Petition for Writ of Certiorari — Edward Lee Lewis, Petitioner v. United States

Supreme Court briefSep 18, 2018

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2017

EDWARD LEE LEWIS, Petitioner,

UNITED STATES OF AMERICA, Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JONATHAN D. BYRNE

ASSISTANT FEDERAL PUBLIC DEFENDER

Office of the Federal Public Defender, Southern District of West Virginia

Room 3400, Robert C. Byrd Federal Courthouse

300 Virginia Street, East

Charleston, West Virginia 25301

Telephone: 304/347-3350

Counsel for P etition er

CHRISTIAN M. CAPECE

FEDERAL PUBLIC DEFENDER

I. QUESTIONS PRESENTED FOR REVIEW

1.

Whether the appropriate standard of review for a sentence following the

revocation of supervised release is the “plainly unreasonable” standard once found in

18 U.S.C. § 3742(e) or the “reasonableness” standard announced by this Court in

United States v. Booker, 543 U.S. 220 (2005).

2.

Whether it was unreasonable (or plainly so) for the district court to

impose an eighteen-month revocation sentence on a defendant who was originally

incorrectly classified for sentencing under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e), without any consideration of the time that defendant had overserved due to

that erroneous designation.

II. TABLE OF CONTENTS

I.

QUESTIONS PRESENTED FOR REVIEW........................................................ 1

II.

TABLE OF CONTENTS....................................................................................... 2

III.

TABLE OF AUTHORITIES................................................................................. 5

IV.

OPINIONS BELOW............................................................................................. 9

V.

JURISDICTION....................................................................................................9

VI.

STATUTES AND REGULATIONS INVOLVED..............................................10

VII.

STATEMENT OF THE CASE........................................................................... 10

A.

Federal Jurisdiction................................................................................. 10

B.

Facts Pertinent to the Issue Presented...................................................11

1.

Lewis is convicted and sentenced under the

Armed Career Criminal Act.......................................................... 11

2.

Lewis challenges his sentence under Johnson

and begins a term of supervised release before

that challenge is resolved..............................................................12

3.

The district court grants Lewis’ § 2255 motion,

but provides inadequate relief......................................................14

4.

The district court revokes Lewis’ term of supervised

release and sentences him to eighteen months in prison.......... 16

5.

The Fourth Circuit affirms Lewis’ revocation sentence............ 17

VIII. REASON FOR GRANTING THE PETITION...................................................18

I.

The writ should be granted to resolve a split among

the Circuit Courts of Appeal as to whether the appropriate

standard of review for appeals of sentences imposed

following the revocation of a term of supervised release

is the “plainly unreasonable” standard once found in

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18 U.S.C. § 3742(e) or the “reasonableness” standard

announced by this Court in United States v. Booker,

543 U.S. 220 (2005).......................................................

II.

IX.

18

A.

The Courts of Appeals disagree on the proper

standard of review to apply in appeals of

sentences imposed following the revocation of a

defendant’s term of supervised release....................................... 19

B.

The exceedingly deferential “plainly erroneous”

standard conflicts with this Court’s holding in Booker............. 23

C.

The Court should grant this Petition to clarify

this area of law and provide needed guidance

to the lower courts.........................................................................26

The writ should be granted to determine whether it was

unreasonable (or plainly so) for the district court to impose

an eighteen-month revocation sentence on a defendant

who was originally incorrectly classified for sentencing

under the Armed Career Criminal Act, 18 U.S.C. § 924(e),

without any consideration of the time that defendant

had overserved due to that erroneous designation................................27

A.

Lewis has served many more months in prison than

he should have and is continuing to serve additional

unwarranted months in prison................................................... 28

B.

Lewis’ revocation sentence is substantively

unreasonable.................................................................................29

C.

Contrary to the Fourth Circuit’s understanding, a

person who overserved a sentence will be credited

that time against a future revocation sentence.......................... 32

D.

Lewis’ sentence is plainly substantively unreasonable..............35

CONCLUSION................................................................................................... 36

APPENDIX A: Opinion of the United States Court of Appeals for

the Fourth Circuit in United States v. Lewis,

__ F. App’x ___ , 2018 WL 4090862 (4th Cir. 2018).......................A-l

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APPENDIX B: Relevant portion of transcript of March 8, 2018,

revocation hearing, United States u. Edward Lee

Lewis, 2:02-cr-00042......................................................................... B-l

APPENDIX C: Revocation of Supervised Release and Judgement

Order entered March 8, 2018, United States v. Edward

Lee Lewis, 2:02-cr-00042, Dkt. No. 324............................................C-l

APPENDIX D: Memorandum Opinion and Order entered October 24,

2017, United States v. Edward Lee Lewis,

2:16-cv-05565/2:02-cr-00042, Dkt. No. 299..................................... D-l

APPENDIX E: Memorandum in Support of Motion to Reconsider

Denial of CJA Counsel’s Motion to Resentence filed

November 8, 2017, United States v. Edward Lee Lewis,

2:02-cr-00042, Dkt. No. 305.............................................................. E-l

APPENDIX F: Memorandum Opinion and Order entered January 22,

2018, United States v. Edward Lee Lewis,

2:16-cv-05565/2:02-cr-00042, Dkt. No. 316..................................... D-l

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III. TABLE OF AUTHORITIES

Cases

Gall v. United States, 128 S. Ct. 586 (2007)................................................................ 23

In re Sealed Case, 527 F.3d 188 (D.C. Cir. 2008)..................................................21, 23

United States v. Beasley, 495 F.3d 142 (4th Cir. 2007)...............................................30

United States v. Bolds, 511 F.3d 568 (6th Cir. 2007)......................................19, 21, 22

United States v. Booker, 543 U.S. 220 (2005)...................................................... Passim

United States v. Bungar, 478 F.3d 540 (3d Cir. 2007).............................................. 21,22

United States v. Cook, 291 F.3d 1297 (11th Cir. 2002)............................................. 24,25

United States v. Cotton, 399 F.3d 913 (8th Cir. 2005).............................................. 21,22

United States v. Crudup, 461 F.3d 433 (4th Cir. 2006)......................................Passim

United States v. Donnelly, No. 17-15837 (9th Cir. 2017)............................................34

United States v. Finley, 531 F.3d 288 (4th Cir. 2008).................................................27

