Petitioners Brief — Johnson v. United States

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Text

No. 99-5153

a ad —_— — — -

In The

Supreme Court of the United States

CORNELL JOHNSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR PETITIONER CORNELL JOHNSON

Jerrrey T. GREEN LeaH J. Prewitt

JoserpH S. MILLER Rita C. LaLumia*

Siptey & AUSTIN Davip F. Ness

1722 Eye Street, N.W. FeperAL DEFENDER SERVICES

Washington, D.C. 20006 OF EASTERN TENNESSEE, INC.

(202) 736-8000 707 Georgia Avenue, Suite 203

O Chattanooga, Tennessee 37402

f Counsel

(423) 756-4349

Counsel for Petitioner

Cornell Johnson

*Counsel of Record

December 2, 1999

COCKLE LAW BRIEF PRINTING \ (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY.

QUESTION PRESENTED

Whether reimposition of supervised release pursuant

to 18 U.S.C. § 3583(h), following revocation of Petitioner’s

original supervised release sentence, violates the Ex Post

Facto Clause of the United States Constitution when Peti-

tioner’s conviction for the underlying offense occurred

before section 3583(h) was enacted.

TABLE OF CONTENTS

QUESTION PRESENTED. ..............sscceevceees

ORENTONS GLOW... scccccccccccestsssecvessesees

TITUS . cc cccccccccccvcsscousceescaeubeeeee

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS EUVOLVED ooo cscccccccccccsscscutsoseuen

STATEMENT OF THE CASE...........ceccescceees

SUMMARY OF THE ARGUMENT .................

ABDISUBENT, 2. ccvcccccccncvscessencesseuaneaueenen

I. THE APPLICATION OF SECTION 3583(h)

TO PETITIONER INCREASED THE PUNISH-

MENT FOR HIS CRIME AFTER ITS COMMIS-

SION, IN VIOLATION OF THE EX POST FACTO

aW ii SPT!

A. Application of Section 3583(h) in Mr. John-

son’s Case Is Retrospective Because The

Conditions For Supervised Release And The

Consequences Of Its Revocation Are Inte-

gral Parts Of The Punishment Attached To

The Original Conviction. ...............045

B. As Applied To Mr. Johnson, Section 3583(h)

Violates The Ex Post Facto Clause By Retro-

actively Increasing The Punishment For His

ee Pe

C. Retroactive Application Of Section 3583(h) Vio-

lates The Fundamental Interests That The Ex

Post Facto Clause Is Designed To Protect ....

Il.

TABLE OF CONTENTS - Continued

Page

THE COURT OF APPEALS ERRONEOUSLY

VIEWED PETITIONER’S POST-REVOCATION

REIMPRISONMENT AND SECOND SUPER-

VISED RELEASE AS PUNISHMENT FOR A

POST-AMENDMENT CRIME .................. 34

EE EE A 37

TABLE OF AUTHORITIES

Page

Cases

Bifulco v. United States, 447 U.S. 381 a 28

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ......... 12, 34

wr 1 tedemmihemnte: ee

Collins v. Youngblood, 497 U.S. 37 (1990) .......---++. 11

Dobbert v. Florida, 432 U.S. 282 (1977) ............ 21, 30

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg.

& Constr. Trades Council, 485 U.S. 568 (1988) ...... 20

Hill v. Lockhart, 474 U.S. 52 (1985) .......... eee eee 33

Hudson v. United States, 118 U.S. 488 (1997) ......... 14

In re Winship, 397 U.S. 358 (1970) ......- 6-222 ee eeees 20

Kansas v. Hendricks, 521 U.S. 346 (1997) ...........-- 14

Landgraf v. USI Film Prods., 511 U.S. 244 (1994)...11, 29

Lindsey v. Washington, 301 U.S. 397 (1937) ...22, 23, 24, 30

Lynce v. Mathis, 519 U.S. 433 (1997) ......-..-+++. passim

Miller v. Florida, 482 U.S. 423 (1987)...12, 23, 24, 30, 32

Monge v. California, 118 S. Ct. 2246 (1998) ........... 20

Ralston v. Robinson, 454 U.S. 201 (1981)......---++. 18

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) .... 29

United States Parole Comm'n v. Williams, 54 F.3d

OBO, (D.C. Cle. BODB). oc cccccccccccccccsccccccsccess 5

TABLE OF AUTHORITIES - Continued

Page

United States v. Abbington, 144 F.3d 1003 (6th Cir.),

cert. denied, 119 S. Ct. 344 (1998)............ 9, 19, 35

United States v. Amer, 110 F.3d 873 (2d Cir. 1997) .... 21

United States v. Behnezhad, 907 F.2d 896 (9th Cir.

Sepccwaswesnvevéasedensadekeanededsssslecsencdes 5

United States v. Collins, 118 F.3d 1394 (9th Cir.

EGU deteesecednedsedbabonseeebiniesaaccaseusei 31

United States v. Cooper, 962 F.2d 339 (4th Cir. 1992) ..... 5

United States v. Dozier, 119 F.3d 239 (3d Cir. 1997) .... 31

United States v. Eske, 189 F.3d 536 (7th Cir. 1999) .... 31

United States v. Holmes, 954 F.2d 270 (5th Cir.

Seeeetdithesadaveecieweutneditudisbdecdal 5, 27, 28

United States v. Koehler, 973 F.2d 132 (2d Cir. 1992)..... 5

United States v. Malesic, 18 F.3d 205 (3d Cir. 1994)..... 5

United States v. McGee, 981 F.2d 271 (7th Cir. 1992) ..... 5

United States v. O'Neil, 11 F.3d 292 (1st Cir. 1993)..... 5

United States v. Page, 131 F.3d 1173 (6th Cir. 1997),

cert. denied, 119 S. Ct. 77 (1998)......... 9, 19, 27, 35

United States v. Rockwell, 984 F.2d 1112 (10th Cir.

bs ones cbkbncdeadcedeundveninsianiedans scene 5

United States v. Schrader, 973 F.2d 623 (8th Cir.

Seen ccscccsdbecibivesiassetséecuenbeladednie 5

United States v. Soto-Olivas, 44 F.3d 788 (9th Cir.

Sees 0 ween eushsnsdutsithedsssehanenneeuesee 21

United States v. Tatum, 998 F.2d 893 (11th Cir. 1993) ..... 5

United States v. Truss, 4 F.3d 437 (6th Cir. 1993) ...5, 27

TABLE OF AUTHORITIES - Continued

Page

United States v. Woodrup, 86 F.3d 359 (4th Cir. 1996) .... 21

United States v. Wyatt, 102 F.3d 241 (7th Cir. 1996) .... 21

Weaver v. Graham, 450 U.S. 24 (1981)............ passim

CONSTITUTION

US. Comet. ast. 1, § D, Gh. D.ncccccccccccccccccccccess 1

FEDERAL STATUTES

Violent Crime Control and Law Enforcement Act

of 1994, Pub. L. No. 103-322, 108 Stat. 1796........ 1

OB UDC. 6 BERDEIIERD. 2c cccsccccccccscesesccccccseses 2

B BEBDEIIE) .. cc icccccccccscccescccsesccseces 2

FERRER oc cccssccccescccccccccsesvosseces 15

BD FROIN. vc ccc cccsvcsccccvcccesisicceess 2

BD Fc od ccecccccdcvsucccsvesesesesacs passim

RULE

ee: Te, Glen, EE Bs cocccccedcncucseussestessas 33

SCHOLARLY AUTHORITIES

Bryan R. Diederich, Note, Risking Retroactive Pun-

ishment: Modifications of the Supervised Release

Statute and the Ex Post Facto Prohibition, 99

Conus. L. Rav. BEBE (IGG)... wccccccccccccess 7, 33, 34

Vii

TABLE OF AUTHORITIES - Continued

Page

Ryan M. Zenga, Note, Retroactive Law or Punish-

ment for a New Offense? The Ex Post Facto Implica-

tions of Amending the Statutory Provision

Governing Violations of Supervised Release, 19 W.

New Enc. L. Rev. 499 (1997)

OTHER AUTHORITY

United States Sentencing Commission, Guidelines

Manual (Nov. 1998)

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OPINIONS BELOW

The unpublished order of the court of appeals is

provided in the Joint Appendix (“J.A.”) at 48-49. The

district court’s judgment of revocation is provided in the

Joint Appendix, along with the transcript of the revoca-

tion hearing. J.A. 38-47 (Judgment), 21-29 (Transcript).

JURISDICTION

The judgment of the couri of appeals was entered on

April 29, 1999. The petition for writ of certiorari was filed

on July 2, 1999 and granted on October 18, 1999. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Ex Post Facto Clause of the United States

Constitution, Article I, Section 9, clause 3 provides that

“[njo Bill of Attainder or ex post facto Law shall be

passed” by Congress.

2. The key statute involved in this case is 18 U.S.C.

§ 3583. Congress amended section 3583 on September 13,

1994 by, inter alia, adding subsection (h) to the statute. See

Violent Crime Control and Law Enforcement Act of 1994,

Pub. L. No. 103-322, § 110505(3), 108 Stat. 1796, 2017. The

text of the pre-amendment and post-amendment versions

of section 3583 are set forth in a Statutory Appendix to

this brief.

