United States v. Michelle Wing

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30017
Plaintiff-Appellee, D.C. No.
v.  9:01-cr-00037-
MICHELLE WING, DWM-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
December 7, 2011—Seattle, Washington
Filed June 21, 2012
Before: M. Margaret McKeown and Richard C. Tallman,
Circuit Judges, and Barry Ted Moskowitz, District Judge.*
Opinion by Judge Moskowitz;
Dissent by Judge Tallman
*The Honorable Barry Ted Moskowitz, Chief Judge of the United
States District Court for the Southern District of California, sitting by des-
ignation.
7335
7338 UNITED STATES v. WING
COUNSEL
John Rhodes, Federal Defenders of Montana, Missoula, Mon-
tana, for the defendant-appellant.
J. Bishop Grewell, U.S. Attorney’s Office, Helena, Montana,
for the plaintiff-appellee.
OPINION
MOSKOWITZ, District Judge:
Michelle Wing appeals the district court’s revocation of her
second term of supervised release, which had not yet com-
menced, based on newly discovered violations of conditions
of her previously revoked first term of supervised release.
Wing contends that the district court lacked jurisdiction to
UNITED STATES v. WING 7339
revoke her second term of supervised release. In this matter
of first impression, we conclude that a district court lacks
jurisdiction under 18 U.S.C. § 3583(e)(3) to revoke a term of
supervised release based on newly discovered violations of a
previously revoked term of supervised release. Accordingly,
we REVERSE and REMAND.
I
On August 8, 2001, a grand jury in the District of Montana
returned an indictment against Michelle Wing, charging her
with one count of bank embezzlement in violation of 18
U.S.C. § 656. On October 18, 2001, Wing entered a plea of
guilty to the charge and was thereafter sentenced to six
months in prison followed by five years of supervised release.
Wing’s term of supervised release commenced on February
11, 2004. On April 24, 2008, Wing’s probation officer filed
a petition to revoke Wing’s supervised release. The petition
alleged that Wing had violated the conditions of supervised
release by: (1) providing her probation officer with a falsified
document; (2) failing to obtain approval of her probation offi-
cer before making payments to the Washington State Employ-
ment Security Division; (3) incurring new debt with the
purchase of a home and a vehicle without the advance
approval of the probation officer; and (4) failing to submit
timely monthly reports to her probation officer.
On June 6, 2008, the Montana district court found that
Wing had committed all of the violations alleged in the peti-
tion. The district court revoked Wing’s supervised release and
sentenced her to 3 months of imprisonment followed by 33
months of supervised release. Wing self-reported to prison on
August 29, 2008.
On November 18, 2008, a grand jury in the Eastern District
of Washington returned a 22-count indictment charging Wing
7340 UNITED STATES v. WING
with bank fraud, conspiracy, and identity theft, based on con-
duct that took place between June 1, 2006, and July 31, 2008.
On November 25, 2008, Wing’s probation officer filed a
petition with the Montana district court to revoke Wing’s sec-
ond term of supervised release, which was scheduled to com-
mence the very next day, based on Wing’s commission of the
crimes alleged in the Eastern District of Washington case in
addition to other violations (leaving the district of supervision
without permission of the probation officer, failing to submit
truthful and complete monthly reports, and failing to notify
the probation officer of any change in employment). That
same day, the Montana district court issued a warrant for
Wing’s arrest.
On November 26, 2008, Wing was released from prison
and was immediately arrested on the district court’s warrant.
Before appearing for her revocation hearing in Montana,
Wing was transferred to the Eastern District of Washington to
face the criminal charges in that case. Wing ultimately pled
guilty to a number of counts in the Eastern District of Wash-
ington case and was sentenced to 86 months of imprisonment
and a five-year term of supervised release.
On November 20, 2009, Wing appeared before the Mon-
tana district court for a supervised release revocation hearing.
During the hearing, Wing admitted to the violations alleged
in the petition. Based on these violations of conditions of the
first term of supervised release, the Montana district court
revoked the second term of supervised release and imposed a
sentence of 33 months of imprisonment to run consecutively
to the sentence imposed in the Eastern District of Washington.1
1
Although some of the conduct underlying the Eastern District of Wash-
ington indictment occurred after the revocation of Wing’s first term of
supervised release and before she self-reported to prison on August 29,
2008, the Montana district court found, “The conduct in all four violations
occurred during Wing’s term of supervised release that commenced in
February 2004 . . . .” (Order, Jan. 18, 2011, ECF 87.)
UNITED STATES v. WING 7341
The court did not impose an additional term of supervised
release, reasoning that Wing would be under the supervised
release of the sentence imposed in the Eastern District of
Washington.
On November 25, 2009, Wing appealed the Montana dis-
trict court’s revocation of her second term of supervised
release. Wing argued on appeal that the district court lacked
jurisdiction to revoke her term of supervised release because
the term had not yet commenced. This court remanded the
case because Wing had not presented her jurisdictional argu-
ment before the district court.
On remand, the district court ordered the parties to submit
briefs on the jurisdictional argument raised on appeal. In an
order filed on January 18, 2011, the court held that it had
jurisdiction to revoke Wing’s second term of supervised
release, reasoning that if it had known of the additional viola-
tions at the time it revoked Wing’s first term of supervised
release, the court would not have sentenced Wing to only a
three-month term of imprisonment:
In this regard, the second revocation sentence relates
back to the Court’s original revocation hearing and
accounts for the additional violations that were sig-
nificant breaches of the Court’s trust, but were not
known to the Court at that time. Simply put, the
revocation challenged here pertained to the first term
of supervised release.
Relying on language in Johnson v. United States, 529 U.S.
694, 704 (2000), the district court reasoned that the first term
of supervised release “retain[ed] vitality” and “continued to
have some effect” even though it had been revoked. There-
fore, the court held that it had jurisdiction to “adjust[ ] Wing’s
first revocation sentence by imposing a subsequent sentence
that considered the full scope of her breaches of trust, as well
as the need to protect the public from further crimes by her.”
7342 UNITED STATES v. WING
II
We review de novo whether a district court has jurisdiction
to revoke a term of supervised release. United States v. Igna-
cio Juarez, 601 F.3d 885, 888 (9th Cir. 2010).
III
The issue before us is whether, under 18 U.S.C. § 3583, a
district court has jurisdiction to revoke a future term of super-
vised release based upon newly discovered violations of con-
ditions of a past term of supervised release. We have not
located any reported decisions addressing this issue under the
current version of the statute. As in all statutory interpretation
cases, we look first to the language of the statute. We have
examined the statutory scheme governing supervised release
as well as the sentencing scheme for violations of supervised
release, and conclude that the district court lacked jurisdiction
to revoke Wing’s second term of supervised release.
