United States v. Emmett Spencer , 720 F.3d 363 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2012 Decided June 21, 2013
No. 11-3017
UNITED STATES OF AMERICA,
APPELLEE
v.
EMMETT SPENCER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00046-1)
Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Neil H. Jaffee and Mary Manning
Petras, Assistant Federal Public Defenders, entered
appearances.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III, Elizabeth H. Danello,
and Jean W. Sexton, Assistant U.S. Attorneys. Elizabeth
Trosman, Assistant U.S. Attorney, entered an appearance.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Emmett Spencer appeals
his sentence of 24 months imprisonment imposed after the
second revocation of his supervised release. He contends that
pursuant to the statute providing for supervised release after
imprisonment, 18 U.S.C. § 3583, the district court was required
to aggregate his terms of imprisonment following revocation of
supervised release, thus limiting imprisonment after his second
revocation of supervised release to 10 months or, in the
alternative, 22 months. We disagree, and affirm the decision of
the district court.
Background
In 2006 appellant Emmett Spencer pled guilty to unlawful
possession of a firearm and ammunition by a convicted felon, a
class C felony. He was sentenced to 37 months imprisonment
and 3 years of supervised release. After being released from
prison and while serving on supervised release, Spencer violated
the terms of his supervised release. Consequently, his
supervised release was revoked, and he was sentenced to 14
months imprisonment and 22 months of supervised release.
After being released from this second imprisonment and while
on supervised release, Spencer again violated the terms and
supervised release was revoked. He was sentenced to 24 months
imprisonment with no supervised release to follow. Spencer
now appeals his 24 month prison sentence.
Discussion
On each occasion, Spencer’s supervised release was
revoked pursuant to 18 U.S.C. § 3583(e)(3). Since 2003 the
relevant part of § 3583(e)(3) has read as follows:
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The court may . . . revoke a term of supervised release,
and require the defendant to serve in prison all or part
of the term of supervised release authorized by statute
for the offense that resulted in such term of supervised
release . . . except that a defendant whose term is
revoked under this paragraph may not be required to
serve on any such revocation . . . more than 2 years in
prison if such offense is a Class C or D felony . . . .
18 U.S.C. § 3583(e)(3). Spencer argues that under § 3583(e)(3)
his revocation sentences should be “aggregated,” i.e., all post-
revocation prison terms should be cumulative, and the total
should not exceed a statutory maximum. He asserts two
possible maxima. First, Spencer points to what he refers to as
the “except” clause at the end of § 3583(e)(3), which states
“except that a defendant whose term is revoked under this
paragraph may not be required to serve on any such revocation
. . . more than 2 years in prison if such offense is a class C or D
felony.” As he did in the district court, Spencer argues that his
maximum post-revocation aggregate prison time for his class C
felony is the stated two years. As he already served 14 months
after his first revocation, Spencer contends that the district court
was limited to sentencing him to 10 months on his second
revocation.
Alternatively, Spencer points to what he refers to as the “all
or part” clause at the beginning of § 3583(e)(3), which states
that upon revocation the defendant will be required “to serve in
prison all or part of the term of supervised release authorized by
statute for the offense that resulted in such term of supervised
release.” Since under 18 U.S.C. § 3583(b) “the term of
supervised release authorized by statute for” a class C felony is
not more than three years, Spencer argues that his post-
revocation maximum aggregate prison time is three years.
Because he served 14 months in prison after his first supervised
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release revocation, Spencer argues that after his second
supervised release revocation the court was limited to sentencing
him to 22 months in prison.
To more fully understand Spencer’s arguments, we will
give a brief review of § 3583(e)(3). Prior to 1994, § 3583(e)(3)
read, in pertinent part, that 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 . . . except that a person whose term
is revoked under this paragraph may not be required to
serve . . . more than 2 years in prison if the offense was
a Class C or D felony.
18 U.S.C. § 3583(e)(3) (Supp. V 1993). Under this version of
§ 3583(e)(3), “the revoking court could not impose a revocation
sentence that exceeded the supervised release sentence imposed
by the original sentencing court.” United States v. Hampton,
633 F.3d 334, 341 (5th Cir. 2011). In 1994 the statute was
amended, to read in pertinent part that a court may
revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense
that resulted in such term of supervised release . . .
except that a defendant whose term is revoked under
this paragraph may not be required to serve . . . more
than 2 years in prison if such offense is a Class C or D
felony.
Violent Crime Control and Law Enforcement Act of 1994, Pub.
L. No. 103-322 § 110505(2)(B), 108 Stat. 1796, 2016-17 (1994)
(amendment italicized). One result of the added language was
that sentencing courts were now authorized “to impose a term of
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revocation imprisonment without being limited by the amount
of supervised release the original sentencing court imposed.”