STATEMENT OF THE CASE

1. On March 8, 1994, Petitioner Cornell Johnson

pleaded guilty to a credit card crime, that is conspiring to

defraud, produce, use, and traffic in one or more counter-

feit access devices, an act that occurred “on or about

October 22, 1993,” in violation of 18 U.S.C. § 1029(b)(2).

J.A. 2-3, 7-8. The offense was punishable by a maximum

term of imprisonment of five years, a fine of not more

than $250,000 and a term of up to three years of super-

vised release, see 18 U.S.C. § 1029(b)(2), (c)(1); 18 U.S.C.

§ 3583(a), (b)(2), and was therefore a Class D felony, see 18

U.S.C. § 3559(a)(4). The district court sentenced Mr Tohn-

son to 2 years and 1 month of imprisonment and 3 years

of supervised release. J.A. 9-10.

Mr. Johnson's supervised release sentence included

numerous restrictions on his personal liberty. Some of the

restrictions are “standard conditions,” such as the

requirements that he “not leave the judicial district with-

out the permission of the court or probation officer,” that

he “notify the probation officer within 72 hours of any

change in residence or employment,” and that he “permit

a probation officer to visit him . . . at any time at home or

elsewhere.” J.A. 12-13. Additionally, the district court

ordered a number of special restrictions on personal lib-

erty that were specific to Mr. Johnson. These “special

conditions” included the requirements that he “provide

the probation officer with access to any requested finan-

cial information,” that he “not incur new credit charges

or open additional lines of credit without the approval of

the probation officer,” that he “participate in a program

of testing and/or treatment for drug and/or alcohol

abuse,” and that he “participate in a program of mental

health treatment.” Id. at 11.

2. At the time Mr. Johnson pleaded guilty, the stat-

ute governing the imposition of supervised release as

part of a criminal sentence - 18 U.S.C. § 3583 - enumer-

ated several options available to the district courts to

respond to a defendant's violation of the conditions of his

supervised release term. Two of the options specified in

section 3583(e) are relevant in this case:

The court may...

(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 supervised release, at any time

prior to the expiration or termination of the

term of supervised release, pursuant to the pro-

visions of the Federal Rules of Criminal Pro-

cedure relating to the modification of probation

and the provisions applicable to the initial set-

ting of the terms and conditions of post-release

supervision; [or]

(3) revoke a term of supervised release, and

require the person to serve in prison all or part of the

term of supervised release without credit for time

previously served on postrelease supervision, if it

finds by a preponderance of the evidence that

the person violated a condition of supervised

release, pursuant to the provisions of the Fed-

eral Rules of Criminal Procedure that are appli-

cable to probation revocation and to the

provisions of applicable policy statements

issued by the Sentencing Commission, except

that a person whose term is revoked under this

paragraph may not be required to serve more than 3

years in prison if the offense for which the per-

son was convicted was a Class B felony, or more

than 2 years in prison if the offense was a Class C or

D felony;....

Statutory Appendix (“S.A.”) 2a (emphasis added).' Thus,

the district court could either extend the term of super-

vised release to the maximum available term, or revoke

supervised release and order reimprisonment for all or

part of the supervised release term that had been origi-

nally imposed. Where, as here, the underlying offense

was a Class D felony, post-revocation reimprisonment

could not exceed two years. Id.

At his sentencing hearing in 1994, the court sen-

tenced Mr. Johnson to a post-imprisonment term of three

years of supervised release - the maximum allowed

under the statute in effect at the time. S.A. 1a.? Because

the district court imposed the maximum term of super-

vised release allowable under Mr. Johnson’s original sen-

tence, the option provided by subsection (e)(2) to “extend

a term of supervised release” would not be available to

the district court if Mr. Johnson later violated his super-

vised release conditions. Rather, pursuant to the pre-

amendment version of section 3583, the district court

could revoke Mr. Johnson’s supervised release sentence

and order Mr. Johnson to be reimprisoned for up to two

' The other mechanisms provided in subsection (e) -

terminating supervised release altogether (subsection (e)(1)),

and imposing home confinement (subsection (e)(4)) — are not

relevant in the context of this case. See S.A. 2a.

2 The same three-year maximum term of supervised release

applies for Class D felonies under the post-amendment version

of section 3583(b)(2). S.A. 4a.

years in the event he violated the conditions of super-

vised release. See S.A.la - 2a (18 U.S.C § 3583(e)(3) (cap-

ping term of reimprisonment at two years for Class D

felony)).

When Mr. Johnson was convicted, the circuit courts

of appeals were split on the question whether subsection

(e) of section 3583 empowered a district court to attach

another term of supervised release to a prison term that

was imposed upon revocation of the original supervised

release term. Of the twelve circuit courts of appeals, nine

— including the Sixth Circuit, where Mr. Johnson was

convicted and sentenced — concluded that subsection (e)

did not empower district courts to impose another super-

vised release term.? Only two — the First and Eighth

Circuits —- concluded that subsection (e) did provide dis-

trict courts this power.* The District of Columbia Circuit

has not considered the question. See United States Parole

Comm'n v. Williams, 54 F.3d 820, 824 (D.C. Cir. 1995)

(noting circuit split regarding subsection (e) and addition

of subsection (h), and concluding that “[t]his court has

3 See United States v. Koehler, 973 F.2d 132, 134-36 (2d Cir.

1992); United States v. Malesic, 18 F.3d 205, 206 (3d Cir. 1994);

United States v. Cooper, 962 F.2d 339, 341-42 (4th Cir. 1992);

United States v. Holmes, 954 F.2d 270, 272-73 (Sth Cir. 1992);

United States v. Truss, 4 F.3d 437, 441 (6th Cir. 1993); United States

v. McGee, 981 F.2d 271, 274-76 (7th Cir. 1992); United States v.

Behnezhad, 907 F.2d 896, 898-99 (9th Cir. 1990); United States v.

Rockwell, 984 F.2d 1112, 1116-17 (10th Cir. 1993); United States v.

Tatum, 998 F.2d 893, 895-96 (11th Cir. 1993).

4 See United States v. O'Neil, 11 F.3d 292, 293 (1st Cir. 1993);

United States v. Schrader, 973 F.2d 623, 625 (8th Cir. 1992).

not yet addressed the issue, and we see no need to do so

in this case”).

3. In September 1994, almost a year after Mr. John-

son committed the underlying access-device crime and

six months after his conviction, Congress amended sec-

tion 3583. Among the changes Congress made is the

addition of subsection (h) to the statute.5 This subsection

provided district courts with a new way to respond to a

defendant's supervised release violation:

When __ term of supervised release is revoked

and the defendant is required to serve a term of

imprisonment that is less than the maximum

term of imprisonment authorized under subsec-

tion (e)(3), the court may include a requirement thai

the defendant be placed on a term of supervised

release after imprisonment. The length of such a

term of supervised release shall not exceed the

term of supervised release authorized by statute

for the offense that resulted in the original term

of supervised release, less any term of imprison-

ment that was imposed upon revocation of

supervised release.

S.A. 7a (emphasis added). By adding this subsection,

Congress thus gave the district courts a power they

lacked under pre-amendment section 3583(e).

It is noteworthy, in the context of this case, that

subsection (h) empowers district courts to impose length-

ier terms of punishment than were possibie under pre-

amendment section 3583(e)(3). For example, a person

5 The wording of subsection (e) was also changed in

immaterial respects, and a 5-year reimprisonment cap for Class

A felonies was added. See S.A. 4a-6a.

convicted of a Class D felony might be initially sentenced

to up to three years of post-imprisonment supervised

release. Under the pre-amendment section 3583(e)(3),

upon revocation of supervised release the district court

could order that the offender be reimprisoned for a term

no greater than two years (the statutory cap for Class D

felonies) but the court could not order that the defendant

be placed on a term of supervised release after this term

of reimprisonment. See S.A. 2a. Under section 3583(h), by

contrast, the district court could order that the defendant

be reimprisoned for any term less than two years (e.g.,

two years less one day) and that he be subject to super-

vised release for the balance of the three-year maximum

term of punishment (e.g., one year and one day). Under

the new statute, punishment for violating supervised

release conditions could thus last for up to three years,

rather than the previous maximum of two years.

4. Mr. Johnson began serving his original super-

vised release term in August 1995. J.A. 18. Under his 1994

sentence, Mr. Johnson’s supervised release term would

have expired in August 1998. Id. On March 3, 1996, how-

ever, Mr. Johnson was arrested in Newport News, Vir-

ginia and charged with fraud and uttering a forged

instrument in violation of Virginia state law. Id. at 18-19,

33-34. On March 5, 1996, the United States Probation

Office filed a petition that alleged that Mr. Johnson vio-

lated his supervised release conditions by traveling from

Risking Retroactive Punishment: Modifications of the Supervised

Release Statute and the Ex Post Facto Prohibition, 99 Colum. L. Rev.

1551, 1557 (1999) (hereinafter “Risking Retroactive Punishment”).

his district of supervision (the Northern District of Geor-

gia) to Virginia without permission, and by committing

the state-law crimes in Virginia. Id. at 18-19.

On July 25, 1996, Mr. Johnson was convicted in the

Circuit Court of Newport News, Virginia of the offenses

of forgery and uttering a forged instrument. J.A. 33-34.

