Kеvin Russell was convicted of bank fraud and sentenced to 70 months’ imprisonment and a 60-month term of supervised release. Upon his release from prison, Russell began serving his term of supervised release but subsequently vio
I.
Kevin Russell pleaded guilty to one count of bank fraud in violation of 18 U.S.C. § 1344, and on March 30,1994, was sentenced to 70 months in prison and 60 months of supervised release. Russell began his supervised release term on February 25, 2000, but subsequently violated its conditions by committing two separate acts of domestic battery on his wife. Thereafter, the United States Probation Office filed a special report with the district court, requesting that the court issue a rule to show cause why Russell’s term of supervised release should not be revoked. The district court issued the rule on April 23, 2002, and after сonducting a hearing on the matter, revoked Russell’s term of supervised release, pursuant to 18 U.S.C. § 3583(e)(3), sentencing him to the maximum term of imprisonment allowed (i.e., 36 months) and a new 46-month term of supervised release. Russell appeals.
II.
Russell brings two separate challenges to the term of supervised release imposed by the district court as part of his revocation sentence. First, he argues that the district court exceeded its authority under § 3583(e)(3) by sentencing him to a combined term of reimprisonment and аdditional supervised release in excess of his original term of supervised release. Second, he contends that once the district court imposed the maximum term of imprisonment allowed under § 3583(e)(3), it thereafter lacked the authority to sentence him to any amount of supervised release following his reincarceration. Whether the district court exceeded its authority under § 3583(e)(3) is a question of statutory construction which we review de novo.
Dersch Energies, Inc. v. Shell Oil Co.,
A. Whether the district court exceeded its authority under § 3583(e)(3) by sentencing the defendant to a combined term of reimprisonment and additional supervised release in excess of his original term of supervised release.
At the time of Russell’s conviction for bank robbery in January 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 postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, 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, or more than 2 years in prison if the offense was a Class C or D felony.
Id. (emphasis added).
This statute has since been amended, but the 1988 version of § 3583(e)(3) applies
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.
The enactment of § 3583(h), however, resulted in yet another circuit split: whether application of § 3583(h) to cases involving a conviction preceding the subsection’s effective date violated the Ex Post Facto Clause of the United States Constitution.
Compare United States v. Withers,
As it was written before the 1994 amendments, subsection (3) did not provide (as it now does) that the court could revoke the release term and require service of a prison term equal to the maximum authorized length of a term of supervised release. It provided, rather, that the court could “revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release .So far as the text is concerned, it is not a “term of imprisonment” that is to be served, but all or part of “the term of supervised release.” But if “the term of supervised release” is being served, in whole or part, in prison, then something about the term of supervised release survives the preceding order of revocation. While this sounds very metaphysical, the metaphysics make one thing clear: unlike a “terminated” order of supervised release, one that is “revoked” continues to have some effect. And since it continues in some sense after revocation even when part of it is served in prison, why can the balance of it not remain effective as a term of supervised release when the reincarceration is over?
Id.
at 705-06,
Thus, according to
Johnson,
a district court may, upon revoking a term of supervised release under § 3583(e)(3), sentence a defendant to serve a combined term of reimprisonment and additional supervised release, so long as that sentence does not exceed the original term of supervised release.
Nevertheless, the government argues — albeit half-heartedly — that the district court’s entire 82-month revocation sentence may be affirmed under the rationale adopted by the Sixth Circuit in
United States v. Marlow,
Though the [Johnson ] Court’s discussion of this issue was dicta, six justices agreed that “[tjhere is no reason to think that under that regime [if subsection (e)(3) did not authorize a court to order a postrevocation term of supervised release] the court would lack the power to impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U.S.C. § 3583(a).”
Marlow,
As the government concedes, however, there are several problems with the Sixth Circuit’s reasoning in
Marlow.
To begin with, the
Marlow
Court’s reliance on dicta from the
Johnson
decision is entirely misplaced. The dicta at issue was written by Justice Souter, author of the majority opinion in
Johnson,
in response to arguments made by Justice Scalia in his lone dissent.
