United States v. Lorenzo Turner ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2021 Decided January 4, 2022
No. 21-3005
UNITED STATES OF AMERICA,
APPELLEE
v.
LORENZO TURNER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00336-1)
Lisa B. Wright, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Chimnomnso N. Kalu, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Chrisellen
R. Kolb and John P. Mannarino, Assistant U.S. Attorneys.
Before: HENDERSON and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
2
Dissenting opinion by Circuit Judge HENDERSON.
TATEL, Circuit Judge: Lorenzo Turner pled guilty to two
criminal counts and was placed on supervised release
following his prison sentence. The question in this appeal is
what the Sentencing Guidelines, which set forth a sentencing
range based on the severity of the violation and the
defendant’s criminal history, recommend when a defendant
like Turner violates the terms of his supervision. The district
court concluded that the Guidelines range applies separately
to each count for which Turner was serving supervised release
and so imposed separate nine-month sentences for each of
those counts. Challenging his sentence, Turner contends that
the Guidelines range denotes the total recommended
punishment for his violation without regard to the number of
counts. Because we agree with Turner, we vacate and remand
for resentencing.
I.
Eleven years ago, the district court sentenced Turner to
prison for possessing cocaine base and a handgun. The court
also imposed four years of supervised release on each count to
be served concurrently following his custodial sentence.
Turner completed his prison term and began his supervised
release. Less than four months before his supervision was set
to expire, the Probation Office filed a petition alleging that
Turner had violated his supervision terms by unlawfully
possessing a firearm. Turner admitted the violation.
Probation calculated a Sentencing Guidelines range of six
to twelve months’ imprisonment based on the violation grade
and Turner’s criminal history. Using the midpoint of this
range, it recommended the court sentence Turner to nine
months in prison for each count of his underlying conviction,
for a total of eighteen months. Although Turner agreed that
3
the applicable Guidelines range was six to twelve months, he
argued that this range referred to the total punishment for his
violation, not a separate punishment for each count for which
he was serving supervised release.
At sentencing, the district court said that it would stay
“within the guideline range.” It agreed with Probation,
however, that because Turner was serving supervised release
on two counts, this range applied separately for “each of the
supervised releases,” and it imposed a total sentence of
eighteen months over Turner’s objection. Because the court
had yet to receive written submissions on the issue, it held the
sentence in abeyance pending further briefing. In his brief,
Turner argued that “[t]he guideline range for a supervised
release violation for someone with Mr. Turner’s criminal
history is 6 to 12 months” and “[t]here is nothing in the
guidelines that suggests that one violation (here the conviction
for possession of a firearm) should be punished twice because
the original conviction included multiple counts.” The
government argued that the Guidelines range applied
separately for each count and continued to seek an eighteen-
month sentence.
Probation reconsidered its position in light of Turner’s
brief and revised its recommendation to “a concurrent
sentence of 12 months.” Unpersuaded, the district court
concluded that an eighteen-month sentence composed of two
consecutive nine-month terms was consistent with the
Sentencing Guidelines and entered judgment to that effect.
Contending that the district court misunderstood the
applicable Guidelines range, Turner now urges us to set aside
his sentence as procedurally defective.
4
II.
Congress enacted the Sentencing Reform Act of 1984,
Pub. L. No. 98-473, 98 Stat. 1837, to “provide certainty and
fairness” in sentencing and to “avoid[] unwarranted
sentencing disparities among defendants with similar records
. . . while maintaining sufficient flexibility to permit
individualized sentences.” 28 U.S.C. § 991(b)(1). To this end,
the Act established the United States Sentencing Commission
to promulgate sentencing guidelines that account for the
severity of a defendant’s offense conduct and the defendant’s
personal characteristics. Mistretta v. United States, 488 U.S.
361, 375–76 (1989). In United States v. Booker, the Supreme
Court held that the Federal Sentencing Guidelines are only
“advisory.” 543 U.S. 220, 245 (2005). Sentencing courts
“must nonetheless ‘begin all sentencing proceedings by
correctly calculating the applicable Guidelines range.’”
