United States v. Douglas Knight

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30372
Plaintiff-Appellee, D.C. No.
v.  6:04-CR-00002-
DOUGLAS JAMES KNIGHT, CCL
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted
July 6, 2009—Portland, Oregon
Filed September 2, 2009
Before: Harry Pregerson, Pamela Ann Rymer and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Pregerson
12231
UNITED STATES v. KNIGHT 12233
COUNSEL
Steven C. Haddon, Haddon Law Office, Helena, Montana, for
the defendant-appellant (argued and on the briefs).
Paulette L. Stewart, Assistant United States Attorney (argued
and on the briefs), William W. Mercer, United States Attor-
ney, and Eric B. Wolff, Assistant United States Attorney (on
the briefs), Helena, Montana, for the plaintiff-appellee.
OPINION
PREGERSON, Circuit Judge:
Douglas Knight (“Knight”) appeals his sentence of twenty-
four months imprisonment and twelve months supervised
release, imposed after the district court revoked Knight’s
supervised release for a third time. Revocation of a defen-
dant’s supervised release is governed by 18 U.S.C. § 3583.
Congress amended § 3583 in 2003. See Prosecutorial Reme-
dies and Other Tools to End the Exploitation of Children
Today Act of 2003 (“PROTECT Act”), Pub. L. 108-21,
§ 101, 117 Stat. 650, 651. The 2003 Amendment to § 3583
altered the portions of § 3583 that address the maximum
terms of imprisonment and supervised release that can be
imposed following revocation of a defendant’s supervised
release. Because of the 2003 Amendment, this case presents
us with two issues of first impression in this circuit:
(1) Whether under the amended version
§ 3583(e)(3) the district court must reduce the
12234 UNITED STATES v. KNIGHT
maximum term of imprisonment to be imposed upon
revocation of a defendant’s supervised release by the
aggregate length of any and all terms of imprison-
ment imposed upon revocation of supervised release.
(2) Whether under the amended version of
§ 3583(h) the district court must reduce the
maximum term of supervised release to be
imposed upon revocation of a defendant’s
supervised release by the aggregate length of
any and all terms of imprisonment imposed
upon revocation of supervised release.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review questions of statutory interpretation de novo. United
States v. Ray, 484 F.3d 1168, 1170 (9th Cir. 2007). We affirm
Knight’s sentence of twenty-four months imprisonment, but
we reverse Knight’s sentence of twelve months supervised
release, and vacate and remand for resentencing.
I.
On April 27, 2004, Knight pleaded guilty to violating 18
U.S.C. § 922(j) (Possession of Stolen Firearms).1 Knight was
sentenced to eighteen months imprisonment and thirty-six
months supervised release.2
1
Possession of Stolen Firearms is a class C felony. The statutory maxi-
mum sentence for possession of stolen firearms is up to ten years impris-
onment and up to thirty-six months of supervised release. See 18 U.S.C.
§ 924(a)(2) (setting the maximum term of imprisonment at ten years); 18
U.S.C. § 3583(b)(2) (stating that the maximum term of supervised release
for a class C felony is thirty-six months).
2
The length of the sentence Knight received for his original conviction
is, however, irrelevant to the calculation of the maximum term of impris-
onment or the maximum term of supervised release Knight could receive
upon revocation of his supervised release. As will be discussed in detail
below, the maximum term of imprisonment to be imposed upon revocation
of supervised release is governed by § 3583(e)(3). The maximum term of
supervised release to be imposed upon revocation of supervised release is
governed by § 3583(h).
UNITED STATES v. KNIGHT 12235
On October 6, 2005, Knight began serving his term of
supervised release. On February 16, 2006, the district court
revoked Knight’s supervised release for the first time (the
“First Revocation”). The district court sentenced Knight to
nine months imprisonment and twenty-seven months super-
vised release.3
On October 14, 2006, Knight began to serve his second
term of supervised release. On October 3, 2007, the district
court revoked Knight’s supervised release for the second time
(the “Second Revocation”). The district court sentenced
Knight to nine months imprisonment and eighteen months
supervised release.
