United States v. Byrd ( 1997 )

REVISED, JULY 14, 1997
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-50733
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
TERESA BYRD
Defendant - Appellant.
Appeal from the United States District Court
For the Western District of Texas
June 23, 1997
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant Teresa Byrd challenges her sentence imposed upon
revocation of her probation. For reasons that follow, we affirm.
I
In 1994, Teresa Byrd pleaded guilty to distribution of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The
probation officer calculated her net offense level as 25 and her
criminal history score as 0 (“zero”), resulting in an imprisonment
range of 57-71 months under the Sentencing Guidelines. Pursuant to
U.S.S.G. § 5K1.1, however, the Government moved the district court
to depart downward from this range because of Byrd’s cooperation in
a related investigation. The court granted the motion and departed
downward to an offense level of 6, which yields an imprisonment
range of 0-6 months. In lieu of imprisonment, the court sentenced
Byrd to 5 years of probation. As part of the standard conditions
of probation, Byrd was prohibited from using controlled substances
and forbidden from associating with convicted felons.
In 1996, Byrd’s probation officer petitioned the court to
revoke Byrd’s probation, asserting that her urine specimens had
tested positive for controlled substances and that she had
associated with convicted felons. After conducting a hearing, the
district court revoked Byrd’s probation, and pursuant to 18 U.S.C.
§ 3565 (West Supp. 1997)--the relevant statute governing sentencing
upon revocation of probation--sentenced her to 57 months of
imprisonment. The court based Byrd’s sentence on the pre-downward
departure guidelines range of 57-71 months, overruling Byrd’s
request to be sentenced within the post-departure range of 0-6
months.
Byrd appeals the district court’s sentencing decision,
contending that the court erred in its decision to sentence her
within the pre-departure range of 57-71 months instead of the post-
departure range of 0-6 months. Byrd asserts first that application
of the current version of 18 U.S.C. § 3565, as amended in September
1994, to her resentencing violates the Ex Post Facto Clause. Under
the former version of § 3565, she insists, the court would have
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been compelled to base her sentence upon the 0-6 month range.
Alternatively, Byrd maintains that, even if application of the
current version of § 3565 does not violate the Ex Post Facto
Clause, the sentence imposed upon probation revocation must still
be within the 0-6 month range under the amended statute.
II
The application of a criminal law violates the Ex Post Facto
clause only if: (1) the law is retrospective, i.e., it applies to
events occurring before its enactment, and (2) the law
disadvantages the offender affected by it. See Miller v. Florida,
482 U.S. 423, 430 (1987). A law is retrospective if it “changes
the legal consequences of acts completed before its effective
date.” Weaver v. Graham, 450 U.S. 24, 31 (1981). Because Byrd
failed to raise her Ex Post Facto contention in the district court,
and under Fed. R. Crim. P. 52(b), we may address her claim only if
(1) there is an error, (2) the error is plain, and (3) the error
affects substantial rights. See United States v. Olano, 507 U.S.
725, 732 (1993); United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc). If all three conditions are satisfied,
we may exercise our discretion to correct the error, but only if it
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Olano, 507 U.S. at 732 (internal
quotation marks omitted; alteration in original).
Assuming, arguendo, that the 1994 amendment to § 3565
disadvantages Byrd, we must determine whether Byrd’s acts were
completed before the effective date of the September 1994 amendment
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to § 3565. This issue is somewhat complicated, for the conduct
underlying Byrd’s conviction was completed in 1993 (well before the
effective date of the 1994 amendments) but the conduct underlying
the probation revocation did not occur until 1996 (substantially
after the effective date). If the 57-month sentence imposed upon
Byrd’s probation revocation (pursuant to the amended § 3565)
constitutes the continuing legal consequence of Byrd’s original
conviction, then the Ex Post Facto Clause is implicated because the
acts underlying the conviction did indeed occur before the
statute’s effective date. If, however, the punishment upon
revocation serves as an independent legal consequence of Byrd’s
probation violation, then the Ex Post Facto Clause is not
implicated because the acts underlying the revocation occurred
after the effective date. See United States v. Beals, 87 F.3d 854,
858 (7th Cir. 1996); United States v. Reese, 71 F.3d 582, 588 (6th
Cir. 1995), cert. denied, 116 S. Ct. 2529 (1996).
