The Federal Corner - October 2010

"THE FEDERAL CORNER"

How Much Back Time Do I Get Credit For?

F. R. (Buck) Files, Jr.

It happened to me again this week. I read yet another opinion which caused me to say to myself, "Wow! I didn't know that was the law."

If there is a question that criminal defense lawyers are asked by virtually every client who has been assessed a sentence of confinement in a jail or penitentiary, it is this: "How much back time am I going to get credit for?" If you are not absolutely certain about the answer, I would suggest that the only safe response is to say, "You're going to get credit for all the back time that the law allows you to receive credit for." Any other answer invites unhappiness on the part of your client and/or a possible writ of habeas corpus alleging ineffective assistance of counsel.

Mitchell R. Epstein was not a rookie in the federal criminal justice system. In 2007, Epstein pleaded guilty to two counts of a six-count indictment which charged him and two co-defendants with a conspiracy to make false statements in the acquisition of firearms (a Class D felony) and possession of a firearm by a convicted felon (a Class C felony). United States District Judge David N. Hurd of the Northern District of New York sentenced Epstein to serve 27 months imprisonment and three years of supervised release.

After completing his term of imprisonment, Epstein was a law abiding citizen for almost six months before testing positive for marijuana and opiates. Judge Hurd revoked Epstein's supervised release and sentenced him to a term of 12 months imprisonment to be followed by two additional years of supervised release.

After completing his second term of imprisonment, Epstein racked up two more violations of his conditions of supervised release: He possessed an unauthorized cell phone and did so at a location at which he was not authorized to be. Once again, Judge Hurd revoked his supervised release and sentenced him to 24 months imprisonment with no term of supervised release.

You can almost hear Epstein's question to his lawyer: "Am I going to get credit for that year that I served on my first revocation of supervised release?" The United States Court of Appeals for the Second Circuit just answered that question in United States v. Epstein, ___ F.3d ___, 2010 WL 3447884 (2^nd Cir. 2010) (per curiam). Mr. Epstein did not like the Court's answer.

The Court's opinion, reads, in part, as follows:

[THE ISSUE]

The question presented is whether our holding in United States v. Merced, 263 F.3d 34 (2d Cir.2001)-establishing that prior terms of imprisonment for violations of supervised release count toward, and therefore limit, the maximum sentence a district court may impose for a subsequent violation of supervised release under 18 U.S.C. § 3583(e)(3)1-applies to a defendant whose underlying offense was committed after the enactment of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 ('PROTECT Act'), Pub.L. 108-21, § 101, 117 Stat. 650, 651 (2003).

[THE DEFENDANT'S ARGUMENTS ON APPEAL]

Defendant-appellant Mitchell R. Epstein ('defendant' or 'Epstein') appeals from a September 17, 2009 judgment of the United States District Court for the Northern District of New York (David N. Hurd, Judge ) sentencing him principally to 24 months' imprisonment for violating the conditions of his supervised release. Epstein argues that the District Court erred in failing to count his prior 12-month prison term for a violation of supervised release toward his sentence for the subsequent violation. Because 18 U.S.C. § 3583 permits a court to impose a maximum sentence of two years for violations of conditions of supervised release for which the underlying offense was a Class C or D felony, Epstein contends that the 24-month sentence he received after the second revocation of his supervised release exceeds the legal maximum sentence by 12 months.

[THE COURT'S HOLDING]

We hold that prior sentences for violations of the conditions of supervised release are not credited toward, and therefore do not limit, the statutory maximum a district court may impose for a subsequent violation of supervised release pursuant to § 3583(e)(3), as amended by the PROTECT Act. That is, each violation is subject to the maximum sentence notwithstanding time served pursuant to prior revocations. Our holding to the contrary in Merced does not control when a defendant's underlying offense occurred after the enactment of the PROTECT Act. (Emphasis added)

[THE COURT'S REASONING]

Revocation of a defendant's supervised release is governed by 18 U.S.C. § 3583, which, inter alia, permits a court to impose a maximum sentence of two years for violations of conditions of supervised release for which the underlying offense was a Class C or Class D felony. Epstein argues that, having already served 12 months for his first violation of supervised release, the District Court could sentence him to no more than 12 months for his second violation. That is, he argues that the 12-month term of imprisonment he served for his first violation must be counted toward the two-year maximum term authorized in 18 U.S.C. § 3583(e)(3).

***

Section 3583(e)(3) provides that 'a defendant whose term [of supervised release] is revoked ... may not be required to serve on any such revocation more than ... 2 years in prison if the offense [that resulted in the term of supervised release] is a class C or D felony....' 18 U.S.C. § 3583(e)(3) (2006) (emphasis added). This language reflects a 2003 amendment included in the PROTECT Act, in which Congress added the phrase 'on any such revocation' after the phrase 'required to serve.' Pub.L. 108-21, § 101(1), 117 Stat. 650 (codified as amended at 18 U.S.C. § 3583(e)(3) (2006)). This was the only change made to § 3583(e)(3) by the PROTECT Act. (Emphasis added)