A. Statutory Structure: 18 U.S.C. § 3583
In 18 U.S.C. § 3583, Congress has established a scheme
where separate and distinct terms of supervised release may
be imposed upon a repeat offender of supervised release con-
ditions. Each term has its own conditions as well as its own
beginning and end (either by termination or revocation). This
statutory scheme leads us to conclude that once a term of
supervised release has been revoked, a later-discovered viola-
tion of a condition of that term cannot form the basis of a
revocation of a subsequent term of supervised release.
A district court’s authority to impose, modify, terminate, or
revoke supervised release derives from § 3583. Subsections
3583 (a)-(d) bestow upon district courts the power to impose
supervised release, outline the factors to be considered when
doing so, limit the length of terms of supervised release, and
list the conditions of release that a court may order. Subsec-
UNITED STATES v. WING 7343
tions (e) and (g)-(i) govern the modification, termination, and
revocation of supervised release as well as the sanctions
courts may impose upon revocation.
Our focus is on subsection (e), which gives a district court
authority to modify, terminate, or revoke supervised release.
Under subsection (e), a court may, after considering enumer-
ated factors set forth in § 3553(a): (1) terminate a term of
supervised release and discharge the defendant at any time
after the expiration of one year of supervised release
(§ 3583(e)(1)); (2) extend a term of supervised release (if less
than the maximum authorized term was previously imposed)
and may modify, reduce, or enlarge the conditions of super-
vised release, at any time prior to the expiration or termina-
tion of the term of supervised release (§ 3583(e)(2)); or (3)
revoke a term of supervised release. (§ 3583(e)(3)).
In 2000, when Wing committed her crimes of conviction,
subsection (e)(3) provided in relevant part that the district
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
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 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
7344 UNITED STATES v. WING
is a class C or D felony, or more than one year in any
other case . . . .
18 U.S.C. § 3583(e)(3) (2000).2
When revoking supervised release and imposing a term of
imprisonment, the court may include a requirement that the
defendant be placed on another term of supervised release
after imprisonment. 18 U.S.C. § 3583(h). In 2000, subsection
(h) provided:
When a term of supervised release is revoked and
the defendant is required to serve a term of imprison-
ment that is less than the maximum term of impris-
onment authorized under subsection (e)(3), the court
may include a requirement that the defendant be
placed on a term of supervised release after impris-
onment. 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.3
2
In 2003, subsection (e)(3) was amended by the Prosecutorial Remedies
and Other Tools to End the Exploitation of Children Today Act of 2003
(“PROTECT Act”), Pub. L. 108-21, § 101, 117 Stat. 650, 651. Prior to the
2003 amendments made to § 3583(e)(3) by the PROTECT Act, when cal-
culating the maximum term of imprisonment that could be imposed upon
revocation of supervised release, courts would subtract the aggregate
length of prior imprisonment terms imposed upon revocation of super-
vised release from the statutory maximum. See United States v. Jackson,
329 F.3d 406, 407-08 (5th Cir. 2003). The PROTECT Act amended sub-
section (e)(3) to make it clear that the statutory maximum term of impris-
onment applies “on any such revocation,” meaning that the statutory
maximum term of imprisonment can be imposed for any one of multiple
revocations of supervised release. See United States v. Knight, 580 F.3d
933, 935-37 (9th Cir. 2009).
3
Under this version of § 3583(h), a subsequent term of supervised
release could be imposed only when the defendant was required to serve
UNITED STATES v. WING 7345
Finally, § 3583(i) specifies under what circumstances a
court may revoke a term of supervised release after the expi-
ration of that term:
The power of the court to revoke a term of super-
vised release for violation of a condition of super-
vised release, and to order the defendant to serve a
term of imprisonment and . . . a further term of
supervised release, extends beyond the expiration of
the term of supervised release for any period reason-
ably necessary for the adjudication of matters arising
before its expiration if, before its expiration, a war-
rant or summons has been issued on the basis of an
allegation of such a violation.
B. Statutory Analysis: 18 U.S.C. § 3583(e)(3)
Wing argues that the district court lacked the jurisdiction to
revoke her future term of supervised release for violations she
committed during a past term of supervised release. The gov-
ernment, in contrast, contends that § 3583(e)(3) authorized the
district court to revoke Wing’s second term of supervised
release based on the newly discovered violations of conditions
of her first term of supervised release.
In arguing that the district court had jurisdiction to revoke
Wing’s second term of supervised release under 18 U.S.C.
§ 3583(e)(3), the government takes two extreme and contra-
dictory positions regarding the relationship between Wing’s
a term of imprisonment that was “less than the maximum term of impris-
onment authorized under subsection (e)(3).” The PROTECT Act amended
subsection (h) by eliminating this language from the statute. However,
both before and after the 2003 amendments, under subsection (h), the
length of a term of supervised release imposed following revocation can-
not exceed the term of supervised release authorized by statute for the
offense that resulted in the original term of supervised release, less the
aggregate of all terms of imprisonment imposed upon revocations of
supervised release. Knight, 580 F.3d at 940.
7346 UNITED STATES v. WING
first and second terms of supervised release. First, the govern-
ment agrees with Wing that her second term of supervised
release was separate from her first term of supervised release,
but argues that under the statute, a term of supervised release
may be revoked based on the violation of a wholly separate
term of supervised release. Next, the government claims that
Wing’s second term of supervised release and first term of
supervised release were one and the same. According to the
government’s latter position, with which the district court
agreed, Wing’s second term of release was actually a continu-
ation of her first term, and therefore the district court could
revoke the second phase of supervised release after discover-
ing violations that took place in an earlier phase of the same
term of release. Neither of the government’s positions is per-
suasive or compelling under the statutory language.
Under the first of the government’s alternative readings of
subsection (e)(3), the district court was permitted to “revoke
a term of supervised release” (the not-yet-commenced second
term of supervised release) because the district court found by
a preponderance of the evidence “that the defendant violated
a condition of supervised release” (a condition of the first
term of supervised release). In other words, the government
interprets subsection (e)(3) as allowing revocation of super-
vised release based upon a violation of a condition of any
term of supervised release, not necessarily the term of super-
vised release that is being revoked.
The government argues that Congress could have specified
that a court can revoke a term of supervised release when the
defendant violated a condition of “the term of supervised
release.” Instead, Congress varied its phrasing and authorized
revocation upon violation of “a condition of supervised
release.” The government contends that this broader language
grants the district court authority to revoke a term of super-
vised release based solely on a finding that “the defendant
violated a condition of supervised release,” no matter which
term of supervised release.
