# Petitioners Brief — Johnson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0387%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 694 ## 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 o 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. 2) 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. ii 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 .... 11 11 13 21 32 oe 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 iv 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 v 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 vi 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) eeeoeoeveeep eve eeeeeeeeeeeeeeeeeeeeee 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 © This illustration is drawn from Bryan R. Diederich, Note, 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)). S 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 10 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 11 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 12 (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 13 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 14 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 15 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 16 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. 17 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 18 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.”). 19 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. 20 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 21 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 22 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 23 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. 24 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 25 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 26 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 27 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. 28 “ ‘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). a 29 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 30 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. 31 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 32 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 ———————— 33 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. 34 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 35 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 36 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 37 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 la 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. (c) Factors to be considered in including a term of 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 2a 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. 3a (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 4a 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 5a 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. (c) Factors to be considered in including a term of 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 6a 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 —-— — 7a 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); 8a 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) 9a 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0387%3A5. Public record. Not legal advice.