United States v. Joseph Marshall ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0090p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 18-2267
v. │
│
│
JOSEPH EDWARD MARSHALL, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:17-cr-20813-1—Gershwin A. Drain, District Judge.
Decided and Filed: March 26, 2020
Before: SUTTON, BUSH, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF AND PETITION FOR REHEARING EN BANC: Richard M. Helfrick, Benton
C. Martin, FEDERAL COMMUNITY DEFENDER, Detroit, Michigan, for Appellant.
ON BRIEF: Julie A. Beck, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellee.
______________________
AMENDED OPINION
______________________
SUTTON, Circuit Judge. “Wisdom too often never comes, and so one ought not to reject
it merely because it comes late.” Henslee v. Union Planters Nat’l Bank & Tr. Co., 335 U.S. 595,
600 (1949) (Frankfurter, J., dissenting). Joseph Marshall asked a district court to terminate his
supervised release ahead of schedule. The district court denied the request and Marshall
appealed. When we looked at the case the first time, we rejected the appeal for lack of
No. 18-2267 United States v. Marshall Page 2
jurisdiction. On rehearing, we recognize that we have subject-matter jurisdiction over the appeal
under 28 U.S.C. § 1291 and deny the claim on the merits.
I.
In 2008, Marshall pleaded guilty to conspiring to distribute oxycodone. United States v.
Marshall, No. 6:07-cr-00111-DCR-REW (E.D. Ky. June 2, 2008). A district court sentenced
him to 118 months of prison plus six years of supervised release. After completing his prison
sentence, Marshall began supervised release in 2016. Even though required to stay in Kentucky,
Marshall moved to Illinois, violating a release condition. To simplify things, the sentencing
district court transferred jurisdiction over his supervised release to the Northern District of
Illinois. The district court briefly revoked Marshall’s release as punishment for the violation. It
then imposed another five years of supervised release, to run concurrently with the nearly six
years remaining on his initial sentence.
Marshall started the new term in April 2016. Later that year he moved again, this time to
Michigan and this time with permission. The Northern District of Illinois transferred his case to
the Eastern District of Michigan. For the next year, Marshall made positive strides, and the
probation office took notice. It recommended an early end to his supervised release. Marshall
filed an unopposed motion to end the supervision. But the court denied his request, reasoning
that Marshall had completed little of the release term and had violated the conditions before.
Marshall appealed.
II.
What statute provides us with jurisdiction to review a district court’s decision to deny a
motion for early termination of supervised release? Two possibilities come to mind: 18 U.S.C.
§ 3742, the statute that permits us to review “an otherwise final sentence,” and 28 U.S.C. § 1291,
the statute that provides a general grant of appellate jurisdiction to review “final” judgments.
In United States v. Bowers, the defendant asked the district court to reduce his sentence in
a different setting, namely under 18 U.S.C. § 3582(c)(2). 615 F.3d 715, 717–19 (6th Cir. 2010).
That statute gives district courts discretion to reduce certain defendants’ sentences in light of
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retroactive changes to the sentencing guidelines. Id. When the district court rejected his motion
and declined to reduce Bowers’ sentence, he appealed. Id. We recognized that § 1291 or
§ 3742(a) might provide us with “jurisdiction” over Bowers’ appeal, id. at 718, whether because
it involved a “final decision” under § 1291 or because it involved an “otherwise final sentence”
under § 3742(a), see id. at 718–19, 722.
In trying to sort this out, we noted that the courts agreed that Congress enacted § 3742 in
1984 to serve as “the exclusive avenue through which a party can appeal a sentence.” Id. at 719
(quotation omitted). Why? Because § 3742(a) describes just four sentencing errors a defendant
may challenge. A defendant may appeal his sentence if it
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing
guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to
the extent that the sentence includes a greater fine or term of imprisonment,
probation or supervised release than the maximum established in the
guideline range, or includes a more limiting condition of probation or
supervised release under section 3563(b)(6) or (b)(11) than the maximum
established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and
is plainly unreasonable.