UNITED STATES v. WING 7347
We acknowledge that the relevant clause in subsection
(e)(3), read in isolation, is ambiguous. The clause does not
specify which term of supervised release the defendant must
have violated. It does not expressly require that the violated
condition relate to the term of supervised release that is being
revoked, nor does it expressly permit revocation of future
terms of supervised release based on violations of conditions
of previously revoked terms of supervised release. Although,
as pointed out by the government, the language does not spec-
ify that the condition violated must be of “the term of super-
vised release [being revoked]” or “such term of supervised
release,” the language also does not provide that the condition
violated may be of “any term of supervised release.”
To determine whether “a condition of supervised release”
refers to a condition of any term of supervised release, or a
condition of the specific term of supervised release that is
being revoked, we look to the statutory framework. When
interpreting words in a statute, “we start with the premise that
‘the words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.’ ” Ameri-
can Bankers Ass’n v. Gould, 412 F.3d 1081, 1086 (9th Cir.
2005) (quoting Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 133 (2000)). Our goal is to
“understand the statute ‘as a symmetrical and coherent regula-
tory scheme’ and to ‘fit, if possible, all parts into a . . . harmo-
nious whole.’ ” Id. (quoting Brown & Williamson, 529 U.S.
at 133).
[1] Section 3583 establishes a scheme under which distinct
terms of supervised release may be imposed. If a district court
revokes a term of supervised release under § 3583(e)(3) and
sentences the defendant to a term of imprisonment, the court
may again impose “a term of supervised release after impris-
onment.” 18 U.S.C. § 3583(h). If the new term of supervised
release is later revoked due to violations of conditions, subject
to certain limitations, the district court may again impose a
term of imprisonment and yet another term of supervised
7348 UNITED STATES v. WING
release. Congress could have chosen to have a continuing
period of supervised release that recommences after terms of
imprisonment.4 Instead, Congress created a structure of sepa-
rate terms of supervised release, which guides our analysis of
the statute.
[2] Under the ordinary meaning of “revoke,” when a term
of supervised release is revoked, the term is canceled, and any
new term of supervised release that has been imposed is in
effect. The conventional definition of “revoke” is “to void or
annul by recalling, withdrawing, or reversing.” American
Heritage Dictionary 1493 (4th ed. 2000). See also Webster’s
Third New International Dictionary 1944 (1981) (“to annul by
recalling or taking back”). Thus, when a term of supervised
release is revoked, it has been annulled, and the conditions of
that term do not remain in effect. Accordingly, a term of
supervised release cannot be revoked based on a violation of
a condition of a previously revoked term of supervised
release, and subsection (e)(3) necessarily refers to a violation
of the term of supervised release that is being revoked.
[3] In Johnson, the Supreme Court applied an “unconven-
tional” definition of “revoke” to subsection (e)(3). 529 U.S.
at 706-07. Under this “less common” definition, revoke can
mean to recall without final abrogation, meaning that a “re-
voked” term can “retain vitality after revocation.” Id. at 707,
n.9. However, as we discuss below, the Supreme Court’s
application of the “unconventional” definition of “revoke”
4
Prior to the addition of subsection (h) in 1994 by the Violent Crime
Control and Law Enforcement Act of 1994, § 110505(2)(B), 108 Stat.
2017, the United States Sentencing Commission’s Guidelines Manual
referred to the possibility that a defendant could be ordered to “recom-
mence” supervision upon release from imprisonment. See U.S.S.G.
§ 7B1.3(g)(2), p.s. (Nov.1993). In subsection (h), Congress made it clear
that a new term of supervised release commences after the term of impris-
onment. Effective November 1, 1995, Amendment 533 revised the lan-
guage of § 7B1.3(g)(2) to eliminate references to “recommencement” of
supervised release.
UNITED STATES v. WING 7349
was based on the language of subsection (e)(3) before the
1994 amendments. The Court’s reasoning for adopting an
“unconventional” definition of “revoke” does not apply to the
amended statutory language, and there is no reason to believe
that Congress used the term “revoke” in anything other than
its ordinary sense.
The government’s interpretation is so broad that it logically
would permit revoking a term of supervised release based on
a violation of a condition of a prior term of supervised release
that relates to a different offense. (In this case, the terms of
supervised release stemmed from the same original offense.)
Thus, under the government’s reading, it is possible that the
following scenario could take place: (1) Defendant is con-
victed of Offense A and is sentenced to a term of supervised
release, which ends; (2) Defendant is then convicted of
offense B, a more serious felony than Offense A, and is sen-
tenced to a term of supervised release; (3) During the second
term of supervised release, the court is made aware of a viola-
tion of a condition of the first term of supervised release; and
(4) The court revokes the second term of supervised release
based on the violation of the condition of the first term of
supervised release, and sentences the defendant to a term of
imprisonment and a new term of supervised release. The
problem with this scenario is that it does not fit into the statu-
tory scheme for determining the maximum term of imprison-
ment upon revocation and the maximum length of a term of
supervised release upon revocation.
Under subsection (e)(3), upon revocation, a defendant may
not be required to serve on such revocation, “more than 5
years in prison if the offense that resulted in the term of super-
vised 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.” (Emphasis added.) Under subsection (h),
the length of a term of supervised release imposed upon revo-
cation shall not exceed “the term of supervised release autho-
7350 UNITED STATES v. WING
rized 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.” (Empha-
sis added.) Under the scenario set forth above, it would be
unclear whether the maximum term of imprisonment and
maximum length of supervised release would be governed by
Offense A or the more serious Offense B. The government’s
reading requires permitting a scenario that Congress clearly
did not envision—the revocation of a supervised release term
based on the violation of a condition of a term of supervised
release that resulted from a different original offense.
[4] Our reading of subsection (e)(3) is buttressed by the
2003 amendment of the statute.5 The PROTECT Act amended
subsection (e)(3) to provide:
[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.
(Emphasis added). Under the government’s interpretation of
(e)(3) as it now stands, a defendant could receive multiple
maximum terms of imprisonment based upon violations of the
same term of supervised release. It is doubtful that Congress
intended such a result.
Furthermore, the government’s interpretation is under-
mined by § 3583(i). Under this subsection, a district court has
5
Although the amended version of subsection (e)(3) would not apply to
Wing because her crimes of conviction occurred in 2000, the amendment
sheds light on the interplay between terms of supervised release and terms
of imprisonment imposed upon revocation.
UNITED STATES v. WING 7351
power to revoke a term of supervised release “beyond the
expiration of the term of supervised release” only where a
warrant or summons based on an allegation of a violation of
a condition of supervised release has been issued before the
expiration of the term of supervised release.6 It would make
little sense for Congress to restrict the circumstances under
which a district court can revoke an expired term of super-
vised release if courts have the authority to punish any belat-
edly discovered supervised release violation, however ancient,
by revoking terms of supervised release that are ongoing or
have yet to begin.