On May 5, 2008, Knight began serving his third term of
supervised release. On September 19, 2008, the district court
revoked Knight’s supervised release for a third time (the
“Third Revocation”). The district court sentenced Knight to
the statutory maximum of twenty-four months imprisonment
and twelve months supervised release.4 Knight objected to the
district court’s sentence on the grounds that the district court
3
Under § 3583(e)(3), the statutory maximum term of imprisonment the
district court could impose upon revocation of Knight’s supervised release
is twenty-four months. Under § 3583(h), the maximum term of supervised
release the district court could impose is the maximum term of supervised
release authorized by statute for Knight’s original offense (thirty-six
months) “less any term of imprisonment that was imposed upon revoca-
tion of supervised release.” 18 U.S.C. § 3583(h).
4
As reflected in the chart below, Knight has been subjected to a total of
forty-two months of imprisonment upon revocation of his supervised
release.
Revocation Sentences Imposed Imprisonment Supervised Release
First Revocation 9 months 27 months
Second Revocation 9 months 18 months
Third Revocation 24 months 12 months
TOTAL 42 months 57 months
12236 UNITED STATES v. KNIGHT
improperly calculated the statutory maximum terms of impris-
onment and supervised release. This timely appeal followed.
II.
The first issue we must determine is whether under 18
U.S.C. § 3583(e)(3), as amended by Congress in 2003, the
maximum term of imprisonment that can be imposed on a
defendant following revocation of his supervised release must
be reduced by the aggregate length of any and all terms of
imprisonment imposed upon revocation of supervised release.
Knight argues that when calculating the maximum term of
imprisonment to be imposed as a result of his Third Revoca-
tion, the district court was required to reduce the twenty-four
month statutory maximum term of imprisonment by eighteen
months (a nine month term of imprisonment for the First
Revocation and a nine month term of imprisonment for the
Second Revocation). Under Knight’s calculation, the district
court would therefore be precluded from imposing a term of
imprisonment exceeding six months — twenty-four months
minus eighteen months. We disagree and affirm the twenty-
four month term of imprisonment.
A.
[1] Section 3583(e)(3) governs the maximum term of
imprisonment that may be imposed when the district court
revokes a defendant’s supervised release. Section 3583(e)(3),
as amended, states that the 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 without credit for time previously served on
postrelease supervision, if the court, pursuant to the
Federal Rules of Criminal Procedure applicable to
UNITED STATES v. KNIGHT 12237
revocation of probation or supervised release, finds
by a preponderance of the evidence that the defen-
dant violated a condition of supervised release,
except that a defendant whose term is revoked under
this paragraph may not be required to serve on any
such revocation more than 5 years in prison if the
offense that resulted in the term of supervised release
is a class A felony, more than 3 years in prison if
such offense is a class B felony, more than 2 years
in prison if such offense is a class C or D felony, or
more than one year in any other case.
18 U.S.C. § 3583(e)(3) (emphasis added).5 Under
§ 3583(e)(3) the maximum term of imprisonment that Knight
could receive upon revocation of his supervised release was
two years.6 Section 3583(e)(3) is, however, silent regarding
whether the district court is required to subtract the aggregate
length of prior imprisonment terms imposed upon revocation
of supervised release when calculating the statutory maximum
for subsequent revocations.
B.
As previously noted, Congress amended § 3583(e)(3) in
2003. See Pub. L. 108-21, § 101. To properly interpret the
amended version of § 3583(e)(3) it is important to consider
how circuit courts interpreted the statute prior to the 2003
Amendment.
Prior to the 2003 Amendment, the circuit courts were in
5
The 2003 Amendment added the italicized phrase “on any such revoca-
tion,” to § 3583(e)(3). Pub. L. 108-21, § 101. This was the only change to
§ 3583(e)(3).
6
Although the term of supervised release authorized by statute for a
class C felony is three years, see 18 U.S.C. § 3583(b)(2), § 3583(e)(3)
caps the maximum term of imprisonment the district court may impose
upon revocation of supervised release for a class C felony at two years.