18 U.S.C. § 3742(a). If we allowed defendants to appeal their sentences under § 1291, we
reasoned, that might allow them to “circumvent the conditions imposed by 18 U.S.C. § 3742.”
Bowers, 615 F.3d at 719 (quotation omitted). Section 3742 as a result “tightly circumscribed”
our “jurisdiction to hear appeals of ‘sentences.’” Id.Looking beyond direct appeals, we noted that all circuits but one, in decisions starting in
the early 1990s, had agreed that § 3742(a) governed the “jurisdiction” of appeals of a different
sort for reducing a sentence: Criminal Rule 35(b) motions. Id. at 719–20. Seeing no
“countervailing considerations that would justify treating these two discretionary sentence-
reduction provisions differently,” we decided that § 3742(a) limited our jurisdiction to hear
Bowers’ appeal. Id. at 722; see Sarah E. Welch, Comment, Reviewing Leniency: Appealability
of 18 U.S.C. § 3582(c)(2) Sentence Modification Motions, 85 U. Chi. L. Rev. 1269, 1286–90
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(2018). And since he failed to satisfy § 3742(a)’s conditions, we held that we lacked jurisdiction
over the appeal. Id. at 726–28.
In the years just before Bowers, and most conspicuously in the years after it, the Supreme
Court has become increasingly careful about the different uses of “jurisdiction.” It’s a “word,”
the Court has come to realize, of “many, too many, meanings.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 90 (1998) (quotation omitted). Above all else, the Court has insisted that we
exercise caution before using the word to characterize a federal statute as limiting a federal
court’s subject matter jurisdiction. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510–13
(2006); Henderson v. Shinseki, 562 U.S. 428, 434–36 (2011); Gonzalez v. Thaler, 565 U.S. 134,
141–143 (2012); United States v. Kwai Fun Wong, 575 U.S. 402, 408–11 (2015); Fort Bend
County v. Davis, 139 S. Ct. 1843, 1849–50 (2019).
That is not lawyerly precision for its own sake. If we lightly treat federal statutes as
placing limits on our subject-matter jurisdiction, we end up creating all kinds of needless
complications for processing civil and criminal cases, including “harsh consequences” in many
of them. Fort Bend, 139 S. Ct. at 1849 (alteration omitted). It can be especially harsh for the
parties, as no one may forfeit or waive a court’s subject-matter jurisdiction at the trial level—
leading to new arguments on appeal, unanticipated debates on appeal, and outcome-changing
results on appeal. Arbaugh, 546 U.S. at 514; Kwai Fun Wong, 575 U.S. at 409. And it can be
difficult for the courts, as we “have an independent obligation to determine whether subject-
matter jurisdiction exists, even in the absence of a challenge from any party,” even indeed in the
face of a confession of error. Arbaugh, 546 U.S. at 514 (citation omitted); Henderson, 562 U.S.
at 434.
It’s usually a mistake, as one case after another now shows, to treat a statutory limit on
our power as a statutory limit on our subject-matter jurisdiction. More often than not, the Court
has explained, what might seem to be a limit on our subject-matter jurisdiction amounts to a
“mandatory claim-processing rule” or a mandatory limit on our authority to grant a certain form
of relief. Fort Bend, 139 S. Ct. at 1849. These rules of course still constrain a court’s authority,
but they are waivable and forfeitable limits on that authority. Id. They are meant to “promote
the orderly progress of litigation,” not to eliminate or expand “the classes of cases a court may
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entertain.” Id. at 1848–49 (quotation omitted). And they are limits we have no obligation to
bring up on our own.
Hoping to make it easier to distinguish between such statutory limitations and to
discourage most of them from being treated as restraints on our subject-matter jurisdiction, the
Court created a clear-statement rule. Only “[i]f the Legislature clearly states that a prescription
counts as jurisdictional,” the Court explained, may we treat it as a limit on our subject-matter
jurisdiction. Id. at 1850 (quotation omitted) (alteration omitted).
