United States v. Michelle WingUnited States v. Michelle Wing
Lead Opinion
OPINION
Michelle Wing appeals the district court’s revocation of her second term of supervised release, which had not yet commenced, based on newly discovered violations of conditions of her previously revoked first term of supervised release. Wing contends that the district court
I
On August 8, 2001, a grand jury in the District of Montana returned an indictment against Michelle Wing, charging her with one count of bank embezzlement in violation of
Wing’s term of supervised release commenced on February 11, 2004. On April 24, 2008, Wing’s probation officer filed a petition to revoke Wing’s supervised release. The petition alleged that Wing had violated the conditions of supervised release by: (1) providing her probation officer with a falsified document; (2) failing to obtain approval of her probation officer before making payments to the Washington State Employment Security Division; (3) incurring new debt with the purchase of a home and a vehicle without the advance approval of the probation officer; and (4) failing to submit timely monthly reports to her probation officer.
On June 6, 2008, the Montana district court found that Wing had committed all of the violations alleged in the petition. The district court revoked Wing’s supervised release and sentenced her to 3 months of imprisonment followed by 33 months of supervised release. Wing self-reported to prison on August 29, 2008.
On November 18, 2008, a grand jury in the Eastern District of Washington returned a 22-count indictment charging Wing with bank fraud, conspiracy, and identity theft, based on conduct that took place between June 1, 2006, and July 31, 2008.
On November 25,2008, Wing’s probation officer filed a petition with the Montana district court to revoke Wing’s second term of supervised release, which was scheduled to commence the very next day, based on Wing’s commission of the crimes alleged in the Eastern District of Washington case in addition to other violations (leaving the district of supervision without permission of the probation officer, failing to submit truthful and complete monthly reports, and failing to notify the probation officer of any change in employment). That same day, the Montana district court issued a warrant for Wing’s arrest.
On November 26, 2008, Wing was released from prison and was immediately arrested on the district court’s warrant. Before appearing for her revocation hearing in Montana, Wing was transferred to the Eastern District of Washington to face the criminal charges in that case. Wing ultimately pled guilty to a number of counts in the Eastern District of Washington case and was sentenced to 86 months of imprisonment and a five-year term of supervised release.
On November 20, 2009, Wing appeared before the Montana district court for a supervised release revocation hearing. During the hearing, Wing admitted to the violations alleged in the petition. Based on these violations of conditions of the first term of supervised release, the Montana district court revoked the second term of supervised release and imposed a sentence of 33 months of imprisonment to run consecutively to the sentence imposed in the
On November 25, 2009, Wing appealed the Montana district court’s revocation of her second term of supervised release. Wing argued on appeal that the district court lacked jurisdiction to revoke her term of supervised release because the term had not yet commenced. This court remanded the case because Wing had not presented her jurisdictional argument before the district court.
On remand, the district court ordered the parties to submit briefs on the jurisdictional argument raised on appeal. In an order filed on January 18, 2011, the court held that it had jurisdiction to revoke Wing’s second term of supervised release, reasoning that if it had known of the additional violations at the time it revoked Wing’s first term of supervised release, the court would not have sentenced Wing to only a three-month term of imprisonment:
In this regard, the second revocation sentence relates back to the Court’s original revocation hearing and accounts for the additional violations that were significant breaches of the Court’s trust, but were not known to the Court at that time. Simply put, the revocation challenged here pertained to the first term of supervised release.
Relying on language in Johnson v. United States,
II
We review de novo whether a district court has jurisdiction to revoke a term of supervised release. United States v. Ignacio Juarez,
III
The issue before us is whether, under
A. Statutory Structure:
In
A district court’s authority to impose, modify, terminate, or revoke supervised release derives from
Our focus is on subsection (e), which gives a district court authority to modify, terminate, or revoke supervised release. Under subsection (e), a court may, after considering enumerated factors set forth in § 3553(a): (1) terminate a term of supervised release and discharge the defendant at any time after the expiration of one year of supervised release (
In 2000, when Wing committed her crimes of conviction, subsection (e)(3) provided in relevant part that the district court may:
revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such .term of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one year in any other case....
When revoking supervised release and imposing a term of imprisonment, the
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 upon revocation of supervised release.3
Finally,
The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and ... a further term of supervised release, extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.
