United States v. Rogers, Kelvin ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3677
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KELVIN B. ROGERS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 5:90CR50019-001-GPM—G. Patrick Murphy, Chief Judge.
____________
ARGUED SEPTEMBER 8, 2003—DECIDED AUGUST 24, 2004
____________
Before KANNE, ROVNER, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Kelvin Rogers believes
that the district court improperly handled the question of
further supervised release in connection with his second re-
vocation proceeding. Briefly, the court took the position that
it was entitled to impose a term of supervised release up to
the amount that it originally imposed at Rogers’s first
sentencing proceeding. Rogers argues that the court’s
conclusion was wrong, and rather, that the sentence im-
posed at his first revocation hearing created a cap on any
subsequent proceedings in his case. Complicating matters
is the question whether Rogers properly objected to the dis-
2 No. 02-3677
trict court’s action, and if not, whether he waived or
forfeited this point. We conclude that Rogers did not waive
the point, but that his objections were too vague properly to
preserve it. Thus, he did forfeit his objection to the district
court’s action, and he may argue only plain error before this
court. Finding no such error, we affirm the new sentence.
I
On September 14, 1990, Rogers was sentenced to 120
months’ imprisonment for possession with intent to distri-
bute crack cocaine, which would be followed by 60 months’
supervised release. He completed his term of confinement
on June 11, 1999, and began serving the supervised release
term. After approximately half of the 60-month period had
elapsed, however, Rogers found himself before the district
court on revocation proceedings. On January 23, 2002, the
court revoked his supervised release based on various
violations (including possession of a controlled substance)
and sentenced him to four months’ imprisonment followed
by 30 months’ supervised release.
Rogers served the four months and began his new term of
supervised release on May 10, 2002. This time, he quickly
ran afoul of the conditions of release. On September 30, 2002,
the district court again revoked his supervised release and
sentenced him to six months’ imprisonment followed by
50 months’ more supervised release. The subject of Rogers’s
appeal is the district court’s increase in the supervised re-
lease time from 30 months to 50.
At the September 30 hearing, Rogers’s attorney, Lawrence
Fleming, did not formally object to the increase from 30 to
50 months. Instead, when the district judge first announced
the 50-month term, Attorney Fleming merely asked, “Is
that right, your Honor, 50? I thought he had 30 before. . . .”
Tr. at 12. When the judge reiterated that he was ordering
50 months of supervised release, the following exchange
No. 02-3677 3
took place:
Rogers: I had 30 months left when I got out [of prison
after the first revocation].
Attorney Fleming: This is a new program.
Rogers: Oh, I got some more?
Attorney Fleming: This is new.
The Court: This is a new deal. New sentence—
Rogers: Lord have mercy.
Later on, the court advised Rogers of his right to appeal the
sentence and offered to assist him in filing a notice of
appeal. When the court asked him directly whether he wished
to appeal, Attorney Fleming interrupted and asked to con-
sult with his client. After the consultation, Attorney Fleming
informed the court that he had just advised Rogers that no
ground for an appeal existed; more or less simultaneously,
Rogers chose to file a notice of appeal in open court.
Initially, Attorney Fleming continued to represent Rogers on
appeal. He filed an Anders brief in this court, but a panel
rejected the motion to withdraw, ordered counsel to obtain
a transcript of the revocation proceedings (which he had not
yet done), and set a briefing schedule. See United States v.
Rogers, No. 02-3677 (7th Cir. February 25, 2003). Later,
Fleming was replaced by Attorney Andrea Smith.
II
We begin with a brief word about the standard of review
on appeal. In this court’s order of February 25, we stated
that “we accept for present purposes counsel’s representa-
tion that Rogers objected at his revocation hearing to the
latest terms of imprisonment and supervised release.” But
we made it clear that we were making that assumption
without the benefit of the transcript. Now that we have the
4 No. 02-3677
transcript, we are free to revisit this initial assumption.
The government argues that the exchange we have repro-
duced above was not enough to alert the district court to the
legal point Rogers is now making, and thus that he forfeited
the issue and is entitled only to plain error review. We
agree. Both Rogers and Fleming appeared surprised by the
change from 30 to 50 months, but neither one so much as
hinted that the district court lacked the authority to impose
the new time period. Rogers was obviously unhappy about
the change, exclaiming, “Lord have mercy,” but that is all
he said. The purpose of the rules on forfeiture is to give the
district court the first opportunity to correct any errors that
may arise, and something as general as expressing displea-
sure at a longer term of supervised release does not serve
that purpose. We continue, therefore, on the basis of plain
error review.
At issue here is the question whether the district court
was authorized to sentence Rogers to a new term of super-
vised release (50 months) that exceeded the term being
revoked (30 months), even though the new term remained
within the bounds of the 60-month supervised release term
that was part of Rogers’s original sentence. (The reason the
court limited the term to 50 months was because the court
had to deduct the combined 10 months of re-imprisonment
Rogers had served from the original 60-month term.) Most
cases that have addressed this issue in the past have
focused on whether a new term of supervised release could
exceed the “original term,” but in Rogers’s case there are
two potential points of reference—the first term imposed at
his original sentencing, or the second term imposed at his
first revocation proceeding.