After urging that under subsection (e)(3), a present or
future term of supervised release can be revoked for viola-
tions of a separate, previously revoked term of supervised
release, the government precipitously tacks in the opposite
direction and argues that under subsection (e)(3), both of
Wing’s terms of supervised release were one and the same—
that is, the later term was simply a continuation of the former
term. Following this same rationale, the district court relied
on Johnson, and held that it had jurisdiction to revoke Wing’s
second term of supervised release based on violations of the
first term of supervised release, because the first term of
supervised release “continued to have some effect and vitali-
ty.”
In Johnson, the Supreme Court held that under
§ 3583(e)(3), as it was written before the 1994 amendments,
the word “revoked” was used in an “unconventional sense”
6
Although Wing’s term of release arguably did not “expire” but was,
rather, revoked, the government’s argument that a defendant may be pun-
ished for violations during past terms of supervised release extends to all
past terms of release, whether they expired or were revoked. Further, we
think it anomalous that Congress would give the government an unlimited
amount of time to discover and punish a defendant for serious supervised
release violations that occurred during a revoked term, but provide no lee-
way as to the timing for seeking punishment against defendants who com-
mitted equally, or more, serious violations during terms that expired.
7352 UNITED STATES v. WING
that allowed a “revoked” term of supervised release to “retain
vitality after revocation” and permitted any balance of the
revoked term not served in prison to be served out as super-
vised release. 529 U.S. at 706-707. Prior to the 1994 amend-
ments, subsection (e)(3) provided that a district court could
“revoke a term of supervised release, and require the person
to serve in prison all or part of the term of supervised release
. . . .” Id. (emphasis added). Based on this language, the
Supreme Court reasoned that because all or part of “the term
of supervised release,” not a “term of imprisonment,” is being
served in prison, then “something about the term of super-
vised release survives the preceding order of revocation.” Id.
at 705. Accordingly, the remaining balance of the term of
supervised release may be served out as supervised release
when the reincarceration is over, effectively as a continuation
of the first term of supervised release. Id. at 706-07.
[5] Guidance from both the Supreme Court and Congress
indicates that the “unconventional” sense of revoke is now
obsolete in light of the 1994 amendments. The 1994 amend-
ments added subsection (h), which provides that a prisoner
serves a post-revocation “term of imprisonment” rather than
all or part of a term of supervised release. The 1994 amend-
ments also replaced subsection (e)(3)’s language, “all or part
of the term of supervised release,” with “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.) The amendments made it clear that a defendant sen-
tenced to prison upon revocation of supervised release is not
serving a portion of the original term of supervised release,
but, rather is serving a “term of imprisonment,” the length of
which is all or part of the term of supervised release autho-
rized by statute for the original offense.7 Under the amended
7
Before 1994, the cumulative length of the period of imprisonment upon
revocation and subsequent period of supervised release was limited by the
length of the original period of supervised release actually imposed by the
court. Consistent with the reasoning of Johnson, because the periods of
imprisonment and subsequent supervised release were a continuation of
the original term of release that was imposed, they were necessarily sub-
ject to the same limitation in length. See United States v. Anderson, 519
F.3d 1021, 1025 (9th Cir. 2008).
UNITED STATES v. WING 7353
language, a term of supervised release after imprisonment is
not the balance or remainder of the original term of super-
vised release, but, rather, is a new and separate term.
In Johnson, the Supreme Court itself recognized that the
statutory language upon which it was relying was changed by
the 1994 amendments: “As it was written before the 1994
amendments, subsection (3) did not provide (as it now does)
that the court could revoke the release term and require ser-
vice of a prison term equal to the maximum authorized length
of a term of supervised release.” Id. at 705. The Supreme
Court’s analysis of the word “revoked” was based on its read-
ing of subsection (e)(3) “before its amendment and the addi-
tion of subsection (h).” Id. at 713. In particular, the Court
explained that under the pre-amendment language, which per-
mitted the court to require the defendant to “serve in prison
all or part of the term of supervised release,” it is not a “ ‘term
of imprisonment’ that is to be served but all or part of ‘the
term of supervised release.’ ” Id. at 705. This reasoning no
longer holds true given the use of the “term of imprisonment”
in subsection (h). See also United States v. Xinidakis, 598
F.3d 1213, 1217 n.5 (9th Cir. 2010) (discussing the limited
reach of Johnson and pointing out the differences between the
pre-amendment and post-amendment language of subsection
(e)(3)).
Finally, subsection (h), by its own terms, distinguishes
between terms of release rather than periods or phases of the
same term of release. The dissent correctly notes that neither
the Court nor Congress uses the term “first” and “second”
term of supervised release. Dissent at 7363-64. Whatever “no-
menclature” is best, id., the fact remains that subsection (h),
added in 1994, clearly distinguishes between the “term of
supervised release after imprisonment” and the “original term
of supervised release.”
[6] Contrary to the position taken by Judge Tallman in his
dissent, the Supreme Court’s reasoning cannot be extended to
7354 UNITED STATES v. WING
§ 3583 as it exists after 1994, and does not support the propo-
sition that once a term of supervised release is revoked, it con-
tinues to have some effect, permitting the district judge to
sentence the defendant to additional terms of imprisonment
based on violations discovered after revocation.
C. Sentencing Scheme for Supervised Release Violations
[7] Our interpretation of § 3583(e)(3) finds further support
in the sentencing scheme for violations of supervised release
set forth in the Guidelines Manual. Under this scheme, sepa-
rate terms of imprisonment are imposed for violations of sep-
arate terms of supervised release, not separate violations of
the same term.
Under U.S.S.G. § 7B1.1, supervised release violations are
separated into three grades—Grade A, Grade B, and Grade C
violations. Section 7B1.4 sets forth guideline ranges of
imprisonment based on the grade of the violation and the
defendant’s Criminal History Category.
When there are multiple violations of the conditions of a
term of supervised release, “the grade of the violation is deter-
mined by the violation having the most serious grade.”
§ 7B1.1(b). Thus, violations of conditions of a term of super-
vised release are not individually punished. The court consid-
ers all of the violations pertaining to the term of supervised
release before it and determines the term of imprisonment
based upon the most serious violation.
The Guidelines Manual does not provide for the continued
ability to impose terms of imprisonment for violations of con-
ditions of a previously revoked term of supervised release. If
district courts were permitted to revoke a subsequent term or
terms of supervised release based upon newly discovered vio-
lations of a prior term of supervised release, there would be
uncertainty regarding the circumstances under which impris-
onment could be imposed and the length of such imprison-
UNITED STATES v. WING 7355
ment. For example, would the district court only be allowed
to revoke the subsequent term if the newly discovered viola-
tions were more serious than the previously known viola-
tions? In calculating the appropriate term of imprisonment for
the newly discovered violations, would the length of previ-
ously imposed terms of imprisonment for violations of the
same term of supervised release have to be subtracted?