B. Statutory Analysis:
Wing argues that the district court lacked the jurisdiction to revoke her future term of supervised release for violations she committed during a past term of supervised release. The government, in contrast, contends that
In arguing that the district court had jurisdiction to revoke Wing’s second term of supervised release under
Under the first of the government’s alternative readings of subsection (e)(3), the district court was permitted to “revoke a term of supervised release” (the not-yet-commenced second term of supervised release) because the district court found by a preponderance of the evidence “that the defendant violated a condition of supervised release” (a condition of the first term of supervised release). In other words, the government interprets subsection (e)(3) as allowing revocation of supervised release based upon a violation of a condition of any term of supervised release, not necessarily the term of supervised release that is being revoked.
The government argues that Congress could have specified that a court can revoke a term of supervised release when the defendant violated a condition of “the term of supervised release.” Instead, Congress varied its phrasing and authorized revocation upon violation of “a condition of supervised release.” The government contends that this broader language grants the district court authority to revoke a term of supervised release based solely on a finding that “the defendant violated a condition of supervised release,” no matter which term of supervised release.
We acknowledge that the relevant clause in subsection (e)(3), read in isolation, is ambiguous. The clause does not specify which term of supervised release the defendant must have violated. It does not expressly require that the violated condition relate to the term of supervised release that is being revoked, nor does it expressly permit revocation of future terms of supervised release based on violations of conditions of previously revoked terms of supervised release. Although, as pointed out by the government, the language does not specify that the condition violated must be of “the term of supervised release [being revoked]” or “such term of supervised release,” the language also does not provide that the condition violated may be of “any term of supervised release.”
To determine whether “a condition of supervised release” refers to a condition of any term of supervised release, or a condition of the specific term of supervised release that is being revoked, we look to the statutory framework. When interpreting words in a statute, “we start with the premise that ‘the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” American Bankers Ass’n v. Gould,
Under the ordinary meaning of “revoke,” when a term of supervised release is revoked, the term is canceled, and any new term of supervised release that has been imposed is in effect. The conventional definition of “revoke” is “to void or annul by recalling, withdrawing, or reversing.” American Heritage Dictionary 1493 (4th ed. 2000). See also Webster’s Third New International Dictionary 1944 (1981) (“to annul by recalling or taking back”). Thus, when a term of supervised release is revoked, it has been annulled, and the conditions of that term do not remain in effect. Accordingly, a term of supervised release cannot be revoked based on a violation of a condition of a previously revoked term of supervised release, and subsection (e)(3) necessarily refers to a violation of the term of supervised release that is being revoked.
In Johnson, the Supreme Court applied an “unconventional” definition of “revoke” to subsection (e)(3).
The government’s interpretation is so broad that it logically would permit revoking a term of supervised release based on a violation of a condition of a prior term of supervised release that relates to a different offense. (In this case, the terms of supervised release stemmed from the same original offense.) Thus, under the government’s reading, it is possible that the following scenario could take place: (1) Defendant is convicted of Offense A and is sentenced to a term of supervised release, which ends; (2) Defendant is then convicted of offense B, a more serious felony than Offense A, and is sentenced to a term of supervised release; (3) During the second term of supervised release, the court is made aware of a violation of a condition of the first term of supervised release; and (4) The court revokes the second term of supervised release based on the violation of the condition of the first term of supervised release, and sentences the defendant to a term of imprisonment and a new term of supervised release. The problem with this scenario is that it does not fit into the statutory scheme for determining the maximum term of imprisonment upon revocation and the maximum length of a term of supervised release upon revocation.
Under subsection (e)(3), upon revocation, a defendant may not be required to serve on such revocation, “more than 5
Our reading of subsection (e)(3) is buttressed by the 2003 amendment of the statute.
[A] defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one year in any other case.
(Emphasis added). Under the government’s interpretation of (e)(3) as it now stands, a defendant could receive multiple maximum terms of imprisonment based upon violations of the same term of supervised release. It is doubtful that Congress intended such a result.
Furthermore, the government’s interpretation is undermined by
After urging that under subsection (e)(3), a present or future term of supervised release can be revoked for violations of a separate, previously revoked term of
In Johnson, the Supreme Court held that under
Guidance from both the Supreme Court and Congress indicates that the “unconventional” sense of revoke is now obsolete in light of the 1994 amendments. The 1994 amendments added subsection (h), which provides that a prisoner serves a post-revocation “term of imprisonment” rather than all or part of a term of supervised release. The 1994 amendments also replaced subsection (e)(3)’s language, “all or part of the term of supervised release,” with “all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release.” (Emphasis added.) The amendments made it clear that a defendant sentenced to prison upon revocation of supervised release is not serving a portion of the original term of supervised release, but, rather is serving a “term of imprisonment,” the length of which is all or part of the term of supervised release authorized by statute for the original offense.