United States v. Brown, 892 F.3d 385, 399 (D.C. Cir. 2018)
(per curiam) (quoting Gall v. United States, 552 U.S. 38, 49
(2007)). Thus, although the Guidelines are no longer binding,
they remain an important factor that courts “shall consider”
before imposing a sentence. 18 U.S.C. § 3553(a).
After Booker, our review of a sentence’s reasonableness
proceeds “in two steps.” United States v. Berkeley, 567 F.3d
703, 710 (D.C. Cir. 2009). “First, we must ‘ensure that the
district court committed no significant procedural error, such
as . . . improperly calculating . . . the Guidelines range [or]
treating the Guidelines as mandatory.’ Second, we ‘consider
the substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.’” Id. (alterations in original
and internal citations omitted) (quoting Gall, 552 U.S. at 51).
Turner challenges only the procedural propriety of his
sentence—that is, whether the district court correctly
calculated and considered the Guidelines range for his
5
violation. “We review de novo the district court’s
interpretation of the Sentencing Guidelines in calculating a
defendant’s Sentencing Guidelines range.” Brown, 892 F.3d
at 401.
A.
Consistent with the Commission’s statutory mandate to
promote fairness and uniformity in sentencing, the Guidelines
provide recommended sentencing ranges based on two
factors: a defendant’s culpable conduct and criminal history.
Chapter 7 of the Guidelines sets out recommended terms of
imprisonment upon revocation of supervised release. These
penalties seek to sanction a defendant’s “breach of trust” in
violating the conditions of supervision. U.S.S.G., ch. 7, pt. A,
intro. cmt. 3(b). To calculate the Guidelines range for a
supervised release violation, the court first determines the
grade of violation based on the severity of the violation
conduct. U.S.S.G. § 7B1.1. If a defendant has engaged in
more than one violation, the court determines a single
violation grade based on the most serious one. U.S.S.G.
§ 7B1.1(b). The court then calculates the recommended term
of imprisonment based on the Revocation Table. U.S.S.G.
§ 7B1.4. That table dictates a sentencing range based on the
violation grade and the defendant’s criminal history.
Chapter 7’s text makes clear that the sentencing ranges in
the Revocation Table represent the total recommended
punishment for a supervised release violation regardless of the
number of underlying counts. The Revocation Table instructs
courts to determine a sentence based on only two variables:
the “grade of violation” and the “criminal history category.”
U.S.S.G. § 7B1.4. The grade of violation depends on the
“conduct constituting” the violation, not the number of counts
for which a defendant is on supervised release. U.S.S.G.
6
§ 7B1.1; see also § 7B1.1 cmt. n.1 (“[T]he grade of the
violation is to be based on the defendant’s actual conduct.”).
The criminal history category is “determined at the time the
defendant originally was sentenced to the term of
supervision.” U.S.S.G. § 7B1.4 cmt. n.1. The government’s
position—that courts should consider another variable
unmentioned in the Revocation Table—lacks any textual
basis in the Guidelines. That interpretation is particularly
implausible given its sweeping implications: calculating
separate sentencing ranges for each count could multiply a
defendant’s recommended sentence many times over. Had the
Commission intended its recommended sentences to vary so
wildly based on the number of underlying counts, we expect it
would have clearly said so.
The government’s “per count” interpretation of the
Revocation Table is also at odds with other language in
Chapter 7. The Guidelines recommend a single punishment
based on a defendant’s most serious violation, directing that
“[w]here there is more than one violation of the conditions of
supervision, . . . the grade of the violation is determined by
the violation having the most serious grade.” U.S.S.G.
§ 7B1.1(b). Chapter 7 thus speaks in terms of total
punishment, not separate punishments for separate offenses.
The government offers no reason why we should read Chapter
7 to recommend a single punishment for all violative conduct
but separate punishments for each underlying count of a
defendant’s prior conviction.
Based on this language, we conclude that the sentencing
ranges in the Revocation Table refer to a defendant’s total
recommended punishment. The Guidelines’ structure and
purpose reinforce this conclusion.
