*1 UNITED STATES America JOHNSON,
Derrick Appellant.
No. 07-1454.
United States of Appeals,
Third Circuit.
Submitted under Third Circuit 34.1(a)
LAR May 2007.
Filed: June Leone,
George Jaso, S. Eric H. Office of Attorney, Newark, NJ, United States United States of America. F.
Maggie Moy, Office of Federal Public Defender, Camden, NJ, Appellant. RENDELL, Before: JORDAN and ALDISERT, Judges. Circuit OPINION OF THE COURT ALDISERT, Judge. Circuit I. 7, 2006, September
On the District Jersey Court for the District of re- New voked Derrick leased and him prison committed for 10 February months. On Aldisert, Judge, Circuit concurring filed Court revoked the same term of opinion. pris- vised released and committed him to on for an additional 36 months. appeals punishment. now He contends the District Court lacked during revoke hearing. argues second also by imposing erred single peri- terms for violations of a od of conclude We *2 John- taking After City. in merit case Atlantic argument second has that Johnson’s assault, the Dis- on the re- and, accordingly, guilty plea remand for son’s we will sentenc- immediately to turned trict Court sentencing. Judge revoked The District Court ing. II. released, committed supervised Johnson’s months, for 10 and prison him to facts The are familiar with the parties re- supervised 10 months of an additional only briefly proceedings, and so we will judgment, its rendering In March of 2003 lease. revisit them here. Between that it was “not dismiss- a reiterated April prison and Johnson served Court merely holding co- 1 and 2 but conspiring ing sentence for to distribute Counts ” abeyance.... caine of 21 In in in violation 846. them April from he was released custo- and took hearing The Counts three-year a dy began super- and term later, February 7, five months place vised release. he acknowledged orig- Johnson poor adjustment made a to life two-hearing proce- Johnson to inally agreed prison. outside of On December nonetheless, argued, dure. He Egg Township Harbor Police arrested him authority to consider District Court lacked assaulting He ex-girlfriend. plead- his in City. committed Atlantic the violations guilty ed state court and sentenced theory case, was According to Johnson’s probation to year one and in court super- $708 revoked his Judge once District May 2, 2006, costs. On Johnson ar- it lost to jurisdiction further vised release rested again. City police charged Atlantic revoke, modify extend same burglary, him with possession, cocaine rejected The of release. District sisting (1) police arrest and assault on a offi- that: argument, reasoning two- cer. hearing prejudice did not scheme (2) way, any parities and waived days later, the Three United States Pro- procedure. Turning from objection to bation Office a sought warrant John- merits, argument to the jurisdiction son’s arrest on the At- based incidents in that Johnson had assault- the Court found City. lantic petition alleged The warrant officer, City and that police ed an Atlantic violations of federal super- Johnson’s a this conduct constituted serious violation first, agreement: vised release that he this, For John- crime, second, a committed state term of 36 months son received probation he notify failed officer run and months’ August 30, an arrest within 72 hours. On 10-month concurrently with the earlier the Probation Office filed revised sentence. petition, alleged third which violation
based on Johnson’s assault conviction
timely appeals. He asks
Johnson now
Egg Harbor.
(1)
three
Did the
questions:
to decide
us
abey-
hold
1 and 2 in
agreement to
Counts
September
ap-
On
jurisdiction
grant
ance
the District Court
peared before the District Court for
(2)
claims,
a District
to hear the
does
Jersey
charges
of New
answer
term of
over a
At Court’s
that he defied the terms of his release.
the term
release end when revokes
hearing,
vised
parties agreed that John-
(3)
Dis-
plead guilty
committing
son would
of im-
assault,
impose multiple
trict Court
terms
Egg Harbor
but that
first and
single
for violations
term
abey- prisonment
be held in
second violations would
ance
the resolution of the state
release?
pending
because,
III.
simply put, there was
no
supervised release to revoke.”
The main thrust of
argu
jurisdictional.
argues
ment is
He
that the
difficulty
point
with Johnson’s
authority
punish
lacked
*3
view
that
term
does
“revoke”
not
him for the
supervised
violations
mean “terminate” in
super-
the context of
release committed in Atlantic
At
City.
Supreme
vised release. The
Court has
hearing, however,
the District Court rea
recall,”
concluded
means “to
“revoke”
parties’ agreement
soned that
to con
States,
See Johnson v. United
suspend.
separate
duct
hearings prevents
694, 704-706,
1795,
529 U.S.
120 S.Ct.
Johnson from raising
jurisdictional
a
chal
(2000).
L.Ed.2d
difference is not
lenge.
not agree
We do
with the District merely semantic. As Justice Souter ex-
may
Court’s conclusion. Parties
not con
plained,
supervised
the term of
release
jurisdiction
court;
fer
“only
a federal
does not
Instead,
end with revocation.
Congress can do so.” Weinberger v. Ben
about
term
“something
Pharm.,
tex
412 U.S.
93 S.Ct.
release
preceding
order of
survives
(1973).
IY.
liberty
limited
that a defendant could ex-
We next
turn to Johnson’s direct
see
perience
conviction.”);
only
per
once
challenge
jurisdic
to the District Court’s
(“If
also id.
less
[pris-
than the maximum
tion over the
terms of his
re
imposed,
pre-
term] has been
a court
acknowledges
lease.
