violation, given Dillon’s criminal history
category of II, was four to ten months.
Notwithstanding the guidelines recommendation,
however, the District Court found that “a term of
imprisonment within this range is insufficient to comply with
the factors set forth in Title 18 of the United States Code,
Section 3553(a).” App. at 181. Because Dillon violated the
terms of his supervised release so soon after being released
from prison; because he associated with his former co-
conspirator, Jerron Lollis; because he did not try to exit
Lollis’s car after smelling marijuana; and because he did all
this after spending 19 years in prison, which showed that
Dillon had “learned little from [his] lengthy term,” the
District Court revoked Dillon’s supervised release and
sentenced him to reimprisonment:
“Pursuant to the Sentencing Reform Act of
1984 it is the judgment of the Court that the
Defendant Percy Dillon is hereby committed to
6
the custody of the Bureau of Prisons to be
imprisoned for a term of 24 months, consisting
of a term of one month at Count 1, a term of 11
months at Count 2, and a term of 12 months at
Count 4, all such terms to be served consecutive
to each other.
“Upon release from imprisonment, the
Defendant shall be placed on supervised release
for a term of 59 months at Count 1, 25 months
at Count 3, and 48 months at Count 4, to be
served concurrently.”
App. at 182-83. Such a lengthy term of supervised release
was necessary, in the District Court’s view, due to Dillon’s
“poor compliance with [his] conditions of release.” Id. at
182.
Dillon’s timely notice of appeal to this Court followed.
II.
The District Court had jurisdiction at Dillon’s
supervised-release revocation hearing under 18 U.S.C.
§§ 3231 and 3583(e). We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
Because Dillon never objected before the District
Court on the grounds asserted here, we review for plain error.
See Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention.”). We may reverse a district
7
court’s decision on plain error review only if we conclude
that (1) there was an error; (2) the error was “plain,” that is,
“clear” or “obvious”; (3) the error “affect[s] substantial
rights,” which “in most cases” means that the error must have
been prejudicial; and (4) the error “seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732-36
(1993) (internal citations omitted).
III.
Dillon argues that his original 1993 sentence included
a single term of supervised release, not three concurrent
terms, and that the District Court therefore committed plain
error when it revoked his supervised release in 2012 and
imposed three (consecutive) terms of imprisonment and three
(concurrent) terms of supervised release. We agree.
A.
In the Sentencing Reform Act of 1984, Congress
eliminated most forms of parole in favor of supervised
release, a form of post-confinement monitoring that is
overseen by the sentencing court, rather than the Parole
Commission. See Johnson v. United States, 529 U.S. 694,
696-97 (2000). The law authorizes a district court, when
sentencing a defendant to a prison term for a felony or
misdemeanor offense, to include a term of supervised release
8
as a part of the sentence. 18 U.S.C. § 3583(a) (1993). 2
Section 3583(b) outlines the maximum allowable terms of
supervised release: five years for a Class A or Class B felony;
three years for a Class C or Class D felony; and one year for a
Class E felony or a misdemeanor. 3 Id. § 3583(b).
Upon a finding by a preponderance of the evidence
that a defendant has violated the conditions of his supervised
release, a district court may “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 on postrelease supervision, . . . 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 such offense is a Class C or D
felony.” 18 U.S.C. § 3583(e)(3) (1993). The statute also
2
Because post-revocation penalties are considered part
of the punishment for the original offense, Johnson v. United
States, 529 U.S. 694, 700-01 (2000), we apply 18 U.S.C
§§ 3583 and 3553 as they read in March 1993, when Dillon
committed his original offense.
3
Count One was a Class B felony because it carried a
maximum term of 40 years. See 21 U.S.C. § 841(b)(1)(A)(iii)
(1993). Count Two was a Class D felony because it carried a
maximum term of 5 years. See 18 U.S.C. § 924(c)(1) (1993).
Count Four was a Class B felony because it carried a
maximum term of 40 years. See 21 U.S.C. § 841(a)(1)
(1993).
9
permits a district court to add an additional term of supervised
release following a prison term imposed under § 3583(e)(3),
so long as the sum of the two terms does not exceed the
originally-imposed term of supervised release. 4
At Dillon’s November 1993 sentencing hearing, the
District Court announced: “Upon release from imprisonment
the defendant shall be placed on supervised release for a term
of five years.” App. at 39. The court’s judgment, released a
few days later, contained almost identical language: “Upon
release from imprisonment, the defendant shall be on
supervised release for a term of five (5) years.” App. at 31.