Johnson,
Let us suppose that Congress had legislated in language that unequivocally supported the dissent, by writing subsection (S) to provide that the judge could “revoke” or “terminate” the termof supervised release and sentence the defendant to a further term of incarceration. There is no reason to think that under that regime the court would lack the power to impose a subsequent term of supervised release in accordance with its general sentencing authority under 18 U.S.C. § 3583(a) ... [which] provides that “[t]he court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment....” Thus, on the dissent’s reading, when Johnson’s supervised release was revoked and he was committed to prison, the District Court “impos[ed] a sentence to a term of imprisonment.” ... And that sentence was, as already noted, imposed for his initial offense, the Class D felony violation .... Nor would it be mere formalism to link the second prison sentence to the initial offense; the gravity of the initial offense determines the maximum term of reimprisonment, see § 3583(e)(3), just as it controls the maximum term of supervised release in the initial sentencing, see § 3583(b). Since on the dissent’s understanding the resentencing proceeding would fall literally and sensibly within the terms of § 8583(a), a plain meaning approach would find authority for reimposition of supervised release there.
Id.
at 707-08,
When viewed in context, it becomes clear that the
Marlow
Court’s reading of
Johnson
is untenable. The Supreme Court in
Johnson
did not imply, as the Sixth Circuit suggests, that a district court could revoke a defendant’s term of supervised release under § 3583(e)(3) and then sentence him to a combined term of reim-prisonment and additional supervised release in excess of the original term of supervised release by using its general sentencing authority under 18 U.S.C. § 3583(a). Instead, the Court merely posited that if Justice Scalia were correct in his assertion that Congress intended for the term “revoke,” as used in § 3583(e)(3), to mean “annulled and treated as though it had never existed,”
Johnson,
The
Johnson
Court, however, rejected Justice Scalia’s interpretation of “revoke.” Therefore, the Court’s speculation on what the outcome of the case might have been under a hypothetical statute containing “language that unequivocally supported the dissent” is of no consequence.
Johnson,
Furthermore, the plain meaning of § 3583(a)’s text strongly suggests that subsection applies only to the initial setting of a supervised release term, providing in pertinent part that “[t]he court, in imposing a sentence to a term of imprisonment
for a felony or a misdemeanor,
may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment.”
Id.
(emphasis added). Congress’s use of the phrase “for a fеlony or a misdemeanor” can logically be interpreted as referring only to the underlying offense of conviction. Although all federal convic
Finally, we cannot accept the reasoning employed by the Sixth Circuit in Marlow because it directly conflicts with the Supreme Court’s analysis and interpretation of § 3583(e)(3) in Johnson. A district court cannot simply bypass § 3583(e)(3) and impose a revocation sentence of reim-prisonment and additional supervised release in excess of the original term of supervised release by sentencing a defendant under § 3583(a). Were such a route permissible, Justice Souter and Justice Scalia would not have engaged in the extensive exchange in Johnson over the meaning of the term “revoke.”
For all of the preceding reasons, we conclude that the district court exceeded its authority under § 3583(e)(3) by sentencing the defendant to a combined term of reincarceration and additional supervisеd release 22 months over his original term of supervised release, and that § 3583(a) may not be used to circumvent the Supreme Court’s holding in Johnson. 3
B. Whether the district court’s decision to sentence the defendant to the maximum term of imprisonment allowed under § 3583(e)(3) precluded it from including any term of supervised release in his revocation sentence.
We now turn to Russell’s second argument: that the district court’s decision to sentence him to the maximum term of imprisonment allowed under § 3583(e)(3) (i.e., 36 months) stripped it of the authority tо inelude any term of supervised release in the revocation sentence. Specifically, he contends that “the range of potential punishments for a supervised release violation [contained in § 3583(e) ] indicates that ... no additional term of supervised release can be ordered where, upon revocation, the defendant is sentenced to serve the maximum term of incarceration for the violation.”