He was sentenced to a ten-year term of imprisonment for

each violation, and the court suspended the execution of

nine years of his sentence for the offense of forgery, and

nine and one-half years for the offense of uttering a false

instrument. Id. Mr. Johnson was also convicted for the

offenses of obtaining money by false pretense and larceny

by false pretense, and he was ordered to serve a 12-

month jail term on each charge. Id. at 34. Mr. Johnson

remained in the custody of the State of Virginia until his

release to the federal detainer on March 31, 1998. Id. A

removal hearing was held in Federal District Court for

the Eastern District of Virginia and Mr. Johnson was

ordered returned to the Eastern District of Tennessee to

answer the charge that he violated the terms of his super-

vised release. Id.

On April 30, 1998, after a hearing on the record at

which Mr. Johnson admitted violating his supervised

release conditions, the district court revoked Mr. John-

son’s original supervised release term. J.A. 23-26. The

district court ordered Mr. Johnson to be incarcerated for

1'/2 years and imposed another term of supervised

release to follow for one year, for a total of 2'/2 years of

punishment. Id. at 26, 38-47. The restrictions placed upon

Mr. Johnson as a result of revocation exceeded the maxi-

mum possible sentence under the pre-amendment ver-

sion of section 3583(e)(3) by six months. At the revocation

hearing, Mr. Johnson's counsel expressly objected to the

imposition of another term of supervised release under

section 3583(h) as a violation of the Ex Post Facto Clause.

Id. at 27-29. The district court, however, followed the law

of the circuit and applied the provisions of section

3583(h) to Mr. Johnson.

Mr. Johnson appealed the district court’s order of

revocation to the United States Court of Appeals for the

Sixth Circuit. His sole contention on appeai was that

application of section 3583(h) to his case violated the Ex

Post Facto Clause because he committed the underlying

access-device crime in 1993 and was convicted and sen-

tenced on March 8, 1994 - six months before Congress

enacted section 3583(h). The court of appeals affirmed

Mr. Johnson's sentence in a two-page unpublished order

on the basis of its holdings in prior cases. J.A. 48-49.

According to the court of appeals, it “ha[d] rejected John-

son’s argument, concluding that the application of

§ 3583(h) does not violate the Ex Post Facto Clause.” Id. at

49 (citing United States v. Abbington, 144 F.3d 1003, 1005

(6th Cir.), cert. denied, 119 S. Ct. 344 (1998), and United

States v. Page, 131 F.3d 1173, 1175 (6th Cir. 1997), cert.

denied, 119 S. Ct. 77 (1998)).

SUMMARY OF THE ARGUMENT

The Sixth Circuit Court of Appeals determined that

reimposition of a term of supervised release for Mr. John-

son, following revocation of his initial term of supervised

release, does not violate the Ex Post Facto Clause. The

Sixth Circuit so held despite the fact that the statute

which empowers a district court to reimpose supervised

release upon revocation of the defendant's initial term of

supervised release - 18 U.S.C. § 3583 (h) - was not

enacted by Congress until six months after Mr. Johnson

was convicted and sentenced for the underlying offense

that resulted in his original term of supervised release.

Furthermore, application of section 3583(h) to Mr. John-

son resulted in a revocation punishment that was actually

six months longer than that which was available at the

time he was sentenced for the underlying offense.

The application of section 3583(h) to Mr. Johnson,

who was convicted before this provision was added to

the supervised release statute, violates the Ex Post Facto

Clause. The text and structure of section 3583 demon-

strate that both a supervised release term and the conse-

quences of its violation are integral parts of the

punishment for the underlying crime of conviction, not

for any subsequent violation of supervised release condi-

tions. Under the pre-amendment statute governing super-

vised release in effect at the time Mr. Johnson committed

his underlying crime, the district court was limited to

ordering Mr. Johnson to serve a total term of 2 years of

incarceration upon revocation of supervised release.

However, after applying subsection (h) to Mr. Johnson,

the district court ordered him to serve a 2'/2 year sen-

tence, which included one year of supervised release not

previously authorized by law. The punishment was thus

increased in length and nature, and imposed greater

restrictions on Mr. Johnson’s liberty than were authorized

at the time of his underlying offense.

The application of section 3583(h) to Mr. Johnson

plainly violates the policies embodied in the Ex Post

Facto Clause of the United States Constitution. The

Clause prohibits laws that retroactively inflict a greater

punishment than the punishment attached to a crime

when the crime was committed. Application of subsec-

tion (h) in Mr. Johnson’s case violates the Ex Post Facto

Clause and the order reimposing supervised release

should be reversed.

ARGUMENT

“The presumption against the retroactive application

of new laws is an essential thread in the mantle of protec-

tion that the law affords the individual citizen.” Lynce v.

Mathis, 519 U.S. 433, 439 (1997). That presumption “ ‘is

deeply rooted in our jurisprudence, and embodies a legal

doctrine centuries older than our Republic.’ ” Id. (quoting

Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994)). The

retroactive application of section 3583(h) to reimpose a

term of supervised release on Mr. Johnson unravels the

mantle of protection mandated by the Ex Post Facto

Clause, and the order reimposing supervised release

should thus be reversed.

I. THE APPLICATION OF SECTION 3583(h) TO PETI-

TIONER INCREASED THE PUNISHMENT FOR

HIS CRIME AFTER ITS COMMISSION, IN VIOLA-

TION OF THE EX POST FACTO CLAUSE.

The Ex Post Facto Clause of the United States Consti-

tution flatly prohibits laws that retroactively increase the

punishment attached to a crime. See Lynce v. Mathis, 519

U.S. 433, 441 (1997); Collins v. Youngblood, 497 U.S. 37, 43

(1990); Miller v. Florida, 482 U.S. 423, 429 (1987). Early in

the history of our Republic, the Court established that

“le]very law that changes the punishment, and inflicts a

greater punishment, than the law annexed to the crime,

when committed” is prohibited by the Ex Post Facto

Clause. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798)

(Chase, J.). As the Court explained in Weaver v. Graham,

[t}hrough this prohibition, the Framers sought _

to assure that legislative Acts give fair warning

of their effect and permit individuals to rely on

their meaning until explicitly changed. The ban

also restricts governmental power by restraining

arbitrary and potentially vindictive legislation.

450 U.S. 24, 30 (1981); see also Lynce, 519 U.S. at 440 (“the

Constitution places limits on the sovereign’s ability to use

its lawmaking power to modify bargains it has made with

its subjects”). Because it permits increased punishment,

the retroactive application of section 3583(h) thus impli-

cates the “central concerns” of the Ex Post Facto Clause:

“ ‘the lack of fair notice and governmental restraint when

the legislature increases punishment beyond what was

prescribed when the crime was consummated’.” Lynce,

519 U.S. at 441 (quoting Weaver, 450 U.S. at 30).

To run afoul of the Ex Post Facto Clause, a statute

must be retrospective in application, and it must disad-

vantage the offender affected by it by altering the defini-

tion of criminal conduct or increasing the punishment for

the crime. See Lynce, 519 U.S. at 441; California Dep't of

Corrections v. Morales, 514 U.S. 499, 506 n.3 (1995); Miller,

482 U.S. at 430. The application of section 3583(h) to Mr.

Johnson, who was convicted before this provision was

added to the supervised release statute, meets both

aspects of this test. First, the text and structure of section

3583 demonstrate that both a supervised release term and

the consequences of its violation are integral parts of the

punishment for the underlying crime of conviction. Sec-

ond, section 3583(h), when retroactively applied to Mr.

Johnson, increased the punishment for his underlying

crime of conviction by six months, an increase that is

manifestly to his disadvantage. Finally, the application of

section 3583(h) to Mr. Johnson plainly violates the core

public policies embodied in the Ex Post Facto Clause.

A. Application of Section 3583(h) in Mr. Johnson’s

Case Is Retrospective Because The Conditions

For Supervised Release And The Consequences

Of Its Revocation Are Integral Parts Of The

Punishment Attached To The Original Convic-

tion.

A law is retrospective if it imposes greater punish-

ment after the commission of the offense than that which

was allowable when the offense was committed. See

Weaver, 450 U.S. at 28-33. Importantly, “it is the effect, not

the form, of the Jaw that determines whether it is ex post

facto.” Id. at 31. Subsection (h), if applied to the revoca-

tion of a supervised release term that was originally

imposed before September 13, 1994, is retrospective for

purposes of the Ex Post Facto Clause.

1. The text, structure and operation of the super-

vised release statute make clear that a supervised release

term is part of the sentence for the underlying offense.

