United States v. Robert Cross

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0012p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 15-5641
v. │
│
│
ROBERT F. CROSS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for
the Eastern District of Kentucky at London.
No. 6:06-cr-00038—Danny C. Reeves, District Judge.
Argued: April 26, 2016
Decided and Filed: January 18, 2017
Before: KETHLEDGE and WHITE, Circuit Judges; COHN, District Judge.*
_________________
COUNSEL
ON BRIEF: David S. Hoskins, HOSKINS, HILL & HILL, PLLC, Corbin, Kentucky, for
Appellant. Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington,
Kentucky, Ellen Kathleen Coffey, UNITED STATES ATTORNEY’S OFFICE, London,
Kentucky, for Appellee.
*
The Honorable Avern L. Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.
No. 15-5641 United States v. Cross Page 2
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OPINION
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KETHLEDGE, Circuit Judge. Robert Cross argues that the district court lacked
jurisdiction to revoke his supervised release a second time based on conduct occurring before the
first revocation. We reject that argument and affirm.
Cross was convicted of a federal marijuana offense in 2006 and sentenced to 60 months
in prison, to be followed by 48 months of supervised release. In August 2010 Cross’s prison
term ended and his supervised release began. During the next 32 months, Cross committed two
state-law offenses: drug possession and theft, both of which violated the conditions of Cross’s
supervised release. The district court learned about the drug possession first; on that ground the
court revoked Cross’s supervised release in April 2013 and ordered him to serve eight months in
prison, to be followed by another 24 months of supervised release. In December 2013, Cross
finished his eight-month post-revocation incarceration and resumed his supervised release.
The district court did not learn about Cross’s theft offense until April 2015, after Cross
pled guilty to that offense in Kentucky state court. By then Cross had completed about 15
months of his remaining 24-month period of supervised release. In June 2015 the district court
held a revocation hearing, at which Cross argued that the district court lacked jurisdiction to
revoke his supervised release based on the theft offense. The district court rejected that
argument, revoked Cross’s supervised release, and sentenced him to a single day’s post-
revocation incarceration and another 60 months of supervised release.
We review de novo the district court’s June 2015 determination that it had jurisdiction to
revoke Cross’s supervised release. See United States v. Goins, 516 F.3d 416, 419 (6th Cir.
2008). The question, broadly stated, is whether a district court’s supervisory authority over a
defendant continues unbroken throughout the defendant’s supervised release, or whether,
instead, when a court revokes the defendant’s supervised release, the court revokes its own
supervisory authority along with it. Cross takes the latter view: as he sees it, his supervised
release ended when the district court first revoked it in April 2013; a second, distinct term of
No. 15-5641 United States v. Cross Page 3
supervised release then began in December 2013, when he finished his eight-month prison term;
and the district court lacked authority to revoke that second term of supervised release based
upon a crime (the theft offense) that Cross committed during the first.
Cross’s argument misconstrues the nature of revocation as described in 18 U.S.C.
§ 3583(e). Under that provision, revocation and termination of supervised release are distinct
concepts. Termination “discharge[s] the defendant” and thereby ends the district court’s
supervision of him. Id. § 3583(e)(1). Thus, if the district court later discovered that the
defendant had earlier violated some condition of his supervised release, the court would lack
authority to send him back to prison for that violation qua violation. Revocation, in contrast,
means that the defendant must “serve in prison all or part of the term of supervised release[.]”
Id. § 3583(e)(3) (emphasis added). Thus, revocation does not terminate the defendant’s
supervised release; quite the contrary, it requires him to serve “all or part” of it in prison. Indeed
the Supreme Court has already held that “a ‘revoked’ term of supervised release survives to be
served in prison.” Johnson v. United States, 529 U.S. 694, 707 (2000).
Revocation therefore revokes only the release part of supervised release; the district
court’s supervisory authority continues until the defendant’s supervised release terminates or
expires. See id. at 706; 18 U.S.C. § 3583(e)(2) (providing that a district court may extend
supervised release or modify its conditions “at any time prior to . . . expiration or termination”).
And because the district court’s authority continues throughout the defendant’s supervised
release, so too does the court’s ability to police violations of the release’s conditions. Here,
Cross’s supervised release—and thus the district court’s supervisory authority—had neither
terminated nor expired by June 2015. The district court therefore had authority then to revoke
Cross’s supervised release a second time based upon its discovery that Cross had committed a
second violation.
Although in Johnson the Supreme Court construed the 1994 version of § 3583, none of
the amendments to that section since then liberate us to equate revocation of supervised release
with termination of it. Section 3583(e)(3) says now, just as it did then, that revocation means the
defendant must “serve in prison all or part of the term of supervised release[.]” That is reason
No. 15-5641 United States v. Cross Page 4
enough not to disregard the Supreme Court’s interpretation of that very same language in
Johnson.
Nor does the addition of § 3583(h) change the outcome. That section makes explicit
what the Supreme Court in Johnson said was implicit: namely that, when the district court
revokes a defendant’s supervised release, “the court may include a requirement that the
defendant be placed on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(h).
Cross emphasizes—as the Ninth Circuit emphasized in United States v. Wing, 682 F.3d 861, 871
(9th Cir. 2012)—that § 3583(h) refers to the period of supervised release that a defendant serves
in prison as a “term of imprisonment[.]” From that reference Cross infers that such periods are
no longer part of the defendant’s supervised release; and that the defendant’s supervised release
must end before this new term of imprisonment; and that the district court’s supervisory
authority must end with it; and that the court’s authority (per its intrinsic nature, apparently)
during any later period of supervised release for the same conviction does not extend to
violations committed during the earlier period. The argument is more metaphysical than legal.
More prosaically, its first premise—that time spent in prison (after a revocation) is not part of the
defendant’s supervised release—conflicts with the plain terms of § 3583(e)(3).
A more straightforward reading of the statute is that “term of imprisonment[,]” as used in
§ 3583(h), simply refers to the period of supervised release that a defendant serves in prison.
And apart from simplicity, that reading treats the respective texts of § 3583(e)(3) and § 3583(h)
as compatible rather than contradictory. See Maracich v. Spears, 133 S. Ct. 2191, 2205 (2013).
We see no basis, therefore, for us to take a different view of revocation than the Supreme Court
took in Johnson. Accord United States v. Winfield, 665 F.3d 107, 112-13 (4th Cir. 2012) (“a
district court retains its § 3583(e) power to impose additional prison time post-recovation”);
United States v. Johnson, 243 F. App’x 666, 668-69 (3d Cir. 2007) (same).
The district court’s judgment is affirmed.