United States v. Steven Perry , 743 F.3d 238 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2182
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEVEN J. PERRY,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:04-cr-00079-RLM-CAN-1 — Robert L. Miller, Jr., Judge.
ARGUED JANUARY 24, 2014 — DECIDED FEBRUARY 14, 2014
Before BAUER, EASTERBROOK, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. In 2004, Steven Perry (“Perry”) was
charged with four counts relating to the possession and
transportation of child pornography. He pleaded guilty to two
counts and was sentenced by the district court to concurrent
46- and 60-month terms of imprisonment to be followed by
three- and five-year terms of supervised release. In 2009, Perry
violated the terms of his supervised release and was sentenced
to three months’ imprisonment and four years of supervised
2 No. 13-2182
release. In 2013, Perry violated the terms of his supervised
release once again. The district court sentenced Perry to a five-
year term of imprisonment as well as a ten-year term of
supervised release. In its written judgment, the court imposed
four new conditions of supervision. Perry now appeals the
five-year sentence imposed by the district court as well as the
additional conditions of supervision.
I. BACKGROUND
A. The Indictment
In 2003, Perry shared eleven images of child pornography
with an internet group dedicated to collecting and sharing
child pornography. A search of Perry’s apartment uncovered
discs containing hundreds of images of child pornography. On
August 13, 2004, a grand jury charged Perry in a four-count
indictment for violations of 18 U.S.C. §§ 2252 and 2252A.1
B. The March 17, 2005, Sentencing Hearing
On March 17, 2005, Perry pleaded guilty to two counts:
violations of §§ 2252A(a)(1) and (a)(5)(B). The government
dismissed the other two counts. The district court sentenced
Perry to 60 months’ imprisonment and a five-year term of
supervised release on the first count and a concurrent 46-
month term of imprisonment and a three-year term of super-
vised release on the second count. The court imposed fifteen
1
18 U.S.C. § 2252 criminalizes knowingly transporting or possessing visual
depictions involving the use of a minor engaging in sexually explicit
conduct, whereas § 2252A targets knowingly possessing or transporting
child pornography, and encompasses a broader range of conduct.
No. 13-2182 3
standard conditions of supervised release, as well as six special
conditions.
C. Perry’s First Violation of Supervised Release
On October 9, 2009, Perry was in the unsupervised com-
pany of a twelve-year-old female in violation of the terms of
his sex offender specific treatment. On October 30, 2009, he
admitted fault and was sentenced to three months’ imprison-
ment coupled with a four-year term of supervised release. The
court imposed the same conditions of supervised release that
it had previously imposed on March 17, 2005.
D. Perry’s Second Violation of Supervised Release
On May 8, 2013, a probation officer visited Perry at home
and found child pornography on his computer, a violation of
the terms of his supervised release. At his revocation hearing,
Perry admitted violating the terms of his supervised release by
possessing child pornography. The probation officer (mistak-
enly) stated in his report that Perry was subject to the statutory
minimum five-year term of imprisonment mandated by the
current version of 18 U.S.C. § 3583(k). Perry’s attorney agreed
with this calculation, as did the government. The district court
accepted the parties’ conclusions, and orally sentenced Perry
to five years’ imprisonment as well as a ten-year term of
supervised release “on the same conditions originally set.” In
its written judgment, the district court added four special
conditions of supervision that were not mentioned at the
revocation hearing. Perry timely appeals both the length of
his sentence and the additional special conditions of supervi-
sion imposed by the district court in its written judgment.
4 No. 13-2182
II. DISCUSSION
A. Perry’s Sentence
Perry first challenges the district court’s decision to impose
a mandatory five-year term of imprisonment pursuant to 18
U.S.C. § 3583(k). Perry argues that the district court erred
because the version of § 3583(k) in effect at the time of his
initial offense authorized a maximum sentence of only two
years. We agree.
