United States v. Brown

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0129p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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Nos. 10-1410; 10-1411

v.

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Defendant-Appellant. -

ROBERT LAVERNE BROWN,

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

Nos. 06-00037-001; 99-00125-001—Paul Lewis Maloney, Chief District Judge.

Decided and Filed: May 17, 2011

Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

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COUNSEL

ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand

Rapids, Michigan, for Appellant. Hagen W. Frank, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee.

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OPINION

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MARTHA CRAIG DAUGHTREY, Circuit Judge. Following defendant Robert

Brown’s admission that he violated the terms of his supervised release, the district court

revoked that release, sentenced Brown to additional incarceration, and ordered that the

defendant be placed on another 36 months of supervised release at the expiration of the

new prison sentence. Brown now appeals the judgment, alleging that the district court

improperly calculated the length of his supervised release and that the period of

incarceration was unreasonably long. Because Brown has completed his prison sentence

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and has been released from incarceration, his challenge to that portion of the district

court’s sentencing order is moot. However, the length of Brown’s supervised release is

still at issue on appeal, and because the term was miscalculated, that portion of the

district court’s judgment must be vacated and the case remanded to permit resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1999, a federal grand jury indicted Brown for the armed robbery of a

federally-insured bank in Battle Creek, Michigan. The defendant pleaded guilty to the

charge and received a 78-month prison sentence and a five-year term of supervised

release. On November 15, 2006, while still serving part of his sentence of incarceration

at a halfway house, Brown walked away from that facility and was subsequently charged

with escape. He also pleaded guilty to that federal offense and received an additional

sentence of 46 months in prison, to be served consecutively with his armed-bank-robbery

sentence. The district court also imposed another supervised-release term of three years,

to run concurrently with the previously-imposed five-year term of supervised release.

In late 2009, Brown left the prison system and began serving the five-year

supervised-release sentence. Less than three months later, however, the defendant’s

probation officer filed petitions in both the 1999 robbery case and the 2006 escape case

seeking revocation of the supervised release. In those substantively identical petitions,

the probation officer alleged that Brown violated three conditions of his supervised

release in each of the two criminal cases.

The district court held a hearing on the revocation petitions, at which time the

defendant admitted two of the three violations charged in the petitions but denied his

guilt of the third violation. Based on Brown’s admission and after “consider[ing] all of

the factors,” the district court revoked Brown’s supervised release in both cases,

sentenced the defendant, in the robbery case, to seven months in prison “with no term

of supervised release to follow” and, in the escape case, to a consecutive eight-month

prison term with three years of supervised release. The probation officer, the prosecutor,

and the defendant’s counsel all suggested to the district court that the supervised-release

term imposed upon revocation of a prior supervised-release sentence must, by statute,

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be reduced by the length of time that a defendant is sentenced to confinement. Based on

that advice, Brown should have been sentenced to only 28 months of supervised release,

rather than 36 months. Following the district court’s refusal to agree to a reduction, the

defendant filed this appeal challenging both the length of the term of supervised release

and the length of the term of incarceration imposed by the district court. As noted,

Brown’s challenge to the length of the sentence is no longer before us.

DISCUSSION

“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.” 18 U.S.C. § 3583(h). In this

case, when sentencing Brown for violating his supervised release from his armed-bank-

robbery imprisonment, the district court imposed a seven-month period of incarceration,

but chose not to impose any additional term of supervised release. In sentencing the

defendant for violating his supervised release in the escape case, however, the court not

only imposed a consecutive eight-month term of incarceration, but ordered Brown to be

placed on three years of supervised release as well.

As highlighted by counsel and by the probation officer at the revocation hearing,

section 3583(h) explicitly provides that “[t]he length of such a term of supervised release

shall not exceed the term of supervised release authorized by statute for the offense that

resulted in the original term of supervised release, less any term of imprisonment that

was imposed upon revocation of supervised release.” 18 U.S.C. § 3583(h) (emphasis

added). The federal crime of escape provides for possible incarceration of up to five

years, see 18 U.S.C. § 751(a), thus making the crime a Class D felony. See 18 U.S.C.

§ 3559(a)(4) (designating as a Class D felony any offense with a maximum term of

imprisonment “less than ten years but five or more years”). Because a sentencing court

may impose up to a three-year term of supervised release upon a Class D felon, see

18 U.S.C. § 3583(b)(2), the district court was authorized to begin its supervised-release

calculations with a maximum 36-month term. The district court also ordered

incarceration of eight months in the escape case, however. Consequently, Brown insists

Nos. 10-1410; 10-1411 United States v. Brown Page 4

that the language of section 3583(h) required the court then to deduct those eight months

from the 36 months of supervised release, leaving a maximum, permissible supervised-

release sentence of 28 months.

At the revocation hearing, the district court recognized that decisions from the

Fifth Circuit and from the Ninth Circuit Courts of Appeals adopted a similar view of the

dictates of section 3583(h). See United States v. Vera, 542 F.3d 457, 459-62 (5th Cir.

2008); United States v. Knight, 580 F.3d 933, 938-40 (9th Cir. 2009). But, relying upon

the fact that no Sixth Circuit case had yet addressed the issue, the court chose to ignore

that authority and ordered that Brown serve the full 36 months of supervised release

upon completion of his prison sentence.

“A matter requiring statutory interpretation is a question of law requiring de novo

review, and the starting point for interpretation is the language of the statute itself.”

United States v. Batti, 631 F.3d 371, 375 (6th Cir. 2011) (quoting United States v.

Shafer, 573 F.3d 267, 272 (6th Cir. 2009), cert. denied, 130 S.Ct. 1542 (2010) (quotation

marks omitted)). Despite the district court’s ruling to the contrary, a plain reading of the

statutory language at issue here clearly mandates reducing the length of any term of

supervised release by “any term of imprisonment that was imposed upon revocation of

supervised release.”

In Vera and Knight, our sister circuits appeared to take such an interpretation for

granted. Indeed, in each case, the court presumed that any period of incarceration

imposed after the revocation of supervised release would be deducted from a newly-

imposed period of supervised release. Instead, the issue with which both the Fifth and

Ninth Circuits struggled in those cases was whether “the maximum allowable supervised

release term following multiple revocations must be reduced by the aggregate length of

any terms of imprisonment that have been imposed upon revocation.” Vera, 542 F.3d

at 460 (emphasis added). See also Knight, 580 F.3d at 938 (issue before the court was

whether “the maximum 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

Nos. 10-1410; 10-1411 United States v. Brown Page 5

supervised release”). In each case, the court answered the question before it in the

affirmative without ever questioning that at least the term of imprisonment imposed

upon the revocation then being ordered should be deducted from any supervised release

period to which the defendant would be sentenced.

Opposing the defendants’ aggregation arguments in the Fifth and Ninth Circuits,

even the government did not espouse the position to which the district court in this case

adheres. For example, in Vera “[t]he Government argue[d] that ‘any term of

imprisonment that was imposed upon revocation of supervised release’ [,quoting the

relevant language found in 18 U.S.C. § 3583(h),] refers only to the term of imprisonment

imposed on the current revocation, and nothing more.” Vera, 542 F.3d at 460. In our

judgment, to conclude that the contested language of section 3583(h) does not mandate

subtracting the length of any newly-imposed period of incarceration from a term of

supervised release requires a disregard of the plain language of the statute. Even without

prior Sixth Circuit precedent on this question of statutory interpretation, neither this

court nor the district court is permitted to so ignore the clear import of Congress’s

directive.

CONCLUSION

For the reasons set out above, we VACATE the defendant’s supervised-release

sentence and REMAND this matter to the district court for resentencing.