Johnson
sumably may, before revoking
term,
3583(e)
§
allows a court “to revoke
3583(e)(2);
§
pursuant
extend it
this
release,
of supervised
require
term
the term
imprisonment
would allow
part
the defendant
to serve in
all or
equal
term
au-
release____”
of supervised
offense.”).
thorized for the initial
contends, however,
Johnson
that a district
Congress
We also
specifically
court has no
note
previously
over a
gave
authority
district courts
“modify,
term of
The main
revoked
thrust
reduce,
that,
enlarge
argument
logic,
of Johnson’s
the conditions of
by
at
time
prior
something
district court
not alter
vised
it has
Specifically,
expiration
terminated.
...
the term....”
18 U.S.C.
3583(e)
added).
See
Judge
(emphasis
contends that
lacked
authority
impose
32.1,
“to
a second sentence ...
Federal Rules of
Procedure
Criminal
here,
conspiracy
conviction for
(outlining procedures for modifications
release). Accordingly, John-
to distribute cocaine.
argument challenging
son’s
it seems
legal regime,
Under such
authority
post-revocation
must fail.
Court’s
im-
a district court could
incongruous that
imprisonment”
when
pose two “terms
V.
subject
only
Johnson—is
defendant—like
final
brings
one
issue to
position
This
to one federal conviction.
He
our attention that merits discussion.
Sentencing
finds
in the
Guidelines.
support
that the District Court erred
contends
7Bl.l(b)
there
Section
states that “[w]here
impris
terms of
imposing two concurrent
the conditions
is more than one violation of
*4
for the
of his
onment
violations
supervision, or the violation includes
of
Recall that the District Court re-
than one
conduct
constitutes more
that
the
incarcerated Johnson for 10 months
offense,
deter-
of the violation is
grade
the
he
re
first time
violated his
having the most
by
mined
the violation
then
a concurrent 36-
imposed
lease and
punishes
defen-
grade.”
judge
serious
A
the second violation.
month
term for
for
most
infraction
dant
the
serious
Johnson,
According to
a District Court
every
not each and
dole
for
may
separate
not
out
sanctions
misstep.
infraction of a
release
each
case at
principle
the
to the
Applying
no
agreement. Although
cites
hand,
36 months
imply
do not
that the
we
for
we
proposition,
agree
case law
this
necessarily inappropri-
is
incarceration
argument.
the core of
with
ate;
the
instead,
only
conclude
begin
analysis
recap
our
We
with
impose
punish-
the
District Court
charges against
Johnson. While
original
ment as modification
supervised release for a conviction of con-
sepa-
imprisonment,
rather than as
to sell
spiracy
drugs, Johnson was arrest-
rate,
way,
Put another
second sentence.
assaulting
once for
his ex-girl-
ed twice:
District Court considered
when the
assaulting
friend and once for
a police
it
modified
City
Atlantic
crime
should have
prosecuted
State
officer.
courts have
under its 18
the reincarceration sentence
for
criminal
these
offenses.
impos-
§
than
powers,
3583
rather
actions
him
exposed
also
prison terms. Defen-
ing two concurrent
punishment
from the
separate
federal
being punished
dant
for
government
violating
conditions
crimes
but for the overall viola-
themselves
agreement.
The central ques-
provisions
to the one
tion
the release
as
is
these
categorize
tion
how
violations.
federal
will remand for
crime. We
post-revocation
Do
constitute
sanctions
pre-
in accordance
these
sentencing
with
sentences,
merely
they
or
an ex-
new
are
cepts.
original punishment
of the
for a
tension
sjc
;j:
^
Johnson,
Supreme
In
crime?
Court
pre-
all
We
considered
contentions
have
by “attribut[ing] pos-
settled this matter
no
parties and
by
sented
conclude
original
penalties to the
con-
trevocation
judg-
necessary.
further discussion is
tended of su- imposed upon revocation
sentences F.R.D. See
pervised release. (1991) 32.1 (discussing
516-521 Revo- Probation or Su-
cation or Modification of
pervised Release and Rule 35 Correction Sentence, explaining Reduction (c) (a) is intend- ]
that “[subdivision [now part, from the adopt, suggestion
ed to Study
Federal Committee 1990 Courts Weis, Jr., by Joseph F.
[Chaired J.] recognize explicit-
Rule 35 be amended to sentencing
ly ability court to
correct a sentence ... if the error is dis- shortly after the sentence im-
covered
posed____ [Study] Committee be- correcting
lieved time for such should be the time
errors narrowed within sentence____”). appealing 35(a)
Because Rule is a limitations of I provision, presence
action that its believe ignored,
should not be and that the Dis- *6 should initial opportu-
trict Court have the
nity it. to consider BRANDEBURG, Appellant
Kenneth D. INCORPORATED PEN-
CORNING PLAN FOR HOURLY EM-
SION
PLOYEES; MCMC LLC.
No. 06-3755. Appeals,
Third Circuit. Third Circuit Submitted Under Paul, & Robert Peirce Asso- Gregory G. 34.1(a) 17, 2007. May LAR ciates, PA, Pittsburgh, Appellant. Filed: July Boston, May, Finnigan,
James T. Rich MA, for Appellees.