Dillon argues that this language (specifically, “a term”)
“plainly refers to only one term of supervised release” and
that the District Court was without authority to impose three
consecutive terms of reimprisonment and three concurrent
terms of supervised release in 2012. Appellant’s Br. at 29-30.
For support, Dillon relies on United States v. Eskridge,
445 F.3d 930 (7th Cir. 2006), in which the Seventh Circuit
considered a 22-month sentence imposed following the
defendant’s third supervised-release violation. Although
Eskridge had initially been sentenced to two concurrent terms
4
In 1994, Congress added § 3583(h), which explicitly
confers this power upon district courts. In Johnson v. United
States, the Supreme Court held that § 3583(h) could not be
applied retroactively to defendants (like Dillon) who
committed their offenses prior to 1994, but also held that the
pre-1994 statute could nevertheless be read to provide for the
power. See 529 U.S. at 705-06.
10
of supervised release, after his first violation in 2002, the
district judge sentenced him to 26 more months of supervised
release but “did not indicate in the judgment order whether
these were two (concurrent) terms or one term.” Id. at 934.
This mattered, explained Judge Posner, because “consecutive
terms of imprisonment may be imposed upon revocation of
concurrent terms of supervised release,” and so “if in 2002
the district judge [had] actually imposed two terms of
supervised release, he had two terms that he could revoke,”
which meant he could order Eskridge to serve consecutive
prison terms without violating the 2-year maximum. Id. The
court continued:
“To resolve the issue of clerical error versus
judicial error, we sent for the transcript of the
sentencing hearing. There we discover that in
imposing supervised release in the first
revocation the judge stated: ‘Because of the
short term imposed in this matter the court is
going to also continue you on supervised
release for a term of 26 months.’ A term. This
was the sentence and it was accurately reflected
in the written judgment . . . .”
445 F.3d at 935 (internal citation omitted). The court
therefore vacated Eskridge’s sentence and remanded the case
for resentencing.
In United States v. Snyder, 635 F.3d 956 (7th Cir.
2011), the Seventh Circuit returned to this issue in a case
involving a sex offender who had violated the terms of his
supervised release. As in Eskridge, the judge at Snyder’s
11
original sentencing hearing had announced that Snyder would
serve “a term” of six years of supervised release following his
168 months in prison. Id. at 958. After Snyder violated the
terms of his supervised release almost immediately, the
district court revoked supervised release and sent Snyder back
to prison for what it believed to be the statutory maximum:
two years on each of his four convictions, to run
consecutively. Id. at 959.
Because the district court announced this sentence
without any mention of the applicable guidelines range, the
Seventh Circuit vacated Snyder’s sentence and remanded.
But in doing so, the court also noted that based on the
language used by the district judge in the sentencing order
and transcript, Snyder had actually been sentenced only to a
single term of supervised release, id. at 958 n.1, and the
maximum term of reimprisonment to which he could be
sentenced was only 24 months, id. at 960 n.4.
Here, the government argues that despite what it said,
the District Court in 1993 actually meant to sentence Dillon
to three concurrent terms of supervised release. Moreover,
because it claims that the District Court was “obligated by
law” to impose supervised release on both Counts One and
12
Four, 5 the government asks us to hold that “by operation of
law,” the District Court’s 1993 sentence “actually involved
two terms of supervised release: a five-year term at Count
One and a concurrent four-year term at Count Four.” Gov’t
Br. at 25-26.
This argument is flawed in two respects. First, the
government never objected in 1993 to the District Court’s
imposition of “a term” of supervised release, nor did it cross-
appeal and assert any error. As Judge Posner recognized in
Eskridge, if a district court’s order “accurately reflects the
judge’s decision, however mistaken, to impose just a single
term [of supervised release], it cannot be corrected because
none of the statutory provisions authorizing the sentencing
judge to modify a sentence that he has imposed is applicable
to such a case.” 445 F.3d at 934 (emphasis added); see also
Fed. R. Crim. P. 36 (“After giving any notice it considers
appropriate, the court may at any time correct a clerical error
in a judgment, order, or other part of the record, or correct an
error in the record arising from oversight or omission.”);
Eskridge, 445 F.3d at 934 (“If the failure of the judgment
5
See 21 U.S.C. § 841(b)(1)(A) (1993) [Count One]
(“Any sentence under this subparagraph shall, in the absence
of [a prior conviction for a felony drug offense], impose a
term of supervised release of at least 5 years in addition to
such term of imprisonment . . . .”); id. § 841(b)(1)(B) [Count
Four] (“Any sentence imposed under this subparagraph shall,
in the absence of [a prior conviction for a felony drug
offense], include a term of supervised release of at least 4
years in addition to such term of imprisonment . . . .”).