Adopting the dissent’s reading would therefore give rise to
inconsistency and confusion, not just within the statutory
scheme, but also within the sentencing scheme under the
Guidelines.
D. Public Policy
Ordinarily, an analysis of the relevant statute and control-
ling case law would conclude our discussion. The government
and dissent, however, see fit to go far beyond the statutory
text to public policy considerations that purportedly support
their claim that the revocation of Wing’s second supervised
release was appropriate. See Dissent at 7364, 7365-69.
The government argues that public policy supports its posi-
tion because if courts lacked the authority to punish subse-
quently discovered violations of previously revoked terms of
supervised release, devious defendants would have the incen-
tive to insulate serious violations from penalty by quickly
committing and coming forward with a less severe violation,
and obtaining a revocation of supervised release based on the
less serious violation. Although the scenario the government
presents is theoretically possible, we are not convinced that
defendants who have committed serious vioations will risk
drawing attention to themselves for the purpose of manipulat-
ing supervised release revocation proceedings. The govern-
ment’s concern is clearly more theoretical than realistic, and,
more importantly, does not address the statutory scheme.
The dissent in turn raises concerns about defendants
squeezing out “crocodile tears” to convince judges to release
7356 UNITED STATES v. WING
them in between terms of supervised release—a period of
time the dissent terms the “Twilight Zone”—so they may
commit crimes without consequences. Dissent at 7364, 7370.8
At the outset, we note that the extremely unlikely scenario
that the dissent finds so fearsome appears not to have dis-
turbed Congress. If Congress wishes to expand the ability of
district court judges to prevent or deter further criminal activ-
ity between periods of supervised release, Congress may
enact legislation doing so.
Under the statutory scheme Congress has chosen, once a
term of supervised release is revoked, that term ends, and any
term of supervised release commencing after imprisonment
for violation of the first term of supervised is a new and sepa-
rate term. That Congress has made such a policy choice
should be enough for any court. However, we will address the
dissent’s arguments to dispel its concerns.
Initially, we note that in this case, Wing’s second term of
supervised release was revoked for violations occurring dur-
ing the first term of supervised release, not for crimes com-
mitted during the time between the two terms of supervised
release. Although the Indictment filed in the Eastern District
of Washington covered conduct between June 1, 2006 and
8
In his dissent, Judge Tallman envisions an ominous “Twilight Zone”
episode in which a defendant, who is serving three months on a revocation
of supervised release strangles two inmates and leaves another in a coma.
Judge Tallman expresses disbelief that a district court cannot revoke the
defendant’s upcoming period of supervised release based on her conduct.
However, under 18 U.S.C. § 3624(e), “A term of supervised release does
not run during any period in which the person is imprisoned in connection
with a conviction for a Federal, State, or local crime unless the imprison-
ment is for a period of less than 30 consecutive days.” Thus, even setting
aside the argument that revocation ends a term of supervised release, it is
clear that the hypothetical defendant was not on supervised release at the
time that she committed her violent acts in prison and thus could not be
punished for violating a condition of supervised release. Of course, if there
was actual proof that she committed the homicides, she would be prose-
cuted for murder.
UNITED STATES v. WING 7357
July 31, 2008, the Montana district court did not make any
findings that Wing had committed crimes after the revocation
date of June 10, 2008. Instead, the district judge specified,
“The conduct in all four violations occurred during Wing’s
term of supervised release that commenced in February 2004
. . . .”
Although Judge Tallman’s concern regarding “twilight
zones” is understandable, district courts are not without
means to ensure that defendants do not use the gap between
periods of supervised release to go on crime sprees. First of
all, a district court judge does not have to allow a defendant
whose supervised release has been revoked and has been sen-
tenced to prison to be released on bail so she can self-
surrender. Under 18 U.S.C. § 3143, a defendant should not be
released pending execution of a sentence unless the judge
finds “by clear and convincing evidence that the person is not
likely to flee or pose a danger to the safety of any other per-
son or the community if released under section 3142(b) or
(c).” In practice, defendants who are sentenced to prison for
supervised release violations are not likely to be given the
opportunity to self-surrender, especially in cases such as this
one where the defendant is allegedly continuing to engage in
the same type of criminal behavior (financial dishonesty) for
which she was originally convicted.
Further, in cases where a district court chooses to release
the defendant on her personal recognizance or upon execution
of an unsecured appearance bond, the release is subject to the
condition that the person not commit a federal, state, or local
crime during the period of release. 18 U.S.C. § 3142(b). If the
court believes additional conditions of release are necessary,
the court may impose such conditions under 18 U.S.C.
§ 3142(c).
If a defendant commits a crime while on release, the defen-
dant shall be sentenced, in addition to the sentence prescribed
for the offense, to (1) a term of imprisonment of not more
7358 UNITED STATES v. WING
than ten years if the offense is a felony; or (2) a term of
imprisonment of not more than one year if the offense is a
misdemeanor. 18 U.S.C. § 3147. Additionally, under the Sen-
tencing Guidelines, courts are instructed to apply a three-level
sentencing enhancement for a commission of an offense while
on release. U.S.S.G. § 3C1.3. Further, a person who violates
a condition of his or her release is subject to a criminal prose-
cution for contempt under 18 U.S.C. § 401; 18 U.S.C.
§ 3148(a).
Thus, district courts have tools to safeguard against the
release of defendants who may pose a danger to the public.
The district courts also have the power to penalize defendants
who abuse the court’s trust during release.
One further benefit of our interpretation of § 3583(e)(3) is
that it promotes finality and the avoidance of piecemeal
appeals. Under the government’s interpretation, a defendant’s
sentence for violating conditions of a term of supervised
release would be uncertain and subject to change as long as
the defendant had time remaining on supervised release. The
dissent’s conclusory assertion that our concern regarding
finality is “hollow” and subordinate to the menace that is the
“Twilight Zone” is unsupported by anything other than the
dissent’s own policy balancing.
Ultimately, the dissent gives insufficient credit to the
nuanced purposes the statute embodies. The statute is meant
to curb recidivism to be sure, but not at the cost of subjecting
defendants to an ongoing risk of punishment for violations of
some prior period of supervised release, however remote, and
creating confusion in sentencing for supervised release viola-
tions. There are policy considerations on both sides of the
question. We decline—indeed we lack the authority—to dis-
turb the careful balance Congress has created.
E. Rule of Lenity
[8] Even if we were to conclude that after considering the
text, structure, history, and purpose of the statute, there
UNITED STATES v. WING 7359
remains a “grievous ambiguity or uncertainty” regarding the
legal question before us, we would apply the “rule of lenity.”
Gollehon v. Mahoney, 626 F.3d 1019, 1027 (9th Cir. 2010).
