United States v. Jeffery Hall ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0256n.06
No. 17-5222
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT
May 24, 2018
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
v. )
COURT FOR THE EASTERN
)
DISTRICT OF TENNESSEE
JEFFERY EARL HALL, )
)
Defendant-Appellant. )
)
BEFORE: GIBBONS, WHITE, and STRANCH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Jeffrey Hall appeals the district court’s
revocation of his supervised release and sentence of 51 months’ incarceration. In 2001, Hall was
convicted of a Class A felony based on his then-designation as an armed career criminal. Based
on this original conviction, the district court found that the maximum sentence upon supervised
release revocation was five years. 18 U.S.C. § 3583(e)(3). Hall argues that in light of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which applies
retroactively in cases on collateral review, Welch v. United States, 136 S. Ct. 1257, 1268 (2016),
he should not have been categorized as an armed career criminal. Thus, his original conviction
should have been of a Class C felony, which carries a statutory maximum of two years’
incarceration upon revocation of supervised release. Hall therefore argues for the first time in
this appeal that the district court’s sentence of 51 months was over the statutorily allowed
maximum.
No. 17-5222, United States v. Hall
We hold that because Hall did not raise this argument at his supervised release revocation
sentencing, he has forfeited any error. Moreover, generally, an original conviction may not be
collaterally attacked at a supervised release revocation hearing. Instead, if Hall wishes to
challenge his designation as an armed career criminal for his 2001 conviction, the proper avenue
is a 28 U.S.C. § 2255 petition. Accordingly, we affirm the district court.
I.
In 2001, Jeffrey Hall pled guilty to possessing a firearm as a convicted felon, in violation
of 18 U.S.C. § 922(g). At the time of this conviction, Hall was classified as an armed career
criminal based on five prior Tennessee convictions: two burglaries, two aggravated burglaries,
and one third-degree burglary. Thus, Hall’s conviction was for a Class A felony. He was
sentenced to 188 months’ incarceration and 3 years’ supervised release. Hall completed his
custodial sentence in February 2015, but in 2016, Hall violated the terms of his supervised
release. Under 18 U.S.C. § 3583(e)(3), when supervised release for a Class A felony is revoked,
the maximum sentence is five years in prison. Accordingly, when the district court revoked
Hall’s supervised release, it sentenced him to 51 months’ imprisonment, followed by one year of
supervised release.1
In June 2015, four months after Hall was released from custody, the Supreme Court
issued its decision in Johnson, 135 S. Ct. 2551. Under Johnson, Hall arguably no longer
qualifies as an armed career criminal based on his prior convictions. Hall, however, did not raise
any such argument in his supervised release revocation hearing. Instead, he argues for the first
time in this appeal that, under Johnson, his 2001 conviction would have been of a Class C felony
without this armed career criminal designation. This, he argues, would invalidate his sentence in
1
The court thereafter amended its judgment to reduce the term of supervised release to 9 months.
2
No. 17-5222, United States v. Hall
this case, as when supervised release is revoked for a Class C felony, the sentence cannot exceed
more than two years’ imprisonment. 18 U.S.C. § 3583(e)(3).
II.
Where a defendant concedes that he failed to raise an objection to his sentence in the
district court, he has forfeited the claim. See United States v. Mabee, 765 F.3d 666, 671 (6th Cir.
2014). Hall concedes that he failed to object to his sentence in the district court, but he argues
that this court should still reach the merits of his argument under the plain error standard. See
Fed. R. Crim. P. 51, 52(b); United States v. Oliver, 397 F.3d 369, 377–78 (6th Cir. 2005)
(reviewing sentencing challenges raised for the first time on appeal for plain error). However,
this court is not required to review sentencing errors alleged for the first time on appeal under
Federal Rules of Criminal Procedure 52(b). See United States v. Olano, 507 U.S. 725, 735
(1993). Rather, “[o]ur authority to remedy a ‘plain error’ is discretionary.” Oliver, 397 F.3d at
375. We decline to rule on the merits of Hall’s argument and find that it has been forfeited.
III.
Furthermore, even were we to employ our discretion to consider Hall’s argument, our
precedent indicates that such a challenge to his original armed career criminal designation may
be inappropriate in this proceeding. This circuit has consistently held that a defendant may not
“attempt to invalidate his original conviction at a supervised release revocation hearing.” United
States v. Lewis, 498 F.3d 393, 395 (6th Cir. 2007) (quoting United States v. Meacham, 65 F.