Bowers, on reflection, used “jurisdiction” in its traditional sense, not its subject-matter
jurisdiction sense—just like most of the cases from that era and just like the many pre-Arbaugh
cases dealing with § 3742. Bowers never mentions Arbaugh. The opinion never says whether
§ 3742(a) creates non-forfeitable and non-waivable limits or whether it creates limits that we
must raise on our own. The opinion also does not apply a clear-statement rule in determining
whether § 3742(a) limits the subject-matter jurisdiction of the federal courts.
On top of these considerations rest several others that suggest § 3742(a) imposes a
mandatory limit on our power, not a subject-matter jurisdiction limit on our power. The statute
shares qualities that look like a mandatory claim-processing rule. Cf. Manrique v. United States,
137 S. Ct. 1266, 1271 (2017). Congress enacted § 3742(a) to establish a “limited practice of
appellate review of sentences in the Federal criminal justice system.” Bowers, 615 F.3d at 719(quotation omitted). A defendant cannot ignore § 3742(a)’s limitations any more than a party
can avoid Title VII’s charge-filing requirement or the Copyright Act’s registration
requirement—two other mandatory but non-jurisdictional limits on the power of the federal
courts. Fort Bend, 139 S. Ct. at 1851; Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157
(2010).
Section 3742(a) also does not include the classic markers of a limit on our subject-matter
jurisdiction. The provision speaks to what parties, not courts, must do. Statutes concerned with
a party’s “preconditions to relief” as opposed to a “court’s authority” tend not to limit a court’s
subject-matter jurisdiction. Fort Bend, 139 S. Ct. at 1849–50 (quotation omitted); see also
Patchack v. Zinke, 138 S. Ct. 897, 905–06 (2018); Kwai Fun Wong, 575 U.S. at 410; Gonzalez,
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565 U.S. at 140–41; Reed Elsevier, 559 U.S. at 163–64. That § 3742(a) never mentions a court’s
“jurisdiction,” while not dispositive, inclines in the same direction. See Fort Bend, 139 S. Ct. at1850–51; cf. 28 U.S.C. §§ 1291, 1331, 1332.
Another provision in § 3742 adds doubt that the statute constrains subject-matter
jurisdiction. Section 3742(f) explains how appellate courts should dispose of the sentencing
appeals that § 3742(a) allows. 18 U.S.C. § 3742(f). If a sentence passes through one of
§ 3742(a)’s four gateways and the court concludes that the district court erred, § 3742(f) directs
appellate courts to remand for further sentencing proceedings or for resentencing. But if the
court determines the sentence was “not described” by any of the categories, § 3742(f)(3) tells
courts to “affirm the sentence.” It does not tell courts to “dismiss the appeal” or use other
language conveying that § 3742(a)’s limitations have “jurisdictional consequences.” Patchak,
138 S. Ct. at 905. If Congress has told us anything in this regard, it would seem to be that
§ 3742(a) does not constrain our subject-matter jurisdiction.
Last but not least, we do not lightly construe statutes to repeal earlier ones. Branch v.
Smith, 538 U.S. 254, 273 (2003) (Scalia, J.) (plurality). Before 1984, when Congress enacted
§ 3742, the federal courts used § 1291 to review criminal appeals. Abney v. United States, 431
U.S. 651, 657 (1977); United States v. Ras, 713 F.2d 311, 313 (7th Cir. 1983). It’s true that few
sentencing appeals were brought in that era. Abney, 431 U.S. at 656; United States v. Tucker,
404 U.S. 443, 447 (1972). But when they were filed, § 1291 was the source of federal court
subject-matter jurisdiction over them. Abney, 431 U.S. at 657. For many of the reasons just
given, § 3742 did not displace that jurisdiction.