United States v. Fleming, 397 F.3d 95 (2d Cir. 2005)...........................................21, 22

United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994)............................................18

United States v. Hadden, 475 F.3d 652 (4th Cir. 2007).............................................. 30

United States v. Hillary, 106 F.3d 1170 (4th Cir. 1992)............................................. 30

United States v. Johnson, 135 S. Ct. 2551 (2015)...............................................Passim

United States u. Johnson, 529 U.S. 53 (2000)............................................................. 32

United States v. Kizeart, 505 F.3d 672 (7th Cir. 2007).........................................20, 24

United States v. Lewis,__ F. App’x ___ , 2018 WL 4090862 (4th Cir. 2018)............... 9

United States v. Lewis, 75 F. App’x 164 (4th Cir. 2003)..............................................12

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United States v. Lewis, 708 F. App’x 767 (4th Cir. 2017)............................................15

United States v. Marin, 961 F.2d 493 (4th Cir. 1992)..................................................31

United States v. Marvin, 135 F.3d 1129 (7th Cir. 1998)..............................................18

United States v. Mclnnis, 429 F.3d 1 (1st Cir. 2005).................................................. 23

United States v. Miller, 634 F.3d 841 (5th Cir. 2011).................................................21,24

United States v. Miqbel, 444 F.3d 1173 (9th Cir. 2006)............................................. 21,22

United States v. Moulden, 478 F.3d 652 (4th Cir. 2007)............................................ 26

United States v. Olabanji, 268 F.3d 636 (9th Cir. 2001)............................................ 25

United States v. Olano, 507 U.S. 725 (1993)................................................................35

United States v. Parks, 2017 WL 3732078 (D. Colo. Aug. 1, 2017)............................ 34

United States v. Ramirez-Rivera, 241 F.3d 37 (1st Cir. 2001)................................... 25

United States v. Salinas, 365 F.3d 582 (7th Cir. 2004).............................................. 24

United States v. Sweeting, 437 F.3d 1105 (11th Cir. 2006)........................................21,22

United States u. Tedford, 405 F.3d 1159 (10th Cir. 2005)..........................................21,22

United States v. Thompson, 595 F.3d 544 (4th Cir. 2010)..........................................25,35

United States v. Tsosie, 376 F.3d 1210 (10th Cir. 2004)............................................ 24,25

United States v. Under Seal, 819 F.3d 715 (4th Cir. 2016).........................................30

United States v. Washington, 147 F.3d 490 (6th Cir. 1998)........................................18

United States v. White, 836 F.3d 437 (4th Cir. 2016)..................................................14

United States v. White Face, 383 F.3d 733 (8th Cir. 2004)...................................24, 25

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Statutes

18U.S.C. § 8 7 1 ............................................................................................................... 10

18 U.S.C. § 8 7 6 ............................................................................................................... 10

18 U.S.C. § 922(g)(1)....................................................................................................... 10

18 U.S.C. § 924(a)(2).......................................................................................................31

18 U.S.C. § 924(e)..........................................................................................1, 12, 13, 27

18 U.S.C. § 3231............................................................................................................. 11

18 U.S.C. § 3553(a)......................................................................................22, 26, 30, 35

18 U.S.C. § 3553(a)(1).....................................................................................................29

18 U.S.C. § 3553(b)(1).....................................................................................................18

18 U.S.C. § 3583............................................................................................................. 10

18 U.S.C. § 3583(e).........................................................................................................29

18 U.S.C. § 3584(a).........................................................................................................28

18 U.S.C. § 3585............................................................................................................. 32

18 U.S.C. § 3585(b).........................................................................................................32

18 U.S.C. § 3742............................................................................................................. 11

18 U.S.C. § 3742(a)(4).....................................................................................................19

18 U.S.C. § 3742(e)................................................................................................ Passim

18 U.S.C. § 3742(e)(4)..................................................................................19, 22, 23, 24

28 U.S.C. § 1254...............................................................................................................9

28 U.S.C. § 1291............................................................................................................. 11

28 U.S.C. § 2255.....................................................................................................Passim

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Constitutional Provision

U.S. Const. Amend. V I............................................................................................18, 24

Rules

Sup. Ct. R. 10(a)...................................................................................................... 19, 28

Sup. Ct. R. 13.1.................................................................................................................9

Sup. Ct. R. 13.3.................................................................................................................9

Guideline

U.S.S.G. § 3D1.4.............................................................................................................29

Other Authorities

Bureau of Prisons Program Statement 5800.15, available at

https://www.bop.gov/policy/progstat/5800_015_CN-01.pdf

(last visited September 11, 2018)................................................................................ 33

Bureau of Prisons Program Statement 5880.28,

available at https://www.bop.gov/policy/progstat/5880_028.pdf

(last visited September 11, 2018)................................................................................ 32

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IV. OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit in

United States v. Lewis, __ F. App’x __ , 2018 WL 4090862 (4th Cir. 2018), is an

unpublished opinion and is attached to this Petition as Appendix A. The basis of the

issue presented in this Petition was presented to the district court at the revocation

hearing and ruled upon in open court. The portion of the transcript reflecting the

district court’s oral ruling revoking Lewis’ supervised release and imposing a

sentence of imprisonment is attached to this Petition as Appendix B. The final

judgment order of the district court revoking his term of supervised release is

unreported and is attached to this Petition as Appendix C. The district court’s order

modifying Lewis’ original sentence under 28 U.S.C. § 2255 is attached to this Petition

as Appendix D. Lewis’ memorandum in support of his motion for reconsideration is

filed as Appendix E. The district court’s order denying that motion is attached as

Appendix F.

V. JURISDICTION

This Petition seeks review of a judgment of the United States Court of Appeals

for the Fourth Circuit entered on August 28, 2018. This Petition is filed within ninety

days of the date the court’s judgment. No petition for rehearing was filed. Jurisdiction

is conferred upon this Court by 28 U.S.C. § 1254 and Rules 13.1 and 13.3 of this Court.

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VI. STATUTES AND REGULATIONS INVOLVED

The issue in this Petition requires interpretation and application of 18 U.S.C.

§ 3583, which provides, in pertinent parts:

(e) Modification of conditions or revocation.—The

court may, after considering the factors set forth in section

3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6),

and (a)(7)(3) 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 defendant 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; or

VII. STATEMENT OF THE CASE

A.