Hampton, 633 F.3d at 341. The amendments instead extended
imprisonment upon revocation up to the terms authorized by
§ 3583(b), i.e., those terms “authorized by statute for the offense
that resulted in such term of supervised release.” Id.
Another result of the 1994 amendment was that courts
began to interpret the new language “as requiring courts to credit
a defendant’s prior revocation sentences when imposing a new
one.” United States v. Hunt, 673 F.3d 1289, 1291-92 (10th Cir.
2012). Further, many courts held that the felony class
revocation limits at the end of § 3583(e)(3) were cumulative
limits that applied to all prison terms imposed for violations of
supervised release in the same case. See United States v. Tapia-
Escalera, 356 F.3d 181, 187 n.7 (1st Cir. 2004) (collecting
cases); United States v. Swenson, 289 F.3d 676, 677 (10th Cir.
2002) (same); United States v. Merced, 263 F.3d 34, 37 (2d Cir.
2001) (same). In Spencer’s terminology, then, courts were now
considering the “except” clause limits as aggregate limits upon
supervised release revocation. So, if Spencer had been
sentenced for revocation of his second supervised release during
this time period, then the aggregate limit for his class C felony
pursuant to § 3583(e)(3) would have been two years, and since
he had already served 14 months after his first revocation, the
most imprisonment he could receive after his second revocation
would have been 10 months.
In 2003, § 3583(e)(3) was again amended, this time to read,
in pertinent part, that a court may
revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense
that resulted in such term of supervised release . . .
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except that a defendant whose term is revoked under
this paragraph may not be required to serve on any
such revocation . . . more than 2 years in prison if such
offense is a class C or D felony.
Prosecutorial Remedies and Other Tools to end the Exploitation
of Children Today (“PROTECT”) Act, Pub L. 108-21, § 101,
117 Stat. 650, 651 (Apr. 30, 2003) (amendment italicized). As
discussed more fully below, pursuant to this amendment courts
no longer consider the class limits at the end of § 3583(e)(3) to
be aggregate limits on imprisonment for multiple revocations of
supervised release. Instead, now that a defendant “may not be
required to serve on any such revocation . . . more than” a
certain number of years based on the class of felony originally
committed, courts have held that the limit applies to each
revocation, but no aggregate limit.
A.
Spencer’s first argument is that pursuant to the felony class
imprisonment term limits at the end of § 3583(e)(3), the
aggregate limit for his two supervised release revocations is 2
years, and since he was sentenced to 14 months after his first
revocation, the court was limited to sentencing him to 10 months
after his second revocation. Spencer acknowledges that the
weight of authority is against him. He rightly admits that all
circuits that have considered the question “have concluded that,
when Congress amended § 3583(e)(3) to add the phrase ‘on any
such revocation’ to that provision,” hold that Congress
“intended to preclude the aggregation of more than one term of
imprisonment following supervised release, in calculating the
maximum allowable term under the ‘except’ clause.”
Appellant’s Br. at pp. 6–7. Appellant’s concession is well taken.
See, e.g., United States v. Hernandez, 655 F.3d 1193, 1195 (10th
Cir. 2011); United States v. Epstein, 620 F.3d 76, 80 (2d Cir.
7
2010); United States v. Knight, 580 F.3d 933, 937–38 (9th Cir.
2009); United States v. Lewis, 519 F.3d 822, 825 (8th Cir. 2008).
Spencer argues that the unanimous weight of authority is
wrong. He contends that the 2003 amendment is inapplicable to
cases like his own. He bases this argument on the fact that the
amendment was enacted as part of the PROTECT Act. Because
the full title of that Act is “Prosecutorial Remedies and Other
Tools to end the Exploitation of Children Today” (emphasis
added), and because of its legislative history, the obvious
purpose of the Act was to prosecute, deter, and punish sex
offenders. Therefore, Spencer argues, because his original
violation was a firearms charge and not a sex offense, the
amendment does not apply so that the imprisonment term of two
years for his class C original felony should still be interpreted as
an aggregate limit unaffected by the 2003 amendment.
Spencer’s argument ignores what one of our colleagues has
referred to as “the wise rule that the title of a statute and the
heading of a section cannot limit the plain meaning of the text.
For interpretative purposes, they are of use only when they shed
light on some ambiguous word or phrase.” Tataranowicz v.
Sullivan, 959 F.2d 268, 282 (D.C. Cir. 1992) (Buckley, J.,
dissenting on other grounds) (citing Brotherhood of R.R.
Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528–29
(1947)); see also NRDC v. EPA, 915 F.2d 1314, 1321 (9th Cir.
1990). The wisdom of the rule is evident here. Nowhere in the
language Congress actually enacted is there any indication that
Congress intended language concerning sentencing to be limited
to the category of crimes that attracted its original attention.
