United States v. Hendrix, 673 F. App'x 850

Hendrix was convicted in 2004 for receiving child pornography, sentenced to 96 months imprisonment and 3 years supervised release; supervised release began June 21, 2012.
In 2014 Hendrix admitted violations at a revocation hearing and was sentenced to 2 years imprisonment; about three hours later the district court held a second hearing and added one year of supervised release.
On appeal this court (Hendrix I) held Rule 35 did not permit the district court to modify the sentence at the later time, but treated whether the court could invoke 18 U.S.C. § 3583(e)(2) to extend Hendrix’s original unexpired term of supervised release as potentially permissible and instructed the district court on remand to consider § 3583(e)(2).
On remand the district court expressly invoked § 3583(e)(2) and extended the original term of supervised release by one year, finding Hendrix would benefit from probation services; Hendrix challenged that action.
The principal legal dispute before this panel was whether the law-of-the-case established by Hendrix I required the district court to follow that prior ruling or whether Hendrix could avoid it by showing the prior decision was clearly erroneous or otherwise invalid.

Issue	Hendrix's Argument	Government's Argument	Held
Whether district court had authority under 18 U.S.C. § 3583(e)(2) to extend a revoked, but unexpired, term of supervised release	Hendrix argued § 3583(e)(2) does not apply once supervised release has been revoked and thus cannot be used to add time	Government argued § 3583(e)(2) permits extension because a revoked but unexpired term is not extinguished	Court held § 3583(e)(2) can support extension; prior panel’s conclusion stands
Whether the panel should revisit Hendrix I under the law-of-the-case doctrine because Hendrix I was clearly erroneous and would work a manifest injustice	Hendrix argued Hendrix I relied on Supreme Court dicta and ignored § 3583’s statutory scheme, so it was "dead wrong" and not binding law of the case	Government argued Hendrix forfeited these arguments on remand and that Hendrix I is not clearly erroneous given controlling precedent and other circuits’ rulings	Court held Hendrix I was not clearly erroneous and law of the case controlled; district court did not err in following it
Whether Hendrix forfeited or waived his challenge to application of the law-of-the-case doctrine on remand	Hendrix contended jurisdictional challenges cannot be waived	Government pointed out Hendrix did not raise law-of-the-case or plain-error review below and thus forfeited the argument	Court found Hendrix forfeited the law-of-the-case argument on remand but in any event the argument fails on the merits

Johnson v. United States, 529 U.S. 694 (Sup. Ct.) (dicta addressing post-revocation jurisdiction over supervised release)
Agostini v. Felton, 521 U.S. 203 (Sup. Ct.) (law-of-the-case principles)
Bishop v. Smith, 760 F.3d 1070 (10th Cir.) (law-of-the-case and scope when prior panel resolved jurisdictional matter)
United States v. Winfield, 665 F.3d 107 (4th Cir.) (district court retains jurisdiction to extend revoked supervised release)
United States v. Vargas, 564 F.3d 618 (2d Cir.) (revocation is not equivalent to termination of supervised release)
United States v. Hendrix, [citation="630 F. App'x 816"] (10th Cir.) (prior panel decision addressing Rule 35 and § 3583(e)(2))