13
order to state that the judge was imposing two (concurrent)
terms of supervised release . . . was merely a clerical error—
that is, if the court announced two terms but the clerk who
typed the 2002 judgment included just one—then Rule 36
will allow correction even now.”).
Second, even if Dillon’s 1993 sentence could
somehow be transmogrified “by operation of law,” this would
still fail to explain why the District Court in 2012 thought it
could revoke three concurrent terms of supervised release
instead of two. As the government admits, only Counts One
and Four of the 1993 Superseding Indictment carried
mandatory terms of supervised release. The government
acknowledges that the 1993 oral and written judgments made
no reference to Count Two, but claims that “the District
Court’s treatment of [Count Two] during the revocation
hearing reflects that it originally intended to impose three
separate and concurrent terms of supervised release.” Gov’t
Br. at 26-27. But even if the District Court’s actions in 2012
could give us any insight into what it had “intended” to do
almost two decades earlier, the government never explains
why we should consider those intentions relevant. See
Snyder, 635 F.3d at 960 n.4 (“[E]ven if the court meant to
sentence Snyder differently, it no longer has the authority to
modify the original sentence to correct the error.”).
“A defendant cannot be reimprisoned for violating the
conditions of non-existent terms of supervised release.”
Snyder, 635 F.3d at 960 n.4. In 1993, when the District Court
sentenced Dillon to “a term” of supervised release, it capped
the number of supervised release terms it could revoke at any
future proceeding at one. This conclusion is supported by the
14
plain text of § 3583(e)(3), which authorizes the 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.” 18 U.S.C. § 3583(e)(3) (1993) (emphases added).
We join the Court of Appeals for the Seventh Circuit
and hold that where, as here, a district court’s sentence
includes “a term” of supervised release, the court may not
sentence the defendant to multiple terms of reimprisonment
and/or supervised release upon a subsequent revocation of
supervised release. The District Court therefore erred when it
sentenced Dillon to three consecutive terms of
reimprisonment and three concurrent terms of supervised
release.
B.
Although the District Court erred at Dillon’s
revocation hearing by sentencing Dillon to three consecutive
terms of reimprisonment and three concurrent terms of
supervised release, Dillon never objected before the District
Court, and so we must review for plain error. We may
reverse a district court’s decision on plain error review only if
we conclude that (1) there was an error; (2) the error was
“plain,” that is, “clear” or “obvious”; (3) the error “affect[s]
substantial rights,” which “in most cases” means that the error
must have been prejudicial; and (4) the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732-36
(1993).
15
We will exercise our discretion to correct the District
Court’s erroneous imposition of multiple terms of
reimprisonment and supervised release. The District Court’s
error was “plain” because the language of the 1993 sentence –
“a term of five years” – was unambiguous. See, e.g., United
States v. Moore, 375 F.3d 259, 265 (3d Cir. 2004) (finding
plain error where district court admitted irrelevant and
prejudicial evidence despite “clear and unambiguous”
command of Fed. R. Evid. 404(b)); United States v.
Knobloch, 131 F.3d 366, 373 (3d Cir. 1997) (finding plain
error where district court ignored “unambiguous directive” of
guidelines application note); United States v. Leonard, 157
F.3d 343, 346 (5th Cir. 1998) (finding plain error where
district court failed to apply “clear and unambiguous”
sentencing guideline language).
The District Court’s erroneous multiple-terms sentence
was prejudicial to Dillon due to its implications for a
hypothetical second revocation of his supervised release: a
judge at such a hearing may see that Dillon was sentenced to
multiple terms at his first revocation and presume that he may
also impose multiple terms. Because the type of error made
by the District Court is one that “may result in arbitrary
differences in sentencing similarly situated defendants,” we
will grant Dillon relief “in order to maintain the fairness,
integrity, and public reputation of judicial proceedings.”
United States v. Vazquez-Lebron, 582 F.3d 443, 447 (3d Cir.
2009).
16
IV.
For the reasons set forth above, we will vacate Dillon’s
sentence and remand to the District Court for resentencing. 6
6
In the alternative, Dillon claims that the District
Court’s sentence was procedurally unreasonable because it
failed to consider his approximately 28 months of over-
incarceration due to his inability to obtain the full benefit of
the retroactive crack amendments. Although we need not
decide this question today, the District Court should consider
Dillon’s over-incarceration upon resentencing.
17