United States v. Kevin Crowder , 738 F.3d 1103 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30033
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00025-DWM-1
KEVIN LEROY CROWDER,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 13-30034
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00031-DWM-1
KEVIN LEROY CROWDER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 5, 2013*
Seattle, Washington
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. CROWDER
Filed December 24, 2013
Before: M. Margaret McKeown and Richard C. Tallman,
Circuit Judges, and Stephen Joseph Murphy, III, District
Judge.**
Opinion by Judge McKeown
SUMMARY***
Criminal Law
The panel affirmed a sentence imposed upon revocation
of supervised release.
The panel held that upon revocation of an initial term of
supervised release, 18 U.S.C. § 3583(h) does not bar the
imposition of a subsequent lifetime term of supervised
release, even when accompanied by a term of imprisonment.
**
The Honorable Stephen Joseph Murphy, III, District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by
designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CROWDER 3
COUNSEL
Michael Donahoe, Assistant Federal Public Defender, Federal
Defenders of Montana, Helena, Montana, for Defendant-
Appellant.
Danna Rae Jackson and Leif Johnson, Assistant United States
Attorneys, United States Attorneys’ Office, Helena, Montana,
for Plaintiff-Appellee.
OPINION
McKEOWN, Circuit Judge:
Kevin Leroy Crowder appeals from a sentence of 14
months’ imprisonment and lifetime supervised release. The
issue we consider is whether 18 U.S.C. § 3583(h), which
authorizes an additional term of supervised release following
revocation of supervised release, permits imposition of a
lifetime term of supervised release. We join our sister
circuits in holding that it does. See United States v. Cassesse,
685 F.3d 186, 191 (2d Cir. 2012); see also United States v.
Rausch, 638 F.3d 1296, 1302–03 (10th Cir. 2011).
BACKGROUND
Crowder is subject to the Sex Offender Registration and
Notification Act (“SORNA”), 18 U.S.C. § 2250(a), as a result
of a Washington State conviction for child molestation. In
2009, Crowder was convicted in the District of Montana for
failing to register and/or update a registration, in violation of
SORNA. In a separate federal proceeding, Crowder pleaded
4 UNITED STATES V. CROWDER
guilty to knowing possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1).
At a consolidated sentencing hearing in 2010, the district
court sentenced Crowder to 33 months’ imprisonment on
each count to run concurrently. The court also imposed a
term of lifetime supervised release in connection with the
SORNA violation and a term of three years’ supervised
release in connection with the firearm conviction. Conditions
of supervision included, among other things, a requirement to
“report to the probation office . . . within 72 hours of release
from the custody of the Bureau of Prisons [(“BOP”)].” This
initial term of lifetime supervised release is not at issue on
appeal.
After serving his sentence, Crowder was released and
began serving his terms of supervised release. Within days
of his release, the United States Probation Office filed a
“Petition for Warrant for Offender Under Supervision.” An
amended petition filed some months later alleged that
Crowder had failed to report to the probation office within 72
hours of his release from custody. That petition also alleged
that Crowder had committed a state crime in violation of the
standard conditions of supervised release. Crowder admitted
both alleged violations, and the district court determined that
Crowder had violated his conditions of supervised release.
The district court had determined to revoke Crowder’s
supervised release; at the revocation hearing, it concluded
that, in accordance with the factors delineated in 18 U.S.C.
§ 3553(a), “lifetime supervised release is appropriate . . .
because of the inability and unwillingness of Mr. Crowder to
comply with the conditions that have been set in the federal
sentencing.” Over defense counsel’s objection, the district
UNITED STATES V. CROWDER 5
court sentenced Crowder to two terms of 14 months’
imprisonment to run concurrently and to a lifetime term of
supervised release in connection with the supervised release
revocation on the conviction for failure to register under
SORNA.
ANALYSIS
Crowder challenges the lifetime term of supervised
release imposed at the revocation hearing as unauthorized
under § 3583(h). Crowder admits that 18 U.S.C.
§ 2250(a)—the statute under which he was initially convicted
for failing to register under SORNA—authorizes a lifetime
term of supervised release. See 18 U.S.C. § 3583(k) (2006).
Indeed, the district court initially imposed a lifetime term of
supervised release pursuant to that statute. Crowder argues,
however, that § 3583(h) does not authorize a lifetime term of
supervised release following revocation because it is not
possible to subtract a term of imprisonment from a lifetime
term of supervised release as the statute requires. We review
de novo this issue of statutory construction. United States v.
Havelock, 664 F.3d 1284, 1289 (9th Cir. 2012).
Section 3583(h) provides as follows:
When a term of supervised release is revoked
and the defendant is required to serve a term
of imprisonment, the court may include a
requirement that the defendant be placed on a
term of supervised release after imprisonment.
The length of such a term of supervised
release shall not exceed the term of supervised
release authorized by statute for the offense
that resulted in the original term of supervised
6 UNITED STATES V. CROWDER
release, less any term of imprisonment that
was imposed upon revocation of supervised
release.
18 U.S.C. § 3583(h) (2006). Both the Second and the Tenth
Circuits have considered the challenge Crowder raises, and
both circuits declined to interpret § 3583(h) to bar
reimposition of lifetime supervised release. See Cassesse,
685 F.3d at 191; see also Rausch, 638 F.3d at 1302–03
(reviewing for plain error and finding no prejudice in
imposition of lifetime supervised release rather than “life less
two years” because “it is impossible to predict the precise
length of any individual’s life, [therefore] a sentence of ‘life
less two years’ has only conceptual—not practical—
meaning.”).
Read literally, under the statute, the term of imprisonment
imposed following revocation should be subtracted from the
supervised release term. See 18 U.S.C. § 3583(h). As the
Second Circuit pointed out, this is an “almost metaphysical
issue” and it is “highly unlikely” that Congress intended to
bar lifetime supervised release under the statute. Cassesse,
685 F.3d at 187, 191. Section 3583(h) presents “one of those
rare situations where Congress did not expect the literal terms
of its handiwork to be applied to a lifetime term of supervised
release. . . .” Id. at 191. A natural and practical reading of
the statute does not impose the constraint that Crowder
advocates. We also agree with the Second Circuit that
interpreting § 3583(h) to bar lifetime supervised release
would be without consequence because a sentencing court
could easily fulfill the subtraction requirement by sentencing
the defendant to an absurdly long term of years of supervised
release. Id.
UNITED STATES V. CROWDER 7
Crowder’s strained interpretation of § 3583(h) is without
support. He offers no authority for his proposed statutory
construction except a California Court of Appeals case that
does not discuss this provision. See In re Chaudhary,
172 Cal. App. 4th 32 (2009). We hold that upon revocation
of an initial term of supervised release, § 3583(h) does not bar
the imposition of a subsequent lifetime term of supervised
release, even when accompanied by a term of imprisonment.
AFFIRMED.