According to section 3583(a), supervised release is

imposed “as a part of the sentence” for the original crime

of conviction.” S.A. la (pre-amendment), 4a (post-amend-

ment). In addition, section 3583(b) sets the maximum

allowable supervised release term according to the grade

of the original offense. Id. For example, a Class B felony

may be punished with a supervised release term of up to

five years, whereas a Class D felony can be punished

7 This fact alone forecloses any argument that supervised

release does not constitute criminal punishment for Ex Post

Facto Clause purposes. The determination whether a penalty is

criminal or civil is a matter of statutory interpretation, and both

the Double Jeopardy and Ex Post Facto Clauses call for the same

methodology. See Kansas v. Hendricks, 521 U.S. 346, 360-71 (1997)

(applying same statutory construction methodology to

determine nature of penalty for both double jeopardy and ex

post facto purposes). “A court must first ask whether the

legislature, ‘in establishing the penalizing mechanism,

indicated either expressly or impliedly a preference for one

label or the other.’ ” Hudson v. United States, 118 U.S. 488, 493

(1997). Congress placed the supervised release provision at

issue in Title 18, of U.S. Code which is devoted to crimes and

criminal procedures, and expressly provided that a “court, in

imposing a sentence to a term of imprisonment for a felony or a

misdemeanor, may include as a part of the sentence a requirement

that the defendant be placed on a term of supervised release

after imprisonment.” 18 U.S.C. § 3583(a). Supervised release,

therefore, is a criminal punishment on its face, and that is the

end of the inquiry. See Hudson, 118 U.S. at 493. Moreover, even if

one were to go beyond the plain terms of the statute, all the

relevant factors indicate that supervised release is a criminal

punishment: (1) it imposes affirmative restraints on personal

liberty; (2) it comes into play only upon the finding of scienter

connected with the crime of conviction; (3) it promotes the

traditional aims of punishment, retribution and deterrence; and

(4) it applies only when there is a criminal conviction, as part of

the sentence for that conviction. See id. at 493 (listing factors

used to determine whether a nominally civil penalty is, in fact, a

criminal punishment).

~— ee

with a supervised release term of up to three years. 18

U.S.C. § 3583(b). Also, under section 3583(c), in determin-

ing whether to impose a term of supervised release and

in determining the length of any such term of supervised

release, the district court “shall consider the factors set

forth in” certain sections of 18 U.S.C. § 3553(a), the gen-

eral sentencing statute that provides factors for the court

to consider in imposing a sentence. S.A. la (pre-amend-

ment), 4a (post-amendment). At every step, section 3583

unequivocally tethers the supervised release sentence to

the original crime of conviction.

The plain language and operation of the supervised

release statute illustrate that the consequences of violat-

ing supervised release conditions are also tied to the

underlying conviction. Under both the pre-amendment

and post-amendment versions of section 3583(e)(3), the

maximum allowable term of reimprisonment that can be

imposed as a sanction for violating supervised release, as

with the original supervised release term itself, is a func-

tion of the grade of the underlying crime of conviction.

S.A. 2a (pre-amendment), 6a (post-amendment). The

nature or degree of the subsequent violation of super-

vised release does not and cannot affect the maximum

period of reimprisonment allowed under the revocation

provisions. The statute is plainly tied only to the underly-

ing crime, not to the subsequent violation.

For example, in accordance with the structure of the

statute, two defendants who violate supervised release in

the same way, no matter what the severity of the viola-

tion, can receive dramatically different sanctions if their

original crimes differed in grade. Compare two defen-

dants who leave the jurisdiction of their supervision

without permission: one convicted of a Class B felony

may be reimprisoned for up to three years upon revoca-

tion of his supervised release term. 18 U.S.C.

§ 3583(e)(3).% By contrast, a defendant convicted of a class

D felony can be reimprisoned for no more than two years.

18 U.S.C. § 3583(e)(3).? This substantial difference in the

maximum allowable term of reimprisonment is justified

only by the difference in the two defendants’ underlying

crimes of conviction.

Subsection (h), added to section 3583 in September

1994, is just as strongly tethered to the original crime of

conviction as to the reimprisonment sanction of subsec-

tion (e)(3). This new provision caps the length of any

additional supervised release term according to the grade

of the original offense, as follows:

The length of such a term of supervised release

shall not exceed the term of supervised release

authorized by statute for the offense that resulted

in the original term of supervised release, less any

term of imprisonment that was imposed upon

revocation of supervised release.

18 U.S.C. § 3583(h) (emphasis added). As a result, the

district court is unable to compute the maximum permis-

sible post-revocation supervised release term unless it

first determines the grade of the underlying offense that

resulted in the original term of supervised release.

8 This is the case under both the pre-amendment and post-

amendment versions of section 3583. See S.A. 2a, 5a-6a.

® This is the case under both the pre-amendment and post-

amendment versions of section 3583. See S.A. 2a, 5a-6a.

That the reimposition of supervised release following

revocation pertains to the underlying offense makes logi-

cal sense when one considers that any criminal offense

that forms the basis for a violation of supervised release

is punished separately and apart from any revocation

sanction. Here, for example, Mr. Johnson was incarcer-

ated in Virginia as a result of the state criminal offenses

that partially formed the basis for his revocation of super-

vised release. Upon revocation of Mr. Johnson’s super-

vised release, the federal district court had no authority

to separate criminal sanctions for his state court offenses.

The new provision in section 3583(h) changes the

legal consequences of “the offense that resulted in the

original term of supervised release,” specifically by

exposing Mr. Johnson to successive supervised release

periods and, thus, to a punishment longer than that

which could have been imposed at the time of his original

conviction. Application of section 3583(h) in Mr. John-

son’s case is therefore retroactive for ex post facto pur-

poses.

2. According to either the pre-amendment or post-

amendment versions of section 3583, supervised release

is part of the original sentence for the underlying crime

of conviction, and it is this original sentence that is being

executed when a defendant is returned to prison (and,

under section 3583(h), given another supervised release

term) as a sanction for violating the terms of his super-

vised release. Thus, the proper view of revocation is

simply that, by engaging in prohibited conduct (whether

criminal in nature or not) during his supervised release

term, a defendant triggers the condition that permits the

court to modify or increase the terms of the original

sentence.'° This construction of section 3583 also com-

ports with the “breach of trust” theory that animates the

United States Sentencing Commission’s implementation

of the supervised release system. See generally United

States Sentencing Commission, Guidelines Manual Ch. 7,

Pt. A(3)(b) (Nov. 1998). According to the Commission’s

“breach of trust” theory, although “the nature of the

conduct leading to the revocation would be considered in

measuring the extent of the breach of trust, imposition of

an appropriate punishment for any new criminal conduct

would not be the primary goal of a revocation sentence.”

Id. In other words, all other things being equal, a given

violation of supervised release such as leaving the juris-

diction without permission, is a more serious matter

when it is committed by a Class A felon (e.g., a kidnap-

per) than when it is committed by a Class D felon (e.g., a

credit-card fraud conspirator). That section 3583 provides

for a greater maximum punishment time period for Class

A felons than for Class D felons reflects this approach.

10 In this sense, the supervised release statute is analogous

to the treatment modification provision in the Federal Youth

Corrections Act this Court approved in Ralston v. Robinson, 454

U.S. 201, 220 n.14 (1981) (“Congress intended that a YCA

sentence contain within it the possibility that, if the offender

commits a subsequent offense, the court may modify the YCA

treatment terms. Such a scheme hardly constitutes multiple

punishment, since the offender has, by his own actions,

triggered the condition that permits appropriate modification of

the terms of confinement. After all, the imposition of

confinement when an offender violates his term of probation

has never been considered to raise a serious double jeopardy

problem.”).

3. Respondent will argue that a post-revocation

sanction is punishment for the supervised release viola-

tion and not for the original crime of conviction, and thus

that section 3583(h) is not retrospective for Ex Post Facto

Clause purposes. United States v. Abbington, 144 F.3d 1003,

1005 (6th Cir.), cert. denied, 119 S. Ct. 344 (1998); United

States v. Page, 131 F.3d 1173, 1175 (6th Cir. 1997), cert.

denied, 119 S. Ct. 77 (1998). This reasoning is flawed.

First, as demonstrated, the text and structure of both

the pre-amendment and post-amendment section 3583

make it clear that post-revocation incarceration and reim-

position of a supervised release term pursuant to section

3583(h), both constitute punishment for the original crime

and not for the later supervised release violation. Crimi-

nal acts that form the basis for revocation are separately

punished under the relevant criminal statutes.

Second, many of the restrictions imposed pursuant to

a sentence of supervised release proscribe conduct that

otherwise would be perfectly lawful, such as leaving the

jurisdiction without the permission of a court or proba-

tion officer, or opening a credit card account. See J.A.

10-13. Although such prohibited conduct is not in itself

unlawful, violations of the district court’s order imposing

such restrictions may nevertheless result in sanctions

such as incarceration or reimposition of supervised

release. But for the offender’s conviction for the underly-

ing offense, though, the district court does not have the

authority to place such conditions on a citizen, nor to

punish the prohibited conduct with incarceration or fur-

ther restrictions of one’s liberty.

Third, the contention that post-revocation sanctions

relate exclusively to the supervised release violation

poses grave due process and double jeopardy problems.

For example, under section 3583(e)(3), the district court

may revoke supervised release when the violation is

proved “by a preponderance of the evidence.” S.A. 2a

(pre-amendment), 6a (post-amendment). However, the

Due Process Clause forbids the imposition of a criminal

sanction except upon proof that satisfies the “beyond a

reasonable doubt” standard. See In re Winship, 397 U.S.

358, 364 (1970). As a result, one cannot conclude that

post-revocation punishment is based on the supervised

release violation alone without calling into question the

constitutionality of the revocation proceeding itself. Such

an interpretation of section 3583 is to be avoided if possi-

ble. See Edward ]. DeBartolo Corp. v. Florida Gulf Coast Bldg.

