United States v. Mark Hertler

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30273
Plaintiff-Appellee,
D.C. No.
v. 9:12-cr-00032-DWM-1
MARK WILLIAM HERTLER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
July 10, 2014—Portland, Oregon
Filed January 15, 2015
Before: Harry Pregerson, Richard A. Paez,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Paez
2 UNITED STATES V. HERTLER
SUMMARY*
Criminal Law
Affirming a postrevocation term of supervised release,
the panel held that the phrase “any term of imprisonment” in
18 U.S.C. § 3583(h), which authorizes a district court to
impose a postrevocation term of supervised release up to the
statutory maximum less “any term of imprisonment that was
imposed upon revocation of supervised release,” refers to
terms of imprisonment imposed in connection with the
offense of conviction for which an additional term of
supervised release is imposed, not to terms of imprisonment
imposed for all counts of conviction.
COUNSEL
Andrew J. Nelson (argued), Assistant Federal Defender,
Federal Defenders of Montana, Missoula, Montana, for
Defendant-Appellant.
Lori Anne Harper Suek (argued) and Cyndee L. Peterson,
Assistant United States Attorney, United States Attorneys’
Office District of Montana, Missoula, Montana, for Plaintiff-
Appellee.
*
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. HERTLER 3
OPINION
PAEZ, Circuit Judge:
Defendant Mark William Hertler appeals a postrevocation
term of supervised release. He argues that the new term of
twenty months exceeds the maximum period that can be
imposed under 18 U.S.C. § 3583(h). That subsection
authorizes a district court to impose a postrevocation term of
supervised release up to the statutory maximum, but requires
the court to reduce the length of supervised release by “any
term of imprisonment that was imposed upon revocation of
supervised release.” Hertler contends that the phrase “any
term of imprisonment” in § 3583(h) refers to any term of
imprisonment imposed for all offenses following the latest
revocation of supervised release. He therefore argues that the
district court erred when it construed this clause to refer only
to all terms of imprisonment imposed for a single underlying
offense. He further argues that, as a result of this error, the
district court concluded that he was eligible for up to thirty-
two months of additional supervised release when he should
have been sentenced to no more than nine.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we review de novo the legality of Hertler’s sentence. United
States v. Xinidakis, 598 F.3d 1213, 1215 (9th Cir. 2010). For
the reasons set forth below, we agree with the construction of
“any term of imprisonment” adopted by the district court, the
Eighth Circuit in United States v. Zoran, 682 F.3d 1060 (8th
Cir. 2012), and the Fifth Circuit in United States v. Oswalt,
771 F.3d 849 (5th Cir. 2014). We therefore affirm.
4 UNITED STATES V. HERTLER
I
On July 13, 2005, Hertler was named in a two-count
indictment in the Southern District of Texas. The indictment
charged Hertler with: (1) distribution of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(b)(2),
and (2) possession of child pornography involving sexual
exploitation of minors, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B), 2252A(b)(1), and 2256(8). Hertler pled
guilty to both counts in September, 2005. The district court
ultimately sentenced him to concurrent terms of eighty-seven
months of imprisonment on Count 1 and sixty months on
Count 2. The court also imposed concurrent thirty-six month
terms of supervised release “as to each of Counts 1 and 2.”1
Hertler was released from prison and began his supervised
release on November 22, 2011. In July, 2012, the Southern
District of Texas transferred jurisdiction over Hertler’s case
to the District of Montana. Shortly thereafter, on July 18,
2012, Hertler’s probation officer filed a petition to revoke
Hertler’s supervised release. Among other allegations, the
petition alleged that Hertler violated several conditions of his
release by possessing sexually explicit materials, and by
attending a Christmas dinner at which his nine-year-old niece
was present. Hertler admitted the allegations. The district
court revoked Hertler’s supervised release and sentenced him
to consecutive terms of nine months of imprisonment on
Count 1 and three months on Count 2. The court also
1
The judgment noted that the offense conduct for Count 1 ended
October 31, 2002 and that the offense conduct for Count 2 ended February
5, 2003. Hertler is therefore not subject to the PROTECT Act, which
altered the supervised release limits for violations of § 2252A. See
18 U.S.C. § 3583(k).
UNITED STATES V. HERTLER 5
imposed concurrent terms of twenty-four months of
supervised release on each of Counts 1 and 2.