7
We begin with structure. The Commission’s approach to
sentencing on multiple counts in other contexts follows the
“total punishment” model. When a court imposes a sentence
following criminal conviction, the Guidelines direct that it
calculate a single offense level for the defendant’s culpable
conduct. U.S.S.G. § 3D1.1. The court then “determine[s] the
total punishment” for all counts using the Sentencing Table in
Chapter 5. U.S.S.G. § 5G1.2(b). The Sentencing Table, like
the Revocation Table, dictates a sentencing range based on
the total offense level and the defendant’s criminal history.
U.S.S.G. ch. 5, pt. A. Unless a statute demands otherwise, the
court then imposes consecutive sentences “only to the extent
necessary to produce a combined sentence equal to the total
punishment.” U.S.S.G. § 5G1.2(d).
Chapter 7 operates the same way. For both a criminal
sentence and revocation of supervised release, the court
begins by determining a single measure of the defendant’s
culpable conduct (the violation grade or total offense level).
The court then determines the sentencing range from the
Revocation Table based on the violation grade and the
defendant’s criminal history category. The sentencing ranges
in Chapter 7 are most naturally read, like those in the Chapter
5 Sentencing Table, to refer to the total recommended
punishment. Turner’s interpretation of Chapter 7, unlike the
government’s, places it “into an harmonious whole” with the
rest of the Sentencing Guidelines. Van Buren v. United States,
141 S. Ct. 1648, 1658 (2021) (internal quotation marks
omitted).
We turn finally to the Guidelines’ purpose as expressed
in the Commission’s policy statements. Acknowledging that
the same conduct can often be charged as a different number
of counts, “the Commission has written its rules for the
treatment of multicount convictions with an eye toward
8
eliminating unfair treatment that might flow from” a
prosecutor’s charging decisions. U.S.S.G., ch. 1, pt. A, intro.
cmt. 4(a). For example, the Guidelines consider a defendant
charged with three counts of stealing $10,000 to be no more
culpable than one charged with a single count of stealing
$30,000. Id.; see also § 3D1.3 (aggregating quantities for
grouped theft offenses). It defies both logic and the
Commission’s stated goals to treat one of those defendants
three times as harshly for a subsequent supervised release
violation when they faced identical sentences on conviction.
Finding consensus among Chapter 7’s text, context, and
purpose, we hold that the sentencing ranges in Chapter 7’s
Revocation Table represent the Guidelines’ total
recommended punishment for supervised release violations.
Those recommendations do not depend on the number of
counts for which a defendant is serving supervised release.
B.
Unsurprisingly, the government offers no argument that
the text, structure, or purpose of the Guidelines support its
contrary interpretation. Instead, it relies on decisions from
other circuits holding that sentencing courts may impose
consecutive sentences when revoking concurrent terms of
supervised release. See, e.g., United States v. Badgett, 957
F.3d 536, 541 n.20 (5th Cir. 2020); United States v. Campbell,
937 F.3d 1254, 1258 (9th Cir. 2019). Insofar as these cases
have held that the post-Booker Guidelines countenance
multiple punishments for a single supervised release violation,
we respectfully disagree.
The Ninth Circuit’s recent decision in United States v.
Campbell, is illustrative. In that case, the court upheld five
consecutive sentences for a defendant on supervised release
for thirty-five counts of mail fraud stemming from a single
9
criminal scheme. According to the panel majority, Chapter 7’s
“silence . . . regarding consecutive sentences” requires courts
to “revert to the statutory provision conferring discretion on
the sentencing court.” 937 F.3d at 1258. Under the court’s
reasoning, then, if a defendant’s underlying conviction
involved thirty-five counts, a sentencing court would act
within the Guidelines by imposing thirty-five consecutive
sentences for a single violation of supervised release.
Judge Berzon, writing dubitante, called the court’s result
“baffling.” Id. at 1259. Campbell’s sentences for failing to
report to his probation officer (the lowest grade of violation)
exceeded his original prison term. Id. at 1260. And applying
the “per count” interpretation of Chapter 7 that the
government urges here, the Guidelines range in that case
would have allowed a sentence of an astonishing 315
months—far in excess of the Guidelines maximum for his
original fraud conviction. Id.; see U.S.S.G. § 2B1.1 & ch. 5,
pt. A (2010). As Judge Berzon put it, “[p]unishing Campbell
with consecutive revocation sentences is detached from the
reality and purpose of supervised release, which aims, in
effect, to have Campbell behave by conforming to his
conditions of supervised release—not to have him behave
thirty-five times over.” Campbell, 937 F.3d at 1260. But
despite her misgivings, Judge Berzon observed that she was
bound by earlier Ninth Circuit cases endorsing the view that
consecutive sentences are appropriate when a district court
revokes multiple “terms” of supervised release. Id. at 1261 &
n.4.