& Constr. Trades Council, 485 U.S. 568, 575 (1988) (“where

an otherwise acceptable construction of a statute would

raise serious constitutional problems, the Court will con-

strue the statute to avoid such problems unless such

construction is plainly contrary to the intent of Con-

gress”).

Similarly, if a post-revocation sanction were punish-

ment for the supervised release violation, the Double

Jeopardy Clause would bar the federal government from

prosecuting that supervised release violation in a sepa-

rate federal criminal proceeding. See Monge v. California,

118 S. Ct. 2246, 2250 (1998) (Double Jeopardy Clause bars

“successive prosecutions for the same offense”). The four

circuit courts of appeals to have considered this very

Double Jeopardy Clause challenge have concluded that

there is no double jeopardy problem precisely because

the post-revocation punishment was punishment for the

underlying crime of conviction, not for the supervised

release violation alone. See United States v. Amer, 110 F.3d

873, 884 & n.5 (2d Cir. 1997); United States v. Woodrup, 86

F.3d 359, 362 (4th Cir. 1996); United States v. Wyatt, 102

F.3d 241, 245 (7th Cir. 1996); United States v. Soto-Olivas,

44 F.3d 788, 789-90 (9th Cir. 1995). However, were the

Court to conclude in this case that post-revocation sanc-

tions are punishment for the supervised release violation,

and not for the original crime giving rise to the violated

supervised release term, this settled line of cases rejecting

double jeopardy challenges will be thrown into doubt,

and the constitutionality of post-revocation proceedings

will be subjected to challenge.

B. As Applied To Mr. Johnson, Section 3583(h)

Violates The Ex Post Facto Clause By Retroac-

tively Increasing The Punishment For His

Crime.

1. “It is axiomatic that for a law to be ex post facto it

must be more onerous than the prior law.” Dobbert v.

Florida, 432 U.S. 282, 294 (1977). Because section 3583(h)

was applied to increase the quantum and nature of Mr.

Johnson’s punishment, it clearly meets this standard.

When the district court revoked Mr. Johnson’s origi-

nal supervised release term, it imposed a new sanction of

incarceration for 1'/2 years and another term of super-

vised release for one year, for a total of 2'/2 years of

punishment. While the new term of incarceration fell

within the two-year period authorized by the statute, the

district court further extended petitioner’s sentence by

imposing an additional year of supervised release. The

supervised release “tail” impermissibly extended Mr.

Johnson’s punishment in a manner plainly not authorized

under the pre-amendment revocation provision in sub-

section (e)(3). Moreover, the length of the overall sanction

ordered by the district court exceeded by six months the

maximum period of restraint authorized by statute. As

such, application of section 3583(h) in this case violates

the Ex Post Facto Clause.

This Court’s previous ex post facto decisions compel

the conclusion that the application of section 3583(h) to

Mr. Johnson is unconstitutional. For example, in Lindsey v.

Washington, 301 U.S. 397 (1937), the sentencing court had

imposed as a mandatory minimum sentence the same

sentence that had previously been the maximum sentence

for the crime of grand larceny under the previous law. Id.

at 398-400. This Court held that the application of this

new statute to persons who committed grand larceny

before its enactment violated the Ex Post Facto Clause,

because it increased the measure of punishment pre-

scribed by the statute in effect when the crimes were

committed. See id. at 400-01. The Court rejected the argu-

ment that application of the new statute was constitu-

tional for the reason that the sentencing court might have

imposed the statutory maximum under the old statute,

which would have resulted in the same prison sentence

imposed by application of the new statute. See id. The

Court emphasized that the constitutional infirmity of the

statute was the detrimental change to the possible penalty

for a crime already consummated. See id. at 401. The new

statute clearly increased the possible range of punish-

ment, transforming what had been the punishment “ceil-

ing” into a minimum mandatory “floor” of punishment.

Application of the new range of punishment was imper-

missible, because the defendant was exposed to new

mandatory provisions as well as a greater range of pun-

ishment.

Here, with application of subsection (h), Mr. johnson

suffered the imposition of an additional punishment,

unauthorized under the pre-amendment version of sub-

section (e)(3), in the form of reimposition of supervised

release. Moreover, the addition of one year of supervised

release caused the entire period of punishment to exceed

that which was possible under the pre-amendment ver-

sion of (e)(3). Lindsey, however, forecloses the imposition

of a new form of punishment under the new statute and

highlights the ex post facto violation that results from

imposing a punishment that extends beyond the range

previously authorized by the pre-amendment version of

subsection (e)(3).

Reaffirming the basic principle of Lindsey, the Court

held in Weaver, Miller, and Lynce that statutes that alter

the formula used to calculate the sentences of individuals

who committed crimes before the changes were enacted

violate the Ex Post Facto Clause. The offending statute in

Weaver retroactively reduced the gain time credits an

inmate could earn to reduce his sentence for compliance

with prison rules. See Weaver, 450 U.S. at 26-28. “The new

statute” in Weaver “did not withdraw any credits already

awarded to Weaver, but by curtailing the availability of

future credits it effectively postponed the date when he

would become eligible for early release.” Lynce, 519 U.S.

at 442. The Court unanimously concluded that this statute

was unconstitutional.

Importantly, the Court in Weaver expressly rejected

the government’s contention that the statute was not

retrospective because it affected gain time credits that

had not yet been earned. See 450 U.S. at 31-32. The Court

rightly concluded that, “[flor prisoners who committed

crimes before its enactment, [the new statute] substan-

tially alters the consequences attached to a crime already

completed, and therefore changes the ‘quantum of pun-

ishment.’ ” Id. at 33 (quoting Dobbert v. Florida, 432 US.

282, 293-94 (1997). In Miller, the statute in question sim-

ilarly altered the formula for calculating the petitioner's

presumptive sentencing range by increasing the number

of sentencing “points” assigned to his offense after he

committed the crime. See Miller, 482 U.S. 425-27. The

Court struck down the retroactive application of this law

as an unconstitutional ex post facto increase in peti-

tioner’s punishment. See id. at 435-36. Finally, in Lynce,

the challenged statute retroactively canceled all provisio-

nal credits awarded to inmates convicted of particular

crimes. See Lynce, 519 U.S. at 435-46. Once again, the

Court unanimously concluded that this retroactive can-

cellation, which lengthened the petitioner’s sentence after

the crime was committed, was unconstitutional. Id. at

445-49.

Based on the standards established in Lindsey, Miller,

Weaver, and Lynce, this case does not present a close

question. As a result of the application of section 3583(h)

to Mr. Johnson, the quantum of his punishment was

increased by six months. Because subsection (h) changed

the law as it existed at the time of Mr. Johnson’s original

conviction and substantively altered the consequences

attached to a crime already committed, this retrospective

increase in his punishment cannot stand.

2. This Court’s decision in Morales does not alter the

conclusion that, if applied retroactively, section 3583(h)

violates the Ex Post Facto Clause. In Morales, this Court

held that, in order to establish an ex post facto violation,

an offender must show that the retroactive harm is more

than some ambiguous “disadvantage,” or the mere denial

of an uncertain “opportunity” to take advantage of early

release provisions. Morales, 514 U.S. at 506 n.3. Instead,

the Morales court explained, a statutory change violates

the ex post facto prohibition if it “alters the definition of

criminal conduct or increases the penalty by which a

crime is punishable.” Id. at 507 n.3.

The statutory amendment at issue in Morales allowed

the parole board, after holding an initial parole hearing,

to defer for up to three years subsequent parole suit-

ability hearings for prisoners convicted of multiple mur-

ders if the board found that it was unreasonable to expect

that parole would be granted at a hearing held any

sooner. Id. at 503-04. Upon review, the Court held that

“there [was] no reason to conclude that the amendment

will have any effect on any prisoner’s actual term of

confinement.” Id. at 512. In other words, the Court's

rejection of the ex post facto challenge in Morales rested

squarely on the conclusion that “a prisoner’s ultimate

date of release would be entirely unaffected by the

change in the timing of [parole] suitability hearings.” Id.

at 513; see Lynce, 519 U.S. at 443-44 (discussing Morales).

In stark contrast, as applied to Mr. Johnson, section

3583(h) unquestionably “produce[d] a sufficient risk of

increasing the measure of punishment attached to the

covered crime[.]” Morales, 514 U.S. at 509. Far from the

purely “conjectural effects” presented in Morales, id., the

effect of the retroactive application of section 3583(h) to

Mr. Johnson was direct and certain. His post-revocation

punishment exceeded by six months the maximum possi-

ble post-revocation sanction he could have received

under the pre-amendment version of section 3583(e)(3).

The actual “risk” of increased punishment for his under-

lying crime of conviction was, in effect, one hundred

percent.

3. Respondent has argued that section 3583(h) does

not violate the Ex Post Facto Clause because its applica-

tion does not actually change the law. See Cert. Opp. 7-8.

Respondent specifically relies on the construction of the

pre-amendment section 3583(e)(3) adopted by two of the

circuit courts of appeals (the First and Eighth Circuits)

and rejected by nine others (the Second, Third, Fourth,

Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Cir-

cuits), see supra notes 3 and 4, for the contention that

“subsection (h) reaffirmed a power that already existed

under prior law.” Cert. Opp. 8. This argument must fail

for three reasons.