Defendants are to be sentenced at their revocation hearings
pursuant to the version of the statute in effect on the date they
committed the offense. Johnson v. United States, 529 U.S. 694,
702 (2000). “[W]hen a statute has no effective date, ‘absent a
clear direction by Congress to the contrary, [it] takes effect on
the date of its enactment.’” Johnson, 529 U.S. at 702, citing
Gozlon-Perez v. United States, 498 U.S. 395, 404 (1991). Legisla-
tion is not to be applied retroactively, Lynce v. Mathis, 519 U.S.
433, 439 (1997), especially when statutes burden private
interests. Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994).
The current version of 18 U.S.C. § 3583(k) states, “[i]f a
defendant required to register under the Sex Offender Regis-
tration and Notification Act (SORNA) commits any criminal
offense … the court shall revoke the term of supervised release
and require the defendant to serve a term of imprisonment … .
Such term shall not be less than 5 years.”
This version of the statute, however, did not take effect
until July 27, 2006, and nothing in the language of the statute
indicates that Congress intended the statute to apply retro-
actively. When Perry committed his initial offense in 2003,
No. 13-2182 5
§ 3583(k) stated, “[A] defendant whose term [of supervised
release] is revoked under this paragraph may not be required
to serve on any such revocation … more than 2 years in prison
if such offense is a class C or D felony … .”
Perry argues, and the government concedes, that since
Perry committed his original offense in 2003 and the offense
constituted a class C felony, he was subject to the statutory
two-year maximum term of imprisonment outlined in the
2003 version of § 3583(k). We agree, and so vacate Perry’s five-
year term of imprisonment and remand with instructions to
the district court to sentence Perry to no more than two years’
imprisonment pursuant to the 2003 version of § 3583(k).
B. Whether Prior Terms of Imprisonment Count To-
wards the Maximum Sentence a Court Can Impose for
Subsequent Violations of Supervised Release
Perry acknowledges that he is subject to the maximum two-
year term of imprisonment allowed by § 3583(k) for violating
the terms of his supervised release. He contends, however, that
he should be credited for time served. Since he served three
months in prison in 2005 for a prior violation of his supervised
release, Perry argues that his new sentence should be, at most,
twenty-one months.
Perry’s case presents an issue of first impression in this
circuit—whether a defendant’s past time served due to a prior
revocation of his supervised release should count towards and
so limit the maximum sentence the district court can impose
for a subsequent violation of his supervised release under 18
U.S.C. § 3583(e)(3). Though Perry now claims that this issue is
not ripe for our review, Perry squarely placed the issue before
6 No. 13-2182
this Court when he argued that “the correct statutory provi-
sions provide that Mr. Perry may serve no more than 21
months’ imprisonment on the revocation.” We now turn to the
statute at issue.
Revocation of a defendant’s supervised release is governed
by 18 U.S.C. § 3583(e)(3). It provides that “a defendant whose
term [of supervised release] is revoked … may not be required
to serve on any such revocation more than … 2 years in prison
if such offense [that resulted in the term of supervised release]
is a class C or D felony … .” In 2003, Congress amended the
statute and added the phrase “on any such revocation.” Prosecu-
torial Remedies and Other Tools to End the Exploitation of
Children Today (“PROTECT”) Act, Pub. L. 108-21, § 101, 117
Stat. 650, 651 (Apr. 30, 2003) (emphasis added). This was the
only change made to the statute.
Before the statute was amended to include the phrase
“on any such revocation,” § 3583(e)(3) was interpreted by this
Court as well as the rest of the circuits to allow defendants to
aggregate prison time served for multiple revocations of
supervised release and to credit this time towards the maxi-
mum term of imprisonment authorized by the statute. See
United States v. Withers, 128 F.3d 1167, 1172 (7th Cir. 1997).