Hertler was released from prison on July 17, 2013.
Shortly thereafter, on August 1, 2013, Hertler’s probation
officer filed a petition to revoke his supervised release. The
petition alleged that Hertler again violated the conditions of
his release by possessing sexually explicit movies. Hertler
admitted the violation. The district court sentenced Hertler to
fifteen months of imprisonment on Count 1 and one month on
Count 2, to run concurrently. The court also imposed a
twenty month term of supervised release on Count 2. The
district court did not impose any additional period of
supervised release on Count 1. Hertler timely appealed his
sentence.
II
We begin our analysis by reviewing the relevant statutes.
Section 3583 governs the imposition of supervised
release. Subsection (a) authorizes district courts to impose
supervised release, while subsection (b) sets forth the
maximum period of supervised release that may be imposed
for an offense of conviction. For example, subsection (b)
provides that “for a Class A or Class B felony, not more than
five years” may be imposed. 18 U.S.C. § 3583(b).
Subsection (e) governs the modification of conditions and
revocation of supervised release. As relevant here,
§ 3583(e)(3) provides that a court may “revoke a term of
supervised release, and require the defendant to serve in
prison all or part of the term of supervised release authorized
by statute for the offense that resulted in such term of
supervised release.” That subsection also limits the amount
6 UNITED STATES V. HERTLER
of time that a court may require a defendant to serve in prison
upon revocation, providing different maximum terms for
different classes of felonies. Id.
Subsection 3583(h), the provision at issue in this case,
governs the imposition of any additional term of supervised
release following revocation:
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 release, less any term of
imprisonment that was imposed upon
revocation of supervised release.
Id. (emphasis added).
We have held that the limit on the length of a term of
supervised release under § 3583(h) requires that “the
maximum term of supervised release to be imposed following
multiple revocations of supervised release . . . be reduced by
the aggregate length of any and all terms of imprisonment
that have been imposed upon revocation of supervised
release.” United States v. Knight, 580 F.3d 933, 940 (9th Cir.
2009) (emphasis omitted); accord United States v. Anderson,
519 F.3d 1021, 1025 (9th Cir. 2008). Thus, for example, in
Anderson, we held that because the original term of
supervised release was sixty months and, as a result of three
UNITED STATES V. HERTLER 7
revocations, the defendant had served additional terms of six,
seven, and three months (a total of sixteen months), the
district court could impose no more than forty-four months of
supervised release for the fourth violation. 519 F.3d at 1025.
Also relevant to the imposition of supervised release is
18 U.S.C. § 3624(e), which provides that
[t]he term of supervised release commences
on the day the person is released from
imprisonment and runs concurrently with any
Federal, State, or local term of probation or
supervised release or parole for another
offense to which the person is subject or
becomes subject during the term of supervised
release.
In essence, § 3624(e) provides that when a district court
initially imposes multiple terms of supervised release, it must
order that they run concurrently.
III
Relying in part on Knight, Hertler argues that, in
calculating the maximum term of supervised release that
could be imposed for Count 2, the district court should have
aggregated the prison time imposed in connection with both
Counts 1 and 2, and reduced the current term of supervised
release accordingly. This adjustment would have
significantly reduced the maximum term of supervised
release that the court could have imposed for the current
violation. Under Hertler’s approach, the court should have
started with the “term of supervised release authorized by
statute” for Count 2, which was thirty-six months. 18 U.S.C.
8 UNITED STATES V. HERTLER
§ 3583(b), (h). Next, the court should have aggregated all
postrevocation prison sentences, which totaled twenty-seven
months—nine months on Count 1 and three months on Count
2 for the first violation, and fifteen months on Count 1 for the
second violation. After deducting this amount from the
statutory period of thirty-six months, the maximum length of
supervised release that the district court could have imposed,
according to Hertler, was nine months.
The government argues that because the convictions and
sentences for Counts 1 and 2 were separate and distinct, the
district court was not required to reduce the term of
postrevocation supervised release that could be imposed for
Count 2 by any months of imprisonment imposed for Count
1. Rather, the court was required to reduce the term of
supervised release only by the aggregate of all time imposed
on Count 2. According to the government, because the
district court initially imposed thirty-six months of supervised
release on Count 2 and has imposed only four months of
postrevocation imprisonment on this count (three months for
the first revocation and one month for the second), the
maximum term of supervised release the court could have
imposed was thirty-two months on Count 2. The government
argues that, because the district court imposed only a twenty
month term, Hertler’s postrevocation sentence was proper
under § 3583(h). We agree.
