UNITED STATES оf America, Plaintiff-Appellee, v. Duane Douglas LOMINAC, Defendant-Appellant.
No. 96-4282.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 1, 1997. Decided May 11, 1998.
143 F.3d 308
Before WIDENER and MICHAEL, Circuit Judges, and THORNBURG, United States District Judge for the Western District of North Carolina, sitting by designation.
Vacated and remanded by published opinion. Judge MICHAEL wrote the
OPINION
MICHAEL, Circuit Judge:
Duane Lominac appeals from a sentence imposed for the violation of conditions of his supervised release. The district court revoked Lominac‘s supervised release and sentenced him under
I.
Lominac and an accomplice defrauded the American Express Travel Related Services Company out of $166,000 by using credit cards obtained under fictitious names. See American Express Travel Related Servs. Co. v. Lominac, 158 F.R.D. 376, 376-77 (E.D.Va. 1994). Lominac pled guilty on July 6, 1989, to two counts of an indictment charging conspiracy to defraud,
On February 14, 1996, less than a week before Lominac would have completed his entire sentence, the district court issued a summons requiring him to appear and show cause why his supervised release should not be revoked. After holding an evidentiary hearing on March 26, 1996, the court found that Lominac had violated the terms of his
Lominac, who appeared at the hearing pro se, objected to this sentence, saying “I don‘t think that I was originally convicted under the law you are sentencing me under.... I think that the subsection you are using ... to continue my supervised release ... was added on after I was originally convicted.” The district court took Lominac‘s comment as an ex post facto challenge.
At the time Lominac committed his crimes,
(1) terminate a term of supervised release and discharge the person released ...;
(2) extend a term of supervised release if less than the maximum authorized term [defined by
18 U.S.C. § 3583(b) ] was previously imposed, and ... modify, reduce, or enlarge the conditions of supervised release...;(3) 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 postrelease supervision ..., except that a person whose term is revokеd 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, or more than 2 years in prison if the offense was a Class C or D felony; or
(4) order the person to remain at his place of residence during nonworking hours....
Congress acted on September 13, 1994, when it amended
When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), 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 uрon revocation of supervised release.
The district court rejected Lominac‘s pro se argument that it was an ex post facto violation to use
II.
Lominac argues that the district court‘s application of
Our ex post facto analysis involves a two-step inquiry. “To fall within the ex post facto prohibition, a law must [1] be retrospective ... and [2] it ‘must disadvantage the offender affected by it’ by altering the definition of criminal conduct or increasing punishment for the crime.” Lynce, 117 S.Ct. at 896 (citations omitted); accord California Dep‘t of Corrections v. Morales, 514 U.S. 499, 504 (1995); Collins, 497 U.S. at 43 (“Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.“); see also Weaver, 450 U.S. at 29. The two-step analysis follows.
A.
“A law is retrospective if it ‘changes the legаl consequences of acts completed before its effective date.‘” Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver, 450 U.S. at 31); see also Weaver, 450 U.S. at 28, 30 (retrospectivity determined in reference to time that “act to be punished occurred“); United States v. Parriett, 974 F.2d 523, 526 (4th Cir.1992) (same). Because
In Fender v. Thompson, 883 F.2d 303, 304 (4th Cir.1989), we were faced with an ex post facto challenge to a Virginia law providing that anyone “sentenced to life imprisonment who escapes from a correctional facility or from any person in charge of his custody shall not be eligible for parole.” Fender, who was serving a life sentence when the law was enacted, escaped from custody and subsequently pled guilty to one count of escape. After Fender received a three-year prison sentence for the independent crime of escape, the Virginia Department of Corrections invoked the new law, issuing an order that Fender was no longer eligible for parole on his life sentence. On habeas review, we rejected the Commonwealth‘s argument that the statute merely “enhanced punishment for the crime of ‘escape.‘” Id. at 306. Although the Commonwealth “could have enacted a pure ‘recidivist’ statute [that] enhanced the penalty for [the crime of] escape” itself, it chose not to do that. Id. at 307 n. 3. Because we concluded that the punishment of parole ineligibility was not attributable to the crime of escape, we held that the effect of the statutory change was to increase retroactively the punishment for Fender‘s prior crimes.