At the time Russell was sentenced in March 1994, Section 3583(e) provided district courts with the authority to take four actions with respect to a defendant’s term of supervised release once it had begun: (1) “terminate [the] term of supervised release and discharge the person released at any time after the expiration of one year of supervised release ... if it is satisfied that such a action is warranted ....,” 18 U.S.C. § 3583(e)(1); (2) “extend [the] term of supervised release if less than the maximum authorized term was previously imposed, [or] ... modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release ....,” 18 U.S.C. § 3583(e)(2); (3) “revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release
According to Russell, none of the methods of punishment provided for in § 3583(e) is at the district court’s disposal should he violate a condition of his new supervised release term upon his release from prison. Were this the extent of Russell’s argument, our analysis would be at an end. The defendant is currently serving a 36-month prison sentence, is not on supervised release, and thus has not yet violated a condition of his new supervised release term. Thus, the question of whether any of § 3583(e)’s subsections may be used by the district court in the future to punish the defendant for violating a condition of supervised release is not before us, and we therefore lack the jurisdiction to address it.
U.S. Nat’l Bank of Oregon v. Independent Ins. Agents of Am., Inc.,
In Johnson v. United States, the Supreme Court addressed the nature and scope of a revocation sentence under § 3583(e)(3), noting:
The proceeding that follows a violation of the conditions of supervised release is not, to be sure, a precise reenactment of the initial sentencing. Section 3583(e)(3) limits the possible prison term to the duration of the term of supervised release originally imposed. (If less than the maximum has been imposed, a court presumably may, before revoking the term, extend it pursuant to § 3583(e)(2); this would allow the term of imprisonment to equal the term of supervised release authorized for the initial offense.) The new prison term is limited further according to the gravity of the original offense. See § 3583(e)(3). But nothing in these specific provisions suggests that the possibility of supervised release following imprisonment was meant to be eliminated.
Thus, according to
Johnson,
§ 3583(e)(3)’s limitation on the amount of time a district court can reimprison a defendant for violating a condition of supervised release — vis-avis the maximum terms of imprisonment included in that subsection — cannot be construed as eliminating or restricting the authority of the court to include a new term of supervised release in the defendant’s revocation sentence, so long as the new term of supervised release does not exceed the length of the original term.
We realize, of course, that
Johnson
did not specifically address the argument Russell raises on appeal. But that is of no consequence. Our inquiry here is limited solely to determining whether the district court had the authority to act — i.e., to include any term of supervised release in a revocation sentence that also requires the defendant to serve the statutory maximum term of imprisonment, and
Johnson
answers that question conclusively. We are not permitted, as Russell requests, to consider whether this authority is “meaningless.” As previously noted, the district court’s ability to penalize the defendant should he violate a condition of supervised release upon his release from prison is not a question before us on appeal, and we lack the jurisdiction to issue an advisory opinion on the matter.
Independent Ins. Agents of Am.,
III.
The district court exceeded its authority under § 3583(e)(3) by sentencing the defendant in excess of his original 60-month term of supervised release. We therefore Reverse the district court’s judgment, and Remand the case with instructions to reduce the supervised release portion of the defendant’s revocation sentencе to 24 months.
Notes
. From this point forward, we will refer to the 1988 version of 18 U.S.C. § 3583(e)(3) as simply "§ 3583(e)(3).”
. In this case, the offense for which Russell was convicted was bank fraud, a Class B felony, and, therefore, the district court was clearly authorized to sentence him to the maximum term of imprisonment allowed under § 3583(e)(3) for violating conditions of his original term of supervised release. See § 3583(e)(3) ("[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 сonvicted was a Class B felony.”); 18 U.S.C. § 3559(a)(2) (“An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is ... twenty-five years or more, as a Class B felony.”); 18 U.S.C. § 1344 (providing that a person convicted of bank fraud can be "imprisoned not more than 30 years”).
. Because this decision creates a conflict with another circuit, the opinion was circulated to the full court in advance of publication, in accordance with 7th Cir. R. 40(e). No judge in regular active service voted to hear the case en banc.
.
See also United States v. St. John,