United States v. Fareed ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4831
JAMEEL ASMAR FAREED,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4837
ALBERT MONTE REID,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-92-31, CR-92-238)
Argued: May 9, 2002
Decided: July 10, 2002
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Michael and Judge Motz joined.
2 UNITED STATES v. FAREED
COUNSEL
ARGUED: William Stimson Trivette, Assistant Federal Public
Defender, Thomas Norman Cochran, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellants. Lawrence Pat-
rick Auld, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills
Wagoner, United States Attorney, Paul A. Weinman, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
OPINION
WILKINS, Circuit Judge:
Jameel Asmar Fareed and Albert Monte Reid (collectively, "Appel-
lants") contend that the district court lacked authority to impose addi-
tional supervised release terms to follow the service of prison
sentences that resulted from Appellants’ violation of conditions of
previously imposed supervised release terms. Finding no error, we
affirm.
I.
Fareed pled guilty in 1992 to one count of possession with the
intent to distribute in excess of five grams of cocaine base. See 21
U.S.C.A. § 841 (West 1999 & Supp. 2001). He was sentenced to 97
months imprisonment and four years of supervised release, and his
supervised release term began on March 27, 1999. He was subse-
quently convicted in North Carolina Superior Court for attempting to
traffic in cocaine and maintaining a place for controlled substances.
Because Fareed committed these offenses during his supervised
release term, the probation office sought revocation of his supervised
release.
Reid pled guilty in 1993 to one count of conspiracy to possess with
the intent to distribute in excess of 50 grams of cocaine base. See 21
U.S.C.A. § 846 (West 1999). He was sentenced to 75 months impris-
onment and five years supervised release, and his supervised release
UNITED STATES v. FAREED 3
term began on May 18, 1998. He was subsequently convicted in
North Carolina Superior Court on five counts of maintaining a place
for controlled substances and five counts of possession with the intent
to distribute cocaine. As was the case with Fareed, because these
offenses occurred during his supervised release term, the probation
office sought revocation of his supervised release.
The district court conducted a hearing for both Appellants and
revoked their respective supervised release terms under 18 U.S.C.
§ 3583(g) (1988), which requires that a defendant found to have pos-
sessed a controlled substance shall have his supervised release term
terminated and shall receive a prison sentence of not less than one-
third of the length of the supervised release term. See generally 18
U.S.C. § 3583 (1988 & Supp. IV 1993) (governing imposition and
modification of supervised release terms). The district court sentenced
each Appellant to 18 months in prison.1 Additionally, over Appel-
lants’ objections, the court imposed a 30-month supervised release
term on each. Appellants argued that the district court lacked author-
ity under 18 U.S.C. § 3583(g), as that statute existed at the time they
committed their federal offenses in 1992, to impose additional super-
vised release terms following the prison terms. The district court
agreed that the plain language of § 3583(g) did not authorize imposi-
tion of additional supervised release terms but concluded that Con-
gress made a "mistake" in wording § 3583(g) as it did. J.A. 32.
II.
We review legal issues concerning sentences de novo. See United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Prior to its
1994 amendment, § 3583 provided several situations in which a
supervised release term could be altered, three of which are relevant
here.2 Under § 3583(e)(1), courts were authorized in certain circum-
1
We note that under § 3583(g), Reid should have received a prison
sentence of "not less than one-third of the term of supervised release."
Because his original term of supervised release was 60 months, that sub-
section required that Reid receive a prison sentence of at least 20 months.
The Government has not cross-appealed the imposition of Reid’s 18-
month prison term, however.
2
Appellants do not dispute that § 3583(g) in its current form authorizes
the imposition of an additional supervised release term. See 18 U.S.C.
4 UNITED STATES v. FAREED
stances to "terminate" a supervised release term "and discharge the
person released at any time after the expiration of one year of super-
vised release." And, under § 3583(e)(3), courts were authorized to
"revoke" a supervised release term and to "require the person to serve
in prison all or part of the term of supervised release" if the person
was found to have violated a condition of his supervised release.
Finally, under § 3583(g), if the violator was found to have possessed
a controlled substance, the court was required to "terminate" the
supervised release term and "require the defendant to serve in prison
not less than one-third of the term of supervised release."
Appellants argue that the district court exceeded its authority when
it imposed supervised release terms to follow their new prison terms.
The parties agree that Johnson v. United States, 529 U.S. 694 (2000),
answers the question of whether a defendant sentenced under § 3583(g)3
may receive an additional term of supervised release, so it is on that
§ 3583(g) (2000); see also 18 U.S.C. § 3583(h) (2000) (stating that
"[w]hen 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 super-
vised release after imprisonment"). However, because Congress provided
no indication that it intended the 1994 amendments to apply retroac-
tively, the pre-amendment version of § 3583 governs this appeal. See
Johnson v. United States, 529 U.S. 694, 701-02 (2000). Unless otherwise
indicated, all further references to § 3583 or its subsections refer to the
pre-amendment version.
3
The Government maintains that the district court imposed Appellants’
post-revocation sentences not under § 3583(g), but rather under 18
U.S.C. § 3583(e)(3). The Government’s argument notwithstanding, an
examination of the sentencing hearing transcript clearly reveals that the
court sentenced Appellants under § 3583(g). The district court specifi-
cally discussed whether the possession of controlled substances requires
a court to terminate the supervised release term without imposing another
period of supervised release. It then explicitly adopted the analysis in an
article interpreting § 3583(g) as the basis for its conclusion that an addi-
tional supervised release term could be imposed. See David N. Adair, Jr.,
Revocation Sentences: A Practical Guide, 64 Fed. Probation 67, 71
(2000).