Had Congress meant to so limit the effect of its amendment, it
could have said so.
We reject Spencer’s limitation on the effect of the
amendment and instead agree with the government’s contention
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that with the addition of the phrase “on any such revocation” in
2003, Congress eliminated any aggregation requirement. As the
government argues, we must give effect to § 3583(e)(3)’s plain
meaning without considering the PROTECT Act’s purpose, title,
or legislative history. Because § 3583(e)(3) is unambiguous the
“judicial inquiry is complete.” See Connecticut Nat’l Bank v.
Germain, 503 U.S. 249, 254 (1992) (internal quotation marks
omitted).
The PROTECT Act’s addition of the phrase “on any such
revocation” is not limited to only those convicted of sex
offenses. Several of our sister circuits agree, interpreting the
phrase “on any such revocation” in § 3583(e)(3) as a per-
revocation cap on imprisonment; in none of the cases were the
defendants originally sentenced for sex offenses. See Epstein,
620 F.3d at 80 (defendant originally sentenced for firearms
violations); Knight, 580 F.3d at 937–38 (same); Lewis, 519 F.3d
at 825 (defendant originally sentenced for interstate
transportation of a stolen vehicle); United States v. Williams,
425 F.3d 987, 989 (11th Cir. 2005) (defendant originally
sentenced for bank robbery); United States v. Tapia-Escalera,
356 F.3d 181, 188 (1st Cir. 2004) (defendant originally
sentenced for illegal drug possession). We conclude that the
2003 amendment to § 3583(e)(3), adding the phrase “on any
such revocation,” results in the felony class imprisonment terms
at the end of § 3583(e)(3) being per-revocation limits, and not
aggregate limits.
B.
Spencer next argues that even if we reject his interpretation
of the “except clause,” we should nonetheless hold that the
district court should have aggregated his two supervised release
revocation terms under what he refers to as the “all or part”
clause at the beginning of § 3583(e)(3). Upon revocation of
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supervised release, that clause provides for “requir[ing] the
defendant to serve in prison all or part of the term of supervised
release authorized by statute for the offense that resulted in such
term of supervised release . . . .” Since the maximum term of
supervised release authorized by § 3583(b) for a class C felony
is 3 years, Spencer claims that as he served 14 months after his
first revocation, the district court was limited to sentencing him
to 22 months upon his second revocation. This is a case of first
impression in this circuit, although several of our sister circuits
have addressed this exact question. For example, the question
before the Fifth Circuit in Hampton was to “determine whether
the phrase ‘term of supervised release authorized by statute’ at
the beginning of § 3583(e)(3) caps the aggregate amount of
revocation imprisonment at the amount of supervised release
authorized by § 3583(b).” 633 F.3d at 338. Likewise, the
question before the Tenth Circuit in Hunt was whether “the
district court failed to apply 18 U.S.C. § 3583(e)(3) to give
[Hunt] credit for prison time served on two prior sentences for
revocation of his supervised release.” 673 F.3d at 1290.
As an initial matter, the government and Spencer argue for
different standards of review of this second argument by
Spencer. The government contends that in the district court
Spencer never argued for a 22 month sentence and therefore his
claim is subject to review only for plain error. Spencer, in reply,
states that plain error review is not appropriate because his
counsel objected to his aggregate imprisonment of 38 months,
i.e., beyond the 36 month term of supervised release authorized
by § 3583(b). We need not resolve this dispute, however,
because we conclude that there was no error, let alone clear
error, on the part of the district court.
Spencer cites United States v. Williams, 675 F.3d 275, 280
(3rd Cir. 2012), for the proposition that the “all or part” clause
is “independent” of the “except” clause. He claims that prior to
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the PROTECT Act, nothing suggests that Congress did not
intend to authorize aggregation under both clauses. So although
the “except” clause may no longer call for aggregation pursuant
to the PROTECT Act, Spencer argues, the “all or part”clause
has always provided for, and still provides for, aggregation.
Additionally, Spencer argues that consistent with common
practice under parole statutes and regulations, there is a
reasonable expectation of a defendant that the total time spent in
prison as a result of violating supervised release will not exceed
the maximum authorized term of release, in his case 36 months.
He asserts that any incarceration time longer that the maximum
3 years pursuant to § 3583(b) is counterintuitive and overly
punitive, and that it also violates fair notice. Furthermore,
according to Spencer, there is no clear indication that Congress
intended a defendant to serve more cumulative time in prison
than specified by the maximum terms of supervised release, and
that in fact the legislative history of the PROTECT Act supports
a contrary conclusion, i.e., that the legislative history shows that
Congress intended to reduce the maximum by any previously
served revocation.
