United States v. Roach

File Name: 08a0766n.06
Filed: December 17, 2008
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 07-5224
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JEFFREY D. ROACH, ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant, )
)
)
Before: GIBBONS and COOK, Circuit Judges; STEEH,* District Judge.
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jeffrey Roach appeals the
district court’s sentencing of him after the revocation of his supervised release to a term of
imprisonment greater than his initial term of supervised release. Because we have previously held
that a postrevocation sentence may extend for longer than the original term of supervised release,
United States v. Marlow, 278 F.3d 581 (6th Cir. 2002), we affirm the district court’s decision.
I.
Roach was initially sentenced on June 21, 1991 to fifteen years imprisonment followed by
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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three years of supervised release for, inter alia, possession of a firearm after having been convicted
of a felony. Roach served his time in prison and began the period of supervised release on March
24, 2005. The supervised release was revoked on March 6, 2006, when Roach “stipulated that he
[had] violated the terms of his supervised release by his possession of rock cocaine and marijuana
on September 15, 2005, which he had planned to trade for sex.” The district court considered the
violation guideline range of eight to fourteen months imprisonment, sentencing him to eight months
imprisonment followed by three years of supervised release.
Roach served that term of imprisonment and began his second period of supervised release
on June 12, 2006. On July 2, 2006, Lieutenant Dan Cliff of the Morristown Police Department
observed an oncoming vehicle driving toward him in his lane. He let the vehicle pass, and then he
turned his car around and switched on his lights. He saw Roach throw a bag with white powder in
it and some white rocks out of the vehicle. Cliff radioed Officer Pete Shockley, who is a canine
officer for the Morristown Police Department, and told him that a suspect threw “dope” out of the
vehicle and told him the location to retrieve the contraband. Shockley retrieved the bag and twenty-
four rocks, and the substances field-tested positive for cocaine. The lab report on the substances was
also positive for crack cocaine.
The Dispositional Report (“Report”) filed by the United States Probation Office stated that
the maximum statutory penalty faced by Roach under 18 U.S.C. § 3583(e)(3) if his supervised
release was revoked was sixty months incarceration, but because the defendant had previously served
a total of eight months for a supervised release revocation, the maximum sentence that could be
imposed would be fifty-two months incarceration. The Report stated that Roach had exhibited poor
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behavior and appeared to have “no intention of following any conditions set by the Court.” The
Report recommended that “Mr. Roach’s supervised release be revoked, and that he be sentenced
within the prescribed revocation range.” Roach objected to the Dispositional Report, arguing that
the Sixth Circuit decision in Marlow conflicted with the decision of the United States Supreme Court
in Johnson v. United States, 529 U.S. 694 (2000), and that the court lacked authority to impose a
post-revocation sentence longer than Roach’s initial three-year term of supervised release.
The district court found by a preponderance of the evidence “that the defendant committed
the offenses of possession of a narcotic for resale and tampering with evidence.” Therefore, the
court found that he violated Standard Condition Seven of his supervised release, which states that
he “shall not purchase, possess, use, distribute or administer any controlled substance or any
paraphernalia related to any controlled substance, except as prescribed by a physician.” After noting
Roach’s lengthy criminal history, including three prior convictions for aggravated assault, and his
criminal history category of VI, the court found that Roach showed “a complete unwillingness to
abide by the terms and conditions of supervised release” as evidenced by his possession of illegal
narcotics within three weeks of being released from prison. District Court Order of Feb. 7, 2007 at
6. The court stated that because of Roach’s prior criminal record and the failure of numerous
incarcerations to deter his criminal behavior, the public had an important need to be protected from
his conduct. The district court found Roach’s violation guideline range to be fifty-one to sixty-three
months and sentenced him to a period of fifty-two months incarceration followed by no additional
term of supervised release on February 7, 2007. Roach filed a timely notice of appeal on February
7, 2007.
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II.
We review de novo the determination of a district court’s authority to impose a sentence
following revocation of supervised release. United States v. VanHoose, 437 F.3d 497, 501 (6th Cir.
2006). Roach does not contest the procedural or substantive reasonableness of his fifty-two month
sentence. Roach instead argues that the district court erred in sentencing him to a term of
imprisonment that exceeds his original period of supervised release and that the term of
imprisonment must also be reduced by the eight-month portion of the original term of supervised
release that he already served because of a prior violation.
When Roach was originally convicted and sentenced in 1991, 18 U.S.C. § 3583(e)(3)
authorized district courts to “revoke a term of supervised release, and require the defendant to serve
in prison all or part of the term of supervised release . . . without credit for time previously served
on postrelease supervision.” The text of § 3583(e)(3) did not address the issue of whether a district
court could impose an additional term of supervised release after revoking the original term of
supervised release and ordering re-imprisonment. See Johnson, 529 U.S. at 698 (stating that the
power to impose another term of supervised release following imprisonment was “not readily
apparent from the text of § 3583(e)(3)”). Congress amended § 3583 in 1994 to add subsection (h),
which explicitly provides that courts may impose another term of supervised release after an initial
period of supervised release has been revoked and a term of imprisonment imposed upon a
defendant. Id. Subsection (h) also states that “[t]he 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 release, less any term of imprisonment that was imposed upon revocation
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of supervised release.” 18 U.S.C. § 3583(h).