A
As an initial matter, Hertler’s reliance on Knight is
misplaced. Hertler argues that Knight supports aggregating
the postrevocation terms of imprisonment for different counts
of conviction. However, in Knight, the defendant was
convicted of only one offense. See 580 F.3d at 935. Thus, in
UNITED STATES V. HERTLER 9
determining the maximum term of supervised release, the
court was required to consider only whether postrevocation
terms of imprisonment imposed for the same offense should
be aggregated. See id. at 940. The court did not consider the
issue presented here—whether postrevocation terms of
imprisonment for different counts of conviction must be
aggregated. Knight is inapposite.
Although we have not yet addressed the precise issue
raised in this appeal, the Eighth Circuit confronted it in
Zoran. There, the defendant argued that § 3583(h) required
the district court to aggregate all postrevocation terms of
imprisonment imposed on all counts of conviction following
the latest revocation, not just those terms of imprisonment
imposed for the same offense. 682 F.3d at 1064. The court
held that the defendant’s approach “reache[d] beyond the
textual limits of § 3583(h).” Id. In rejecting the defendant’s
argument, the court explained:
the plain text of § 3583(h) provides that a
term of postrevocation 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 of supervised
release.” (emphasis added). Given the
statute’s consistent use of “term” and
“offense” in the singular form, we think the
subsequent phrase “any term of
imprisonment” plainly refers to “all
postrevocation terms of imprisonment
imposed with respect to the same underlying
offense.”
10 UNITED STATES V. HERTLER
Id. (quoting United States v. Maxwell, 285 F.3d 336, 342 (4th
Cir. 2002) (emphasis added)). The Fifth Circuit adopted the
Eighth Circuit’s interpretation in Oswalt, 771 F.3d at 853
(“The Eighth Circuit’s construction of § 3583(h) is clearly
correct. The formula in § 3583(h) is count specific and does
not contemplate subtracting the postrevocation terms of
imprisonment imposed on all counts.”). We agree with the
Eighth and Fifth Circuits that the text of § 3583(h) supports
the conclusion, and the government’s argument, that “any
term of imprisonment” refers to terms of imprisonment
imposed for the same offense of conviction.
As Zoran recognized, § 3583(h) uses “term” and
“offense” in the singular. Section 3583(h)’s use of the
singular form suggests that “any term of imprisonment”
means any term of imprisonment imposed for the same
offense. This interpretation is further supported by other
subsections of § 3583, which use the offense of conviction as
a point of reference. For example, § 3583(b) uses the nature
of the offense to set the limit on the maximum period of
supervised release that may be imposed. See 18 U.S.C.
§ 3583(b) (setting the maximum length of supervised release
based on whether the offense was a Class A, B, C, D, or E
felony or a misdemeanor). Section 3583(e)(3) similarly ties
a postrevocation sentence to a specific offense of conviction.
See id. § 3583(e)(3) (permitting a court to “revoke a term of
supervised release[] and require the defendant to serve in
prison all or part of the term of supervised release authorized
by statute for the offense that resulted in such term of
supervised release” (emphasis added)).
Section 3583 therefore suggests a scheme in which terms
of supervised release and terms of imprisonment following
revocation of supervised release are tied to specific offenses.
UNITED STATES V. HERTLER 11
In light of this structure, it makes sense that the phrase “any
term of imprisonment” in § 3583(h) means “any term of
imprisonment” imposed in connection with the offense of
conviction for which an additional period of supervised
release is imposed. We therefore agree with Zoran and the
government that the statutory text and structure support
construing “any term of imprisonment” to mean any “terms
of imprisonment imposed with respect to the same underlying
offense.” 682 F.3d at 1064.
Hertler’s arguments to the contrary are unavailing. He
contends that, because 18 U.S.C. § 3624(e) mandates that all
terms of supervised release run concurrently, those terms
merge into a unitary whole. Accordingly, under his reading,
in this case the district court could have imposed a
postrevocation supervised release term of no more than nine
months, the difference between his concurrent terms of
supervised release (thirty-six months) and the sum of
postrevocation terms of imprisonment imposed on both
counts (twenty-seven months).