Our case law mandates no such result. To the contrary,
our court has repeatedly assumed that violations of supervised
release should be punished only once, not separately for each
count of a defendant’s prior conviction. In one case, for
example, we found that a district court imposed an above-
10
Guidelines sentence when it gave a defendant “twice the
Guidelines maximum” for a Grade C violation even though
the defendant was on supervised release for a two-count
conviction. In re Sealed Case, 527 F.3d 188, at 192 (D.C. Cir.
2008). We have also found that, in some instances, the
erroneous imposition of a concurrent supervised release term
is harmless error, a conclusion that would have made little
sense if subsequent sentencing for a violation hinged on the
number of terms of supervised release imposed. See United
States v. Agramonte, 276 F.3d 594, 598 (D.C. Cir. 2001)
(“We are affirming [the defendant’s] concurrent sentence of
. . . eight years of supervised release on Count Four. He
therefore cannot benefit from a shorter term of . . . supervised
release on the other two counts.”). Convinced that our instinct
in these cases was correct, we decline to follow the Ninth
Circuit down its “baffling” path. Campbell, 937 F.3d at 1259.
Unlike the government, our dissenting colleague offers a
textual defense of the approach taken by the Ninth Circuit. As
the dissent explains, the Revocation Table sets out “[t]he
range of imprisonment applicable upon revocation.” U.S.S.G.
7B1.4(a). Construing the phrase “applicable upon
revocation,” the dissent then concludes that “what is being
revoked . . . is a term of supervised release,” and so the
Revocation Table must recommend separate sentences for
each “term” revoked. Dissenting Op. at 3. But the phrase
“revocation of a term of supervised release” appears nowhere
in the Guidelines. To the contrary, Chapter 7 repeatedly refers
to the sentence to be imposed “upon revocation of supervised
release,” not upon revocation of separate terms of supervised
release. See, e.g., U.S.S.G. § 7B1.5(b) & ch. 7, intro cmt. 4;
see also § 7B1.3 (“Upon a finding of a Grade A or B
violation, the court shall revoke probation or supervised
release. . . . In the case of a revocation of probation or
supervised release, the applicable range of imprisonment is
11
that set forth in [the Revocation Table].”). The dissent points
out that a single sentence in the application notes mentions a
“term of supervision being revoked,” but that sentence deals
only with determining a defendant’s criminal history category
“[i]n the rare case in which no criminal history category was
determined” at the time of sentencing. U.S.S.G. § 7B1.4 cmt.
n.1. In our view, the dissent’s strained reading of the language
introducing the Revocation Table falls far short of
overcoming the many other indicia that the Guidelines intend
only a single punishment for a single supervised release
violation.
III.
This case is not about a district court’s statutory authority
to impose consecutive sentences on revocation of supervised
release. Both Turner and the government agree that a court
may deviate from the Guidelines, including by imposing
consecutive sentences that exceed the total recommended
punishment, after considering the Guidelines range and the
other statutory sentencing factors. This case is about how to
calculate that Guidelines range. Because the district court
misunderstood the Guidelines to recommend separate
punishments for each underlying count rather than a total
punishment for Turner’s violation, it “improperly
calculate[ed] the Guidelines range.” Gall, 552 U.S. at 51. We
therefore vacate Turner’s sentence on revocation of
supervised release and remand for resentencing consistent
with this opinion.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
Lorenzo Turner pleaded guilty to two criminal counts:
possessing with intent to distribute five grams or more of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(iii) (2006), and possession of a firearm during a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1). The
district court sentenced him to consecutive terms of
imprisonment and two concurrent terms of supervised release.