In Johnson, the Supreme Court itself recognized that the statutory language upon which it was relying was changed by the 1994 amendments: “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
Finally, subsection (h), by its own terms, distinguishes between terms of release rather than periods or phases of the same term of release. The dissent correctly notes that neither the Court nor Congress uses the term “first” and “second” term of supervised release. Dissent at 876-77. Whatever “nomenclature” is best, id., the fact remains that subsection (h), added in 1994, clearly distinguishes between the “term of supervised release after imprisonment” and the “original term of supervised release.”
Contrary to the position taken by Judge Tallman in his dissent, the Supreme Court’s reasoning cannot be extended to
C. Sentencing Scheme for Supervised Release Violations
Our interpretation of
Under U.S.S.G. § 7B1.1, supervised release violations are separated into three grades — Grade A, Grade B, and Grade C violations. Section 7B1.4 sets forth guideline ranges of imprisonment based on the grade of the violation and the defendant’s Criminal History Category.
When there are multiple violations of the conditions of a term of supervised release, “the grade of the violation is determined by the violation having the most serious grade.” § 7Bl.l(b). Thus, violations of conditions of a term of supervised release are not individually punished. The court considers all of the violations pertaining to the term of supervised release before it and determines the term of imprisonment based upon the most serious violation.
The Guidelines Manual does not provide for the continued ability to impose terms of imprisonment for violations of conditions of a previously revoked term of supervised release. If district courts were permitted to revoke a subsequent term or terms of supervised release based upon newly discovered violations of a prior term of supervised release, there would be uncertainty regarding the circumstances under which imprisonment could be imposed and the length of such imprisonment. For example, would the district court only be allowed to revoke the subsequent term if the newly discovered violations were more serious than the previously known viola
D. Public Policy
Ordinarily, an analysis of the relevant statute and controlling case law would conclude our discussion. The government and dissent, however, see fit to go far beyond the statutory text to public policy considerations that purportedly support their claim that the revocation of Wing’s second supervised release was appropriate. See Dissent at 876-77, 877-79.
The government argues that public policy supports its position because if courts lacked the authority to punish subsequently discovered violations of previously revoked terms of supervised release, devious defendants would have the incentive to insulate serious violations from penalty by quickly committing and coming forward with a less severe violation, and obtaining a revocation of supervised release based on the less serious violation. Although the scenario the government presents is theoretically possible, we are not convinced that defendants who have committed serious violations will risk drawing attention to themselves for the purpose of manipulating supervised release revocation proceedings. The government’s concern is clearly more theoretical than realistic, and, more importantly, does not address the statutory scheme.
The dissent in turn raises concerns about defendants squeezing out “crocodile tears” to convince judges to release them in between terms of supervised release — a period of time the dissent terms the “Twilight Zone” — so they may commit crimes without consequences. Dissent at 876-77, 880.
Under the statutory scheme Congress has chosen, once a term of supervised release is revoked, that term ends, and any term of supervised release commencing after imprisonment for violation of the first term of supervised is a new and separate term. That Congress has made such a policy choice should be enough for any court. However, we will address the dissent’s arguments to dispel its concerns.
Initially, we note that in this case, Wing’s second term of supervised release
Although Judge Tallman’s concern regarding “twilight zones” is understandable, district courts are not without means to ensure that defendants do not use the gap between periods of supervised release to go on crime sprees. First of all, a district court judge does not have to allow a defendant whose supervised release has been revoked and has been sentenced to prison to be released on bail so she can self-surrender. Under
Further, in cases where a district court chooses to release the defendant on her personal recognizance or upon execution of an unsecured appearance bond, the release is subject to the condition that the person not commit a federal, state, or local crime during the period of release.
If a defendant commits a crime while on release, the defendant shall be sentenced, in addition to the sentence prescribed for the offense, to (1) a term of imprisonment of not more than ten years if the offense is a felony; or (2) a term of imprisonment of not more than one year if the offense is a misdemeanor.
Thus, district courts have tools to safeguard against the release of defendants who may pose a danger to the public. The district courts also have the power to penalize defendants who abuse the court’s trust during release.
