United States v. Steven Perry
2014 U.S. App. LEXIS 2843
7th Cir.2014Background
- In 2003 Perry shared and possessed child pornography; indicted in 2004 and pleaded guilty in 2005 to two counts under 18 U.S.C. §§ 2252/2252A.
- Original sentence (2005): 60 months’ imprisonment + 5 years supervised release on one count; concurrent 46 months + 3 years on second; several standard and six special supervision conditions.
- First supervised-release violation (2009): Perry was with a 12-year-old; he admitted fault and served 3 months in prison, then 4 years supervised release under the same prior conditions.
- Second supervised-release violation (2013): Probation officer found child pornography on Perry’s computer; Perry admitted the violation.
- At the revocation hearing parties and the district court relied on the post-2006 version of 18 U.S.C. § 3583(k) and orally imposed a 5‑year prison term + 10 years supervised release “on the same conditions originally set.” The written judgment increased the sentence to five years and added four new special conditions not mentioned at the hearing.
Issues
| Issue | Plaintiff's Argument (Perry) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether § 3583(k) five-year mandatory minimum applies at revocation | The controlling statute is the version in effect when the original offense occurred (2003), which caps revocation imprisonment at 2 years for a Class C felony | The court may apply the post-2006 § 3583(k) five-year minimum because parties and district court relied on it | Court: Apply the statute in effect at time of offense; vacated 5-year term and remanded for sentence not to exceed 2 years |
| Whether prior revocation prison time must be credited against the statutory maximum for a later revocation | Perry: His prior 3 months should reduce the new statutory maximum to 21 months | Government: The 2003 amendment permits a per-revocation statutory cap without aggregation | Court: The 2003 amendment eliminated aggregation; prior revocation time not credited; district court may impose up to 2 years on this revocation |
| Whether four additional special conditions in the written judgment are valid | Perry: Written judgment added conditions not orally pronounced; oral sentence should control | Government: (Implicit) written judgment reflects court’s determination | Court: Oral pronouncement controls; vacated the four additional written conditions; remanded to permit the district court to set supervision conditions under § 3583(e)(2) |
| Remedy on remand | Perry: Seek sentencing consistent with 2003 law and reinstatement of original conditions | Government: (Implicit) re-sentencing consistent with applicable law | Court: Vacate sentence and extra conditions; remand for sentencing ≤2 years and for district court to determine conditions of supervised release |
Key Cases Cited
- Johnson v. United States, 529 U.S. 694 (statute applied as of date of offense absent clear retroactivity)
- Gozlon-Perez v. United States, 498 U.S. 395 (statutory effective date rule)
- Lynce v. Mathis, 519 U.S. 433 (presumption against retroactivity)
- Landgraf v. USI Film Products, 511 U.S. 244 (retroactivity principles for statutes)
- United States v. Withers, 128 F.3d 1167 (pre-2003 aggregation of revocation terms)
- United States v. Epstein, 620 F.3d 76 (post-2003 per-revocation limits; no aggregation)
- United States v. Shabazz, 633 F.3d 342 (same: amendment removed aggregation)
- United States v. Lewis, 519 F.3d 822 (plain-language reading permits per-revocation sentences)
- United States v. Knight, 580 F.3d 933 (2003 amendment precludes aggregate limit)
- United States v. Hernandez, 655 F.3d 1193 (clause creates independent per-revocation limit)
- United States v. Spencer, 720 F.3d 363 (statute unambiguous; per-revocation limits)
- United States v. Alburay, 415 F.3d 782 (oral sentence controls over inconsistent written judgment)