12238 UNITED STATES v. KNIGHT
agreement that, when calculating the maximum term of
imprisonment to impose upon revocation of a defendant’s
supervised release, the district court was required to subtract
the aggregate of length of any and all terms of revocation
imprisonment from the statutory maximum. See, e.g., United
States v. Jackson, 329 F.3d 406, 407-08 (5th Cir. 2003) (col-
lecting cases that required aggregation prior to the 2003
Amendment).
The pre-Amendment rule requiring aggregation of prior
imprisonment when calculating the maximum term of impris-
onment or supervised release to be imposed upon multiple
revocations was based, in large part, on the legislative history
of the 1994 Amendment. See Violent Crime Control and Law
Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796(1994). For example, in United States v. Tapia-Escalera, 356
F.3d 181, 187 (1st Cir. 2004), the First Circuit noted that the
“1991 Senate Report discussing virtually the same language
adopted in 1994 makes clear that the cap is to apply to the
aggregate term of all imprisonments for release condition vio-
lations.” The Senate Report states that
in the case of a Class C felony for which the maxi-
mum supervised release term is three years, a defen-
dant who is revoked and re-imprisoned for 18
months could be ordered to serve as much as 18
additional months on supervised release (36-month
maximum term of supervised release-18 months
imprisonment = 18 months possible re-release super-
vision). If the same defendant was again revoked, he
could be re-imprisoned for not exceeding six months
(24-month cap-18 months previously-served impris-
onment = 6 months allowable imprisonment) and if
so imprisoned, could not thereafter be placed on
supervision (because the two-year imprisonment cap
would have been reached). Thus, under [the amend-
ments], a defendant would always be credited for
incarceration time against both the cap on re-
UNITED STATES v. KNIGHT 12239
imprisonment and the maximum authorized period
of supervised release.
137 Cong. Rec. S7772 (daily ed. June 13, 1991) (emphasis
added).
C.
The 2003 Amendment, however, significantly altered the
text of § 3583(e)(3). Indeed, it is 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 revo-
cation by the aggregate length of prior revocation imprison-
ment terms.
[2] In the 2003 Amendment, Congress added the phrase
“on any such revocation” to § 3583(e)(3). Pub. L. 108-21,
§ 101, 117 Stat. 650, 651. Although the addition of the phrase
“on any such revocation” was the only change to
§ 3583(e)(3), the impact of this revision is substantial. The
amended language of § 3583(e)(3) now explicitly states that
the statutory maximum term of imprisonment (in Knight’s
case twenty-four months) applies “on any such revocation.”
Accordingly, under the amended version of § 3583(e)(3) it is
clear that defendants are not to be credited for prior terms of
imprisonment imposed upon revocation of their supervised
release.
Each of our sister circuits to address this issue has come to
the same conclusion. See Tapia-Escalera, 356 F.3d at 188(“Congress has altered the statute to adopt the government’s
position” that the statutory cap applies to each revocation);
United States v. Lewis, 519 F.3d 822, 824 (8th Cir. 2008)
(stating that the plain language of 18 U.S.C. § 3583(e)(3) per-
mitted imposition of two year term of imprisonment for a
class C felony “without the need to consider or aggregate the
prison term for [the] first revocation.”); United States v. Wil-
liams, 425 F.3d 987, 989 (11th Cir. 2005) (“Congress did
12240 UNITED STATES v. KNIGHT
eventually amend § 3583(e)(3) so that the statutory caps now
explicitly apply to each revocation of supervised release.”).
[3] Accordingly, we hold that the district court did not err
in imposing a twenty-four month term of imprisonment upon
revocation of Knight’s supervised release.
III.
The second issue we must determine is whether under 18
U.S.C. § 3583(h), as amended by Congress in 2003, the maxi-
mum term of supervised release that can be imposed on a
defendant following multiple revocations of his supervised
release must be reduced by the aggregate length of any and
all terms of imprisonment imposed upon revocation of super-
vised release.