One further benefit of our interpretation of § 3583(e)(3) is that it promotes finality and the avoidance of piecemeal appeals. Under the government’s interpretation, a defendant’s sentence for violating conditions of a term of supervised release would be uncertain and subject to change as long as the defendant had time remaining on supervised release. The dissent’s conclusory assertion that our concern regarding finality is “hollow” and subordinate to the menace that is the “Twilight Zone” is unsupported by anything other than the dissent’s own policy balancing.
Ultimately, the dissent gives insufficient credit to the nuanced purposes the statute embodies. The statute is meant to curb recidivism to be sure, but not at the cost of
E. Rule of Lenity
Even if we were to conclude that after considering the text, structure, history, and purpose of the statute, there remains a “grievous ambiguity or uncertainty” regarding the legal question before us, we would apply the “rule of lenity.” Gollehon v. Mahoney,
IV
We conclude that the district court did not have jurisdiction under § 3583(e)(3) to revoke Wing’s second term of supervised release based on newly discovered violations of conditions of her revoked term of supervised release.
Accordingly, we REVERSE and REMAND to the district court to vacate the sentence and judgment imposed on November 20, 2009.
Notes
. Although some of the conduct underlying the Eastern District of Washington indictment occurred after the revocation of Wing's first term of supervised release and before she self-reported to prison on August 29, 2008, the Montana district court found, "The conduct in all four violations occurred during Wing's term of supervised release that commenced in February 2004...." (Order, Jan. 18, 2011, EOF 87.)
. In 2003, subsection (e)(3) was amended by the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("PROTECT Act”), Pub. L. 108-21, § 101, 117 Stat. 650, 651. Prior to the 2003 amendments made to § 3583(e)(3) by the PROTECT Act, when calculating the maximum term of imprisonment that could be imposed upon revocation of supervised release, courts would subtract the aggregate length of prior imprisonment terms imposed upon revocation of supervised release from the statutory maximum. See United States v. Jackson,
. Under this version of § 3583(h), a subsequent term of supervised release could be imposed only when the defendant was required to serve a term of imprisonment that was "less than the maximum term of imprisonment authorized under subsection (e)(3).” The PROTECT Act amended subsection (h) by eliminating this language from the statute. However, both before and after the 2003 amendments, under subsection (h), the length of a term of supervised release imposed following revocation cannot exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less the aggregate of all terms of imprisonment imposed upon revocations of supervised release. Knight,
. Prior to the addition of subsection (h) in 1994 by the Violent Crime Control and Law Enforcement Act of 1994, § 110505(2)(B), 108 Stat. 2017, the United States Sentencing Commission's Guidelines Manual referred to the possibility that a defendant could be ordered to "recommence” supervision upon release from imprisonment. See U.S.S.G. § 7B1.3(g)(2), p.s. (Nov. 1993). In subsection (h), Congress made it clear that a new term of supervised release commences after the term of imprisonment. Effective November 1, 1995, Amendment 533 revised the language of § 7B 1.3(g)(2) to eliminate references to "recommencement” of supervised release.
. Although the amended version of subsection (e)(3) would not apply to Wing because her crimes of conviction occurred in 2000, the amendment sheds light on the interplay between terms of supervised release and terms of imprisonment imposed upon revocation.
. Although Wing's term of release arguably did not “expire'' but was, rather, revoked, the government’s argument that a defendant may be punished for violations during past terms of supervised release extends to all past terms of release, whether they expired or were revoked. Further, we think it anomalous that Congress would give the government an unlimited amount of time to discover and punish a defendant for serious supervised release violations that occurred during a revoked term, but provide no lee-way as to the timing for seeking punishment against defendants who committed equally, or more, serious violations during terms that expired.
. Before 1994, the cumulative length of the period of imprisonment upon revocation and subsequent period of supervised release was limited by the length of the original period of supervised release actually imposed by the court. Consistent with the reasoning of Johnson, because the periods of imprisonment and subsequent supervised release were a continuation of the original term of release that was imposed, they were necessarily subject to the same limitation in length. See United States v. Anderson,
. In his dissent, Judge Tallman envisions an ominous "Twilight Zone” episode in which a defendant, who is serving three months on a revocation of supervised release strangles two inmates and leaves another in a coma. Judge Tallman expresses disbelief that a district court cannot revoke the defendant’s upcoming period of supervised release based on her conduct. However, under
. To the extent the revocation of Wing's second term of supervised release can be characterized as a "modification'' of the first revocation sentence, the district court lacked jurisdiction to modify the sentence. The district court imposed the additional prison time well after the 14-day period for corrections permitted under
Dissenting Opinion
dissenting:
There is now a fifth dimension beyond that previously known to federal district judges. It is a new dimension of consequence-free criminality: a dimension of unpunished corruption, unsanctioned wickedness, and unchastened immorality. It is an area between a convict’s “first” term of supervised release, and her “second” term of supervised release.