Federal Jurisdiction

This Petition arises from the final judgment and sentence imposed upon the

district court’s revocation of Edward Lee Lewis’ (“Lewis”) term of supervised release.

Lewis was originally charged and convicted of four counts of mailing threatening

communications, in violation of 18 U.S.C. § 876 (Counts One through Four), mailing

threatening communications to the President, in violation of 18 U.S.C. § 871 (Count

Five), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

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(Count Six), and sentenced in the Southern District of West Virginia on November 7,

2002. J.A. 29-42.1 Original jurisdiction over offenses against the United States is

given to the district courts by 18 U.S.C. § 3231. The district court entered an order

revoking Lewis’ supervised release on March 8, 2018. Appendix C. Lewis also timely

filed a notice of appeal on March 8, 2018. J.A. 182. The United States Court of Appeals

for the Fourth Circuit had jurisdiction to review this matter pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291.

B.

Facts Pertinent to the Issue Presented

This case arises from the district court’s revocation of Lewis’ term of supervised

release. However, to properly understand that revocation, this Court must consider

the related proceedings in which Lewis challenged the validity of his original

sentence. The district court agreed that Lewis was sentenced in violation of the

Constitution, but provided inadequate relief. The revocation of Lewis’ supervised

release and his continued incarceration exacerbates that error.

1.

Lewis is convicted and sentenced under the

Armed Career Criminal Act.

Lewis was charged in a six-count indictment with four counts of mailing

threatening communications, mailing a threatening communication to the President,

and being a felon in possession of a firearm. J.A. 29-35. He was convicted on all six

counts after a jury trial. J.A. 186. As a basis for the felon in possession charge the

1 “J.A.” refers to the Joint Appendix that was filed with the Fourth Circuit in this

appeal.

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indictment alleged that Lewis had three prior convictions for daytime burglary in

West Virginia. J.A. 34. As set forth in the Presentence Investigation Report, at the

time those offenses qualified as “violent felonies” under the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e). J.A. 186-187. As a result, Lewis faced a mandatory

minimum sentence of fifteen years on the felon in possession count, as opposed to a

statutory maximum sentence of ten years. That designation also drove his thenmandatory Guideline range of 188 to 235 months in prison. J.A. 201.

The district court sentenced Lewis to 192 months in prison, followed by a

3-year term of supervised release. J.A. 38-39. The Fourth Circuit affirmed that

sentence on appeal. United States u. Lewis, 75 F. App’x 164 (4th Cir. 2003).

2.

Lewis challenges his sentence under Johnson

and begins a term of supervised release before

that challenge is resolved.

On May 6, 2016, Lewis was appointed counsel to represent him in determining

whether his sentence could be challenged under United States v. Johnson, 135 S. Ct.

2551 (2015), which declared ACCA’s residual clause to be unconstitutionally vague.2

On June 21, 2016, the Fourth Circuit gave authorization to Lewis to file a second or

successive claim under 28 U.S.C. § 2255 to challenge his sentence under Johnson.

J.A. 133.

In his § 2255 motion Lewis argued that his sentence was unconstitutional

because it was based on the conclusion that he had three prior convictions for violent

2 Lewis’ counsel in that proceeding was a member of the Criminal Justice Act panel.

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felonies and was therefore eligible for an enhanced sentence under the ACCA. J.A.

44. As relief, Lewis requested that the court “grant his § 2255 motion, and vacate his

§ 924(e) conviction and sentence.” Id. In a supplemental brief Lewis argued that “he

should be resentenced in a manner affording him due process of law.” J.A. 19.

On October 5, 2016, while Lewis’ § 2255 motion was pending, and before Lewis

was released from custody, Lewis agreed to a modification of his conditions of

supervised release to require that he spend six months at Dismas Charities, a

halfway house. J.A. 105-107. Lewis began his six-month term at Dismas on

October 21, 2016. Lewis and his Probation Officer also agreed to further modify his

conditions of supervised release to allow him to enroll in a drug treatment program.

J.A. 108-110.

On March 9, 2017, a Petition for Warrant or Summons for Offender Under

Supervision (“Petition”) was filed by Lewis’ probation officer.3 It alleged that Lewis

left Dismas without permission and without telling his Probation Officer. J.A. 111112. Upon Lewis’ motion, the district court agreed to hold the Petition in abeyance

until Lewis successfully completed a drug treatment program. J.A. 113-119. On

September 26, 2017, an amendment to the Petition was filed, alleging that Lewis was

discharged from drug treatment after not returning to the program as scheduled. The

district court issued a warrant for Lewis’ arrest as a result. J.A. 128-129.

3 The Federal Public Defender, undersigned counsel, was appointed to represent

Lewis in the supervised release proceedings.

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3.

The district court grants Lewis’ § 2255 motion,

but provides inadequate relief.

On October 24, 2017, while the arrest warrant was outstanding, the district

court entered a memorandum opinion and order addressing Lewis’ § 2255 motion.

Appendix D. The district court recognized that if the ACCA enhancement did not

apply, Lewis “would have been subject to a maximum ten-year term of

imprisonment,” rather than the 192-month sentence imposed. Id. at 2. The district

court then went on to find that Lewis’ motion relied on a new rule of constitutional

law and allowed for a review of his sentence. Id. at 8. Lewis’ prior convictions were

all for West Virginia burglary, which the district court recognized no longer qualified

as a violent felony under ACCA after Johnson. Id. at 10, citing United States v. White,

836 F.3d 437 (4th Cir. 2016). As a result, the district court concluded, Lewis’ “sentence

thereunder is unlawful.” Id. The district court then “granted” Lewis’ motion, but

concluded that, because he had served his entire sentence, “the only relief that this

court can grant . . . is to modify his class of felony and his criminal history category,

which may affect any potential revocation sentence.” Id. at 11. Lewis filed a motion

to resentence in the wake of the district court’s order, but that motion was denied.

J.A. 141.

On November 8, 2017, Lewis, via his supervised release counsel, filed a motion

asking the district court to reconsider the motion to resentence filed by Lewis via his

§ 2255 counsel. J.A. 142-143. In an accompanying memorandum in support of that

motion, Lewis argued that the § 2255 proceeding was “intertwined” with the

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revocation proceeding. Appendix E at 2. Lewis argued that because the district court

had correctly concluded that his original sentence was unlawful, it was required to

vacate that sentence and resentence him. Id. at 4-5. In addition, reimposing a

sentence of time served, even if possible through the stacking of counts, would require

a massive variance from the applicable now-advisory Guideline range. Id. at 6-7. In

concluding, Lewis specifically asked that the district court “vacate the original

sentence imposed - including the term of supervised release - and resentence him”

where “such resentencing should not include any period of supervised release.” Id. at

8-9.