Knight argues that the statutory maximum term of super-
vised release (thirty-six months) must be reduced by the
aggregate length of the terms of imprisonment imposed upon
the First Revocation (nine months), the Second Revocation
(nine months) and the Third Revocation (twenty-four months)
of his supervised release. Accordingly, Knight argues that the
district court was precluded from imposing an additional term
of supervised release upon the Third Revocation because the
aggregate length of revocation imprisonment (forty-two
months) exceeded the statutory maximum amount of super-
vised release (thirty-six months). We agree, and we vacate
Knight’s sentence and remand for resentencing.
A.
[4] Under 18 U.S.C. § 3583(h), the district court may
impose a term of supervised release after imprisonment for
violations of conditions of supervised release. Section 3583(h)
specifically limits, however, the length of the term of super-
vised release the district court may impose. Section 3583(h),
as amended in 2003, states:
UNITED STATES v. KNIGHT 12241
When a term of supervised release is revoked and
the defendant is required to serve a term of imprison-
ment, 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 super-
vised release, less any term of imprisonment that was
imposed upon revocation of supervised release.
18 U.S.C. § 3583(h) (emphasis added).
B.
To properly interpret the amended version of § 3583(h), we
again consider how circuit courts interpreted the statute prior
to the 2003 Amendment. Prior to the 2003 Amendment to
§ 3583, circuit courts were in agreement that when calculating
the maximum term of supervised release to be imposed upon
revocation of a defendant’s supervised release, district courts
were required to subtract the aggregate length of any and all
terms of imprisonment imposed upon revocation of the defen-
dant’s supervised release. See United States v. Mazarky, 499
F.3d 1246, 1250 (11th Cir. 2007); United States v. Maxwell,
285 F.3d 336, 341 (4th Cir. 2002); United States v. Merced,
263 F.3d 34, 37-38 (2d Cir. 2001); United States v. Brings
Plenty, 188 F.3d 1051, 1054 (8th Cir. 1999); United States v.
Beals, 87 F.3d 854, 857-58 (7th Cir. 1996), overruled on
other grounds by United States v. Withers, 128 F.3d 1167,
1172 (7th Cir. 1997). We see nothing in the amended version
of the statute to suggest that the pre-amendment rule no lon-
ger applies.
Although the 2003 Amendment clearly altered the text of
§ 3583(e)(3), which governs the maximum term of imprison-
ment, the 2003 Amendment did not significantly alter the rele-
vant portions of § 3583(h), which governs the maximum term
12242 UNITED STATES v. KNIGHT
of supervised release.7 Pub. L. 108-21, § 101(2). In particular,
the 2003 Amendment did not alter the second sentence of
§ 3583(h), which addresses the “length” of a term of super-
vised release and requires the district court to subtract “any
term of imprisonment that was imposed upon revocation of
supervised release.”
C.
To date, only the Fifth Circuit has addressed the amended
version of § 3583(h). In United States v. Vera, 542 F.3d 457(5th Cir 2008), the Fifth Circuit addressed whether the plain
text of § 3583(h) requires the district court to “subtract from
the originally authorized supervised release term any term of
imprisonment that was imposed upon revocation of super-
vised release.” Id. at 459-60 (internal quotation marks omit-
ted). The Fifth Circuit held that “under § 3583(h) ‘the
maximum allowable supervised release following multiple
revocations must be reduced by the aggregate length of any
terms of imprisonment that have been imposed upon revoca-
tion.’ ” Id. at 462 (quoting Mazarky, 499 F.3d at 1250).
The Fifth Circuit based its analysis primarily on the phrase
“less any term of imprisonment that was imposed upon revo-
cation of supervised release.” The Fifth Circuit noted that
7
Prior to the 2003 Amendment, 18 U.S.C. § 3583(h) stated:
When a term of supervised release is revoked and the defendant
is required to serve a term of imprisonment that is less than the
maximum term of imprisonment authorized under subsection
(e)(3), 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.
18 U.S.C. § 3583(h) (1994) (emphasis added). The only effect of the 2003
Amendment was to eliminate the italicized text. Pub. L. 108-21, § 101(2).