Later, in United States v. Parriett, 974 F.2d 523, 525-27 (4th Cir.1992), we addressed an argument identical to the one before us today in the context of an ex post facto challenge to
Our decision in Parriett completely forecloses the government‘s argument in this case. Because “punishment for violating the terms of supervised release is punishment for the original offense,” United States v. Woodrup, 86 F.3d 359, 361 (4th Cir.) (citing Parriett), cert. denied, 519 U.S. 944, 117 S.Ct. 332, 136 L.Ed.2d 245 (1996), Lominac‘s sentence under
B.
The focus in the second step of the inquiry “is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” California Dep‘t of Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995). There is no claim here that
The government argues that the district court properly concluded that Lominac was not disadvantaged by an increase in punishment. The government says that Lominac could have received a four-year prison sentence under the old scheme, which would have restrained his liberty for a period longer than the sentence he actually received (six months of imprisonment and thirty months of release). The government adds that
The government‘s analysis, however, must be rejected. “[O]ne is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old.” Dobbert v. Florida, 432 U.S. 282, 300 (1977); accord Miller v. Florida, 482 U.S. 423, 432 (1987). Because “the Ex Post Facto Clause looks to the standard of punishment prescribed by the statute, rather than to the sentence actually imposed ... an increase in the possible penalty is ex post facto regardless of the length of the sentence actually imposed....” Lindsey v. Washington, 301 U.S. 397, 401 (1937) (citations omitted) (emphasis added); see also Morales, 514 U.S. at 510 n. 6 (defendant need not “show[ ] that he would have been sentenced to a lesser term under
Instead, we must decide whether the overall effect of
Before subsection (h) was enacted, this circuit read
| Class of Felony | Length of prison term for violating condition of release, | Length of total term of supervised release, |
|---|---|---|
| Class A | Up to 5 years | Up to 5 years |
| Class B | Up to 3 years | Up to 5 years |
| Class C, D | Up to 2 years | Up to 3 years |
| Class E (and misdemeanors) | Up to 1 year | Up to 1 year |
Accordingly, under
In contrast, the newly-enacted
This potential punishment is greater than that under
While the Seventh Circuit‘s decision in United States v. Withers, 128 F.3d 1167, 1170 (7th Cir.1997), does support the government‘s position, we believe that circuit erred in holding that the application of
For Class B, C, and D felonies the amount of prison allowed under
Likewise, if one compares subsection (h) to the option of extending a term of supervised release under
Because the Withers decision incorrectly interpreted the impact of
We therefore hold that the retrospective application of
III.
The usual remedy for an ex post facto violation in sentencing is a remand for resentencing under the law in place at the time the defendant committed his crime. See Weaver v. Graham, 450 U.S. 24, 36 n. 22 (1981); see also United States v. Dozier, 119 F.3d 239, 244, 245 (3d Cir.1997) (remanding for resentencing and noting possibility of increase in sentence); United States v. McGee, 981 F.2d 271, 276 (7th Cir.1992) (remanding and noting that defendant had “won a pyrrhic victory” because of possibility of longer prison sentence on remand). But see United States v. Collins, 118 F.3d 1394, 1399 (9th Cir.1997) (vacating supervised release portion of sentence); United States v. Beals, 87 F.3d 854, 860 (7th Cir.1996) (remanding for district court to eliminate new term of supervised release), overruled in part on other grounds by United States v. Withers, 128 F.3d 1167, 1170-72 (7th Cir.1997). Lominac, however, took the position at oral argument that the proper remedy is an outright discharge. We disagree.
While North Carolina v. Pearce, 395 U.S. 711, 723-26 (1969), modified in part, Alabama v. Smith, 490 U.S. 794, 798-802 (1989), and subsequent cases, see, e.g., Alabama v. Smith, supra; Texas v. McCullough, 475 U.S. 134, 137-44 (1986); Chaffin v. Stynchcombe, 412 U.S. 17, 24-28 (1973); United States v. Kincaid, 964 F.2d 325, 328 (4th Cir. 1992), make it clear thаt a district court cannot vindictively impose a higher sentence on remand, it is equally clear that a higher sentence may sometimes be justified. Thus, Pearce did not eliminate the risk that “a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process.” Chaffin, 412 U.S. at 25; accord Alabama v. Smith, 490 U.S. at 799; see also Safrit v. Garrison, 623 F.2d 330, 332 (4th Cir.1980) (“a void or illegal sentence may be corrected, even though the correction may result in an increase in the sentence“).