The district court denied Lewis’ motion to reconsider. Appendix F. It concluded

that the language of § 2255 was “clear” and it was not required to vacate the original

sentence “if the judgment has the ‘practical effect’ of vacating the original sentence.”

Id. at 3, quoting United States v. Lewis, 708 F. App’x 767, 769 (4th Cir. 2017). In this

case, the court determined the appropriate relief was “for the court to correct Mr.

Lewis’ sentence,” which it could only do by “amending the term of imprisonment to

‘time served.’” Id. at 4. The district court also concluded that it was “well aware that

it has discretion to amend Mr. Lewis’ sentence of supervised release” but “it has

chosen not to do so.” Id. at 5.4

4 Lewis took an appeal of his § 2255 motion to the Fourth Circuit. United States v.

Lewis, Appeal No. 18-6128. Lewis requested the appointment of counsel. Dkt. No. 11.

The court denied that request and affirmed the district court’s decision in the § 2255

case. Dkt. No. 12. In this case, the Fourth Circuit denied undersigned counsel’s

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4.

The district court revokes Lewis’ term of

supervised release and sentences him to

eighteen months in prison.

Lewis was arrested on January 16, 2018. J.A. 22. A hearing on the Petition

and the amendment was held on March 8, 2018. J.A. 165-178. Lewis did not dispute

the allegations against him. J.A. 170. The district court found that Lewis had violated

the conditions of his term of supervised release and calculated the advisory Guideline

range as five to eleven months in prison, with a statutory maximum revocation term

of two years. J.A. 170-172. Neither party objected to those calculations. J.A. 172.

The Government argued for revocation and a Guideline sentence, followed by

an additional term of supervised release. J.A. 172-173. Lewis reiterated that

“throughout the course of this case and the 2255 he filed” he had “maintained the

position that he should be resentenced and he should not be serving any term of

supervised release.” J.A. 173. However, noting that the district court had already

rejected that position, Lewis argued for a sentence of five months in prison, but

without any further term of supervised release. J.A. 173-174. Lewis argued that “no

matter what way we look at it, we have to step back and say overall there was an

unfairness in this case and he’s served much more time than he should have served.”

J.A. 174. “So in light of that,” he concluded, “justice requires no more supervised

release.” Id.

request to consolidate the two appeals. United States v. Lewis, Appeal No. 18-4149,

Dkt. No. 14.

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The district court imposed a sentence of eighteen months in prison, without

any further term of supervised release. The district court explained that Lewis had

“not proved to be amenable to drug treatment, outpatient or inpatient, or amenable

to supervision.” J.A. 176. Referencing the § 2255 case, the district court explained

that “I understand what point you’ve preserved below and I think it’s entirely

appropriate that you preserve that argument,” but that “I think you should go back

to prison.” J.A. 177.

5.

The Fourth Circuit affirms Lewis’ revocation

sentence.

The Fourth Circuit affirmed the revocation of Lewis’ supervised release and

his eighteen-month sentence in an unpublished opinion. Appendix A. The court

concluded that Lewis’ sentence was “procedurally and substantively reasonable”

because the district court considered the relevant sentencing factors and “was aware”

of the advisory Guideline range. Id. at 2. The court “rejected] Lewis’ claims that the

court should have considered that he overserved his original sentence” because

“supervised release and incarceration serve different ends” and “detention ordered

upon revocation of release may not be decreased by time served in official detention

other than time spent in detention for the release violation.” Id.

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VIII. REASON FOR GRANTING THE WRIT

I.

The writ should be granted to resolve a split among the

Circuit Courts of Appeals as to whether the appropriate

standard of review for appeals of sentences imposed

following the revocation of a term of supervised release is

the “plainly unreasonable” standard once found in

18 U.S.C. § 3742(e) or the “reasonableness” standard

announced by this Court in United States v. Booker, 543

U.S. 220 (2005).

In United States u. Booker, 543 U.S. 220 (2005), this Court held that the Sixth

Amendment requires that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.” Id. at 244. This Court then remedied the

Sixth Amendment problem by excising 18 U.S.C. § 3553(b)(1), which made the United

States Sentencing Guidelines mandatory, as well as 18 U.S.C. § 3742(e), which set

out the parameters of appellate review of sentences in criminal cases. Id. at 245. One

portion of § 3742(e) provided that the standard of review when examining a sentence

“imposed for an offense for which there is no applicable sentencing guideline . . . is

plainly unreasonable.” Prior to Booker, Courts of Appeals reviewed sentences

imposed following the revocation of supervise release, which were not controlled by a

mandatory Guideline, using that standard. See, e.g., United States v. Marvin, 135

F.3d 1129, 1136 (7th Cir. 1998); United States v. Giddings, 37 F.3d 1091, 1093 (5th

Cir. 1994); United States v. Washington, 147 F.3d 490, 491 (6th Cir. 1998). In the

wake of this Court’s excision of § 3742(e) in Booker, “the courts of appeals have

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struggled with the question of whether to continue to review supervised release

revocation sentences under the ‘plainly unreasonable’ standard or to apply the Booker

‘unreasonableness’ review standard to such cases.” United States v. Bolds, 511 F.3d

568, 574 (6th Cir. 2007). Every Circuit Court of Appeals has weighed in on the issue,

but they disagree on the proper standard of review and, even among those adopting

a reasonableness standard, how that standard should be applied. The proper

standard of review in supervised release revocation cases is an important question of

federal law on which the Courts of Appeals disagree and that this Court should

resolve. Rules of the Supreme Court 10(a).

A.

The Courts of Appeals disagree on the proper standard of

review to apply in appeals of sentences imposed following

the revocation of a defendant’s term of supervised release.