In Johnson, the Supreme Court held that § 3583(h) does not apply retroactively to offenses
committed before the effective date of the amendment, September 13, 1994. Johnson, 529 U.S. at
702. However, Johnson affirmed an additional period of supervised release imposed after the initial
term of supervised release was revoked and the defendant reimprisoned based upon § 3583(e)(3).
Id. at 713. The Court found that § 3583(e)(3) retained linguistic continuity from the preguidelines
practice and that Congressional intent favored allowing reimposition of supervised release following
reimprisonment. Id. As Roach acknowledges, Johnson did not specifically rule about the duration
of the new term of supervised release.
In United States v. Marlow, this court applied the principles from Johnson to a case where
the defendant was initially sentenced to prison time and four years of supervised release. Marlow,
278 F.3d at 582. After Marlow violated the conditions of his supervised release, the district court
revoked his release and sentenced him to serve twenty months in prison followed by a new four-year
term of supervised release. Id. Marlow appealed, and this court held that while § 3583(e)(3) did not
authorize a new sentence longer than the initial term of supervised release, the district court’s general
sentencing authority under § 3583(a) gave the court authority to impose an additional term of
supervised release after postrevocation incarceration. Id.
Roach argues that we should overrule Marlow, relying on the Seventh Circuit’s rejection of
the Marlow rule in United States v. Russell, 340 F.3d 450 (7th Cir. 2003). In Russell, the Seventh
Circuit acknowledged that “a combined term of reincarceration and additional supervised release
under § 3583(e)(3) could not exceed the length of the original term of supervised release” and the
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district court could not impose a sentence longer than the original term of supervised release under
§ 3583(a). Id. The Seventh Circuit opined that the Marlow court improperly relied upon a section
of the Johnson opinion that explained the consequences of the dissent’s interpretation of the statute
at issue. In addition, it found that “the plain meaning of § 3583(a)’s text strongly suggests that
subsection applies only to the initial setting of a supervised release term.” Id. at 456. Finally, the
Seventh Circuit found that Marlow’s interpretation would allow district courts to bypass § 3583(e)(3)
and would render the exchange between Justice Souter’s majority opinion and Justice Scalia’s
dissent in Johnson moot because the Johnson court would not have had to determine whether §
3583(e)(3) allows the imposition of the sentence if the sentence could simply be imposed under §
3583(a). Id. at 457.
A panel of this court also questioned Marlow in dicta in United States v. VanHoose, 437 F.3d
at 505. VanHoose was originally sentenced to imprisonment and three years of supervised release.
Id. at 499. Upon violating the terms of his supervised release, VanHoose’s supervised release was
revoked and he was sentenced to two years in prison and two years of supervised release. Id. The
panel criticized the Marlow decision for misreading Johnson, for making Johnson a “pointless
exercise,” and for ignoring the canon of statutory interpretation that the specific § 3583(e)(3) governs
the general § 3583(a). Id. at 505. Nonetheless, the panel upheld VanHoose’s sentence, writing:
“Even though it appears that Marlow was wrongly decided, it will continue to bind this and future
panels unless and until the en banc court reconsiders the question or the Supreme Court corrects the
error.” Id. at 505-06.
Marlow constitutes the law of this Circuit and therefore controls the outcome of this case.
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See id. We are not sitting en banc and have no authority to disregard a Sixth Circuit precedent on
point, nor does this issue seem worthy of en banc review. See Dingle v. Bioport Corp., 388 F.3d
209, 215 (6th Cir. 2004) (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th
Cir. 1985)). In addition, Marlow’s reasoning has substantive merit. Section 3583(a) vests in the
district court broad sentencing authority to impose supervised release after imprisonment, and it is
a fair interpretation of that provision to assume that § 3583(a) provides valid authority to impose a
postrevocation sentence greater than the original period of supervised release. Therefore, we
conclude that the district court did not err in sentencing Roach to a term of imprisonment that
exceeded his original period of supervised release.
Roach’s second contention, that the district court did not reduce his sentence by that portion
of the original term of supervised release which he served by reason of a previous supervised release
violation, has no merit. Contrary to Roach’s assertion, the district court did reduce his sentence by
the eight months he previously served, as the Dispositional Report had recommended. Roach’s
previous incarceration of eight months for a previous supervised release violation has already been
taken into account by his sentence of fifty-two months incarceration, eight months lower than the
sixty-month statutory maximum.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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