Prior to the amendment, our Court, along with every other Court of Appeals to address the question, interpreted § 3583(e)(3) to allow defendants to 'accumulate' prison time served for multiple revocations of supervised release based on the same underlying offense, and to credit this time toward the maximum term of imprisonment authorized by the statute. See Merced, 263 F.3d at 37; accord United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir.2004); United States v. Jackson, 329 F.3d 406, 407-08 (5th Cir.2003); United States v. Swenson, 289 F.3d 676, 677 (10th Cir.2002); United States v. Brings Plenty, 188 F.3d 1051, 1053-54 (8th Cir.1999); United States v. Beals, 87 F.3d 854, 857-58 (7th Cir.1996), overruled on other grounds by United States v. Withers, 128 F.3d 1167, 1172 (7th Cir.1997). This interpretation was based not only on the language of the statute, but also on its legislative history, which revealed that the sponsor of an earlier bill containing nearly identical provisions understood the statutory limits to authorize 'the imposition of an additional term of supervised release following the revocation of supervised release and re-imprisonment ... only if the defendant had served less time in prison for previous supervised release violations than the maximum authorized period of re-imprisonment.' Merced, 263 F.3d at 37-38 (citing 137 Cong. Rec. S7769-72 (daily ed. June 13, 1991) (statement of Sen. Thurmond)). (Emphasis added)

Since the 2003 amendment in the PROTECT Act, every Court of Appeals to have considered the issue has interpreted the amendment to § 3853(e)(3) to eliminate the credit for terms of imprisonment resulting from prior revocations. See United States v. Knight, 580 F.3d 933, 937-38 (9th Cir.2009), United States v. Lewis, 519 F.3d 822, 824-25 (8th Cir.2008); United States v. Williams, 425 F.3d 987, 989 (11th Cir.2005) (in dicta); United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir.2004) (in dicta). We join our sister circuits in holding that the statutory maximum sentences in § 3583(e)(3) apply to each discrete revocation of a defendant's supervised release, irrespective of any time served for previous violations. (Emphasis added)

We look first to the plain meaning of the statutory text....The amended language of § 3583(e)(3), like the previous version of the statute, provides that a court may revoke a term of supervised release, but the amended version limits the maximum term of imprisonment (in Epstein's case, 2 years) 'on any such revocation.' The consequence of adding these words is that the statutory maximum now refers to each successive revocation separately.

Furthermore, the very act of inserting the phrase 'on any such revocation' suggests that, prior to 2003, Congress understood the statutory maximum to apply to the total amount of time served for multiple violations, or at least that Congress was aware that the courts had interpreted the statute in this way.

Epstein argues that such an interpretation of the statute would contradict the purpose of the PROTECT Act. He relies upon the title of Section 101, 'SUPERVISED RELEASE TERM FOR SEX OFFENDERS,' and the Act's stated purpose '[t]o prevent child abduction and the sexual exploitation of children, and for other purposes,' Pub.L. No. 108-21, 117 Stat. 650, 650 (2003), for the proposition that Congress intended to revise sentencing for violations of supervised release only with respect to sex offenders.

Epstein's arguments are unavailing. It is well established that 'the title of a statute cannot limit the plain meaning of its text.' See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (internal quotation marks and alterations omitted); see also Drax v. Reno, 338 F.3d 98, 110 (2d Cir.2003). We acknowledge that, notwithstanding certain miscellaneous provisions, see Pub.L. No. 108-21, § 608, 117 Stat. 650, 691 (modifying the Controlled Substances Act), the PROTECT Act applies primarily to child sex offenders. This arguably creates some uncertainty as to whether Congress intended the amendment to § 3583(e)(3) to apply to all criminal defendants, or to sex offenders alone. The statutory text, however, is unambiguous, and we will not stretch to contradict the text where, as here, the plain meaning produces a result that is neither 'absurd' nor 'plainly at variance' with the policy of the legislation. See E.E.O.C. v. Commercial Office Prods. Co., 486 U.S. 107, 120, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988) (internal quotations marks omitted); accord Yerdon v. Henry, 91 F.3d 370, 376 (2d Cir.1996).

Finally, Epstein argues that our interpretation is undesirable as a matter of public policy. We admit, as we noted in Merced, that applying the maximum sentence under § 3583(e)(3) to each successive revocation 'permit[s] an endless cycle of consecutive terms of imprisonment and supervised release based on a single underlying offense....' Merced, 263 F.3d at 37. But our policy views regarding this possible outcome do not change our responsibility to abide by the clear language of the amended statute. Accordingly, our holding in Merced no longer applies to a defendant whose underlying offense was committed after the enactment of the PROTECT Act.

MY THOUGHTS

• The facts in Epstein's case are, admittedly, not those that we see on a regular basis.
• If Epstein had asked me about getting credit for the time that he spent in confinement as a result of the first revocation of his term of supervised release, I would have missed the correct answer.
• One of the problems that we have in the practice of criminal law in the federal courts is that there is a temptation to look at the opinions of our own Circuit Court and to ignore what is happening in the other Courts of Appeal. By the time that I found Epstein, the First, Eighth, Ninth and Eleventh Circuits had already written on this issue and I was not aware of their opinions. The United States Court of Appeals for Fifth Circuit had not been presented with this issue.
• Once again, we are reminded that thorough research is required if we are going to be intellectually satisfied as to what the law is on a particular issue.