There are a few competing indicators, we must acknowledge. Some come from language
in Supreme Court decisions. In United States v. Ruiz, the Court said that § 3742(a) limits
appellate courts’ “jurisdiction.” 536 U.S. 622, 627–28 (2002). And in Koon v. United States,
518 U.S. 81, 96 (1996), the Court more fully said this:
Before the Guidelines system, a federal criminal sentence within statutory limits
was, for all practical purposes, not reviewable on appeal. Dorszynski v. United
States, 418 U.S. 424, 431 (1974) (reiterating “the general proposition that once it
is determined that a sentence is within the limitations set forth in the statute under
which it is imposed, appellate review is at an end”); United States v. Tucker, 404
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U.S. 443, 447 (1972) (same). The Act altered this scheme in favor of a limited
appellate jurisdiction to review federal sentences. 18 U.S.C. § 3742. Among
other things, it allows a defendant to appeal an upward departure and the
Government to appeal a downward one. § 3742(a), (b).
But these pre-Arbaugh references to “jurisdiction” in Ruiz and Koon have plenty of
company in other Court decisions. They indeed look just like many other “drive-by
jurisdictional” rulings that the Court has warned us not to follow. Steel Co., 523 U.S. at 91.
Consistent with that warning, we have lots of cases in which we recharacterized earlier decisions
based on the Arbaugh line of cases. E.g., Carter v. Hickory Healthcare Inc., 905 F.3d 963, 967–
68 (6th Cir. 2018); Brentwood at Hobart v. NLRB, 675 F.3d 999, 1004 (6th Cir. 2012); Winnett
v. Caterpillar, Inc., 553 F.3d 1000, 1005–07 (6th Cir. 2009); Thomas v. Miller, 489 F.3d 293,
297–98 (6th Cir. 2007); United States v. Caruthers, 458 F.3d 459, 472 n.6 (6th Cir. 2006). Some
of them even involved post-Arbaugh decisions that did not account for the clear-statement rule.
Emswiler v. CSX Transp., Inc., 691 F.3d 782, 788–90 & n.1 (6th Cir. 2012) (overruling Stephens
v. Ret. Income Plan for Pilots of U.S. Air, Inc., 464 F.3d 606 (6th Cir. 2006)); Maxwell v. Dodd,
662 F.3d 418, 421 (6th Cir. 2011) (overruling Allison v. City of East Lansing, 484 F.3d 874 (6th
Cir. 2007)).
In a similar way, dozens of circuit cases, including one of our own, have said that
§ 3742(a) limits courts’ “jurisdiction” in the context of Rule 35 appeals. See, e.g., United States
v. McAndrews, 12 F.3d 273, 276–78 (1st Cir. 1993); United States v. Doe, 93 F.3d 67, 67–68 (2d
Cir. 1996) (per curiam); United States v. McKnight, 448 F.3d 237, 238 (3d Cir. 2006); United
States v. Davis, 679 F.3d 190, 193–94 (4th Cir. 2012); United States v. Doe, 932 F.3d 279, 281
(5th Cir. 2019); United States v. Moran, 325 F.3d 790, 792 (6th Cir. 2003); United States v.
McDowell, 117 F.3d 974, 977–78 (7th Cir. 1997); United States v. Rublee, 655 F.3d 835, 836–37
(8th Cir. 2011); United States v. Arishi, 54 F.3d 596, 596–98 (9th Cir. 1995); United States v.
McMillan, 106 F.3d 322, 324 n.4 (10th Cir. 1997); United States v. Chevarria-Herrara, 15 F.3d
1033, 1034–36 (11th Cir. 1994). But these cases merely return us to the same question presented
in construing Bowers: In which sense was the court using “jurisdiction”? That many of these
cases pre-date Arbaugh and that none of them applies the clear-statement rule alleviates any
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anxiety that these courts treated the statute as establishing limits on our subject-matter
jurisdiction and displaced § 1291 in the process.