Our story begins in a courtroom. The camera zooms in on the defendant’s table, where a young woman wipes away her tears. The somnolent voice of the narrator, Rod Serling, intones:
Imagine it is June 6, 2008. The location, Missoula, Montana. This is Michelle Wing, a convicted felon who’s in trouble once again. She’s been lying to her probation officer. Routine lies the judge will punish in a routine manner: by revoking supervised release and sending her back to jail for a few short months.
What the judge doesn’t realize, however, is that his act is not merely one of revocation, but of liberation.
Wing will now begin an iniquitous journey through space and time. Her companion on this journey will be fraud. Her route, embezzlement. That’s a signpost up ahead; her next stop: The Twilight Zone.
The camera soon returns to the courtroom, where Wing’s parole officer is seen pleading with the Montana district judge. The officer tells of Wing’s two-month crime spree. He asks the judge to revoke her supervised release. But the judge— who had thought Wing was still under his supervision — can only stand by helplessly. He cannot punish crimes executed outside his rational world of crime and punishment. He has no jurisdiction over ... The Twilight Zone.
This story might have been fanciful until today’s opinion. But it is now all too real. The majority doesn’t just declare separate and distinct terms of sequential supervised release. It creates gaps between those terms. And for villains like Wing, those gaps present a metaphysical nether-world constrained only by the outer limits of criminal imagination. As this outcome is equal parts science fiction and legal fiction, I must respectfully dissent.
I
Admittedly, this case is a very difficult one. Although continuing misconduct by convicted felons, particularly embezzlers, is common in our penal experience, we are the first court to apply
Luckily, however, we are not the first court to interpret
A
Johnson v. United States,
In Johnson, the Court focused on the revocation-based period of imprisonment in relation to the overall “term” of supervised release. The Court noted that
The majority bifurcates the analysis by dividing supervised release into separate and distinct “first” and “second” terms. Employing this nomenclature, the majority accepts that Wing’s “second” term of supervised release did not begin until November 26, 2008, when she was released from the temporary period of imprisonment resulting from her June 2008 revocation. The majority insists that the district court could not revoke Wing’s “second” term of supervised release on November 25, 2008 — the day before she was released from prison — because a court cannot revoke supervised release before the supervised release begins. See
To reach this result, the majority opinion presupposes that the period from February 2004, when Wing was originally released from prison, through August 2008, when she self-reported back to prison following revocation, was her “first term” of supervised release. This “first term” of supervised release ended, says the majority, when the district court revoked it in June 2008, but permitted Wing to remain free from custody until the Bureau of Prisons designated a facility and a date of surrender. Likewise, Wing’s “second term” of supervised release was set to begin on November 26, 2008, when she was released from the revocation-based period of imprisonment. There are two glaring problems with this analysis.
First, under Johnson, a period of imprisonment resulting from a revocation of supervised release does not divide supervised release into “first” and “second” terms unrelated to one another. The statute itself does not mention “first” or “second” terms; it simply refers to a “term of supervised release,” all or part of which the court may require to be served in prison. Johnson recognized this, and did not define the period of supervised release that follows revocation-based imprisonment as a “second term” of supervised release. Rather, the Court recognized the post-imprisonment period as “the balance of’ a single, continuing term of supervised release, of which imprisonment was but one part. Johnson,
Second, as stated above, the majority’s division of supervised release into separate and distinct terms creates gaps in the court’s supervision. In this particular case, we manage to rob the district court in Montana of the power to punish Wing for crimes she committed between the revocation of her “first” term of supervised release in June 2008 and the beginning of her “second” term of supervised release commencing in November 2008. This Twilight Zone — wherein Wing enjoyed the crime spree of her dreams — is not convincingly explained anywhere in the majority’s opinion, the statute in question, or any
Based on a more faithful adherence to Johnson and the reasonable inference that Congress did not intend to create gaps in supervised release, we should soundly reject Wing’s semantical effort to divide supervised release into separate terms.
