United States v. Seals , 207 F. App'x 489 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS December 5, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20747
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH NOEL SEALS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:05-CR-306-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Convicted in 1992 on narcotics and firearm violations, Joseph
Noel Seals, was sentenced to a term of imprisonment, followed by
five years of supervised release. He began serving his supervised
release in March 2005. That August, he was found to have violated
the terms of such release. The district court revoked his release,
sentenced him to 11 months in prison, and ordered he be placed back
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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on supervised release for four years following his imprisonment.
Seals contests the imposition of another term of supervised
release.
Seals challenges the reimposition of a term of supervised
release for the first time on appeal. He claims the issue should
be reviewed de novo, nevertheless, because the reimposition of
supervised release exceeded the court’s statutory authority. In
his brief, however, Seals maintains the reimposition of supervised
release deprived him of his Fifth Amendment due process rights.
Because Seals claims a constitutional violation and because he did
not object in district court to the reimposition of supervised
release, our review is only for plain error. See United States v.
Olano, 507 U.S. 725, 731-37 (1993). To establish reversible plain
error, a defendant must show a clear or obvious error affected his
substantial rights. E.g., United States v. Castillo, 386 F.3d 632,
636 (5th Cir.), cert. denied, 543 U.S. 1029 (2004). Even then, we
retain discretion to correct the error; generally, we will do so
only if it “affects the fairness, integrity, or public reputation
of judicial proceedings”. Id.A district court’s authority to revoke supervised release is
governed by 18 U.S.C. § 3583. When Seals was originally sentenced
in 1992, § 3583(e) stated in part: a court may “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
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time previously served on postrelease supervision .... ” 18 U.S.C.
3538. In interpreting that section, we had previously held that a
defendant could not be required to serve another term of supervised
release (following imprisonment) after the original release term
had been revoked. See United States v. Holmes, 954 F.2d 270, 272
(5th Cir. 1992). We were not alone in our view. See, e.g., United
States v. Koehler, 973 F.2d 132 (2nd Cir. 1992); United States v.
Malesic, 18 F.3d 205 (3rd Cir. 1994); United States v. Cooper, 962
F.2d 339 (4th Cir. 1992); United States v. Truss, 4 F.3d 437 (6th
Cir. 1993); United States v. McGee, 981 F.2d 271 (7th Cir. 1992);
United States v. Behnezhad, 907 F.2d 896 (9th Cir. 1990); United
States v. Rockwell, 984 F.2d 1112 (10th Cir. 1993); United States
v. Tatum, 998 F.2d 893 (11th Cir. 1993). Two circuits, however,
held § 3583(e)(3) did grant district courts the power to reimpose
a further term of supervised release after revocation. See, e.g.,
United States v. O’Neil, 11 F.3d 292 (1st Cir. 1993); United States
v. Schrader, 973 F.2d 623 (8th Cir. 1992).
In 2000 (after Seals’s original conviction but before the
revocation of his release), Johnson v. United States, 529 U.S. 694(2000), settled the circuit split and sided with the minority
approach. Johnson held § 3583(e) did permit district courts,
revoking a term of supervised release in favor of reimprisonment,
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to require a further term of supervised release following the
further incarceration. 529 U.S. at 704-10.
Seals relies on Johnson in claiming that, because his original
conviction occurred in 1992, to apply Johnson to his case is to
retroactively apply the decision in violation of the Constitution’s
Ex Post Facto Clause. “The heart of the Ex Post Facto Clause, U.S.
Const., Art. I, § 9, bars application of a law ‘that changes the
punishment, and inflicts a great punishment than the law annexed to
the crime, when committed.’” Johnson, 529 U.S. at 699 (quoting
Calder v. Bull, 3 U.S. 386, 390(1798)). Retroactive application of
Johnson, Seals urges, violates the core due process “concepts of
notice, foreseeability, and in particular, the right to fair
warning .... ” Rogers v. Tennessee, 532 U.S. 451, 459 (2001).
Because he had no warning or reasonable expectation at the time of
his offense that he could be subject to reimposition of supervised
release following revocation, Seals contends the law in this
circuit at the time of his offense, as expressed in Holmes, should
be applied to his case. As explained below, Seals has not shown
plain error.
“If a judicial construction of a criminal statute is
unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue, it must not be given
retroactive effect.” Bouie v. City of Columbia, 378 U.S. 347, 354
(1964)(internal quotes omitted). In Seals’ case, the Supreme
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Court’s construction of § 3583(e)(3) was not “unexpected.” A
circuit-split, such as existed prior to Johnson, makes a Supreme
Court ruling on the issue reasonably foreseeable and provides a
defendant fair warning. United States v. Zuniga, 18 F.3d 1254,
1259 (5th Cir.), cert. denied, 519 U.S. 902 (1994) (citing United
States v. Rodgers, 466 U.S. 475, 484 (1984)). Nor was §
3583(e)(3)’s construction “indefensible” under existing law; prior
to Johnson, two circuits, had interpreted § 3583(e) to permit
supervised release after revocation.
Moreover, Seals new sentence is not above and beyond the
maximum penalty of his original conviction. Such a result is
forbidden under § 3583(e)(3). Johnson, 529 U.S. at 712. “Section
3583(e)(3) limits the possible prison term to the duration of the
term of supervised released originally imposed ... [and] [t]he new
prison term is limited further according to the gravity of the
original offense.” Id. Judicial construction of § 3583(e)(3) was
not an “unforseeable judicial enlargement of [the] criminal
statute” so as to make it operate as an ex post facto law. Bouie,
378 U.S at 352.
In sum, Seals has not shown a “clear” or “obvious” error.
Therefore, even assuming an error, it was not plain error.
AFFIRMED
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