UNITED STATES v. KNIGHT 12243
“[w]hen the word ‘any’ is properly read in its § 3583(h) statu-
tory context, Webster’s Third New International Dictionary
provides that the word ‘any’ means ‘all.’ ” Vera, 542 at 460
(internal quotations and citations omitted) (quoting Maxwell,
285 F.3d at 341). Because the phrase “less any term of impris-
onment” was not altered by Congress in the 2003 Amend-
ment, the Fifth Circuit saw no reason to depart from the pre-
Amendment interpretations of § 3583(h) requiring aggrega-
tion.
D.
The scant legislative history of the 2003 Amendment sup-
ports the Fifth Circuit’s interpretation of § 3583(h).8 As previ-
ously noted, Section 3583(e)(3) was amended in 2003 to state
that the maximum term of imprisonment to be imposed upon
revocation of a defendant’s supervised release applies “on any
such revocation.” The Fifth Circuit notes, however, that
“Congress did not insert any language like that added in sub-
section (e)(3) [which governs the maximum term of
imprisonment] to subsection (h) [which governs the maximum
term of supervised release] . . . . Had Congress wished to
make such a change to subsection (h), the amendment to sub-
section (e)(3) indicates that Congress was aware potentially of
how to do so.” Vera, 542 F.3d at 462 n.3.
Indeed, the government itself states that
Congress is presumed to know existing law. See
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,
351 (1998). And when Congress clarified that the
maximum applies ‘on any such revocation,’ it pre-
sumably knew that the circuits had previously aggre-
gated imprisonment and deducted it from the cap.
8
The committee reports and other legislative history for the 2003
Amendment (the PROTECT Act) deal almost exclusively with sex offend-
ers.
12244 UNITED STATES v. KNIGHT
(Gov’t Br. at 13.) Certainly, this same logic should apply to
Congress’s failure to insert the phrase “on any such revoca-
tion” to § 3583(h). Congress is presumed to know that prior
to the 2003 Amendment to § 3583, circuit courts had required
aggregation when determining the maximum amount of both
imprisonment and supervised release. Had Congress wished
to eliminate aggregation for both, it would have amended both
subsections in a similar fashion.9 Congress did not do so.
[5] Accordingly, we agree with the Fifth Circuit’s reason-
ing in Vera, and hold that the maximum term of supervised
release to be imposed following multiple revocations of
supervised release must be reduced by the aggregate length of
any and all terms of imprisonment that have been imposed
upon revocation of supervised release. Because the terms of
imprisonment imposed upon revocation of Knight’s super-
vised release totaled forty-two months10 and exceeded the stat-
utory maximum of thirty-six months, the district court was
precluded from imposing an additional term of supervised
release under § 3583(h).
9
The government also argues that public policy favors its interpretation
of § 3583(h) and the continued availability of supervised release regard-
less of previous terms of imprisonment. In particular, the government
argues that requiring aggregation of prior sentences would significantly
limit the district court’s discretion to impose supervised release for those
defendants who clearly need it. The alternative — indefinite supervision
— is, however, less appealing. Absent explicit statutory authority, which
Congress has yet to provide, we do not presume that Congress intended
to subject a defendant to continuous and indefinite supervision by elimi-
nating aggregation and credit for revocation imprisonment when calculat-
ing the maximum term of supervised release.
10
Knight was sentenced to nine months imprisonment as a result of the
First Revocation, nine months imprisonment as a result the Second Revo-
cation, and twenty-four months imprisonment as a result of the Third
Revocation. These three prison terms total forty-two months.
UNITED STATES v. KNIGHT 12245
IV.
[6] We affirm the district court’s sentence of twenty-four
months imprisonment, but reverse the district court’s sentence
of twelve months supervised release. It is clear, however, that
the district court wished to impose both imprisonment and
supervised release when revoking Knight’s supervised
release. Accordingly, we vacate Knight’s Third Revocation
sentence in its entirety so that on remand the district court
may, if it chooses, properly calculate a sentence that includes
both imprisonment and supervised release.
VACATED and REMANDED FOR RESENTENCING.