United States v. Ray ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30466
Plaintiff-Appellee,
v.  D.C. No.
CR 02-0055 DWM
VICTORIA L. RAY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
March 6, 2007—Seattle, Washington
Filed May 3, 2007
Before: Betty B. Fletcher, Diarmuid F. O’Scannlain, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Tashima
4939
UNITED STATES v. RAY 4941
COUNSEL
John Rhodes, Assistant Federal Defender, Missoula, Montana,
for the defendant-appellant.
Timothy J. Racicot, Assistant United States Attorney, Mis-
soula, Montana, for the plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
Defendant Victoria L. Ray appeals her sentence upon revo-
cation of her supervised release on the ground that United
States v. Booker, 543 U.S. 220 (2005), established the maxi-
mum term of imprisonment, for purposes of determining the
maximum term of imprisonment post-revocation, as the high
end of the applicable Sentencing Guidelines range, and that
her sentence exceeded that maximum. Ray pled guilty to bank
embezzlement in violation of 18 U.S.C. § 656 and was sen-
tenced, pre-Booker, to a term of imprisonment followed by
supervised release. Ray twice violated the conditions of her
4942 UNITED STATES v. RAY
supervised release, and was sentenced to imprisonment for
these violations for a total of 15 months. If Ray’s assertion is
correct, her second revocation sentence, of six months, would
exceed the applicable maximum — using the high end of the
Guidelines range prescribed at the time of her original sen-
tencing as the statutory maximum to define the applicable
maximum term of revocation imprisonment — and she would
be entitled to reversal. We have jurisdiction pursuant to 18
U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
I. Background
On October 4, 2002, Ray was charged with embezzling
approximately $11,001.35 from Wells Fargo Bank (“Wells
Fargo”). She pled guilty pursuant to a plea agreement and the
district court imposed a 10-month term of imprisonment, to be
followed by a three-year term of supervised release. This 10-
month term of imprisonment was within the Sentencing
Guidelines’ then-mandatory six-to-12-month range. Ray
served her period of incarceration and began to serve her term
of supervised release in March 2004.
On November 24, 2004, Ray appeared on allegations that
she had violated the conditions of her supervised release, and
admitted those allegations. Finding that she violated certain
conditions, the district court revoked her supervised release
and sentenced her to nine months of imprisonment followed
by 36 months of supervised release. That decision was
affirmed on appeal. See United States v. Ray, 190 F. App’x
580 (9th Cir. 2006).
After release from her first imprisonment for violating
supervised release, Ray admitted additional violations of her
supervised release, and the district court sentenced her to six
months’ imprisonment, to be followed by 21 months of super-
vised release. Ray timely appealed.
UNITED STATES v. RAY 4943
II. Standard of Review
We review questions of statutory interpretation de novo.
United States v. Stewart, 420 F.3d 1007, 1020 (9th Cir. 2005).
Because Ray preserved her objection, we review the sentence
for a violation of Booker de novo. See United States v. Smith,
282 F.3d 758, 771 (9th Cir. 2002).
III. Discussion
A crime’s “maximum sentence” provides the maximum
term of imprisonment, the maximum term of supervised
release to which a criminal defendant may be subject, and the
maximum term of revocation imprisonment. 18 U.S.C.
§ 3583(b), (e), (h). The maximum term of revocation impris-
onment corresponds to the “class” of the underlying convic-
tion. In assigning the “class” to which a conviction belongs,
we frequently look to maximum terms of imprisonment for
the underlying offense, as follows:
An offense that is not specifically classified by a let-
ter grade in the section defining it, is classified if the
maximum term of imprisonment authorized is —
(1) life imprisonment, or if the maximum pen-
alty is death, as a Class A felony;
(2) twenty-five years or more, as a Class B fel-
ony;
....
(5) less than five years but more than one year,
as a Class E felony;
(6) one year or less but more than six months, as
a Class A misdemeanor . . . .
