Sentence after revocation can't exceed initial supervised release term.

• Author: Ziemer, David

Byline: David Ziemer

When revoking supervised release, a court cannot order a combined term of imprisonment and additional supervised release that is longer than the original supervised release term, the Seventh Circuit held on Aug. 13.

In 1994, Kevin Russell was convicted of bank fraud, a Class B felony, and sentenced to 70 months' imprisonment and a 60-month term of supervised release. Upon his release from prison, Russell violated the conditions of his supervised release.

As a result, the district court revoked Russell's supervised release and ordered him to serve 36 additional months in prison to be followed by a new 46-month term of supervised release. Russell appealed, and the Seventh Circuit reversed in a decision by Judge Daniel A. Manion.

History

At the time of Russell's conviction in 1994, 18 U.S.C. 3583(e)(3)(1988 ed., Supp. V) authorized district courts to: "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 the time previously served on post-release supervision, ... 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..." The statute has since been amended, but the 1988 version of sec. 3583(e)(3) applies to Russell's sentence.

Section 3583(e)(3) did not specifically address whether a district court revoking a term of supervised release may require a defendant to serve an additional term of supervised release upon his release from prison, and a split developed within the circuits on the issue.

In 1994, Congress attempted to resolve this circuit split by enacting 18 U.S.C. 3583(h), which provides: "When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, 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 release, less any term of imprisonment that was imposed upon revocation of supervised release."

However, another circuit split then developed whether application of sec. 3583(h) to cases involving a conviction preceding the subsection's effective date violated the Ex Post Facto Clause.

The Supreme Court resolved this conflict in Johnson v. United States, 529 U.S. 694, 702 (2000), holding that Congress did not intend for sec. 3583(h) to have retroactive application and thus did not implicate the Ex Post Facto Clause.

In Johnson, the Court also addressed the issue Congress had attempted to resolve by enacting sec. 3583(h) in the first place: whether a district court revoking a term of supervised release in favor of reimprisonment may require service of a further term of supervised release following the further incarceration.' Id. at 704. The Court concluded that a district court could impose a new term of supervised release after reimprisonment, but in doing so held that a combined term...