First, the law of the Sixth Circuit at the time of Mr.

Johnson’s underlying crime prohibited reimposition of

another term of supervised release following revocation.

See United States v. Truss, 4 F.3d 437, 439 (6th Cir. 1993)

(“no additional term of supervised release is permitted by

section 3583(e)(3)”). As a result, the enactment of section

3583(h) empowered district courts in the Sixth Circuit to

impose sanctions for supervised release violations of a

type and duration they previously had no ability to

impose under prior circuit law. Mr. Johnson, who chal-

lenges section 3583(h) as it has been applied to him in the

Sixth Circuit, confronts a legal regime that clearly

changed after he was convicted of and sentenced for his

underlying crime. In fact, the Sixth Circuit recognized as

much in United States v. Page, 131 F.3d 1173 (6th Cir. 1997),

its leading case rejecting an Ex Post Facto Clause chal-

lenge to the retroactive application of section 3583(h)."

According to the court in Page, “Congress, in effect,

superseded this court’s opinion in United States v. Truss

by enacting section 3583(h).” Id. at 1174.

Second, the basic predicate of Respondent's argu-

ment is incorrect. The pre-amendment version of section

3583 (e)(3) was clear and simply did not permit a district

court to impose subsequent supervised release terms

after revoking the original supervised release term. Sub-

section (a) was the only part of the statute that

empowered the court to impose a supervised release

term, and it was expressly limited to the time of sentenc-

ing for the original offense. Subsection (e) provided a

disjunctive list of options available to the district court

for changing or revoking a supervised release term; this

list, because it provided options separated by the disjunc-

tive “or,” presented discrete and separate alternatives.

Under subsection (e)(3) the district court could “revoke”

supervised release and order that the defendant be reim-

prisoned. As the Fifth Circuit cogently explained in

United States v. Holmes,

1! The Sixth Circuit cited Page in its unpublished decision

in the case at bar. J.A. 49.

“ ‘revoke’ generally means to cancel or rescind.

Once a term of supervised release has been

revoked under § 3583(e)(3), there is nothing left

to extend, modify, reduce or enlarge under

§ 3583(e)(2). The term of release no longer

exists.”

954 F.2d 270, 272-73 (5th Cir. 1992). In other words, “the

revocation and extension options were by their very

nature mutually exclusive” under the pre-amendment

version of section 3583, and neither provided for reim-

position of supervised release.'? Id.

Third, the fact that Congress amended section 3583

by adding an entirely new subsection effectively fore-

closes Respondent’s theory. As Respondent noted in its

brief in opposition to certiorari, although this Court had

not decided whether section 3583(e)(3) empowered the

district courts to impose a term of post-reimprisonment

supervised release (Cert. Opp. 8), an overwhelming

majority of the courts of appeals had decided that the

pre-amendment section 3583(e)(3) does not give the dis-

trict courts any such power. By enacting subsection (h)

however, Congress changed the substantive law and pro-

vided, for the first time, the authority to impose addi-

tional supervised release following revocation. As with

any amendment or enactment of law, such change is to be

12 If there were any doubt about the district court’s power

to impose successive supervised release terms under the prior

statute, that doubt should be resolved, under the rule of lenity,

in favor of more limited sentencing power. See Bifulco v. United

States, 447 U.S. 381, 387, 400 & n.17 (1980) (applying rule of

lenity to sentencing statute).

applied prospectively. And, as this Court has explained,

such a legislative overruling

does not, by itself, reveal whether Congress

intends the “overruling” statute to apply retro-

actively to events that would otherwise be gov-

erned by the judicial decision. A legislative

response does not necessarily indicate that Con-

gress viewed the judicial decision as “wrongly

decided” as an interpretive matter. Congress

may view the judicial decision as an entirely

correct reading of prior law - or it may be

altogether indifferent to the decision’s technical

merits — but may nevertheless decide that the

old law should be amended, but only for the

future.

Rivers v. Roadway Express, Inc., 511 U.S. 298, 304-05 (1994)

(footnote omitted). Given the extent to which “[t}he pre-

sumption against retroactive application of new laws...’

is deeply rooted in our jurisprudence,’ ” Lynce, 519 U.S. at

439 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265

(1994)), the Court should reject any effort by Respondent

to argue that section 3583(h) merely clarified, rather than

changed, pre-existing law.

4. Respondent contends that application of section

3583(h) to Mr. Johnson does not violate the Ex Post Facto

Clause because “he may have benefitted from its applica-

tion to his case.” Cert. Opp. 8. According to Respondent,

“(t]he option afforded under Section 3583(h) for the dis-

trict court to order offenders like [Mr. Johnson] to serve

shorter terms in prison to be followed by supervised

release, rather than potentially lengthier terms of prison

alone, reduces any ex post facto concerns in the applica-

tion of Section 3583(h).” Id. at 9. This argument is without

merit.

First, Respondent is simply incorrect as a matter of

fact. When the district court revoked Mr. Johnson's origi-

nal supervised release term, it imposed as a sanction a

sentence six months longer than the maximum sentence it

could have imposed under the law in effect in the Sixth

Circuit at the time of Mr. Johnson’s conviction, and

imposed a type of punishment - a supervised release

“tail” — not contemplated by subsection (e)(3). Clearly,

Mr. Johnson did not benefit by this extra six months of

punishment. Furthermore, this Court’s decisions in Lind-

sey and Miller foreclose any argument that, in order to

prevail, Mr. Johnson must show that the district court

would not have reimprisoned him for more than 1'/2

years if it had been constrained to apply section

3583(e)(3). In Miller, the Court rejected the contention

“that the [challenged] change in guidelines laws is

not disadvantageous because the petitioner ‘cannot

show definitively that he would have gotten a lesser

sentence.’ ” 482 U.S. at 432. According to the Court,

Lindsey establishes “that one is not barred from

challenging a change in the penal code on ex

post facto grounds simply because the sentence

he received under the new law was not more

onerous than that which he might have received

under the old.”

Id. (quoting Dobbert v. Florida, 432 U.S. 282, 300 (1977)).

There is no cause for the Court to depart from that settled

principle in this case.

Second, the contention that Mr. Johnson benefits

from the sanction imposed rests on unsupportable

grounds. The premise for such an argument is that more

supervised release is better than less incarceration. How-

ever, the courts of appeals have recognized, for Ex Post

Facto Clause purposes, that loss of liberty entailed by a

lengthier term of supervised release has independent

constitutional significance: “Supervised release is punish-

ment; it is a deprivation of some portion of one’s liberty

imposed as a punitive measure for a bad act.” United

States v. Dozier, 119 F.3d 239, 242 (3d Cir. 1997); see also

United States v. Eske, 189 F.3d 536, 539-40 (7th Cir. 1999)

(striking down retroactive application of 3583(h) because

it “equal[ed] three years of restraint on the defendant's

freedom versus two years possible under the old statute -

clearly a new burden upon Eske he could not have antici-

pated when his crime was committed”); United States v.

Collins, 118 F.3d 1394, 1397 (9th Cir. 1997) (“Three years of

restriction may reasonably be viewed on its face as a

more onerous penalty than two years of restriction.”).

Furthermore, Respondent’s argument rests on the

presumption that there is no ex post facto violation where

a legislature retroactively imposes a longer sentence for a

crime so long as the conditions of the lengthier confine-

ment are arguably less harsh. Under such a theory, Con-

gress could retroactively increase the prison sentence for

a crime so long as it also required that the additional time

be served in a less restrictive facility, e.g., a minimum

security facility rather than a maximum security facility.

Such is not the law. This Court has repeatedly empha-

sized that the key question in a case such as this is

whether the quantum of punishment has been retroac-

tively increased. See Lynce, 519 U.S. at 442 (essential

inquiry was “whether the cancellation of 1860 days of

accumulated provisional credits had the effect of length-

ening petitioner’s period of incarceration”); Morales, 514

U.S. 513 (“Such a prisoner’s ultimate date of release

would be entirely unaffected by the change in the timing

of suitability hearings.”); Weaver, 450 U.S. at 33 (preclud-

ing retroactive application of statute that “[b]y defini-

tion .. . lengthens the period that someone in petitioner’s

position must spend in prison”). Where sentences as a

whole have been made lengthier by retroactive legisla-

tion, this Court has consistently set those sentences aside

as unconstitutional.

C. Retroactive Application Of Section 3583(h) Vio-

lates The Fundamental Interests That The Ex

Post Facto Clause Is Designed To Protect.

At least three important public policies underlie the

Ex Post Facto Clause: (1) to give the public fair warning

of and reliance upon the criminal law, see Miller, 482 U.S.

at 430; Weaver, 450 U.S. at 28, (2) to restrain government

from enacting arbitrary legislation, see Miller, 482 U.S. at

429; Weaver, 450 U.S. at 29; and (3) to maintain the separa-

tion of powers, see Weaver, 450 U.S. at 29 n.10. Applica-

tion of section 3583(h) to Mr. Johnson flouts each of these

policies.