In applying the “plainly unreasonable” standard of review to Lewis’ sentence,

the Fourth Circuit relied upon its decision in United States v. Crudup, 461 F.3d 433

(4th Cir. 2006). The court in Crudup recognized that this Court in Booker had excised

18 U.S.C. § 3742(e), the statute which set forth the “plainly unreasonable” standard

of review, and stated that “it appears that the ‘plainly unreasonable’ standard of

review a t § 3742(e)(4) governing supervised release revocation sentences is no longer

valid.” Id. at 436. Nonetheless, the Fourth Circuit held that the “plainly

unreasonable” standard still applies to its review of revocation sentences post-Booker.

Id. at 437. The court reached this conclusion based on 18 U.S.C. § 3742(a)(4),

reasoning that this provision authorizes appeal of a revocation sentence only on the

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ground that the sentence is “plainly unreasonable.” Id. at 437. The court also referred

to guideline commentary and statutory provisions which it concluded “suggest that

revocation sentences should not be treated exactly the same as original sentences.”

Id. at 437-438.

The Fourth Circuit further held that “unlike the two circuit courts that have

decided that there is no difference between unreasonableness and the plainly

unreasonable standard, . . . we conclude that Congress intended a distinction between

the two terms.” Id. at 438. Finally, the court fashioned a framework for review which

required the court to “first decide whether the sentence is unreasonable ... following]

generally the procedural and substantive considerations that we employ in our review

of original sentences.” Id. If the court finds the sentence reasonable, then it affirms

the sentence. Id. at 439. If, however, the sentence is unreasonable, the court “must

then decide whether the sentence is plainly unreasonable, relying on the definition

of plain’ that we use in our plain’ error analysis.” Id. (emphasis in original). Initially,

only the Seventh Circuit followed the Fourth Circuit’s lead in Crudup. United States

v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007) (applying plainly unreasonable standard

of review, acknowledging that “the practical difference between ‘unreasonable’ and

‘plainly unreasonable’ is slight, perhaps even nil,” but that courts “must seek to give

meaning to the difference between ‘unreasonable’ and ‘plainly unreasonable’”). More

recently, after sidestepping the issue for a number of years, the Fifth Circuit has also

agreed that the plainly unreasonable standard of review is appropriate for supervised

- 20 -

release revocation sentences. United States v. Miller, 634 F.3d 841, 643 (5th Cir.

2011 ).

By contrast, the Second, Third, Sixth, Eighth, Ninth, Tenth, Eleventh and

District of Columbia Circuits have applied “reasonableness” review, rather than a

“plainly unreasonable” standard, to sentences imposed upon revocation of supervised

release. United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005); United States v.

Bungar, 478 F.3d 540, 542 (3d Cir. 2007); United States v. Bolds, 511 F.3d 568, 575

(6th Cir. 2007); United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005); United

States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006); United States v. Tedford, 405

F.3d 1159, 1258 (10th Cir. 2005); United States u. Sweeting, 437 F.3d 1105, 1106 (11th

Cir. 2006); In re Sealed Case, 527 F.3d 188, 190 (D.C. Cir. 2008). Even these courts,

however, disagree about the precise effect of Booker on the standard of review to be

applied to supervised release sentences.

The Second, Third, and Ninth Circuits view Booker as having displaced the

“plainly unreasonable” standard of review with a “reasonableness” standard of

review. For example, the Second Circuit held that, because this Court’s remedial

opinion in Booker excised 18 U.S.C. § 3742(e), “which included subsection 3742(e)’s

standard of ‘plainly unreasonable’ for review of a sentence for which there is no

guideline, the Court is fairly understood as requiring that its announced standard of

reasonableness now be applied not only to review of sentences for which there are

guidelines but also to review of sentences for which there are no applicable

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guidelines.” Fleming, 397 F.3d at 99; see also Bungar, 478 F.3d at 542 (“[t]he dust has

settled, post-Booker, and it is now well understood that an appellate court reviews a

sentence for reasonableness with regard to the factors set forth in 18 U.S.C. § 3553(a).

. . . We see no reason why that standard should not also apply to a sentence imposed

upon a revocation of supervised release, and we so hold”); Miqbel, 444 F.3d at 1176

(“[w]e join the Second and Eighth Circuits in concluding that Booker’s

‘reasonableness’ standard has displaced the former ‘plainly unreasonable’ standard

in the context of revocation sentencing”).

The Sixth, Eighth, Tenth and Eleventh Circuits, by contrast, have concluded

that there is no meaningful difference between review for “unreasonableness” and

“plain unreasonableness.” For example, in Bolds, the Sixth Circuit reasoned that

“[rjather than creating a new ‘unreasonableness’ standard of review for supervised

release revocation sentences, the Supreme Court in Booker was simply directing

appellate courts to apply the same reasonableness standard that they use to review

supervised release revocation sentences to their review of all sentences.” 511 F.3d at

574; see also Cotton, 399 F.3d at 916 (.Booker standard of review “is actually the same

as the one we would have used otherwise. The new standard is review for

unreasonableness with regard to § 3553(a) . . . . This is the same standard prescribed

in § 3742(e)(4)”); Bedford, 405 F.3d 1159, 1161 (holding that review of revocation

sentence for reasonableness that it used before Booker “remains the same.”);

Sweeting, 437 F.3d at 1106 (agreeing with the “numerous circuits applying the

- 22 -

reasonableness standard prescribed in Booker to sentences imposed upon revocation

of supervised release” who “have concluded that the reasonableness standard of

Booker is essentially the same as the ‘plainly unreasonable’ standard of § 3742(e)(4)”).

Finally, the First Circuit and the D.C. Circuit, while not explicitly weighing in

on the issue, nonetheless have concluded that reasonableness review, rather than

review to determine if the sentence is plainly unreasonable, is appropriate postBooker. United States v. Mclnnis, 429 F.3d 1, 4 (1st Cir. 2005) (holding that Booker

does not apply to revocation sentences, but nonetheless applying an ‘abuse of

discretion’ standard rather than ‘plainly unreasonable’ standard of review); In re

Sealed Case, 527 F.3d at 191-193 (applying the analytical framework of Gall v. United

States, 128 S. Ct. 586 (2007), to review reasonableness of supervised release sentence

without referring to the “plainly unreasonable” standard of review).

B.

The exceedingly deferential “plainly erroneous” standard

conflicts with this Court’s holding in Booker.