But nothing in the text of § 3624(e) or any other relevant
statute demands this merger of counts for purposes of
calculating the appropriate postrevocation term of supervised
release. Terms of imprisonment and terms of supervised
release attach to particular counts of conviction, not to the
combination of all counts. See Johnson v. United States,
529 U.S. 694, 701 (2000) (holding that § 3583(h), added by
statute after Johnson’s offense of conviction, could not apply
retroactively because “postrevocation penalties relate to the
original offense.”). Thus, with respect to a particular count
of conviction, a defendant may not be ordered to serve a term
of supervised release longer than the maximum term the
12 UNITED STATES V. HERTLER
district court could have imposed on that count, less any
postrevocation prison time imposed on that count.
Although Knight did not address the particular question
at issue here, both that decision and the circuit cases it
followed support this conclusion. One of the cases we cited
in Knight, United States v. Merced, clearly explained why a
sentencing court must aggregate all postrevocation terms of
imprisonment related to a particular offense in calculating the
available term of supervised release. As the Second Circuit
observed, the contrary result “would permit an endless cycle
of consecutive terms of imprisonment and supervised release
based on a single underlying offense, a result that Congress
gave no indication whatsoever of intending.” United States
v. Merced, 263 F.3d 34, 37 (2d Cir. 2001) (per curium)
(emphasis added). Thus, in Merced as in Knight, the concern
was avoiding a scheme that would permit sentencing courts
to avoid ever exhausting the statutory maximum sentence
otherwise applicable to a particular offense. Achieving that
goal does not require aggregating the terms of imprisonment
for all counts of conviction; and, as the language in Merced
makes clear, in reaching its conclusion, the Merced court
assumed that terms of supervised release would be tied to
individual offenses. See also United States v. Mazarky,
499 F.3d 1246, 1250 (11th Cir. 2007) (quoting Merced’s
reasoning and reference to a “single underlying offense”);
Maxwell, 285 F.3d at 341 (expressing concern that if a
sentencing court failed to aggregate postrevocation sentences,
a defendant “could be sentenced to a term of supervised
release that exceeded the statutory maximum term of
supervised release authorized for the original offense.”). In
other words, the scheme established by Congress is count-
specific.
UNITED STATES V. HERTLER 13
Thus, for the reasons set forth above, we hold that the text
of § 3583(h) and the structure of § 3583 support the
government’s argument that “any term of imprisonment”
means any “terms of imprisonment imposed with respect to
the same underlying offense.” Zoran, 682 F.3d at 1064.
B
Hertler finally argues that the rule of lenity requires that
we interpret § 3583(h) in his favor. We disagree. The rule of
lenity is a rule of statutory construction that instructs that,
where a statute is ambiguous, courts should not interpret the
statute “so as to increase the penalty that it places on” the
defendant. Albernaz v. United States, 450 U.S. 333, 342
(1981). “The simple existence of some statutory ambiguity,
however, is not sufficient to warrant application of [the] rule,
for most statutes are ambiguous to some degree.” Muscarello
v. United States, 524 U.S. 125, 138 (1998). Rather, “[t]he
rule of lenity applies only if, after seizing everything from
which aid can be derived, we can make no more than a guess
as to what Congress intended.” Id. (internal alterations and
quotation marks omitted); see also Johnson, 529 U.S. at 713
n. 13 (“Lenity applies only when the equipoise of competing
reasons cannot otherwise be resolved.”). In other words, the
rule only applies where “a reasonable doubt persists about a
statute’s intended scope even after resort to the language and
structure, legislative history, and motivating policies of the
statute.” Moskal v. United States, 498 U.S. 103, 108 (1990)
(internal quotation marks omitted). Here, § 3583’s text and
structure allow us to conclude that the most reasonable
interpretation of § 3583(h) is the one advanced by the
government. In sum, there is no “grievous ambiguity,”
Muscarello, 524 U.S. at 139, and no “reasonable doubt
14 UNITED STATES V. HERTLER
persists” regarding our construction, Moskal, 498 U.S. at 108.
Accordingly, we reject Hertler’s rule of lenity argument.
IV
For the foregoing reasons, we affirm Hertler’s
postrevocation sentence of twenty months of supervised
release.
AFFIRMED.