Most significantly, the retroactive application of sec-

tion 3583(h) to extend the term of Mr. Johnson’s punish-

ment beyond that which could have been imposed under

the pre-amendment section 3583(e)(3) violates principles

————————

of reliance and fair warning that necessarily undergird

any system that includes plea bargaining. As this Court

observed in Lynce, the Ex Post Facto Clause expressly

protects a “defendant engaged in negotiations that may

lead to an acknowledgment of guilt and a suitable pun-

ishment.”13 519 U.S. at 440. Mr. Johnson pleaded guilty to

the underlying crime of conviction in this case. J.A. 4-6.

Such a plea must be voluntary and knowing: under Fed-

eral Rule of Criminal Procedure 11(c)(1), the district court

was required to inform Mr. Johnson of, among other

things, “the maximum possible penalty provided by law,

including the effect of any special parole or supervised

release term.” Fed. R. Crim. P. 11(c)(1); see also Hill v.

Lockhart, 474 U.S. 52 (1985). In determining whether to

enter a plea, Mr. Johnson was entitled to take into account

the magnitude of the punishment for the crime as it then

existed with the confidence that the punishment would

not be enlarged after the fact. Retroactive application of

section 3583(h) to Mr. Johnson to enlarge his punishment

by six months thus is a “bait and switch” scheme that

defeats Mr. Johnson’s reasonable expectations concerning

his punishment without the constitutionally required fair

warning.

13 As one commentator has noted, “[t}he vast majority of

federal criminal cases are handled by plea bargain.” Risking

Retroactive Punishment, supra note 6, at 1577. In the plea

bargaining setting, which assumes knowing negotiation by

rational actors, “the interaction between the government and

the defendant takes on all the trappings of a ‘bargain,’ with the

criminal defendant well aware of both the ramifications of his

plea and his opportunities for early release or lenient

treatment.” Id.

Retroactive application of section 3583(h) to Mr.

Johnson is also unconstitutionally arbitrary and vindic-

tive. The punishment for his crime was actually expanded

by six months beyond the longest sanction the district

court could have imposed under the pre-amendment ver-

sion of section 3583(e)(3). There is no justification for

lengthening Mr. Johnson’s punishment beyond the limit

imposed by the statute in effect at the time of his convic-

tion, other than the reason posed by Respondent: it is

possible to do so with application of subsection (h). Such

a “reason” however, is not a valid explanation or exercise

of the legislature’s power.'* Finally, the application of

section 3583(h) to Mr. Johnson violates basic separation of

powers rrinciples by granting to Congress the power to

determine the retroactive effect of penal laws, thereby

usurping the role of the Judiciary and the Executive. See

Weaver, 450 U.S. at 29 n.10.

Il. THE COURT OF APPEALS ERRONEOUSLY

VIEWED PETITIONER’S POST-REVOCATION

REIMPRISONMENT AND SECOND SUPERVISED

RELEASE AS PUNISHMENT FOR A POST-

AMENDMENT CRIME.

The court of appeals rejected Mr. Johnson’s challenge

to the application of section 3583(h). J.A. 48-49 (stating

4 See Calder, 3 U.S. (3 Dal.) At 389 (English ex post facto

laws “were stimulated by ambition or personal resentment, and

vindictive malice”); Risking Retroactive Punishment, supra note 6,

at 1579 (“Where the legislature has passed a law that heaps

extra punishments on politically weak constituencies such as

felony convicts, there is the risk that this is done for no other

reason than to curry favor with voters and ensure reelection.

Indeed, it was just this sort of self-interested, ambitious

behavior that the Calder Court warned against.”).

a ooo

that “the application of § 3583(h) does not violate the Ex

Post Facto Clause,” citing United States v. Page, 131 F.3d

1173 (6th Cir. 1997), and United States v. Abbington, 144

F.3d 1003 (6th Cir.), cert. denied, 119 S. Ct. 344 (1998). In

Page and Abbington, the court reached the same result,

finding no ex post facto violation for the same reason -

that section 3583(h) is not “retrospective” for ex post

facto purposes. According to the Sixth Circuit,

section 3583(h) was passed before [the defen-

dants] violated the terms of their supervised

release, which precipitated their current sen-

tences. . . . [S]ection 3583(h) does not alter the

punishment for defendants’ original offenses;

section 3583(h) instead imposes punishment for

defendants’ new offenses for violating the con-

ditions of their supervised release — offenses

they committed after section 3583(h) was

passed.

Page, 131 F.3d at 1175-76; Abbington, 144 F.3d at 1005

(quoting Page).

The Sixth Circuit’s analysis grossly oversimplifies the

issues in these cases for several reasons. First, as illus-

trated by the foregoing discussion, any order of incarcer-

ation or reimposition of supervised release, upon

revocation of the original term of supervised release, is

not governed by the supervised release violation itself.

Instead, the punishment is a function of the terms and

conditions subsequent that were set forth at the time of

the original sentence for the underlying offense. An anal-

ogy to basic tenets of contract law demonstrates this

concept. Where a contract establishes and defines a con-

dition subsequent (e.g., maintenance of a particular sales

rate), as well as the consequences of a breach of that

condition (e.g., a specific monetary penalty), the party

aggrieved by the breach of the condition subsequent can-

not, post hoc, increase the amount of penalty to be

imposed as a consequence of the breach. When the par-

ties agreed to the contract, just as when Mr. Johnson

entered into a plea agreement with an understanding of

the specific and conditional penalties to be imposed, the

bargain was made, fair warning was given and he was

entitled to rely upon the terms as they existed at that

time. Imposition of a unilateral, post hoc change in Mr.

Johnson's sentence, as in the contract arena, is both arbi-

trary and unfair. See Weaver, 450 U.S. at 30; see also See

Risking Retroactive Punishment, supra note 6, at 1561; Ryan

M. Zenga, Note, Retroactive Law or Punishment for a New

Offense? The Ex Post Facto Implications of Amending the

Statutory Provision Governing Violations of Supervised

Release, 19 W. New Eng. L. Rev. 499, 500, 525-41 (1997).

Furthermore, the text and structure of section 3583

compel the conclusion that, when supervised release is

revoked and an additional term of prison and/or super-

vised release is imposed, the sentence being executed is

the sentence for the original crime of conviction. Addi-

tional prison time and reimposition of supervised release

terms are not punishments for the later violation of the

original supervised release term. This is especially clear

in the case, such as here, where the violation stems from a

criminal act because such criminal act is separately pun-

ished under the relevant criminal code. Second, the con-

trary conclusion raises serious Due Process and Double

Jeopardy problems. See supra Section 1A. The court of

appeals’ analysis of the issue in this case cannot be

squared with the text of section 3583 or this Court’s Ex

Post Facto Clause jurisprudence.

CONCLUSION

For the foregoing reasons, Mr. Johnson respectfully

requests that the judgment of the United States Court of

Appeals for the Sixth Circuit be reversed.

Respectfully submitted,

Jerrrey T. GREEN Lean J. Prewitt

JoserH S. MiILter Rita LaLumia*

Sio_ey & AusTIN Davip F. Ness

1722 Eye Street, N.W. FeperaAL DereNDEeR SERVICES

Washington, D.C. 20006 or EasTeRN TENNESSEE, INC.

(202) 736-8000 707 Georgia Avenue, Suite 203

Cha , Tennessee 37402

) Commen (423) 756-4349

Counsel for Petitioner

Cornell Johnson

*Counsel of Record

December 2, 1999

STATUTORY APPENDIX

The pre-amendment version of 18 U.S.C. § 3583 was as

follows:

§ 3583. Inclusion of a term of supervised release after

imprisonment

(a) In general. —- The court, in imposing a sentence

to a term of imprisonment for a felony or a misdemeanor,

may include as a part of the sentence a requirement that

the defendant be placed on a term of supervised release

after imprisonment, except that the court shall include as

a part of the sentence a requirement that the defendant be

placed on a term of supervised release if such a term is

required by statute.

(b) Authorized terms of supervised release. -

Except as otherwise provided, the authorized terms of

supervised release are —

(1) for a Class A or Class B felony, not more

than five years;

(2) for a Class C or Class D felony, not more

than three years; and

(3) for a Class E felony, or for a misdemeanor

(other than a petty offense), not more than

one year.

supervised release. — The court, in determining whether

to include a term of supervised release, and, if a term of

supervised release is to be included, in determining the

length of the term and the conditions of supervised

release, shall consider the factors set forth in section

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

(a)(6).

(d) Conditions of supervised release. —- The court

shall order, as an explicit condition of supervised release,

that the defendant not commit another Federal, State, or

local crime during the term of supervision and that the

defendant not possess illegal controlled substances. The

court may order, as a further condition of supervised

release, to the extent that such condition -

(1) is reasonably related to the factors set forth

in section 3553(a)(1), (a)(2)(B), (a)(2)(C),

and (a)(2)(D);

(2) involves no greater deprivation of liberty

than is reasonably necessary for the pur-

poses set forth in section 3553(a)(2)(B),

(a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy

statements issued by the Sentencing Com-

mission pursuant to 28 U.S.C. 994(a);

any condition set forth as a discretionary condition of

probation in section 3563(b)(1) through (b)(10) and (b)(12)

through (b)(20), and any other condition it considers to

be appropriate. If an alien defendant is subject to depor-

tation, the court may provide, as a condition of super-

vised release, that he be deported and remain outside the

United States, and may order that he be delivered to a

duly authorized immigration official for such deporta-

tion.