One other reality: The federal courts have treated a few statutes as affecting the courts’
subject-matter jurisdiction even though they address the parties, not the courts. Consider 28
U.S.C. § 2344 as one example. “Any party aggrieved by the final order,” it says, “may, within
60 days after its entry, file a petition to review the order in the court of appeals wherein venue
lies.” Id. Yet “lower court decisions have uniformly held that the Hobbs Act’s 60-day time limit
for filing a petition for review of certain final agency decisions, 28 U.S.C. § 2344, is
jurisdictional.” Henderson, 562 U.S. at 437. Consider 28 U.S.C. § 1253 as another example.
This section permits “any party” to “appeal to the Supreme Court from an order granting or
denying . . . an interlocutory or permanent injunction in any civil action . . . required by any Act
of Congress to be heard and determined by a district court of three judges.” Both circuits to
consider how this provision works determined that it created exclusive jurisdiction in the
Supreme Court to hear appeals of preliminary injunctions from three-judge district courts.
Bogue v. Faircloth, 441 F.2d 623 (5th Cir. 1971) (per curiam); Blay v. Young, 509 F.2d 650,
650–651 (6th Cir. 1974) (per curiam). But these minor exceptions, assuming they accurately
apply the Arbaugh test, merely confirm the general rule—that statutes that speak to parties, not
courts, generally impose mandatory limits on the courts, not subject-matter jurisdictional limits.
All in all, Bowers is best read as confining our power to grant certain types of relief in
sentencing appeals, not as confining our subject-matter jurisdiction over them. Section 1291
thus remains the main source of our subject-matter jurisdiction in these appeals.
III.
That leaves the merits. Marshall claims that the district court abused its discretion in
denying his request to lower his supervised-release term. Keep in mind that he did not raise this
claim on direct review of the most recent imposition of his sentence. And keep in mind that he
has not filed a § 2255 motion that his supervised-release term violates the U.S. Constitution or a
federal statute. His claim instead is that, because of recent good behavior, the district court
should have granted his request to end the last three years of his term of supervised release.
No. 18-2267 United States v. Marshall Page 9
While we have subject matter jurisdiction over the appeal under § 1291, it does not follow that
we necessarily have authority to grant relief.
Marshall mainly argues that § 3742(a)(1) permits us to grant relief because his sentence
“was imposed in violation of law.” He identifies three types of errors in the district court’s
decision that might qualify as a “violation of law.” It (1) relied on clearly erroneous facts,
(2) failed to consider the factors listed in 18 U.S.C. § 3553(a), and (3) did not allow Marshall to
allocute in violation of Criminal Rule 32.1(c). But, in doing so, he leaps over the first question.
Did the district court make these mistakes while imposing a sentence?
Section 3742(a)(1) allows Marshall to appeal a sentence that “was imposed in violation
of law.” That means he must point to errors that occurred when the court sentenced him or
modified his sentence. This understanding is the only way to make sense of how other statutes
use “impose.” Look at § 3557, which provides: “The review of a sentence imposed pursuant to
section 3551 is governed by the provisions of section 3742.” 18 U.S.C. § 3557. Section § 3551
in turn explains what types of punishment a district court may impose on an individual or
organization “found guilty of an offense.” Id. § 3551(b), (c). In no way does it suggest
“imposing a sentence” refers to anything other than the act of sentencing a defendant to
punishment.
Other statutes confirm the point. Take § 3582: “The court, in determining whether to
impose a term of imprisonment . . . shall consider the factors set forth in section 3553(a).” Id.
§ 3582(a). The supervised release statute gives the same impression: “The court, in imposing a
sentence to a term of imprisonment . . . may include [supervised release] as a part of the
sentence.” Id. § 3583(a).
Absent a reason to think otherwise, we expect that Congress uses a word in a consistent
way throughout a Title of the United States Code. See Util. Air Regulatory Grp. v. EPA,
573 U.S. 302, 319–20 (2014); Antonin Scalia & Bryan A. Garner, Reading Law 172 (2012). We
see no indication that Congress used “impose” differently in § 3742(a) from its use in § 3557,
§ 3553, § 3582, or § 3583—or other provisions as well. See, e.g., id. §§ 3551(b), 3552(a), 3554,
3555, 3556, 3558, 3572(a), 3585(b). The inference is especially appropriate when the
No. 18-2267 United States v. Marshall Page 10
neighboring provisions, as here, all came into existence at the same time. Sentencing Reform
Act, Pub. L. 98-473, 98 Stat 1837 (1984).