The rule of lenity applies to the Sentencing Guidelines as well
as to penal statutes and provides that ambiguities concerning
the ambit of criminal statutes should be resolved in favor of
lenity to the defendant. United States v. Funetes-Barahona,
111 F.3d 651, 653 (9th Cir. 1997). Application of the rule of
lenity in this case would result in the same interpretation of
§ 3583(e)(3) as we adopt above.
IV
[9] We conclude that the district court did not have juris-
diction under § 3583(e)(3) to revoke Wing’s second term of
supervised release based on newly discovered violations of
conditions of her revoked term of supervised release.9 For the
reasons discussed above, we interpret subsection (e)(3) as
requiring that the court find by a preponderance of the evi-
dence that the defendant violated a condition of the term of
supervised release that is being revoked.
Accordingly, we REVERSE and REMAND to the district
court to vacate the sentence and judgment imposed on
November 20, 2009.
9
To the extent the revocation of Wing’s second term of supervised
release can be characterized as a “modification” of the first revocation
sentence, the district court lacked jurisdiction to modify the sentence. The
district court imposed the additional prison time well after the 14-day
period for corrections permitted under Fed. R. Crim. P. 35(a). Signifi-
cantly, none of the grounds for modification set forth in 18 U.S.C.
§ 3582(c) apply.
7360 UNITED STATES v. WING
TALLMAN, Circuit Judge, dissenting:
There is now a fifth dimension beyond that previously
known to federal district judges. It is a new dimension of
consequence-free criminality: a dimension of unpunished cor-
ruption, unsanctioned wickedness, and unchastened immoral-
ity. It is an area between a convict’s “first” term of supervised
release, and her “second” term of supervised release.
Our story begins in a courtroom. The camera zooms in on
the defendant’s table, where a young woman wipes away her
tears. The somnolent voice of the narrator, Rod Serling,
intones:
Imagine it is June 6, 2008. The location, Missoula,
Montana. This is Michelle Wing, a convicted felon
who’s in trouble once again. She’s been lying to her
probation officer. Routine lies the judge will punish
in a routine manner: by revoking supervised release
and sending her back to jail for a few short months.
What the judge doesn’t realize, however, is that
his act is not merely one of revocation, but of libera-
tion.
Wing will now begin an iniquitous journey
through space and time. Her companion on this jour-
ney will be fraud. Her route, embezzlement. That’s
a signpost up ahead; her next stop: The Twilight
Zone.
As the narration fades and Wing leaves the courtroom, the
camera follows her. Mystified by her good fortune but happy
to exploit it, Wing takes full advantage of the benevolent
parameters of this unique parallel dimension. In the three
weeks between July 3 and July 23, 2008, alone, she executes
eight fraudulent financial transactions totaling $240,000. She
spends $600 on toys at Toys “R” Us. She pays a $900 dental
UNITED STATES v. WING 7361
bill with a forged check. And, for good measure, she outfits
her many fraudulently purchased cars with fraudulently pur-
chased wheels and tires.
The camera soon returns to the courtroom, where Wing’s
parole officer is seen pleading with the Montana district
judge. The officer tells of Wing’s two-month crime spree. He
asks the judge to revoke her supervised release. But the judge
—who had thought Wing was still under his supervision—can
only stand by helplessly. He cannot punish crimes executed
outside his rational world of crime and punishment. He has no
jurisdiction over . . . The Twilight Zone.
This story might have been fanciful until today’s opinion.
But it is now all too real. The majority doesn’t just declare
separate and distinct terms of sequential supervised release. It
creates gaps between those terms. And for villains like Wing,
those gaps present a metaphysical nether-world constrained
only by the outer limits of criminal imagination. As this out-
come is equal parts science fiction and legal fiction, I must
respectfully dissent.
I
Admittedly, this case is a very difficult one. Although con-
tinuing misconduct by convicted felons, particularly embez-
zlers, is common in our penal experience, we are the first
court to apply 18 U.S.C. § 3583(e)(3) to such a unique set of
facts. As the majority recognizes, the plain language of the
statute itself does not give a clear answer, and we must look
elsewhere to discern congressional meaning.
Luckily, however, we are not the first court to interpret
§ 3583(e)(3). We should follow the reasoning of the United
States Supreme Court, whose prior interpretation of this stat-
ute demonstrates that supervised release is not broken into
terms and Twilight Zones. By rejecting the Court’s reasoning,
the majority reaches a result I cannot join.
7362 UNITED STATES v. WING
A
Johnson v. United States, 529 U.S. 694 (2000), closely
reviewed the language of § 3583(e)(3) to determine the scope
of a district court’s authority to impose supervised release.
The issue in Johnson was whether the statute authorized a dis-
trict court to (1) revoke a defendant’s term of supervised
release; (2) require the defendant to serve part of that term in
prison; and (3) impose an additional period of supervised
release following the period of revocation-based imprison-
ment. Although the issues in Johnson are slightly different
from those raised here, both cases depend upon the effect of
a revocation-based period of imprisonment on the preceding
and succeeding periods of non-incarcerated supervised release
time.
In Johnson, the Court focused on the revocation-based
period of imprisonment in relation to the overall “term” of
supervised release. The Court noted that § 3583(e)(3) allows
a district court to “ ‘revoke a term of supervised release, and
require the person to serve in prison all or part of the term of
supervised release . . . .’ ” Johnson, 529 U.S. at 705 (quoting
§ 3583(e)(3)). Based on this language, the Court reasoned that
the period of imprisonment resulting from revocation “is not
a ‘term of imprisonment’ that is to be served, but all or part
of ‘the term of supervised release.’ ” Id. (quoting
§ 3583(e)(3)) (emphasis added). With this holistic understand-
ing of a term of continuing supervised release—one that
encompasses the temporary period of revocation-based
imprisonment—the Court recognized that even a “revoked”
term of supervised release “retain[s] vitality after revocation.”
Id. at 707. Thus, the Court held that “any balance [of super-
vised release] not served in prison” can be served as super-
vised release after the temporary period of imprisonment. Id.
The majority bifurcates the analysis by dividing supervised
release into separate and distinct “first” and “second” terms.
Employing this nomenclature, the majority accepts that
UNITED STATES v. WING 7363
Wing’s “second” term of supervised release did not begin
until November 26, 2008, when she was released from the
temporary period of imprisonment resulting from her June
2008 revocation. The majority insists that the district court
could not revoke Wing’s “second” term of supervised release
on November 25, 2008—the day before she was released
from prison—because a court cannot revoke supervised
release before the supervised release begins. See 18 U.S.C.
§ 3624(e) (explaining that supervised release “commences on
the day the person is released from imprisonment . . .”).
