Summaries of Selected Opinions
| Publication year | 2011 |
| Pages | 135 |
| Citation | Vol. 40 No. 11 Pg. 135 |
2011, November, Pg. 135. Summaries of Selected Opinions
November 2011
Vol. 40, No. 11 [Page 135]
U.S. Court of Appeals for the Tenth Circuit
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes").
No. 10-8086. United States v. Hernandez. 08/23/2011. D.Wyo. Judge Gorsuch. Sentencing Guidelines-Available Sentence on Revocation of Supervised Release-Maximum Term Permitted on Multiple Successive Revocations.
Defendant was convicted of possessing an unregistered firearm and sentenced to forty-six months in prison, followed by three years of supervised release. He served his prison sentence and began his term of supervised release. After he violated the terms of his supervised release, the district court revoked the supervised release and sentenced him to serve six more months in prison, followed by a new term of supervised release. Defendant again served his prison sentence and was placed on another term of supervised release, which he also violated. The district court revoked this supervised release and sentenced him to a twelve-month prison sentence and to a fourth term of supervised release. Defendant violated this term and the district court ordered him to serve eighteen months in prison, without a subsequent term of supervised release.
On appeal, defendant attempted to undo the final, eighteen-month prison sentence. He pointed to 18 U.S.C. § 3583(e)(3), which provides that a defendant whose supervised release term has been revoked cannot be required to serve more than two years if his or her offense, like defendant's, is a class C felony. He argued that the prior terms he served after revocation should be aggregated, resulting in a total term served for the three prior revocations of twenty-one months. According to defendant, this meant he could be sentenced only to three more months for his current, fourth revocation. The Tenth Circuit disagreed. The statute provides for a limit of two years "on any such revocation," and provides for no credit for time served as the result of previous revocations.
The language providing for the limit "on any such revocation" was added to the statute in 2003 as a result of the PROTECT Act, a piece of legislation aimed primarily at deterring child sexual abuse. The portion of this legislation encompassing the amendment was entitled "Supervised Release Terms of Sexual Offenders." Acting on this information, defendant argued that non-sexual offenders should still get the benefit of aggregating any prior terms served as the result of previous revocations to determine whether the maximum sentence was met. However, the Circuit noted that the plain language applies to all offenders on any revocation, without exception.
Finally, defendant argued that he was trapped in a never-ending cycle of successive revocations. The Circuit disagreed. Although terms of supervised release cannot be aggregated, 18 U.S.C. § 3583(h) provides that the maximum term of supervised release a court can order as the result of a revocation sentence is limited to the term of supervised release authorized for the original offense, less any term of imprisonment imposed on revocation of supervised release. For purposes of this portion of the statute, successive terms of supervised release are aggregated. Once a defendant serves in prison a total amount of time that is more than the maximum authorized term of supervised release, he or she can no longer be sentenced to an additional term of supervised release, so the "cycle" ends at that point, just as it did in...
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