The majority strays from the Supreme Court’s treatment of
I concede, as did the Court in Johnson, that treating supervised release — including a period following revocation — as one, single term may sound “unconventional.” Johnson,
B
Recognizing the district court’s uninterrupted authority over Wing would also be consistent with the purposes of supervised
Congress has expressly authorized district courts to consider eight factors when revoking a defendant’s supervised release. See
The district court properly considered these factors in revoking Wing’s supervised release. Given Wing’s “pathological” need to embezzle funds from employers, a substantial term of imprisonment was necessary to deter her criminal conduct and protect future victims.
Most importantly, the district court properly considered Wing’s egregious breach of the court’s trust. When Wing appeared before the court at her June 2008 revocation hearing, she feigned great remorse in tearfully admitting the minor violations charged in her first revocation petition. She then gave an emotional promise to the court and her probation officer, pledging “to give my 100 percent on everything” in the future. Finally, she asked the court for leniency for her children’s sake, testifying that she had “done everything I could do to stay out of trouble. I’ve met my obligations.” We now know this was all false. As the court recognized later, Wing “stood right here and boldface lied to me in an emotional display ... while she was in the middle of ripping these people off and stealing nearly a million dollars.” Telling such “boldface lies” to a district court judge while shedding crocodile tears certainly constitutes the kind of “breach of trust” that may be considered when determining an appropriate period of imprisonment.
Punishing such breaches of trust also appropriately deters defendants from ad
C
Finally, Wing objects to the district court’s exercise of jurisdiction because, she argues, it will result in piecemeal litigation that will rob defendants of finality and repose. That is a hollow argument from a recidivist offender. While I agree that district courts must not arbitrarily mete out punishment in the form of multiple revocations for the same conduct,
In Wing’s case, she was convicted in 2001 of a Class B felony. See
Because she was convicted in 2001, before the 2003 amendments to
II
Our story resumes at a prison. The camera zooms in on two female inmates being processed out at the end of their incarceration. Serling’s voice surfaces over this ominous scene.
*880 It’s now July 18, 2017, at the Federal Correctional Institution in Dublin, California. As Michelle Wing prepares to conclude her Eastern District of Washington sentence, a fellow prisoner is also being processed for release.
This other prisoner, Patty, has been serving three months on a revocation of supervised release.6 Patty made her presence felt during her short time on the cellblock. She is widely believed to have strangled two other inmates and left a third in a coma after delivering a savage beating.
There is a preponderance of evidence linking Patty to these crimes. But she’s silenced all witnesses, and prosecutors have no choice but to withhold filing criminal charges.
The screen transitions to the setting of our final scene: the chambers of a federal district judge. Patty’s parole officer, conscious of the violence she will undoubtedly wreak upon innocent victims, begs the district court to revoke Patty’s upcoming period of supervised release. But in light of today’s opinion, the district judge can do nothing.
Although the court had jurisdiction to punish petty violations before imprisonment, and may eventually have jurisdiction to punish the inevitable crimes committed after imprisonment ends, there is a black hole squarely in the center of Patty’s otherwise-continuous period of supervised release. It is a zone the judge has helplessly observed since 2012. It is a void of time and space where congressional intent does not apply; where punishment for criminals and protection for victims is completely reversed. Welcome to this fifth dimension. Welcome to ... The Twilight Zone.
. The majority suggests the problem can be avoided by not admitting the convict to release on his or her own recognizance. But the Bail Reform Act does not contemplate that all persons be incarcerated on conviction and Wing took full advantage of the district court's misplaced trust in her fidelity to abide the conditions of her O.R. release. It is no answer to say that in hindsight, she should obviously have been remanded to custody in June 2008.
. See Judicial Administration and Technical Amendments Act of 2008, Pub. L. No. 110— 406, § 14, 122 Stat. 4291 (2008); Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 2250, 120 Stat. 587 (2006); USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 212, 120 Stat. 192 (2006); PROTECT Act, Pub. L. No. 108-21, § 101, 117 Stat. 650 (2003); 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 2102, 116 Stat. 1758 (2002); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 812, 115 Stat. 272 (2001); DNA Analysis and Backlog Elimination Act of 2000, Pub. L. No. 106-546, § 7, 114 Stat. 2726 (2000).
. In particular, the court considered the importance of protecting victims like Wing’s Spokane-based employer, a victim whose small business was bankrupted and whose personal credit was destroyed while Wing enjoyed great seats at the Super Bowl.
. District Judge Donald Molloy described Wing's false testimony during her June 2008 revocation hearing as "the most egregious breach of trust that I think I have encountered in nearly 14 years on the bench.”.
. Such arbitrary revocations would still be reviewable for abuse of discretion.
. The majority tells us that