In addition to perpetuating a split amongst the Courts of Appeals, the Fourth

Circuit’s application of the Crudup decision in Patterson’s case conflicts with this

Court’s opinion in Booker. The majority of circuits are correct in interpreting Booker

to mean th at the same review for reasonableness must apply to both original

sentences and revocation sentences. The Fourth Circuit’s Crudup opinion, along with

the decisions of the Fifth and Seventh Circuits, conflict with the Booker remedial

opinion in continuing to apply an exceedingly deferential “plainly unreasonable”

standard of review to revocation sentences.

- 23 -

In fashioning its Sixth Amendment remedy in Booker, this Court specifically

held that it must retain portions of the Sentencing Act that are: “(1) constitutionally

valid, . . . (2) capable of ‘functioning independently,’ . . . and (3) consistent with

Congress’ basic objectives in enacting the statute.” Booker, 543 U.S. at 258-59

(internal citations omitted). With this requirement in mind, this Court concluded that

it must excise both the provision that made the Guidelines mandatory and “the

provision that sets forth standards of review on appeal,” which is 18 U.S.C. § 3742(e).

Id. at 259. Section 3742(e), of course, included the “plainly unreasonable” standard of

review of sentences imposed without an applicable sentencing guideline. 18 U.S.C.

§ 3742(e)(4). Yet, in Crudup, Kizeart, Miller, Patterson’s case, and numerous other

similar cases, the Fourth, Fifth, and Seventh Circuits have continued to apply the

statutory provision invalidated by this Court.

After excising § 3742(e), the Booker Court went on to hold that, absent the

statutory provision setting forth standards of review, the Sentencing Reform Act still

implicitly set forth a “practical standard of review already familiar to appellate

courts: review for ‘unreasonable[ness].”’ Booker, 543 U.S. at 260-61. The Court then

referred to supervised release and probation revocation cases to illustrate district

courts’ familiarity with a reasonableness standard. Id. at 262, citing United States v.

White Face, 383 F.3d 733, 737-740 (8th Cir. 2004); United States v. Tsosie, 376 F.3d

1210, 1218-1219 (10th Cir. 2004); United States v. Salinas, 365 F.3d 582, 588-590

(7th Cir. 2004); United States v. Cook, 291 F.3d 1297, 1300-1302 (11th Cir. 2002);

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United States u. Olabanji, 268 F.3d 636, 637-639 (9th Cir. 2001); United States v.

Ramirez-Rivera, 241 F.3d 37, 40-41 (1st Cir. 2001). Among the authorities cited by

the court, the appellate courts had referred to what this Court deemed a

“reasonableness” standard variously as “plainly unreasonable,” White Face, 383 F.3d

at 737, “reasoned and reasonable,” Tsosie, 376 F.3d at 1218, and “abuse of discretion,”

Cook, 291 F.3d at 1302. This Court’s explanation of the meaning of “reasonableness”

by referring to the standard of review of supervised release revocation and probation

revocation sentences in Booker reflects its understanding that, after Booker made the

Sentencing Guidelines advisory rather than mandatory, “reasonableness” review is

the same for original sentences and for revocation sentences. The Fourth, Fifth and

Seventh Circuits’ holdings conflict with this understanding and ignore this Court’s

excision of 18 U.S.C. § 3742(e) from the Sentencing Act.

This case demonstrates the problems inherent with the plainly unreasonable

standard. To be “plain” in the Fourth Circuit, an error must meet the definition use

in the standard plain error analysis. Therefore, “[f]or a sentence to be plainly

unreasonable . . . it must run afoul of clearly settled law.” United States v. Thompson,

595 F.3d 544, 548 (4th Cir. 2010). The issue in Lewis’ appeal was not whether the

district court committed some procedural error. In such cases, it is possible to point

to prior holdings about procedural requirements and show that the error ran “afoul

of clearly settled law.” See, e.g., Thompson, 595 F.3d at 548 (“[g]iven how clearly

settled this requirement is, even as it applies to revocation sentences, the district

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court's failure to provide any reasons for its sentence contravened clear circuit

precedent and was, therefore, plainly unreasonable”). However, the only issue in this

case was whether Lewis’ sentence was substantively unreasonable and unduly

punitive. In cases where the length of the sentence, rather than the procedural errors,

are the focus, the plainly unreasonable standard will be nearly impossible to meet.

The length of any given sentence, provided it is within statutory limits, is so

inherently tied to the unique combination of § 3553(a) factors present in every

criminal case that it is unlikely that a prior appellate court decision would provide

the kind of benchmark needed to trigger a “plain” error. Sentences imposed cannot,

therefore, “run afoul of clearly settled law,” simply based on their severity.

Defendants are thus deprived of any substantive review of the length of their

sentences following a revocation of supervised release. Congress could not have

intended that result.

C.

The Court should grant this Petition to clarify this area of

law and provide needed guidance to the lower courts.

The question presented in this petition is a vital one which has split the Courts

of Appeals. It recurs every time a court of appeals considers a supervised release

revocation sentence. Furthermore, in the Fourth Circuit, the court has already

extended its Crudup “plainly unreasonable” standard of review beyond revocation

sentences to sentences imposed upon probation revocation and to sentences imposed

upon conviction of assimilated crimes for which there is no sentencing guideline. See

United States v. Moulden, 478 F.3d 652, 655-56 (4th Cir. 2007) (holding, “in light of

- 26-

Crudup,” that the court will review probation revocation sentences “to determine if

they are plainly unreasonable”); United States v. Finley, 531 F.3d 288, 291-94 (4th

Cir. 2008) (applying the Crudup “plainly unreasonable’ standard for review of

assimilated crimes for which there is no sentencing guideline”). To resolve the split

in the courts below and provide guidance to those courts on the proper standard of

review in cases such as this one, this Court should grant the Petition.

II.

The writ should be granted to determine whether it was

unreasonable (or plainly so) for the district court to

impose an eighteen-month revocation sentence on a

defendant who was originally incorrectly classified for

sentencing under the Armed Career Criminal Act,

18 U.S.C. § 924(e), without any consideration of the time

that defendant had overserved due to that erroneous

designation.

This case begins with the imposition of an unconstitutional sentence on Lewis

due to his classification under ACCA. Understanding the flaws of that sentence are

essential to determining the reasonableness of Lewis’ supervised release revocation

sentence. Lewis served approximately 176 months in prison. J.A. I l l , 184. The

district court correctly concluded that that sentence was “unlawful.” Appendix D at

10. Still, it reimposed that sentence under the rubric of “time served.” Lewis then had

his supervised release revoked and the district court imposed a sentence more harsh

than even the Government requested. J.A. 172-173. Without any further term of

supervised release, Lewis will have no support or assistance in returning to a regular

life, as he has repeatedly explained to the district court while this appeal was

pending. J.A. 176; United States v. Lewis, 2:02-cr-00041-l (S.D. W. Va.), Dkt. Nos.