Since the statute was amended in 2003, every court of
appeals to consider this issue has determined that the amend-
ment “eliminate[s] the credit for terms of imprisonment re-
sulting from prior revocations.” United States v. Epstein, 620
F.3d 76, 80 (2d Cir. 2010) (statutory maximum sentences in
§ 3583(e)(3) apply to each discrete revocation of a defendant’s
supervised release, regardless of time served for previous
No. 13-2182 7
violations); United States v. Shabazz, 633 F.3d 342, 346 (5th Cir.
2011) (“[i]f Congress had intended for courts to continue
reading the language at the end of § 3583(e)(3) as an aggregate
limit on revocation imprisonment it would have left …
§ 3583(e)(3) unaltered”); United States v. Lewis, 519 F.3d 822, 825
(8th Cir. 2008) (the plain language of § 3583(e)(3) permits
imposition of a prison sentence for a revocation of supervised
release without requiring the court to consider or aggregate
prison terms served due to prior revocations); United States v.
Knight, 580 F.3d 933, 937 (9th Cir. 2009) (the 2003 amendment
made “clear that Congress intended to ensure that a district
court is no longer required to reduce the maximum term of
imprisonment to be imposed upon revocation by the aggregate
length of prior revocation imprisonment terms”); United States
v. Hernandez, 655 F.3d 1193, 1196 (10th Cir. 2011) (“the clause’s
plain language creates a new and independent two-year
incarceration limit. To hold otherwise … . [would force the
court] to ignore the term ‘any such revocation’ … .”); United
States v. Spencer, 720 F.3d 363, 367–68 (D.C. Cir. 2013)
(§ 3583(e)(3) is unambiguous, resulting in “per-revocation
limits and not aggregate limits.”). The first, third, and eleventh
circuits have yet to squarely address this issue, but have
reached similar conclusions regarding the interpretation of
§ 3583(e)(3) in dicta. See United States v. Tapia-Escalera, 356 F.3d
181, 188 (1st Cir. 2004); United States v. Williams, 675 F.3d 275,
279–81 (3d Cir. 2012); United States v. Williams, 425 F.3d 987,
989 (11th Cir. 2005).
We agree with the reasoning of our sister circuits and hold
that prior time served for violations of supervised release is not
credited towards and so does not limit the statutory maximum
8 No. 13-2182
that a court may impose for subsequent violations of super-
vised release pursuant to § 3583(e)(3). As such, Perry’s three
months’ time served for a prior violation of his supervised
release will not be credited towards or limit the statutory
maximum the district court may impose for his most recent
violation of supervised release. On remand, the district court
may impose up to two-years’ imprisonment for Perry’s latest
violation of the terms of his supervised release.
C. Additional Special Conditions of Supervised Release
Imposed
Perry also contests the four special conditions of supervised
release the district court added in its written judgment. Perry
asks this court to vacate those conditions and to replace them
with the conditions the court orally imposed at his revocation
hearing.
“The rule in such situations is clear: ‘if an inconsistency
exists between a judge’s oral and the later written sentence, the
sentence pronounced from the bench controls.’” United States
v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005) (quoting United
States v. Bonnano, 146 F.3d 502, 511 (7th Cir. 1998)). At Perry’s
revocation hearing, the judge stated that Perry would be
“subject to the same conditions as originally imposed” by the
court on March 17, 2005. Since oral pronouncement of the
sentence controls, the four additional special conditions
imposed by the district court in its written judgment must be
vacated.
Though Perry asks that we reinstate his original conditions
of supervision, 18 U.S.C. § 3583(e)(2) allows the district court
to “modify, reduce, or enlarge the conditions of supervised
No. 13-2182 9
release, at any time prior to the expiration or termination of the
term of supervised release … .” We therefore remand to the
district court to determine Perry’s conditions of supervision as
it sees fit.
III. CONCLUSION
For the reasons mentioned above, we VACATE Perry’s
sentence and the additional conditions of supervision imposed
by the district court in its written judgment. We REMAND
with instructions to the district court to sentence Perry to no
more than two years’ imprisonment for his latest violation of
supervised release, and to determine Perry’s conditions of
supervision.