When the district court sentenced Lominac to six months in prison and thirty months of supervised release for his release violation, the court said it was departing upward from the three to nine months of imprisonment recommended in the Guidelines. Had the court recognizеd that it lacked authority to impose the new term of supervised release, it might have validly concluded that a prison term of longer than six months was appropriate.11 For this reason, we will remand for resentencing.
On remand, however, any prison time that Lominac receives under a resentence must be reduced by the time he has already served for violating his release, that is, his six months in prison and the time he has served under the (new) unconstitutional term of supervised release. Under
This result is mandated by the Double Jeopardy Clause. The Supreme Court has held that after a conviction is reversed, the Fifth Amendment‘s guarantee against double jeopardy “absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” Pearce, 395 U.S. at 718-19 (footnote omitted); see also Ohio v. Johnson, 467 U.S. 493, 499 (1984); Wilson v. North Carolina, 438 F.2d 284, 286-87 (4th Cir.1971). Because the interest protected by the Double Jeopardy Clause‘s prohibition against multiple punishments for the same offense “‘ensur[es] that the total punishment d[oes] not exceed that authorized by the legislature,‘” Jones v. Thomas, 491 U.S. 376, 381 (1989), credit must be given not only when a defendant is resentenced following a new conviction but also when he is resentenced after a successful challenge to his original sentence. See United States v. McMillen, 917 F.2d 773, 777 (3d Cir.1990) (credit for time served on probation must be “fully ‘credited‘” on remand from government‘s succеssful appeal of sentence). Otherwise, the cumulative punishment imposed on the defendant could exceed those restraints on his liberty that are authorized by the law.
Finally, in deciding to remand, we have considered whether Lominac has served all the time that he is legally required to serve. While the Supreme Court‘s deсision in In re Bradley, 318 U.S. 50 (1943), lends some support to the argument that he has, we believe Bradley is distinguishable. In Bradley the trial court was authorized to impose only imprisonment or a fine for the crime of contempt, but it erroneously sentenced the defendant to both six months in prison and a $500 fine. Before the sentencing court discovered its error and amended its sentence to eliminate the fine, the defendant paid the fine and was delivered into custody. The Supreme Court concluded that by paying the fine, the defendant “had complied with a portion of the sentence which could lawfully have been imposed.” Id. at 52. Thus, because “one valid alternative provision of the original sentence ha[d] been satisfied,” id., the defendant was released from custody. See also United States ex rel. Kanawha Coal Operators Ass‘n v. Miller, 540 F.2d 1213, 1214 (4th Cir.1976) (following Bradley).
Much like Bradley, Lominac was sentenced to two forms of punishment even though the applicable statute did not authorize the court to impose one of those forms. And because Lominac has served the six months in prison, he arguably has satisfied “one valid alternative provision of the original sentence” and, hence, should be released. However, as the Supreme Court explained in Jones v. Thomas, 491 U.S. 376, 384 (1989), the “alternative sentences in Bradley ... were of a different type,” and it simply was not “possible to ‘credit’ a fine against time in prison.” While imprisonment and supervised release are clearly “different type[s]” of punishment, it is possible to credit Lominac‘s time served on supervised release against any time to be served in prison. Unlike thе monetary sanction of a fine, which cannot be converted into an equivalent temporal sanction, Lominac‘s term of supervised release restrained his liberty for a known period of time that can be credited against any future sentence of imprisonment. Accordingly, Bradley does not bar resentencing.
Lominac‘s sentence for violation of supervised release is vacated, and the case is remanded for resentencing in conformity with this opinion.
VACATED AND REMANDED.
WIDENER, Circuit Judge, concurring and dissenting:
I concur in all of the opinion through and including Part II, but as to Part III, I respectfully dissent.
I see no meaningful distinction between Ex Parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1873), and In re Bradley, 318 U.S. 50 (1943), and the present case. Lominac was sentenced to a dual sentence when only one or the other form of