After his release from prison, he violated the conditions of his
supervised release terms and the district court revoked both
terms. Because the district court properly determined that the
Sentencing Guidelines range applies separately to each
revoked term of supervised release, I would affirm the
sentence. Accordingly, I respectfully dissent.
I.
The majority ably recounts the undisputed facts of this
case, covering Turner’s original federal drug and firearms
convictions, his sentence and his subsequent violation of the
conditions of his supervised release. Majority Op. at 2–3. In
short, after Turner’s guilty plea, the district court sentenced
him to terms of nine months’ imprisonment on the drug
possession charge and eleven months’ imprisonment on the
firearm possession charge to run consecutively, as well as two
forty-eight-month terms of supervised release to run
concurrently. While on supervised release, he was arrested and
pleaded guilty to another firearm offense in Prince George’s
County, Maryland, which conviction violated the conditions of
his supervised release. At Turner’s revocation sentence
hearing, the district court, after calculating a Guidelines range
of six to twelve months for each of the two terms, sentenced
him to a term of nine months’ imprisonment—to run
consecutively—for each supervised release term being revoked
for a total of eighteen months’ imprisonment.
2
I highlight, however, a critical portion of Turner’s
sentencing hearing that the majority mentions only briefly in
its telling of the procedural history. After Turner’s counsel
challenged the district court’s revocation sentence, see App.
49–52 (also challenging whether consecutive terms of
imprisonment can be imposed for the revocation of concurrent
terms of supervised release—a challenge not raised on appeal),
the court made clear that “the[re] were still two periods of
supervised release. It wasn’t one; it was two.” App. 53. The
district judge later emphasized that “[a]s far as I’m concerned,
I’m revoking each of the supervised releases.” App. 56
(emphasis added).
For the reasons below, I believe that the majority’s
analysis contains several flaws that lead it to an erroneous
interpretation of the Guidelines provision at issue. Based on my
reading of the revocation sentencing provision’s plain language
and the context and structure of the Guidelines, individual
revocation sentences that fall within the advisory range are
consistent with the Guidelines, even if the aggregate sentence
falls outside the given range.
II.
As it should, the majority begins its analysis with the text
and structure of § 7B1.4 of the Sentencing Guidelines, which
includes a table setting forth the advisory sentencing range
upon revocation of supervised release. See Majority Op. at 5–
7 (citing U.S. SENT’G GUIDELINES MANUAL § 7B1.4 (U.S.
SENT’G COMM’N 2018)); see also United States v. McKeever,
824 F.3d 1113, 1121 (D.C. Cir. 2016) (“We start with the text
and structure of the Guidelines.” (quoting United States v.
Chatman, 986 F.2d 1446, 1450 (D.C. Cir. 1993)). Because the
Revocation Table contains only two variables—“Criminal
History Category” and “Grade of Violation”—my colleagues
3
conclude that these, “not the number of counts for which a
defendant is on supervised release,” are the only factors that a
sentencing court may consider in determining the appropriate
Guidelines range. Majority Op. at 6 (citing U.S.S.G. § 7B1.4).
They add that considering the number of terms of supervised
release being revoked—“another variable unmentioned in the
Revocation Table—lacks any textual basis in the Guidelines.”
Id. I disagree.
Although they correctly highlight the two variables
included in Chapter 7’s Revocation Table itself, my colleagues
minimize the importance of the language introducing the
provision. Section 7B1.4(a) begins: “The range of
imprisonment applicable upon revocation is set forth in the
following table[.]” U.S.S.G. 7B1.4(a). We ask, then, what is
being revoked? The answer, on my reading, is a term of
supervised release. That multiple terms of supervised release
are being served concurrently is immaterial because, as other
provisions of the Guidelines make clear, each term of
supervised release stands on its own and may be imposed with
different sets of conditions. See U.S.S.G § 5D1.3(a) (providing
mandatory conditions of supervised release regardless of
offense); § 5D1.3(b) (providing discretionary conditions of
supervised release court “may impose” depending on nature of
offense and other considerations). A natural reading of this
opening language, to me, means that the Revocation Table is
to be applied to each term of supervised release to be revoked.