We are aware of only one circuit court opinion focusing on the
Ex Post Facto ramifications of an amendment to a statute governing
probation revocation. See United States v. Female Juvenile, 103
F.3d 14, 17 n.7 (5th Cir. 1996). In Female Juvenile, as here, the
defendant committed the underlying crime before the 1994 amendment
to § 3565 but violated her probation after such amendment. We
stated, albeit in dicta and without explanation, that application
of § 3565, as amended in 1994, does not violate the Ex Post Facto
Clause because the “acts which exposed the defendant to
resentencing under § 3565 [i.e., the acts underlying the probation
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revocation] occurred after the amendment” to that statute. Id. at
17 n.7. Because the only court to face the instant issue has
concluded that there is no Ex Post Facto violation, we conclude
that, if there was error, it was not “clear,” “obvious,” or
“readily apparent.” See Calverley, 37 F.3d at 163; see also Olano,
507 U.S. at 734.1
III
Having concluded that the district court did not commit plain
error by resentencing Byrd under the amended version of 18 U.S.C.
1
Although Byrd recognizes that, aside from Female Juvenile,
there is no case law regarding this precise issue, she asserts that
the district court committed plain error because it failed to
analogize this case to similar situations involving amendments to
statutes governing revocation of parole and supervised release. It
is true, as Byrd asserts, that a significant majority of the
circuits have held that application of amended statutes governing
revocation of parole or supervised release violates the Ex Post
Facto clause when the conduct underlying the conviction occurred
before amendments to those statutes but the conduct underlying the
revocation occurred after the amendments. For cases involving
parole revocation, see, e.g., Greenfield v. Scafati, 277 F. Supp.
644 (D. Mass.) (three-judge court), aff’d mem., 390 U.S. 713(1967); Beebe v. Phelps, 650 F.2d 774 (5th Cir. 1981). For cases
involving supervised release, governed by 18 U.S.C. § 3583, see
United States v. Beals, 87 F.3d 854 (7th Cir. 1996); United States
v. Meeks, 25 F.3d 1117 (2d Cir. 1994); United States v. Paskow, 11
F.3d 873 (9th Cir. 1993); United States v. Parriett, 974 F.2d 523(4th Cir. 1992). But see United States v. Reese, 71 F.3d 582 (6th
Cir. 1995) (finding no Ex Post Facto problem in applying the
amended § 3583). The policy statements of the Sentencing
Guidelines also suggest that violations of probation should be
treated as punishment for the initial offense and not the conduct
for which probation was revoked. See U.S.S.G., Ch. 7, Pt. A(3)(b).
Despite the foregoing, we decline to hold that the district
court’s error was plain. While revocation of probation may be
closely analogous to revocation of parole or supervised release, we
cannot say that any possible error in failing to make such analogy
was so conspicuous that “the trial judge and prosecutor were
derelict in countenancing it, even absent the defendant’s timely
assistance in detecting it.” United States v. Frady, 456 U.S. 152,
163 (1982), quoted in Calverley, 37 F.2d at 163.
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§ 3565, we now address whether the district court erred in
sentencing Byrd pursuant to the pre-downward departure range of 57-
71 months. We review the legality of a criminal sentence de novo.
United States v. Fonts, 95 F.3d 372, 373 (5th Cir. 1996).
When a defendant violates the conditions of probation by
possessing a controlled substance, the sentencing court is required
to “revoke the sentence of probation and resentence the defendant
under subchapter A to a sentence that includes a term of
imprisonment.” 18 U.S.C. § 3565(b)(1) (West Supp. 1997). The
relevant section in subchapter A directs the court to consider “the
sentencing range established for . . . the applicable guidelines or
policy statements.” 18 U.S.C. § 3553(a)(4)(B) (West Supp. 1997).
Byrd contends that it is unclear whether “the sentencing range
established for . . . the applicable guidelines” refers to the
guidelines range established before the downward departure or
whether the phrase refers to the range after the departure.
Because of the alleged ambiguity, Byrd asserts that the “rule of
lenity” requires imposition of the shorter sentence, i.e., that
based upon the post-downward departure range.
Byrd draws support for her rule-of-lenity argument from United
States v. Granderson, 114 S. Ct. 1259 (1994). In Granderson, the
Supreme Court analyzed the resentencing options available under the
pre-1994 version of § 3565, which provided that a defendant who
violates probation by possessing a controlled substance shall be
resentenced “to not less than one-third of the original sentence.”