4944 UNITED STATES v. RAY
18 U.S.C. § 3559(a). For assessing terms of supervised
release and its revocation, 18 U.S.C. § 3583 provides that “a
defendant whose term [of supervised release] is revoked . . .
may not be required to serve on any such revocation more
than 5 years in prison if the offense that resulted in the term
of supervised release is a class A felony, more than 3 years
in prison if such offense is a class B felony, more than 2 years
in prison if such offense is a class C or D felony, or more than
one year in any other case.” 18 U.S.C. § 3583(e)(3).
Ray acknowledges that, at least before Booker and Blakely
v. Washington, 542 U.S. 296 (2004), courts understood the
maximum term of imprisonment to be defined by the United
States Code and not by the high end of the applicable Guide-
lines range. See, e.g., United States v. Hernandez-Guardado,
228 F.3d 1017, 1026-27 (9th Cir. 2000) (offering such a dis-
tinction). Based on the traditional approach, Ray’s statute of
conviction provides for a statutory maximum sentence of
thirty years, 18 U.S.C. § 656, and her offense is therefore
classified as a Class B felony and is subject to a maximum
term of revocation imprisonment of three years. 18 U.S.C.
§§ 3559(a)(2), 3583(e)(3). Ray contends, however, that
because her maximum sentence under the Guidelines was one
year, her offense should have been classified as a Class E fel-
ony under § 3559(a)(5), which would yield a maximum term
of revocation imprisonment of one year. 18 U.S.C.
§ 3583(e)(3). Thus, Ray contends that the district court erred
because it imposed a combined revocation sentence of more
than one year (adding the six-month revocation sentence Ray
now challenges to the earlier nine-month revocation sen-
tence). Ray further contends that upon the second revocation
of her supervised release, she should have been exposed to no
more than a maximum three-month term of imprisonment.1
1
All revocation imprisonment sentences are aggregated in determining
whether the applicable maximum has been exceeded. See, e.g., United
States v. Tapia-Escalera, 356 F.3d 181, 187-88 (1st Cir. 2004) (becoming
the sixth circuit to accept this position); United States v. Merced, 263 F.3d
34, 37 (2d Cir. 2001); United States v. Brings Plenty, 188 F.3d 1051, 1053
(8th Cir. 1999).
UNITED STATES v. RAY 4945
Specifically, Ray suggests that Ninth Circuit law indicating
that “[t]he effect of classification [under § 3559] is . . . to use
the statute describing the offense term in order to determine
the maximum term of punishment,” United States v. Avery, 15
F.3d 816, 819 (9th Cir. 1993), has been overruled, given lan-
guage in Booker and Blakely that seems to define the “statu-
tory maximum” in terms of the high end of the Guidelines
range. The language to which Ray refers includes statements
that “the ‘statutory maximum’ for [Apprendi v. New Jersey,
530 U.S. 466 (2000),] purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant,” Blakely, 542
U.S. at 303 (emphasis in original); see also Booker, 543 U.S.
at 232 (quoting Blakely), and that “the Sixth Amendment as
construed in Blakely does apply to the Sentencing Guide-
lines,” Booker, 543 U.S. at 226-27.
[1] Other Circuits have rejected the contention that Booker
altered the definition of “statutory maximum,” but we have
yet to address this question. We now join our sister circuits in
holding that Booker does not define the “statutory maximum”
as the high end of the Guidelines range for sentences imposed
for violations of supervised release. Instead, the definition of
“statutory maximum” continues to come from the United
States Code. We may not modify Congress’ clear intent that
the statutory maximum determines the allowable period of
imprisonment after the revocation of supervised release, even
if the Guidelines prescribed a lower maximum sentence for
the particular defendant. See 18 U.S.C. §§ 3559, 3583; United
States v. Work, 409 F.3d 484, 490 (1st Cir. 2005) (“A fortiori,
the permissible term of incarceration authorized for a super-
vised release violation is not circumscribed by the substantive
sentence called for under the federal sentencing guidelines.
. . . Rather, the term of incarceration permitted in consequence
of a supervised release violation is cabined by section 3583
itself.”) (citations omitted).
[2] As the Fifth Circuit reasoned in United States v. Hinson,
429 F.3d 114 (5th Cir. 2005), Booker does not affect impris-
4946 UNITED STATES v. RAY
onment for violation of supervised release because such sen-
tences are discretionary, and the defendant “faced the same
maximum sentence upon revocation of supervised release
both before and after Booker.” Id. at 119 (emphasis added).