UNITED STATES v. FAREED 5
opinion that we focus our attention. In Johnson, the Supreme Court
considered whether § 3583(e)(3) authorized imposition of an addi-
tional supervised release term upon revocation of the initial term.
Contrasting the word "revoke," as used in (e)(3), with "terminate,"
which appears in (e)(1), the Court determined that (e)(3) was suscep-
tible to the reading that a new term of supervised release could be
imposed to follow a prison term. See Johnson, 529 U.S. at 704-08.
The Court noted that the use of "terminate" in (e)(1) indicated
unequivocally that the supervised release term was ended but that the
use of the word "revoke" in (e)(3) left open the possibility that some
portion of the supervised release term could continue.4 See id. at 704-
05. The Court noted that if Congress had intended for the supervised
release term to be completely annulled by the violation, it could have
used the word "terminate," as it did in (e)(1), instead of "revoke." See
id. at 705-06 (stating that "unlike a ‘terminated’ order of supervised
release, one that is ‘revoked’ continues to have some effect").
Accordingly, the Court construed the provision to authorize the impo-
sition of a post-revocation supervised release term. See id.Justice Scalia dissented, contending that § 3583(e)(3) plainly did
not provide authority for imposition of an additional supervised
release term. See id. at 715-23 (Scalia, J., dissenting). The majority
responded in dictum that even had Congress used language in (e)(3)
that plainly did not authorize an additional term, § 3583(a) would sup-
ply the authority. See id. at 707-08. Section 3583(a) provided 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." The Court stated that because a post-
revocation prison sentence was indeed a sentence for the original fed-
eral crime of conviction, § 3583(a) would provide the authority for
the imposition of an additional supervised release term.5 See id. at
708.
4
The Court explained that although the primary meaning of "revoke"
is "to annul by recalling," a secondary meaning is "to call or summon
back." Id. at 704, 706 (internal quotation marks omitted). The Court rea-
soned that use of the latter meaning would suggest that "further super-
vised release is . . . possible." Id. at 706.
5
Justices Kennedy and Thomas agreed in separate concurring opinions
that § 3583(e)(3) authorized the imposition of the post-revocation super-
6 UNITED STATES v. FAREED
Although the Johnson Court did not address § 3583(g), that subsec-
tion employs the very word—"terminate"—that the Johnson Court
stated would unequivocally convey that the subsection did not autho-
rize the imposition of a post-revocation term of supervised release.
On this basis, Appellants maintain that § 3583(g) unambiguously
expresses that supervised release terms do not continue in any form
or duration following a finding that a controlled substance was pos-
sessed, and therefore that § 3583(g) provides no authority for imposi-
tion of an additional supervised release term.
We need not decide, however, whether § 3583(g) itself provides
authority for imposition of an additional supervised release term
because even if it does not, § 3583(a) does. See Korb v. Lehman, 919
F.2d 243, 246 (4th Cir. 1991) (stating that we may "affirm on any
ground fairly supported by the record"). The Supreme Court held in
Johnson that post-revocation prison sentences are sentences for the
original federal crime, not punishment for the violation of the terms
of supervised release. See Johnson, 529 U.S. at 700-01; United States
v. Maxwell, 285 F.3d 336, 341 (4th Cir. 2002). Accordingly, when the
district court imposed Appellants’ post-revocation prison terms, it
"impos[ed] a sentence to a term of imprisonment for a felony," and
therefore was authorized under § 3583(a) to "include as a part of the
sentence a requirement that the defendant be placed on a term of
supervised release after imprisonment." 18 U.S.C. § 3583(a); see
United States v. Marlow, 278 F.3d 581, 586-88 (6th Cir. 2002) (hold-
ing that imposing post-revocation prison term is "imposing a sen-
tence" within the meaning of § 3583(a) and therefore that § 3583(a)
authorizes post-revocation imposition of additional supervised release
term), petition for cert. filed, No. 01-9925 (U.S. Apr. 25, 2002); cf.
United States v. Wesley, 81 F.3d 482, 483-84 (4th Cir. 1996) (con-
cluding that § 3583(a) authorizes imposition of a supervised release
term following reimprisonment at resentencing for probation viola-
tion). We therefore follow the dictum endorsed by six justices in
vised release term but rejected the majority’s analysis of § 3583(a). See
id. at 713-14 (Kennedy, J., concurring in part); id. at 715 (Thomas, J.,
concurring in the judgment). Justice Scalia likewise disagreed with the
majority’s statements regarding § 3583(a). See id. at 722-23 (Scalia, J.,
dissenting).
UNITED STATES v. FAREED 7
Johnson and hold that § 3583(a) authorized the post-revocation impo-
sition of Appellants’ additional supervised release terms. See John-
son, 529 U.S. at 707-08; cf. Gaylor v. United States, 74 F.3d 214, 217
(10th Cir. 1996) (stating that federal appellate court is "bound by
Supreme Court dicta almost as firmly as by the Court’s outright hold-
ings, particularly when the dicta is recent and not enfeebled by later
statements").
III.
In sum, we hold that the district court was authorized under
§ 3583(a) to impose supervised release terms to follow Appellants’
post-revocation prison terms. Appellants’ sentences are therefore
affirmed.
AFFIRMED