United States v. Cortez Black ( 2011 )

Case: 11-50311 Document: 00511703347 Page: 1 Date Filed: 12/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2011
No. 11-50311
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CORTEZ BLACK,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-60-4
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Cortez Black was convicted of one count of conspiracy to possess with
intent to distribute five grams or more of crack cocaine. See 21 U.S.C.
§§ 841(b)(1)(B), 846. After serving his term of imprisonment, he was released
and began serving his term of supervised release. He violated the conditions of
his supervised release when he robbed a bank. The district court revoked
Black’s supervised release and imposed a 12-month term of imprisonment, to be
followed by five years of supervised release. Black now appeals his revocation
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-50311 Document: 00511703347 Page: 2 Date Filed: 12/21/2011
No. 11-50311
sentence, arguing that under 18 U.S.C. § 3583, the district court was not
authorized to impose a five-year term of supervised release. He argues that
under § 3583(b)(1), the applicable maximum term of supervised release is five
years, and under § 3583(h), any period of incarceration imposed as a result of the
revocation of supervised release must be deducted from that five year maximum
supervised release term. Therefore, he argues, his 12-month term of
imprisonment must be subtracted from the five-year maximum term of
supervised release, leaving a maximum of only four years of supervised release
to which the district court could sentence him.
A sentence that exceeds the statutory maximum is an illegal sentence and
therefore constitutes plain error; review of the issue is thus de novo. See United
States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008).
Black’s interpretation of § 3583 for a defendant convicted under
§ 841(b)(1)(B) is contrary to circuit precedent. See United States v. Jackson, 559
F.3d 368, 370 (5th Cir. 2009). Black correctly notes that under § 3583(h), the
length of a term of supervised release imposed upon revocation “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.” § 3583(h). However, under
the plain language of § 841(b)(1)(B)(iii) (the “statute for the offense that resulted
in the original term of supervised release”), there is no limit on the length of
supervised release that may be imposed upon conviction for the offenses listed
therein or, consequently, upon revocation of the term of supervised release
imposed for such a conviction. See § 841(b)(1)(B). Since § 841(b)(1)(B) does not
specify a maximum term of supervised release, the maximum is life. See
Jackson, 559 F.3d at 371.
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Case: 11-50311 Document: 00511703347 Page: 3 Date Filed: 12/21/2011
No. 11-50311
Black’s reliance on Vera is misplaced because that case involved a
conviction under 8 U.S.C. § 1324, not a conviction under § 841. See Vera, 542
F.3d at 458.
Black’s revocation sentence is AFFIRMED.
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