App’x 529, 533 (6th Cir. 2003)); see also, e.g., United States v. Strickland, 597 F. App’x 854,
857 (6th Cir. 2015); United States v. Hallom, 505 F. App’x 480, 481 (6th Cir. 2012); United
States v. Flanory, 45 F. App’x 456, 459–60 (6th Cir. 2002).2 The reasoning behind this rule is
2
Other circuits also bar collateral attacks of an original conviction in a supervised release revocation
hearing. See, e.g., United States v. Miller, 557 F.3d 910, 913 (8th Cir. 2009); United States v. Warren, 335 F.3d 76,
3
No. 17-5222, United States v. Hall
that the appropriate vehicle for collaterally attacking the validity of a federal sentence or
conviction is through a motion under 28 U.S.C. § 2255. See Meacham, 65 F. App’x at 532. This
makes sense, as sentencing after revocation of supervised release is governed by 18 U.S.C.
§ 3583(e), which directs the court to apply certain 18 U.S.C § 3553(a) factors, and nothing in
these factors indicates that the district court should consider the validity of the original
conviction when deciding sentencing after revocation of a supervised release. See 18 U.S.C
§ 3553. In fact, the statute excludes consideration of the seriousness of the original crime as a
factor. See Strickland, 597 F. App’x at 857. This indicates that a revocation hearing is not the
appropriate forum to reconsider the original conviction.
Indeed, the Third Circuit found Hall’s exact argument here to be an impermissible
collateral attack on an original conviction. See United States v. Jones, 833 F.3d 341 (3d Cir.
2016). In Jones, the defendant also argued that because he no longer qualified as an armed
career criminal under Johnson, his sentence of 40 months upon the revocation of his supervised
release exceeded the two-year statutory maximum. Id. at 343. That court concluded that “[e]ven
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 Section 3583(e) with reconsidering an offender’s status as an
armed career criminal.” Id. at 344. Although Jones is not binding on us, it is highly persuasive.
Hall asks this court to draw on a line of cases that, he claims, allow collateral challenges
to an original conviction for purely legal issues. The two cases he points to are United States v.
Garcia-Hernandez, 74 F. App’x 412 (5th Cir. 2003), and United States v. Justin D., 156 F.
App’x 936 (9th Cir. 2005). Neither of these cases helps Hall’s argument. In Garcia-Hernandez,
78 (2d Cir. 2003); United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999); United States v. Almand, 992 F.2d
316, 317–18 (11th Cir. 1993); United States v. Simmons, 812 F.2d 561, 563 (9th Cir. 1987); United States v. Torrez-
Flores, 624 F.2d 776, 780 (7th Cir. 1980).
4
No. 17-5222, United States v. Hall
that court explicitly declined to address whether the appeal was an impermissible collateral
attack on the original conviction. Garcia-Hernandez, 74 F. App’x at 414–15 (“declin[ing] to
address this question” because Garcia’s challenge would fail on the merits). And in Justin D.,
the court stated that the defendant was “attacking the sufficiency of the underlying information,
not just the underlying conviction,” which is “a fundamental defect which can be raised at any
time.” Justin D., 156 F. App’x at 937. We know of no case indicating that an erroneous
designation as an armed career criminal is a similar “fundamental defect which can be raised at
any time.” See id. Furthermore, this circuit has not drawn any line allowing certain collateral
attacks to an original conviction but not others and drawing such a line could lead to confusion
and inefficiency. Accordingly, we hesitate to create an exception to the general rule barring
collateral attacks of an original conviction at a supervised release revocation hearing.
This does not mean, however, that Hall is without means to challenge his sentence. Hall
could instead file a § 2255 motion to challenge his original conviction. In such a situation, any
revocation proceedings could be stayed in order to expedite resolution of the underlying legal
issue in the habeas proceeding. This would ensure that the defendant is properly sentenced upon
revocation of his supervised release. Here, the parties have every reason to efficiently and justly
resolve this issue, as Hall’s Johnson argument may have merit.
IV.
Because Hall raises his sentencing objection for the first time on appeal, we decline to
address Hall’s claim on the merits. Additionally, case law—from both within and outside this
circuit—forbidding collateral review of the original conviction at a supervised release revocation
hearing supports our decision to not review Hall’s argument here. We therefore affirm the
district court’s sentence of 51 months.
5