And that is exactly what the district court did here. See App. 56
(“As far as I’m concerned, I’m revoking each of the supervised
releases.”) (emphasis added). This interpretation does not
require adding a variable to the Revocation Table. It simply
takes into consideration the text of the Guidelines provision
that precedes—and therefore affects—the Revocation Table.
4
The majority asserts that “revocation of a term of
supervised release” does not appear anywhere in the
Guidelines. Majority Op. at 10 (emphasis added). But close
inspection of the commentary attached to § 7B1.4, the very
provision at issue here, reveals that it does indeed refer to “the
term of supervision being revoked” in the context of
determining the defendant’s criminal history category.
U.S.S.G. § 7B1.4 cmt. n.1 (referring to “the term of supervision
being revoked” (emphasis added)). And although other
provisions of Chapter 7 cited by the majority, such as § 7B1.3,
refer to the “revocation of supervised release,” see Majority
Op. at 10–11, they also refer to the revocation of a term of
supervised release, see, e.g., § 7B1.3 cmt. n.2 (“The provisions
for the revocation, as well as early termination and extension,
of a term of supervised release are found in 18 U.S.C.
§ 3583(e), (g)-(i).” (emphasis added)).
Notwithstanding the majority’s conclusion, it makes sense
to treat the violation of multiple terms of supervised release
differently from multiple violations of a single term of
supervised release. Contra Majority Op. at 6 (quoting U.S.S.G.
§ 7B1.1(b) (“Where there is more than one violation of the
conditions of supervision, . . . the grade of the violation is
determined by the violation having the most serious grade.”)).
The majority cites Chapter 7’s introductory commentary and
states that “recommended terms of imprisonment upon
revocation of supervised release . . . seek to sanction a
defendant’s ‘breach of trust’ in violating the conditions of
supervision.” Majority Op. at 5 (quoting U.S.S.G., ch 7, pt A.,
introductory cmt. 3(b)). The “trust,” of course, represents
society’s trust that the defendant will abide by certain
conditions in exchange for permitting the defendant to re-enter
society. And, again, these conditions may vary depending on
the nature of the underlying offense. If the defendant violates
multiple conditions of supervision, those violations still
5
amount to a single breach of trust. But suppose, as here, society
imposes multiple sets of conditions on the defendant’s re-entry
into society because the defendant committed multiple crimes
in the first instance. If the defendant violates both sets of
conditions—even through a single act—he has committed
multiple breaches of trust. This interpretation is consistent with
Chapter 7’s instruction that “at revocation the court should
sanction primarily the defendant’s breach of trust, while taking
into account, to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator.”
U.S.S.G., ch 7, pt A., introductory cmt. 3(b).
The majority also examines the Guidelines’ structure and
context. Majority Op. at 7. It highlights that the Guidelines
direct a court sentencing a defendant on multiple counts to first
“calculate a single offense level for the defendant’s culpable
conduct,” id. at 7 (citing U.S.S.G. § 3D1.1), and then determine
“‘the total punishment’ for all counts using” Chapter 5’s
Sentencing Table, id. (quoting U.S.S.G. § 5G1.2(b)). So far, so
good. The majority then asserts that “[t]he sentencing ranges in
Chapter 7 are most naturally read, like those in the Chapter 5
Sentencing Table, to refer to the total recommended
punishment.” Id. Once again, I disagree.
As Government counsel explained at oral argument,
Chapter 7 of the Sentencing Guidelines neither contains the
term “total punishment” nor refers to other provisions of the
Guidelines that do.1 Transcript of Oral Argument at 18, United
States v. Turner (No. 21-3005). Section 5G1.2 (“Sentencing on
Multiple Counts of Conviction”), on the other hand, and its
commentary use the term twenty-two times. See U.S.S.G.
§ 5G1.2. Later, during oral argument, Government counsel
stated that “Chapter 7 does not set forth the same sorts of
1
The majority does not dispute that “total punishment” appears
nowhere in the text of Chapter 7.