In this analysis, the Fifth Circuit applied the traditional statu-
tory maximum in assessing the maximum sentence available,
id. at 115, and pointed to a variety of cases indicating that
imprisonment for violation of supervised release, coupled
with imprisonment for a conviction, may exceed even the
actual statutory maximum prescribed for the offense. Id. at
116 n.7 (citing Work, 409 F.3d at 489; United States v. Pettus,
303 F.3d 480, 487 (2d Cir. 2002); United States v. Wirth, 250
F.3d 165, 170 n.3 (2d Cir. 2001)). We have long accepted that
revocation imprisonment sentences may exceed the applicable
statutory maximum for the underlying offense, as well. United
States v. Purvis, 940 F.2d 1276, 1279 (9th Cir. 1991); United
States v. Montenegro-Rojo, 908 F.2d 425, 432 (9th Cir. 1990).
The First Circuit has also rejected a defendant’s challenge
similar to Ray’s challenge here. Work, 409 F.3d at 486. The
statute of conviction, and not the high end of the Guidelines
range, defines the “statutory maximum” of available penal-
ties, notwithstanding the Booker case law. See id. at 488-92.
Notably, Ray does not mention these cases, and offers no rea-
son to depart from Congress’ explicit intent or to create a cir-
cuit split on this issue.
[3] In addition, this circuit has given repeated indications
that Booker does not alter the prior understanding of “statu-
tory maximum.” See, e.g., United States v. Murillo, 422 F.3d
1152, 1153 (9th Cir. 2005) (concluding, in the context of clas-
sifying predicate offenses, that “the maximum sentence for
the prior conviction is defined by the state criminal statute,
not the maximum sentence in the particular case set by [the
state’s] sentencing guidelines”). Like the categorization of
predicate offenses, the imposition of revocation imprisonment
does not have the same ramifications as the original sentence,
see United States v. Huerta-Pimental, 445 F.3d 1220, 1225
UNITED STATES v. RAY 4947
(9th Cir. 2006), and Booker does not alter this analysis. In
other words, Booker did not disturb the well-settled interpre-
tation of §§ 3559 and 3583, as the Supreme Court has itself
supposed. See Booker, 543 U.S. at 258 (citing § 3583 as an
example of the principle that “[m]ost of the statute is perfectly
valid”).
[4] We may also examine cases from the probation context
to confirm the proper path, because we frequently treat proba-
tion and supervised release analogously. See, e.g., Huerta-
Pimental, 445 F.3d at 1225; United States v. Hall, 419 F.3d
980, 985 n.4 (9th Cir. 2005). In these cases, as well, the cir-
cuits have been unanimous in concluding, even after Booker,
that “a sentencing court may sentence a defendant who vio-
lates probation without being restricted by the original Sen-
tencing Guidelines range applicable to his or her crime or a
‘departure’ therefrom, subject at the upper end to the maxi-
mum statutory penalty that may be imposed for commission
of the underlying offense.” United States v. Goffi, 446 F.3d
319, 322-23 (2d Cir. 2006); see also United States v. Pena,
125 F.3d 285, 287 (5th Cir. 1997) (finding no error in
revocation-of-probation case in part due to the fact that “the
district court was not limited to the sentencing range available
at the time of the initial sentence”).
In line with all of the cases cited above, we have recently
concluded explicitly that “Booker has no effect on the revoca-
tion of supervised release.” Huerta-Pimental, 445 F.3d at1224 (citing Booker, 543 U.S. at 226-27); see also id. at 1225
(“We have held unequivocally that imposition of imprison-
ment following the revocation of supervised release is part of
the original sentence authorized by the fact of conviction and
does not constitute additional punishment beyond the statu-
tory maximum.”). We further noted that our “analysis of
Booker’s impact on supervised release comports with that of
our sister circuits that have addressed the issue.” Id. (collect-
ing cases). As outlined above, the approach taken by our sister
circuits is proper. Ray fails to present any rationale for diverg-
4948 UNITED STATES v. RAY
ing from that line of cases or for altering the approach indi-
cated by our own case law.
AFFIRMED.