[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11065
Non-Argument Calendar
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D.C. Docket No. 1:06-cr-00101-KD-N-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HENRY CLIFFORD JOHNSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(March 6, 2020)
Before JORDAN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
Henry Johnson appeals the 12-month term of supervised release that the
district court imposed upon revocation of his supervised release. Johnson argues
that his sentence exceeds the maximum term permitted by
18 U.S.C. § 3583. After
careful review, we affirm.
Johnson pled guilty in 2006 to one count of possessing a firearm after having
been convicted of a felony, in violation of
18 U.S.C. § 922(g)(1). After serving a
term of imprisonment for that offense—a Class C felony—he began a term of
supervised release. A probation officer thereafter petitioned for the revocation of
Johnson’s supervised release, asserting that Johnson had violated the terms of his
supervised release by testing positive for cocaine and being charged with first
degree burglary, second degree burglary, and violating a domestic violence
protective order.
Johnson waived his right to a revocation hearing and admitted the violations.
The district court found that Johnson violated the terms of his supervised release in
the manner asserted by the probation officer. The applicable guidelines range was
33 to 41 months, but the applicable statutory maximum sentence was 24 months
under
18 U.S.C. § 3583(e)(3) (providing a mandatory maximum sentence of two
years upon revocation of supervised release when the original offense of
conviction was a Class C felony). The district court sentenced Johnson to 24
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months’ imprisonment, followed by a 12-month term of supervised release.
Johnson did not object to his sentence. He now appeals.
On appeal, Johnson argues that the district court erred in sentencing him to
12 months of supervised release following his 24-month term of incarceration. He
argues that under
18 U.S.C. § 3583(h) he may only be placed on supervised release
following his sentence if his sentence is less than the two-year statutory maximum
set forth in § 3583(e)(3). Since he was sentenced to the statutory maximum, he
argues that an additional term of supervised release was prohibited.
Generally we review de novo the legality of a sentence imposed upon
revocation of supervised release. United States v. Cunningham,
800 F.3d 1290,
1291 (11th Cir. 2015). Nevertheless, when an objection to a sentence imposed
upon revocation of supervised release is raised for the first time on appeal, we
review that objection only for plain error. United States v. Gresham,
325 F.3d
1262, 1265 (11th Cir. 2003). Under this standard, an appellant must establish a
plain error that affected his substantial rights and seriously affected the fairness of
the judicial proceedings.
Id.
Post-imprisonment terms of supervised release are governed by
18 U.S.C.
§ 3583. Pursuant to this statute, a district court may revoke a term of supervised
release and impose a new term of imprisonment if it finds by a preponderance of
the evidence that the defendant violated a condition of his supervised release. 18
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U.S.C. § 3583(e)(3). When a district court revokes a defendant’s term of
supervised release and imposes a term of imprisonment, generally it may also
include a term of supervised release to follow the term of imprisonment.
Id.
§ 3583(h).
Before 2003, subsection (h) provided for a term of supervised release only in
cases where the term of imprisonment imposed upon revocation of supervised
release was less than the maximum term authorized under subsection (e)(3). See,
e.g.,
18 U.S.C. § 3583(h) (2000). In 2003, however, Congress amended subsection
(h) by deleting the language that limited its application to cases where the sentence
imposed upon revocation was below the statutory maximum. See Prosecutorial
Remedies and Other Tools to end the Exploitation of Children Today Act of 2003
(“PROTECT Act”), Pub. L. No. 108-21, § 101,
117 Stat. 650, 651 (2003). Thus,
under the current version of subsection (h), a term of supervised release may be
imposed upon revocation so long as it does not exceed the maximum term of
supervised release that is authorized for the defendant’s original offense of
conviction, “less any term of imprisonment that was imposed upon revocation of
supervised release.”
18 U.S.C. § 3583(h).
Johnson cannot show that the district court committed error, plain or
otherwise. Johnson was sentenced under the current version of subsection (h), not
the former version, which he cites in his brief. And the 12-month term of
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supervised release the district court imposed was not greater than the difference
between the maximum supervised-release term permitted for Johnson’s original
offense (36 months, pursuant to § 3583(b)(2)) and the length of the sentence
imposed upon revocation of supervised release (24 months). See id. Thus,
although Johnson received the statutory maximum term of imprisonment under
§ 3583(e)(3), the district court was authorized under § 3583(h) to impose a 12-
month term of supervised release to follow. We affirm.
AFFIRMED.
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