6
strictures and rules that are found in Chapter 5.”2 Transcript of
Oral Argument at 24, United States v. Turner (No. 21-3005). It
is unclear to me why, as the majority suggests, Majority Op. at
7, we should read into Chapter 7 a “total punishment” model
like that in Chapter 5 when the latter uses the term repeatedly
and the former does not. In fact, the conspicuous absence of
“total punishment” leads me to precisely the opposition
conclusion—that the Commission intended for the “total
punishment” model to apply to Chapter 5 but not to Chapter 7.
As my colleagues noted in another context, if the Sentencing
Commission intended the “total punishment” model to apply to
Chapters 5 and 7, I “expect it would have clearly said so.”
Majority Op. at 6.
The majority also relies on the Commission’s policy
statements in other provisions of the Guidelines to uncover
their overarching purpose. See Majority Op. at 7–8 (quoting
U.S.S.G. ch.1, pt. A, introductory cmt. 4(a)). Inasmuch as
“[t]he best evidence of [the Commission’s] purpose is the
2
My colleagues appeared to acknowledge this fact during oral
argument:
[GOVERNMENT COUNSEL]: And I would counter that, Your
Honor, with the fact that Chapter 7 does not set forth the same
sorts of strictures and rules that are found in Chapter 5, in the
original sentencing context, . . .
JUDGE TATEL: Okay. We know that. We know that.
JUDGE EDWARDS: Right.
JUDGE TATEL: We understand that. Your point about that is
well-taken.
Transcript of Oral Argument at 24, United States v. Turner (No. 21-
3005).
7
[provision’s] text,” West Virginia Univ. Hosps., Inc. v. Casey,
499 U.S. 83, 98 (1991) (discussing evidence of the Congress’s
purpose in statutory text), I read the plain text of Chapter 7 and
conclude that the Commission did not adopt a “total
punishment” model for Chapter 7, as it did for Chapter 5. The
most natural reading of the former is to apply the advisory
ranges in Chapter 7’s Revocation Table to each term of
supervised release being revoked.
Finally, the majority turns to our circuit’s case law,
positing that “our court has repeatedly assumed that violations
of supervised release should be punished only once, not
separately for each count of a defendant’s prior conviction.”
Majority Op. at 10. It cites for this proposition In re Sealed
Case, 527 F.3d 188 (D.C. Cir. 2008). The defendant there was
“on supervised release for a two-count conviction,” Majority
Op. at 10, and “committed several violations of his release
conditions,” In re Sealed Case, 527 F.3d at 192. But nothing in
that case indicates that the defendant was serving multiple
terms of supervised release or that we considered the district
court’s sentencing upon the revocation of multiple terms of
supervised release, see id. at 189 (defendant was sentenced “to
time served and five years of supervised release”); id. at 195(Kavanaugh, J., dissenting) (“defendant had repeatedly
violated his supervised release”). Thus, the circumstances in In
re Sealed Case do not mirror Turner’s and I can glean little, if
anything, that guides us in our approach to the revocation of his
terms of supervised release. Likewise, United States v.
Agramonte, 276 F.3d 594 (D.C. Cir. 2001), is of scant help here
because it examined an Apprendi challenge to the defendant’s
convictions, not a sentence upon revocation of supervised
release. Instead, I find that our colleagues on the Fifth Circuit
got it right when, considering similar circumstances, they
found no error with an aggregate revocation sentence that
exceeded the advisory range because each individual
8
revocation sentence fell within the range. See United States v.
Badgett, 957 F.3d 536, 539 (5th Cir. 2020) (upon revocation of
six concurrent terms of supervised release, district court
sentenced defendant “to eight months on each term of
supervised release—the middle of his five-to-eleven-month
Guidelines range,” which “were to run consecutively, for a
total of 48 months’ imprisonment”); id. at 541 n.20 (“Where
the district court exercises its discretion to impose consecutive
revocation sentences and each ‘sentence falls within the
advisory range and is consistent with the Guidelines’ policy
regarding consecutive sentences,’ the aggregate sentence ‘is
entitled to a presumption of reasonableness.’” (citation
omitted)).
The plain text and structure of the relevant Sentencing
Guidelines provisions lead me to conclude that the district
court properly calculated the Guidelines range when it
sentenced Turner to consecutive nine-month terms of
imprisonment upon revocation of both terms of supervised
release. For the foregoing reasons, I respectfully dissent.