To reach this result, the majority opinion presupposes that
the period from February 2004, when Wing was originally
released from prison, through August 2008, when she self-
reported back to prison following revocation, was her “first
term” of supervised release. This “first term” of supervised
release ended, says the majority, when the district court
revoked it in June 2008, but permitted Wing to remain free
from custody until the Bureau of Prisons designated a facility
and a date of surrender. Likewise, Wing’s “second term” of
supervised release was set to begin on November 26, 2008,
when she was released from the revocation-based period of
imprisonment. There are two glaring problems with this anal-
ysis.
First, under Johnson, a period of imprisonment resulting
from a revocation of supervised release does not divide super-
vised release into “first” and “second” terms unrelated to one
another. The statute itself does not mention “first” or “sec-
ond” terms; it simply refers to a “term of supervised release,”
all or part of which the court may require to be served in
prison. Johnson recognized this, and did not define the period
of supervised release that follows revocation-based imprison-
ment as a “second term” of supervised release. Rather, the
Court recognized the post-imprisonment period as “the bal-
ance of” a single, continuing term of supervised release, of
which imprisonment was but one part. Johnson, 529 U.S. at
7364 UNITED STATES v. WING
705. Call it what you want—perhaps “intensive supervision in
close custody”—but it is still supervised release.
Second, as stated above, the majority’s division of super-
vised release into separate and distinct terms creates gaps in
the court’s supervision. In this particular case, we manage to
rob the district court in Montana of the power to punish Wing
for crimes she committed between the revocation of her
“first” term of supervised release in June 2008 and the begin-
ning of her “second” term of supervised release commencing
in November 2008. This Twilight Zone—wherein Wing
enjoyed the crime spree of her dreams—is not convincingly
explained anywhere in the majority’s opinion, the statute in
question, or any other case.1 Luckily for the citizens of Spo-
kane and Missoula, Wing will still be held to account for the
underlying crimes in her 2008 summer of fun: she pleaded
guilty in the Eastern District of Washington to embezzlement
activities that included her July transactions. If circumstances
had been slightly different, perhaps through any number of
technical legal errors that could have torpedoed her subse-
quent criminal prosecution, Wing could have walked out of
prison on November 26, 2008, and gone right back to her old
profession: destroying livelihoods and reputations through
heartless financial crimes.
Based on a more faithful adherence to Johnson and the rea-
sonable inference that Congress did not intend to create gaps
in supervised release, we should soundly reject Wing’s
semantical effort to divide supervised release into separate
terms.
1
The majority suggests the problem can be avoided by not admitting the
convict to release on his or her own recognizance. But the Bail Reform
Act does not contemplate that all persons be incarcerated on conviction
and Wing took full advantage of the district court’s misplaced trust in her
fidelity to abide the conditions of her O.R. release. It is no answer to say
that in hindsight, she should obviously have been remanded to custody in
June 2008.
UNITED STATES v. WING 7365
The majority strays from the Supreme Court’s treatment of
§ 3583(e)(3), despite the fact that Johnson is the only relevant
decision interpreting this important subsection. The majority
points out that Congress had already answered the question
presented in Johnson by enacting § 3583(h), allowing district
courts to impose additional periods of supervised release, and
had also altered other language in the subsection. Based on
this congressional action and a prior Ninth Circuit case inter-
preting a wholly different statutory section, see United States
v. Xinidakis, 598 F.3d 1213 (9th Cir. 2010), the majority
holds that the district court’s reliance on Johnson was mis-
placed.
I concede, as did the Court in Johnson, that treating super-
vised release—including a period following revocation—as
one, single term may sound “unconventional.” Johnson, 529
U.S. at 705. But Congress has never acted to correct this read-
ing of § 3583(e)(3). Since the Court’s decision in Johnson,
Congress has amended § 3583 seven different times without
altering any of the relevant terms interpreted in that case.2
Although this is not dispositive evidence that Johnson (which
has never been overruled) still controls here, it is at least some
indication of Congress’s “endorsement of the judicial deci-
sion[ ]” in Johnson and its continuing vitality. United States
v. Male Juvenile, 280 F.3d 1008, 1016 (9th Cir. 2002) (“In
construing statutes, we presume Congress legislated with
awareness of relevant judicial decisions.”). We should there-
fore adhere to the Court’s reasoning in Johnson in affirming
the district court action in this case.
2
See Judicial Administration and Technical Amendments Act of 2008,
Pub. L. No. 110-406, § 14, 122 Stat. 4291 (2008); Adam Walsh Child Pro-
tection and Safety Act of 2006, Pub. L. No. 109-248, § 2250, 120 Stat.
587 (2006); USA Patriot Improvement and Reauthorization Act of 2005,
Pub. L. No. 109-177, § 212, 120 Stat. 192 (2006); PROTECT Act, Pub.
L. No. 108-21, § 101, 117 Stat. 650 (2003); 21st Century Department of
Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 2102,
116 Stat. 1758 (2002); USA PATRIOT Act of 2001, Pub. L. No. 107-56,
§ 812, 115 Stat. 272 (2001); DNA Analysis and Backlog Elimination Act
of 2000, Pub. L. No. 106-546, § 7, 114 Stat. 2726 (2000).
7366 UNITED STATES v. WING
B
Recognizing the district court’s uninterrupted authority
over Wing would also be consistent with the purposes of
supervised release. We are concerned with curbing recidivism
and promoting re-entry into the community. Supervised
release “is a unique method of post-confinement supervision
invented by the Congress for a series of sentencing reforms”
included in the Sentencing Reform Act of 1984. Gozlon-
Peretz v. United States, 498 U.S. 395, 407 (1991). By creating
supervised release, Congress sought to give district courts
broad authority to “protect the public and ‘to facilitate the
reintegration of the defendant into the community.’ ” See
United States v. Vallejo, 69 F.3d 992, 994 (quoting U.S. Sen-
tencing Guidelines Manual § 5D1.1 comment n.2 (1995)). A
critical part of this authority is a district court’s ability to
revoke supervised release and require the defendant to serve
all or part of the period of supervised release in prison. 18
U.S.C. § 3583(e)(3).
Congress has expressly authorized district courts to con-
sider eight factors when revoking a defendant’s supervised
release. See § 3583(e)(3) (authorizing courts to consider the
sentencing factors listed in 18 U.S.C. § 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)). Impor-
tantly for this case these factors include “the history and char-
acteristics of the defendant,” § 3553(a)(1), as well as the need
to “afford adequate deterrence to criminal conduct,”
§ 3553(a)(2)(B), and “protect the public from further crimes
of the defendant.” § 3553(a)(2)(C). In addition, we have rec-
ognized that a district court “may appropriately sanction a
violator for his ‘breach of trust’ ” when revoking supervised
release. United States v. Miqbel, 444 F.3d 1173, 1182 (9th
Cir. 2006).