(e) Modification of conditions or revocation. — The

court may, after considering the factors set forth in sec-

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

and (a)(6) -

(1) terminate a term of supervised release and

discharge the person released at any time

after the expiration of one year of super-

vised release, pursuant to the provisions of

the Federal Rules of Criminal Procedure

relating to the modification of probation, if

it is satisfied that such action is warranted

by the conduct of the person released and

the interest of justice;

(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 expi-

ration or termination of the term of

supervised release, pursuant to the provi-

sions of the Federal Rules of Criminal Pro-

cedure relating to the modification of

probution and the provisions applicable to

the initial setting of the terms and condi-

tions of post-release supervision;

(3) revoke a term of supervised release, and

require the person to serve in prison all or

part of the term of supervised release with-

out credit for time previously served on

postrelease supervision, if it finds by a pre-

ponderance of the evidence that the person

violated a condition of supervised release,

pursuant to the provisions of the Federal

Rules of Criminal Procedure that are appli-

cable to probation revocation and to the

provisions of applicable policy statements

issued by the Sentencing Commission,

except that a person whose term is revoked

under this paragraph may not be required

to serve more than 3 years in prison if the

offense for which the person was convicted

was a Class B felony, or more than 2 years

in prison if the offense was a Class C or D

felony; or

(4) order the person to remain at his place of

residence during nonworking hours and, if

the court so directs, to have compliance

monitored by telephone or electronic sig-

naling devices, except that an order under

this paragraph may be imposed only as an

alternative to incarceration.

(f) Written statement of conditions. - The court

shall direct that the probation officer provide the defen-

dant with a written statement that sets forth all the condi-

tions to which the term of supervised release is subject,

and that is sufficiently clear and specific to serve as a

guide for the defendant’s conduct and for such supervi-

sion as is required.

(g) Possession of controlled substances. — If the

defendant is found by the court to be in the possession of

a controlled substance, the court shall terminate the term

of supervised release and require the defendant to serve

in prison not less than one-third of the term of supervised

release.

eee ee ee ee

The post-amendment version of 18 U.S.C. § 3583 is as

follows:

§ 3583. Inclusion of a term of supervised release after

imprisonment

(a) In general. —- The court, in imposing a sentence

to a term of imprisonment for a felony or a misdemeanor,

may include as a part of the sentence a requirement that

the defendant be placed on a term of supervised release

after impriscnment, except that the court shall include as

a part of the sentence a requirement that the defendant be

placed on a term of supervised release if such a term is

required by statute or if the defendant has been convicted

for the first time of a domestic violence crime as defined

in section 3561(b).

(b) Authorized terms of supervised release. -

Except as otherwise provided, the authorized terms of

supervised release are -

(1) for a Class A or Class B felony, not more

than five years;

(2) for a Class C or Class D felony, not more

than three years; and

(3) for a Class E felony, or for a misdemeanor

(other than a petty offense), not more than

one year.

supervised release. — The court, in determining whether

to include a term of supervised release, and, if a term of

supervised release is to be included, in determining the

length of the term and the conditions of supervised

release, shall consider the factors set forth in section

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

(a)(6).

(d) Conditions of supervised release. - The court

shall order, as an explicit condition of supervised release,

that the defendant not commit another Federal, State, or

local crime during the term of supervision and that the

defendant not unlawfully possess a controlled substance.

The court shall order as an explicit condition of super-

vised release for a defendant convicted for the first time

of a domestic violence crime as defined in section 3561(b)

that the defendant attend a public, private, or private

nonprofit offender rehabilitation program that has been

approved by the court, in consultation with a State Coali-

tion Against Domestic Violence or other appropriate

experts, if an approved program is readily available

within a 50-mile radius of the legal residence of the

defendant. The court shall order, as an explicit condition

of supervised release for a person described in section

4042(c)(4), that the person report the address where the

person will reside and any subsequent change of resi-

dence to the probation officer responsible for supervision,

and that the person register in any State where the person

resides, is employed, carries on a vocation, or is a student

(as such terms are defined under section 170101(a)(3) of

the Violent Crime Control and Law Enforcement Act of

1994). The court shall also order, as an explicit condition

of supervised release, that the defendant refrain from any

unlawful use of a controlled substance and submit to a

drug test within 15 days of release on supervised release

and at least 2 periodic drug tests thereafter (as deter-

mined by the court) for use of a controlled substance. The

—-— —

condition stated in the preceding sentence may be amelio-

rated or suspended by the court as provided in section

3563(a)(4). The results of a drug test administered in accor-

dance with the preceding subsection shall be subject to

confirmation only if the results are positive, the defendant

is subject to possible imprisonment for such failure, and

either the defendant denies the accuracy of such test or

there is some other reason to question the results of the

test. A drug test confirmation shall be a urine drug test

confirmed using gas chromatography/mass spectrometry

techniques or such test as the Director of the Administra-

tive Office of the United States Courts after consultation

with the Secretary of Health and Human Services may

determine to be of equivalent accuracy. The court shall

consider whether the availability of appropriate substance

abuse treatment programs, or an individual’s current or

past participation in such programs, warrants an exception

in accordance with United States Sentencing Commission

guidelines from the rule of section 3583(g) when consider-

ing any action against a defendant who fails a drug test.

The court may order, as a further condition of supervised

release, to the extent that such condition -

(1) is reasonably related to the factors set forth

in section 3553(a)(1), (a)(2)(B), (a)(2)(C),

and (a)(2)(D);

(2) involves no greater deprivation of liberty

than is reasonably necessary for the pur-

poses set forth in section 3553(a)(2)(B),

(a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy

statements issued by the Sentencing Com-

mission pursuant to 28 U.S.C. 994(a);

any condition set forth as a discretionary condition of

probation in section 3563(b)(1) through (b)(10) and (b)(12)

through (b)(20), and any other condition it considers to

be appropriate. If an alien defendant is subject to depor-

tation, the court may provide, as a condition of super-

vised release, that he be deported and remain outside the

United States, and may order that he be delivered to a

duly authorized immigration official for such deporta-

tion.

(e) Modification of conditions or revocation. — The

court may, after considering the factors set forth in sec-

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

and (a)(6) -

(1) terminate a term of supervised release and

discharge the defendant released at any

time after the expiration of one year of

supervised release, pursuant to the provi-

sions of the Federal Rules of Criminal Pro-

cedure relating to the modification of

probation, if it is satisfied that such action

is warranted by the conduct of the defen-

dant released and the interest of justice;

(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 expi-

ration or termination of the term of

supervised release, pursuant to the provi-

sions of the Federal Rules of Criminal Pro-

cedure relating to the modification of

probation and the provisions applicable to

the initial setting of the terms and condi-

tions of post-release supervision;

(3)

(4)

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 pro-

bation or supervised release, finds by a pre-

ponderance of the evidence that the

defendant violated a condition of super-

vised release, except that a defendant

whose term is revoked under this para-

graph 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

is a class C or D felony, or more than one

year in any other case; or

order the defendant to remain at his place

of residence during nonworking hours and,

if the court so directs, to have compliance

monitored by telephone or electronic sig-

naling devices, except that an order under

this paragraph may be imposed only as an

alternative to incarceration.

(f) Written statement of conditions. - The court

shall direct that the probation officer provide the defen-

dant with a written statement that sets forth all the condi-

tions to which the term of supervised release is subject,

and that is sufficiently clear and specific to serve as a

10a

guide for the defendant’s conduct and for such supervi-

sion as is required.

(g) Mandatory revocation for possession of con-

trolled substance or firearm or for refusal to comply

with drug testing. - If the defendant -

(1) possesses a controlled substance in viola-

tion of the condition set forth in subsection

(d);

(2) possesses a firearm, as such term is defined

in section 921 of this title, in violation of

Federal law, or otherwise violates a condi-

tion of supervised release prohibiting the

defendant from possessing a firearm; or

(3) refuses to comply with drug testing

imposed as a condition of supervised

release;

the court shall revoke the term of supervised release and

require the defendant to serve a term of imprisonment

not to exceed the maximum term of imprisonment autho-

rized under subsection (e)(3).

(h) Supervised release following revocation. -

When a term of supervised release is revoked and the

defendant is required to serve a term of imprisonment

that is less than the maximum term of imprisonment

authorized under subsection (e)(3), the court may include

a requirement that the defendant be placed on a term of

supervised release after imprisonment. The length of

such a term of supervised release shall not exceed the

term of supervised release authorized by statute for the

offense that resulted in the original term of supervised

lla

release, less any term of imprisonment that was imposed

upon revocation of supervised release.

(i) Delayed revocation. - The power of the court to

revoke a term of supervised release for violation of a

condition of supervised release, and to order the defen-

dant to serve a term of imprisonment and, subject to the

limitations in subsection (h), a further term of supervised

release, extends beyond the expiration of the term of

supervised release for any period reasonably necessary

for the adjudication of matters arising before its expira-

tion if, before its expiration, a warrant or summons has

been issued on the basis of an allegation of such a viola-

tion.

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.