We do not agree that the phrase at the beginning of
§ 3583(e)(3) “requir[ing] the defendant to serve in prison all or
part of the term of supervised release authorized by statute for
the offense that resulted in such term of supervised release”
limits Spencer’s aggregate prison terms after revocation of
supervised release to 3 years. Spencer draws our attention to
three recent cases of our sister circuits that address this same
issue. See Hampton, Hunt, Williams. As Spencer himself
admits, none of these cases support his claims. In Hampton, the
court “conclude[d] that the language at the beginning of
§ 3583(e)(3) allowing the district court to ‘revoke a term of
supervised release, and require the defendant to serve in prison
all or part of the term of supervised release authorized by statute
for the offense that resulted in such term of supervised release’
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does not require that court to credit the defendant for prior
terms of revocation imprisonment.” 633 F.3d at 338 (emphasis
added).
In Hunt, the court, “follow[ing] the plain language of
[§ 3583(e)(3)], . . . conclude[d] that prison time served for prior
revocations should not be considered when calculating a
sentence for a subsequent revocation of supervised release.”
673 F.3d at 1291. And in Williams, the court concluded that
“Congress did not intend to set an aggregate cap on successive
revocation imprisonment in subsection (e)(3) when it added
language that authorized courts to impose a term of revocation
imprisonment that exceeded the supervised release term
originally imposed.” 675 F.3d at 281. As with his first
argument, Spencer contends that we should decline to follow the
other circuits. He argues that the cases were decided wrongly,
based in part on an incorrect analysis of the legislative history.
We reject Spencer’s contention that the other circuits erred.
This case is controlled by the plain language of § 3583(e)(3) as
amended in 2003. That version of § 3583(e)(3) is unambiguous,
and since it is unambiguous, we must give effect to its plain
meaning. Germain, 503 U.S. at 254. No examination of the
legislative history is required.
Section 3583(e)(3) must be read as a unitary whole,
considering the “language itself, the specific context in which
that language is used, and the broader context of the statute as a
whole.” See United States v. Barnes, 295 F.3d 1354, 1359 (D.C.
Cir. 2002) (internal quotation marks omitted). As noted above,
Spencer, relying on Williams, argues that the “all or part” clause
is “independent” of the “except” clause and that therefore
although aggregation is not required by the PROTECT Act
under the “except” clause, it is still required under the “all or
part” clause. It is true that the Third Circuit in Williams, as well
12
as the Tenth Circuit in Hunt and the Fifth Circuit in Hampton,
noted that the two clauses were independent. It is further true
that the Hampton court stated that the 1994 amendments to the
“all or part” clause authorized courts to “impose a term of
revocation imprisonment without being limited by the amount
of supervised release the original sentencing court imposed,”
633 F.3d at 341.1 At the same time, the Fifth Circuit described
the 2003 amendment to § 3583(e)(3) as “operat[ing] as a per-
revocation limit on revocation imprisonment.” Id. (noting that
the appellant conceded this operation of the amending
language).
That all said, however, Williams does not stand for
Spencer’s proposition that although aggregation is not allowed
under the “except” clause, it can nevertheless be the case under
the “all or part” clause because those two clauses are
“independent.” Like the Fifth Circuit in Hampton, “we decline
to read the PROTECT Act as prohibiting aggregation of
revocation imprisonment in one part of § 3583(e)(3) and
implicitly requiring it in another.” 633 F.3d at 341. As the
Tenth Circuit stated in Hunt, “[h]ad Congress intended the first
half of § 3583(e)(3) to require aggregation, it would not have
amended the second half of the statute to preclude such an
interpretation.” 673 F.3d at 1293.
We conclude that the 2003 amendment to § 3583(e)(3),
which added the words “on any such revocation” to the so-called
“except” clause, modifies the rest of § 3583(e)(3)’s text. Our
1
The Fifth Circuit in Hampton further opined, “Read properly,
the phrase ‘on any such revocation’ language already modifies the
phrase ‘term of supervised release authorized by statute’—it provides
the exception to the court’s ability to sentence the defendant to the full
term of supervised release authorized by § 3583(b).” United States v.
Hampton, 633 F.3d 334, 340 n.2 (5th Cir. 2011).
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conclusion is in harmony with the Fifth Circuit’s decision in
Hampton, which stated that the “the phrase ‘on any such
revocation’ . . . modifies the phrase “term of supervised release
authorized by statute.” 633 F.3d 340 n.2. We hold that upon
each revocation of supervised release, a defendant may be
sentenced to the felony class imprisonment limits at the end of
§ 3583(e)(3), without regard to prison time previously served for
revocation of supervised release in the same case.
Conclusion
For the reasons stated above, we affirm the district court’s
sentence of 24 months imprisonment for Spencer after his
second revocation of supervised release.