The district court properly considered these factors in
revoking Wing’s supervised release. Given Wing’s “patholog-
ical” need to embezzle funds from employers, a substantial
UNITED STATES v. WING 7367
term of imprisonment was necessary to deter her criminal
conduct and protect future victims.3 The Montana district
court recognized that Wing’s $700,000 embezzlement scheme
in Spokane would never have happened but for the lenient
sentence she received for her first embezzlement conviction.
Most importantly, the district court properly considered
Wing’s egregious breach of the court’s trust. When Wing
appeared before the court at her June 2008 revocation hearing,
she feigned great remorse in tearfully admitting the minor
violations charged in her first revocation petition. She then
gave an emotional promise to the court and her probation offi-
cer, pledging “to give my 100 percent on everything” in the
future. Finally, she asked the court for leniency for her chil-
dren’s sake, testifying that she had “done everything I could
do to stay out of trouble. I’ve met my obligations.” We now
know this was all false. As the court recognized later, Wing
“stood right here and boldface lied to me in an emotional dis-
play . . . while she was in the middle of ripping these people
off and stealing nearly a million dollars.” Telling such “bold-
face lies” to a district court judge while shedding crocodile
tears certainly constitutes the kind of “breach of trust” that
may be considered when determining an appropriate period of
imprisonment.4
Punishing such breaches of trust also appropriately deters
defendants from admitting minor violations at a revocation
hearing in the hope that serious, concealed violations will
escape notice and punishment. The majority correctly recog-
nizes that Wing would never have come forward on her own
3
In particular, the court considered the importance of protecting victims
like Wing’s Spokane-based employer, a victim whose small business was
bankrupted and whose personal credit was destroyed while Wing enjoyed
great seats at the Super Bowl.
4
District Judge Donald Molloy described Wing’s false testimony during
her June 2008 revocation hearing as “the most egregious breach of trust
that I think I have encountered in nearly 14 years on the bench.”.
7368 UNITED STATES v. WING
with the minor violations charged in the June 2008 revocation
petition. Once charged, however, Wing had a huge incentive
to conceal her past crimes and lie to the district court. Wing’s
lies bought her more time to commit another quarter-of-a-
million dollars’ worth of financial crimes. If Wing had some-
how escaped conviction for these crimes in Eastern Washing-
ton, her criminal conduct would go completely unsanctioned.
Thus, denying jurisdiction in this case would incentivize
defendants to conceal crimes at a revocation hearing.
C
Finally, Wing objects to the district court’s exercise of
jurisdiction because, she argues, it will result in piecemeal lit-
igation that will rob defendants of finality and repose. That is
a hollow argument from a recidivist offender. While I agree
that district courts must not arbitrarily mete out punishment in
the form of multiple revocations for the same conduct,5
Wing’s argument does not change my reading of the statute
in question given her continued misconduct. The statutory
scheme already contemplates multiple revocations of super-
vised release by recidivists like Wing and places a hard cap
on the total amount of revocation-based imprisonment and
further supervised release time that a district court can
impose.
In Wing’s case, she was convicted in 2001 of a Class B fel-
ony. See 18 U.S.C. § 656 (stating a maximum sentence of
thirty years imprisonment for her initial bank embezzlement);
18 U.S.C. § 3559 (categorizing offenses punishable by
twenty-five years to life imprisonment as “Class B” felonies).
Under § 3583, Wing’s authorized term of supervised release
could not exceed five years for her Class B felony, see
§ 3583(b)(1), and the longest additional period she could be
5
Such arbitrary revocations would still be reviewable for abuse of dis-
cretion.
UNITED STATES v. WING 7369
forced to serve in prison based on a revocation of supervised
release is three years. See § 3583(e)(3).
Because she was convicted in 2001, before the 2003
amendments to § 3583, Wing’s aggregate period of imprison-
ment for any and all revocations of supervised release cannot
exceed three years. See United States v. Knight, 580 F.3d 933,
937 (9th Cir. 2009) (citing United States v. Jackson, 329 F.3d
406, 407-08 (5th Cir. 2003) (collecting cases requiring aggre-
gation of revocation-based imprisonment terms prior to 2003
amendments)). Thus, the district court’s most recent revoca-
tion of Wing’s supervised release—the second such
revocation—would also be Wing’s last: she was previously
imprisoned for three months for her first revocation, and she
was sentenced to an additional thirty-three months of impris-
onment for her second when her crime spree was discovered.
When released from the thirty-three-month period of impris-
onment, she would have reached the statutory cap. She would
no longer be subject to supervised release, imprisonment, or
any other action by the district court in Montana. This statu-
tory limit adequately protects Wing’s interest in finality and
repose, just as Congress intended.
II
Our story resumes at a prison. The camera zooms in on two
female inmates being processed out at the end of their incar-
ceration. Serling’s voice surfaces over this ominous scene.
It’s now July 18, 2017, at the Federal Correctional
Institution in Dublin, California. As Michelle Wing
prepares to conclude her Eastern District of Wash-
ington sentence, a fellow prisoner is also being pro-
cessed for release.
This other prisoner, Patty, has been serving three
months on a revocation of supervised release.6 Patty
6
The majority tells us that 18 U.S.C. § 3624(e) makes it “clear” that
Patty could not be on supervised release. The only thing clear about
7370 UNITED STATES v. WING
made her presence felt during her short time on the
cellblock. She is widely believed to have strangled
two other inmates and left a third in a coma after
delivering a savage beating.
There is a preponderance of evidence linking
Patty to these crimes. But she’s silenced all wit-
nesses, and prosecutors have no choice but to with-
hold filing criminal charges.
The screen transitions to the setting of our final scene: the
chambers of a federal district judge. Patty’s parole officer,
conscious of the violence she will undoubtedly wreak upon
innocent victims, begs the district court to revoke Patty’s
upcoming period of supervised release. But in light of today’s
opinion, the district judge can do nothing.
Although the court had jurisdiction to punish petty viola-
tions before imprisonment, and may eventually have jurisdic-
tion to punish the inevitable crimes committed after
imprisonment ends, there is a black hole squarely in the center
of Patty’s otherwise-continuous period of supervised release.
It is a zone the judge has helplessly observed since 2012. It
is a void of time and space where congressional intent does
not apply; where punishment for criminals and protection for
victims is completely reversed. Welcome to this fifth dimen-
sion. Welcome to . . . The Twilight Zone.
§ 3624(e) is that it does not apply here. That section ensures that convicts
do not get credit for supervised release while imprisoned for new criminal
convictions. 18 U.S.C. § 3624(e) (“[S]upervised release does not run dur-
ing any period in which the person is imprisoned in connection with a con-
viction for a Federal, State, or local crime . . . .”) (emphasis added).
Section 3624(e) has nothing to do with revocations of supervised release,
which are not mentioned anywhere in the section’s text. This explains why
Wing’s attorney failed to mention § 3624(e) upon direct questioning on
this issue at oral argument.