18 U.S.C. § 3565 (Westlaw 1993). The dispute in Granderson
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concerned the proper interpretation of the phrase “original
sentence.” The Government argued that it referred to the term of
probation originally imposed upon the defendant (a period of 5
years), whereas the defendant maintained that it referred to the
guidelines imprisonment range that could have been imposed upon
conviction (a range of 0-6 months). The Court adopted the
defendant’s position, reasoning that “where text, structure, and
history fail to establish that the Government’s position is
unambiguously correct[,] we apply the rule of lenity and resolve
the ambiguity in [the defendant’s] favor. Id. at 1267.
In the last footnote of the opinion, the Court also discussed,
in dicta, application of the rule of lenity to a situation in which
the district court had departed downward from the guidelines to
impose a sentence of probation--a situation very similar to that
which we face today. The Court noted that in such a situation,
upon revocation of probation, the proper sentence would be “the
maximum of a Guidelines range permitting a sentence of probation.”
Id. at 1269 n.15. Based on this footnote, Byrd argues that in the
instant case, the guidelines range permitting a sentence of
probation is a range of 0-6 months, i.e., her sentencing range
imposed by the court after the downward departure. Although § 3565
has since been amended, Byrd urges us to apply the rule of lenity
because she believes that the current phrasing, “the applicable
guidelines,” is just as ambiguous as the former term, “original
sentence.” We disagree.
The textual difference between the current and former statutes
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is significant. The former act was retrospective in that it
referred the sentencing court to a particular sentence actually and
previously imposed, i.e., the “original sentence” received by the
defendant. By contrast, the current act does not refer to a past
sentencing decision; rather, it directs the court to undertake a
new sentencing determination based upon the “applicable
guidelines.” This difference is critical, for the retrospective
aspect of the former statute was ambiguous insofar as there were
two different sentences that could be termed “original”: (1) the
potential guidelines imprisonment range and (2) the term of
probation actually imposed. See Granderson, 114 S. Ct. 1261-62,
1267. In 1994, however, Congress rectified the ambiguity by
eliminating the retrospectivity, and there is nothing ambiguous
about the directive to resentence a defendant pursuant to the
“applicable guidelines.” The dispute about whether the term
“applicable guidelines” refers to the pre- or post-downward
departure range is irrelevant, for it refers to neither such range.
Instead, the term refers to the sentencing guidelines themselves,
which are found in the U.S. Sentencing Commission Guidelines
Manual. The “applicable guidelines” include, but are not limited
to, those listed in: Chapter Two, dealing with the particular
offense conduct; Chapter Three, concerning adjustments for the
defendant’s role in the offense; Chapter Four, regarding the
defendant’s criminal history; and, of course, Chapter Five,
concerning upward and downward departures. If the “applicable
guidelines” permit it--as they seem to in the instant case--the
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sentencing court has discretion, upon resentencing following
revocation of probation, either to depart downward or not to depart
at all. In no way, however, do the applicable guidelines compel
the court to depart downward.
This interpretation is perfectly reasonable and does not
suffer from the “linguistic anomalies” that prompted the Supreme
Court to apply the rule of lenity in Granderson. See 114 S. Ct. at
1264-65. When undertaking the initial sentencing determination, a
district court has discretion whether to grant or overrule the
government’s motion for downward departure. A district court
should have the same discretion upon revocation of probation,
especially when confronted with a defendant who has failed to abide
by the conditions of probation.2
IV
For the foregoing reasons, we AFFIRM Byrd’s sentence.
AFFIRMED.
2
Finally, our conclusion is supported by the legislative
history, sparse though it may be. Even before the Supreme Court
decided Granderson, some members of Congress sought to amend § 3565
because the amended statute would make:
consistent the punishment for unlawful possession of a
controlled substance . . . by requiring consideration of the
nature and seriousness of the violation, and other relevant
considerations, instead of arbitrarily varying the sanction
according to the length of the initially imposed term of
probation.
139 Cong. Rec. S2151 (daily ed. Feb. 25, 1993) (statement of Sen.
Thurmond). This statement supports our holding in that it directs
a court to reevaluate the length of punishment based upon factors
relevant to the crime, instead of looking retrospectively to the
length of the original sentence.
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