The district court’s authority to revoke a term of super-
vised release is governed by 18 U.S.C. § 3583(e)(3), which at
the time pertinent to Rogers’s case provided that a court
can “revoke a term of supervised release, and require the
No. 02-3677 5
person to serve in prison all or part of the term of super-
vised release without credit for time previously served on
postrelease supervision . . . .” In United States v. Johnson,
529 U.S. 694 (2000), the Supreme Court held that the
version of § 3583(e)(3) that was in effect at the time of
Rogers’s sentencing authorized a district court to revoke a
term of supervised release, impose a prison sentence, and
then reimpose another term of supervised release. 529 U.S.
at 713. Johnson did not comment on the appropriate length of
a new term, however, and it said nothing about a district
court’s authority to sentence a defendant to a longer term
in a subsequent revocation proceeding than it had imposed
in an initial revocation hearing.
Nevertheless, Johnson makes two useful points. First, the
Court observed that “[t]he proceeding that follows a viola-
tion of the conditions of supervised release is not, to be sure,
a precise reenactment of the initial sentencing.” Id. at 712.
Second, Johnson sheds light on the purpose of 18 U.S.C.
§ 3583. The Court found that “Congress aimed, then, to use
the district courts’ discretionary judgment to allocate
supervision to those releasees who needed it most.” John-
son, 529 U.S. at 709. The Court went on to say that “[a]
violation of the terms of supervised release tends to confirm
the judgment that help was necessary and if any prisoner
might profit from the decompression stage of supervised
release, no prisoner needs it more than one who has already
tried liberty and failed.” Id. The first of these points
suggests that Rogers had no expectation that his second
revocation hearing would be a mere reenactment either of
his original sentencing hearing or his first revocation
hearing. The district court had more facts before it the
second time around, and it was entitled to take those facts
into account. The second point supports a reading of
§ 3583(e)(3) that confirms the district court’s discretion to
tailor additional supervised release to the needs of the par-
ticular prisoner.
6 No. 02-3677
Rogers was a good candidate for a hard look at the nec-
essary period of supervision. At his first revocation hearing,
he admitted to committing eight violations of the terms of
his release, including the commission of another crime and
the illegal possession of a controlled substance. At the
second revocation hearing, approximately four months
later, he had already committed three more violations,
including another instance of illegal possession of a con-
trolled substance. The only question is whether the district
court committed plain error by exceeding the permissible
ceiling on the facts of Rogers’s case by imposing a new
period of supervised release that was within his original
sentence of supervised release, but more than the period of
supervised release imposed at his first revocation hearing.
As a general matter, 18 U.S.C. § 3583(b) uses letter-grade
felony classifications to determine the maximum amount of
supervised release the court is authorized to impose. With the
crucial proviso, “except as otherwise provided,” subsection
(b) provides a five-year maximum term of supervised
release for a Class A felony. Class A felonies are defined by
18 U.S.C. § 3559(a)(1) as those for which the maximum
term authorized by law is life imprisonment or death. We
can deduce that Rogers’s initial offense was a Class A felony
by looking at the order this court issued affirming his
conviction and sentence, which stated, “Kelvin Rodgers [sic]
pleaded guilty to conspiracy to possess with intent to
distribute approximately 500 grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1).” United States v. Rogers,
1991 WL 128506 at *1 (7th Cir. July 11, 1991). The version
of § 841 then in effect stated that a defendant “shall be
sentenced to a term of imprisonment which may not be less
than 10 years or more than life . . .” for persons who had
distributed more than 50 grams of a mixture or substance
containing cocaine base. Thus, although Rogers received
only the statutory minimum sentence of 10 years, he com-
mitted a Class A felony because the statutory maximum
No. 02-3677 7
was life. With respect to supervised release, 21 U.S.C.
§ 841(b)(1)(A) provided that the court “shall . . . impose a
term of supervised release of at least 5 years in addition to
such term of imprisonment . . . .” The statute made no
mention of a maximum period for supervised release.
Although 18 U.S.C. § 3583(b)(1) speaks of a maximum of
five years’ supervised release for Class A felonies, there is an
exception if another law “otherwise provides.” In United
States v. Shorty, 159 F.3d 312 (7th Cir. 1998), cert. denied, 526
U.S. 1147 (1999), this court suggested that a defendant like
Rogers could conceivably face a life sentence of supervised
release. Id. at 316. Shorty, however, was addressing the
initial term of supervised release, not modifications of the
sentence imposed in revocation proceedings. Because the
50-month term the district court imposed on Rogers does
not exceed Rogers’s original sentence of 120 months’ impris-
onment followed by 60 months’ supervised release, the
court’s action was consistent with the decision in United
States v. Russell, 340 F.3d 450 (7th Cir. 2003), which held
that “a district court may, upon revoking a term of super-
vised release under § 3583(e)(3), sentence a defendant to
serve a combined term of reimprisonment and additional
supervised release, so long as that sentence does not exceed
the original term of supervised release.” 340 F.3d at 454
(citing Johnson, 529 U.S. at 705-07, 712-713) (emphasis
added).
In our view, it makes sense to distinguish between the
original sentence pronounced at the trial, and later adjust-
ments of supervised release at one or more revocation hear-
ings. At Rogers’s first revocation hearing, the district court
apparently thought that he deserved some lenity; instead of
imposing four months’ imprisonment and 56 months’
supervised release, the court chose to impose four months’
imprisonment plus only 30 months’ supervised release.
Rogers quickly showed that he was not yet able to live within
the strictures of his supervised release, however, and so on
8 No. 02-3677
the second revocation hearing the court returned to its origi-
nal sentencing plan. It imposed six more months’ imprison-
ment, and then the 50 months’ remaining supervised release
time.
III
We see no error, plain or otherwise, in the sentence the
court imposed at the second revocation hearing. We there-
fore AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-04