- 27 -

333. 334, 335, 338, 339, 343, 346, 347.

At this point the only thing this Court can do in recognition of the totality of

the circumstances of this case is to say, “enough.” Lewis has more than served his

debt to society. Any revocation sentence that continues his incarceration is

unreasonable (or plainly so). Therefore it has “so far departed from the accepted and

usual course of judicial proceedings . . . as to call for an exercise of this Court’s

supervisory power.” Rules of the Supreme Court 1 0 (a). This Court should recognize

that, vacate Lewis’ revocation sentence, and direct the district court to impose a timeserved revocation sentence and allow Lewis to resume his life as a free man.

A.

Lewis has served many more months in prison than he

should have and is continuing to serve additional

unwarranted months in prison.

At this point it cannot be denied that Lewis has spent more time in prison for

his offenses than he should have. His original 192-month sentence was based on his

classification under ACCA which, as the district court correctly recognized, was in

error in light of Johnson. That sentence is clearly greater than the statutory

maximum of his felon in possession offense of conviction.5 Were Lewis to have been

given the full resentencing he requested, he would face an advisory Guideline range

The district court has never, from original sentencing through the § 2255

proceedings, explained how the sentence is divided amongst the counts of conviction.

The law presumes the sentence on each count to be served concurrently, unless

specifically stated otherwise. 18 U.S.C. § 3584(a).

5

- 28 -

of only fifty-one to sixty-three months .6 While the district court could have reimposed

the same 192-month sentence by stacking the various counts of convictions, that

would have constituted a significant upward variance that would have been

unjustified by the applicable sentencing factors.

The district court was presented two opportunities to address this situation in

some kind of equitable way. The first was in Lewis’ § 2255 proceeding. The second

was in Lewis’ supervised release proceeding. Rather than crafting an equitable

resolution to Lewis’ supervision that recognized the peculiarities of this case, the

district court imposed a sentence more harsh than either party or the advisory

Guidelines called for without, as shown below, adequately explaining why it did so.

In addition to being plainly procedurally unreasonable, Lewis’ sentence is plainly

substantively unreasonable.

B.

Lewis’ revocation sentence is substantively unreasonable.

The district court is required to consider the factors set forth in 18 U.S.C.

§ 3583(e) before revoking a term of supervised release and imposing a revocation

sentence. Among those factors are the “history and characteristics of the defendant.”

18 U.S.C. § 3553(a)(1). As with any sentence, a sentence imposed following revocation

6 Each of Lewis’ threat counts would still produce a final offense level of 16 or 17, with

the felon in possession count now producing a final offense level of 16. After applying

the grouping rules of U.S.S.G. § 3D1.4, Lewis’ final offense level would be 22 and his

Criminal History Category III. J.A. 193-198.

- 29 -

of supervised release must be “sufficient, but not greater than necessary,” to

accomplish the purposes of sentencing. 18 U.S.C. § 3553(a).

Part of the history and characteristics of Lewis is that he was originally

sentenced based upon his classification under ACCA, a classification that has now

correctly been concluded was erroneous. As a result, he has spent untold additional

months in prison than he otherwise would have served. Another relevant part of

Lewis’ history is that the district court “corrected” his sentence into one which it

lacked the power to impose, compounding the original error of Lewis’ ACCA

sentencing.

The district court was correct that it had the power to correct Lewis’ sentence,

rather than fully resentence him. Appendix F at 3; see also United States u. Hillary,

106 F.3d 1170, 1171 (4th Cir. 1992); United States v. Hadden, 475 F.3d 652, 661 (4th

Cir. 2007). However, that power is not without limits.

Most fundamentally, a court cannot impose a sentence that it lacks the power

to impose. That includes a sentence that exceeds the statutory maximum for the

offense of conviction. United States v. Under Seal, 819 F.3d 715, 720 (4th Cir. 2016)

(“a district court ordinarily has no discretion to impose a sentence outside the

statutory range established by Congress for the offense of conviction”) (internal

quotation omitted); United States v. Beasley, 495 F.3d 142, 147 (4th Cir. 2007) (“when

a district court impose a sentence for a federal offense outside of the statutory range

. . . it is exercising its power erroneously”). That a court may not impose a sentence

- 30 -

above the statutory maximum is so fundamental that it is one of the few errors that

a defendant cannot waive the ability to raise on appeal. United States v. Marin, 961

F.2d 493, 496 (4th Cir. 1992) (“a defendant could not be said to have waived his right

to appellate review of a sentence imposed in excess of the maximum penalty provided

by statute”).

The district court’s corrected sentence, which has never been assigned to any

count other than Lewis’ felon in possession conviction, is in excess of the statutory

maximum for that offense. Lewis served approximately 176 months in prison before

his release onto supervised release. J.A. I l l , 184. Without the ACCA designation,

being a felon in possession of a firearm carries a maximum sentence of only 10 years

in prison, 120 months. 18 U.S.C. § 924(a)(2). The district court’s corrected sentence,

of time served, therefore is a sentence fifty-six months longer than the district court

had the power to impose.

In a revocation case the district court must impose the least severe sentence

possible that takes into account the defendant’s history and characteristics. An

examination of Lewis’ history and characteristics - his lengthy unjustified additional

incarceration - shows that the only proper “least severe” sentence was none at all, or,

at most, the time he served in custody while awaiting the revocation hearing.

Anything greater is substantively unreasonable.

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C.

Contrary to the Fourth Circuit’s understanding, a person

who overserved a sentence will be credited that time

against a future revocation sentence.

That Lewis overserved his original prison sentence is not an academic matter.

Regardless of whether a defendant overserves time in prison, his term of supervised

release begins when he is released from prison, not when he should have been. United

States v. Johnson, 529 U.S. 53 (2000). In affirming Lewis’ sentence, the Fourth Circuit

held that “supervised release and incarceration serve different ends” and “detention

ordered upon revocation of release may not be decreased by time served in official

detention other than time spent in detention for the release violation.” Appendix A

at 2. That is incorrect. The law provides, and the Bureau of Prisons implements, a

system by which time “banked” by inmates that can be credited toward revocation

sentences.