Nor may we treat the district court’s decision to deny Marshall’s request for termination
of his supervised release as re-imposing Marshall’s sentence. The relevant statutes distinguish
between modifying a sentence and imposing a sentence. Section 3582(c) says a “court may not
modify a [sentence] once it has been imposed except” in certain limited circumstances.
18 U.S.C. § 3582(c) (emphasis added). The supervised release statutes fit the same mold. A
district court may “extend a term of supervised release if less than the maximum . . . was
previously imposed.” Id. § 3583(e)(2). And Congress has used the term “reimpose” elsewhere,
15 U.S.C. § 7004(c)(1), re-enforcing our hesitance to give “impose” anything other than its
ordinary meaning.
Even if one could view modifying a sentence as imposing a new sentence, it makes no
sense to say declining to modify a sentence “imposes” a sentence. Doe, 932 F.3d at 281 (“When
the district court denies a [sentence reduction] motion, it does not impose[] a sentence; it declines
to impose[] one.” (quotation omitted) (alteration in original)); accord Dillon v. United States,
560 U.S. 817, 831 (2010). Giving the word this double meaning would mean district courts have
far more work to do than they realized—or we have long assumed. If a district court “imposes”
a sentence when it declines to modify an existing sentence, then § 3553 requires it to repeat
certain procedural steps already performed at the defendant’s initial sentencing. See 18 U.S.C.
§ 3553. Most onerous of all, a court would have to “state in open court the reasons for its
imposition of the particular sentence” every time a defendant moves for a discretionary
reduction. Id. § 3553(c).
Nor should we jump to the conclusion that courts of appeals have authority to review all
discretionary rulings by district court judges, whether under § 3742 or some other statute. Keep
in mind that, during the days of mandatory guidelines, “every circuit . . . held that [§ 3742] does
not authorize a defendant to appeal a sentence [on the ground] the district court abused its
discretion in refusing to depart.” Ruiz, 536 U.S. at 627 (citations omitted). And it’s worth
remembering that before 1984, defendants could rarely, if ever, challenge their sentences.
Tucker, 404 U.S. at 446–47. “Indeed, for a century after [the Supreme Court] was established,
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no appeal as of right existed in criminal cases, and as a result, appellate review of criminal
convictions was rarely allowed.” Abney, 431 U.S. at 656. Ever since United States v. Booker, it
is true, courts of appeals have become used to reviewing sentencing decisions for an abuse of
discretion. 543 U.S. 220 (2005). But that comfort is not a license to ignore § 3742’s limitations
or to treat it as a cure-all. For the truly egregious mistakes, § 2255 and writs of mandamus stand
as last lines of defense. See United States v. Spilotro, 884 F.2d 1003, 1005–06 (7th Cir. 1989).
That leaves the possibility that there was a pre-1984 practice for such review that § 3742
did not displace. In other words, it’s possible that, before 1984, appellate courts reviewed
decisions by district court judges not to reduce or end parole terms, a useful analogy to today’s
supervised release terms. The parties have not briefed the point. And we are not aware of any
such practice.
We need not finally resolve the point today. Even if we had such authority, it would
make no difference to Marshall’s appeal. The district court did not abuse its discretion in
denying the motion. As the court pointed out, Marshall violated his conditions of supervised
release once before, a legitimate reason for denying a request to end his supervised-release term
now.
In answering Marshall’s challenge, we offer no opinion on whether appellate courts have
authority to review First Step Act appeals. That’s a matter for another day. Whatever else that
matter is, it is not one that turns on the subject-matter jurisdiction of the federal courts.
We affirm.