The statutory basis for the time bank is 18 U.S.C. § 3585, which provides that

a “defendant shall be given credit toward the service of a term of imprisonment for

any time he has spent in official detention prior to the date the sentence commences.”

18 U.S.C. § 3585(b). The Bureau of Prisons channels that authority via policies laid

out in various Program Statements. For example, in Program Statement 5880.28, the

Bureau explains that when a “resentencing results in a term which is less than the

time the inmate has already served on the vacated sentence, the excess time not now

credited to any other sentence shall be credited to the SRA term . . . .” Id. at p. 1-17;

- 32 -

see also pp. 1-14C and 1-14D.7 Program Statement 5800.15 explains how the

Designation and Sentence Computation Center is directed to, among other things,

“thoroughly review all sentencing and designation material” including “over-served

time.” Id. at 5-21.8 The review specifically includes “Supervised Release Violators.”

Id. at 5-2. There is also a form the Bureau of Prisons uses to deal with banked time,

which states “[t]his information is being provided because the over-served time credit

information may be of use to the court in considering the amount of time that should

be imposed for a revocation sentence.” Form BP-A623 Notice to United States

Probation officer of Over Served Time.9 That is why, in the wake of Johnson, the

following press release was issued by the Probation and Pretrial Services Office:10

BOP TO AW AR D OVER-SERVED TIME IN JOHNSON CASES

-

T

P'otiat'On S Pretro!Services

The Probation and Pretrial Services Office {PPSO} has

consulted with Federal Bureau of Prisons' (BOP) staff about

how they plan to treat over-served time by inmates who

received amended sentences under the U.S. Supreme Court's

decision in Johnson that were less than the amount of time they

had already served. BOP staff have determined that, pursuant

to and consistent with Bureau of Prisons Program Statement

5880.28, Sentence Computation Manual (CCCA of 1984), the

BOP will award over-served time to these inmates, which may

be applied to any subsequent term imposed for violating

supervised release for only the amended sentence. The over-served time for inmates affected by Johnson would not apply

to any other sentence or any supervised release violator term for any other sentence.

7 Available online at https://www.bop.gov/policy/progstat/5880_028.pdf (last visited

September 1 1 , 2018).

8 Available online at https://www.bop.gov/policy/progstat/5800_015_CN-01.pdf (last

visited September 1 1 , 2018).

9 Available online at https://www.bop.gov/policy/forms/BP_A0623.pdf (last visited

September 1 1 , 2018).

10 Available online to court users at http://jnet.ao.dcn/court-services/probationpretrial-services/bop-award-over-served-time-johnson-cases (last visited September

1 1 , 2018)

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In United States v. Parks, 2017 WL 3732078 (D. Colo. Aug. 1, 2017), the court

recognized the existence of the time bank and its importance in cases like this one.

Parks filed a § 2255 motion in the wake of Johnson. Among the defenses the

Government raised against Parks’ motion was that it was moot because he had

already finished serving his sentence. The court rejected that argument, noting that

there are “collateral consequences that are traceable to the sentence that Mr. Parks

seeks to vacate.” Id. at *10. That was because if Parks were to prevail (he did), “while

he would not be entitled to one-to-one credit towards his supervised release, he may

still be entitled to some credit for time that he has overserved through the concept of

‘banked’ time.” Id. at *10 (citation omitted). “Indeed,” the court continued, “the

Bureau of Prison[s] issued a press release stating that it ‘will award over-served time

to ... inmates [who receive amended sentences under Johnson] which may be applied

to any subsequent term imposed for violating supervised release for only the amended

sentence.’” Id., citing the above quoted press release.

Finally, the Government has recognized the existence of banked time in other

Johnson cases. In United States v. Donnelly, No. 17-15837 (9th Cir. 2017), the

Government explained during oral argument that:

the way the Bureau of Prisons manages this is if it’s

determined that he wasn’t ACCA and therefore he’s only

got a ten-year max, he has overserved three years of time

and what they do is he’ll have three years of supervised

release, if he violates his term of supervised release and is

- 34-

revoked and sent back, the BoP gives him credit for that

time. So he’ll immediately be released .11

Based on all this information, had the district court imposed a reasonable

sentence after granting Lewis’ § 2255 motion it is almost certain that Lewis would

have had sufficient over-served time banked so that he would no longer be

incarcerated.

D.

Lewis’ sentence is plainly substantively unreasonable.

Assuming, arguendo, that a defendant challenging a revocation sentence must

show it is plainly unreasonable, this sentence meets that burden. Once a Court

concludes that a sentence is unreasonable it must further determine if it is “plainly’

unreasonable, relying on the definition of ‘plain’ that we use in our ‘plain’ error

analysis.” Crudup, 461 F.3d at 439. In such circumstances, “[p]lain is synonymous

with clear or, equivalently, obvious.” United States v. Olano, 507 U.S. 725, 732 (1993)

(internal quotations omitted). A sentence is plainly unreasonable if “run[s] afoul of

clearly settled law.” United States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010).

Lewis’ sentence does so in two ways.

First, it violates the clear language of § 3553(a) that the district court must

impose the least severe sentence necessary to achieve the purposes of supervised

release. As demonstrated above, when the totality of the circumstances of Lewis’ case

are considered, the eighteen-month sentence imposed by the district court is greater

Transcribed from the video recording of the argument, available online at

https://youtu.be/KvEnTOqqi8A (last visited June 6 , 2018), beginning at 24:14.

11

- 35 -

th an necessary to achieve the purposes of supervised release. Second, the district

court’s imposition of any sentence (beyond time served) upon revocation of Lewis’

term of supervised release perpetuates the error it made by “correcting” Lewis’

original sentence to one of time served that is beyond the statutory maximum for the

relevant offense of conviction. That a court cannot impose a sentence beyond the

statutory maximum for the offense is “clearly settled law” of the most fundamental

kind.

IX. CONCLUSION

For the reasons stated, the Supreme Court should grant certiorari in this case.

Respectfully submitted,

EDWARD LEE LEWIS

By Counsel

CHRISTIAN M. CAPECE

I

EFENDER

Jonathan D. Byrne

Assistant Federal Public Defender

Counsel of Record

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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