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Federal Class C Felony Permits 24 Months or Less Imprisonment Upon Supervision Revocation

Federal Class C Felony Permits 24 Months or Less Imprisonment Upon
Supervision Revocation


The Fifth Circuit Court of Appeals held that a defendant may not
be sentenced to more than 24 months imprisonment upon the revocation of
his supervised release for a class C federal felony conviction. The
defendant in this case plead guilty to one count of aiding and abetting
bank theft, which is a Class C felony pursuant to 18 U.S.C. §3559(a)(3).
The defendant was sentenced to 18 months imprisonment and three years
supervised release. He later violated the terms of his supervised release
and was sentenced to twenty-three months imprisonment and twelve months
supervised release. Once again upon release, the defendant violated his
supervised release and was sentenced to eighteen months incarceration.
The defendant appealed that sentence.


The Court held, and the Government conceded, that no more than two years'
imprisonment may be imposed if the offense that resulted in the term of
supervised release is a class C felony. See: 18 U.S.C. §3583(e)(3). The
Court held the legislative history supports a holding that the two year
maximum provided in §3583(e)(3) applies on a cumulative basis and not
separately to each time supervised release is revoked. Accordingly the
Court reversed, holding that upon sentencing for the second revocation the
defendant could only be sentenced to one month of imprisonment. See:
United States v. Jackson, 329 F. 3d 406 (5th Cir. 2003).

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Related legal case

United States v. Jackson

United States v. Jackson, 329 F.3d 406 (5th Cir. 04/23/2003)

[1] U.S. Court of Appeals, Fifth Circuit

[2] No. 02-11222

[3] 329 F.3d 406, 2003

[4] April 23, 2003

[5] UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CHARLES N. JACKSON, DEFENDANT-APPELLANT.

[6] Appeal from the United States District Court for the Northern District of Texas

[7] Before Garwood, Jolly and Higginbotham, Circuit Judges.

[8] The opinion of the court was delivered by: Per Curiam.

[9] Revised May 8, 2003

[10] Appellant Charles N. Jackson was convicted, pursuant to his guilty plea, of one count of aiding and abetting bank theft exceeding $100 on May 16, 1995 contrary to 18 U.S.C. §§ 2, 2113(b) for which he was sentenced on April 25, 1997, to eighteen months' incarceration and a three year term of supervised released. He was also ordered to pay a $50 special assessment and $30,000 in restitution. The remaining counts of indictment in which Jackson was charged were then dismissed. Jackson appealed and on March 26, 1998, this court affirmed his conviction and sentence. Jackson's said three year term of supervised release began on July 13, 1998.

[11] On September 21, 2000, the district court revoked Jackson's supervised release and sentenced him to twenty-three months' incarceration and twelve months of supervised release. Jackson appealed and this court, on August 28, 2001, affirmed the district court's September 21, 2000 judgment. On October 24, 2002, the district court revoked Jackson's supervised release which had been imposed on September 21, 2000, and sentenced him to eighteen months' incarceration (no further supervised release was imposed).

[12] Jackson now appeals the district court's October 24, 2002 judgment. He contends that because his underlying offense of conviction is concededly a class C felony, 18 U.S.C. § 3559(a)(3), *fn1 and because it is undisputed that on revocation of supervised release no more than two years' imprisonment may be imposed if the offense that resulted in the term of supervised release is a class C felony, 18 U.S.C. § 3583(e)(3),*fn2 that therefore on the October 24, 2002 revocation of his supervised release he could be sentenced to no longer term of imprisonment than one month-instead of the eighteen months' imprisonment imposed by the district court-since he had already been sentenced to twenty-three months' imprisonment on the September 21, 2000 revocation of the supervised release imposed in April 1997 as part of his original sentence for the underlying offense. Jackson contends, in other words, that the two year maximum provided for in section 3583(e)(3) applies on a cumulative basis and not separately to each time supervised release is revoked. The Government now concedes that Jackson is correct and that on the October 24, 2002 revocation the district court could not have imposed any term of imprisonment in excess of one month. The Government's concession is supported by the legislative history to the 1994 amendments to section 3583, which added subsection (h) to section 3583 *fn3 and also, inter alia, amended paragraph (3) of subsection (e) of section 3583 in diverse respects essentially immaterial to the present issue. *fn4 See United States v. Beals, 87 F.3d 854, 857-58 (7th Cir. 1996) (overruled in part on other grounds, United States v. Withers, 128 F.3d 1167, 1172 (7th Cir. 1997), cert. denied, 119 S.Ct. 79 (1998)); United States v. Brings Plenty, 188 F.3d 1051, 1054 (8th Cir. 1999); United States v. Merced, 263 F.3d 34, 37-38 (2d Cir. 2001), all relying on statements of the sponsor of the 1991 bill "containing nearly identical provisions" to those which became the relevant portions of the 1994 amendments to section 3583. *fn5 Brings Plenty at 1054; Merced at 37-38. Merced and United States v. Swenson, 289 F.3d 676 (10th Cir. 2002), are direct holdings that, as applied here, would limit Jackson's confinement imposed on the October 24, 2002, revocation to one month. *fn6 No Circuit court decision of which we are aware has held the contrary, and any such holding on our part would create a circuit split.

[13] We accordingly accept the Government's confession of error. *fn7 We therefore modify the district court's October 24, 2002 order so that the sentence imposed is one month's confinement and affirm as so modified. *fn8

[14] AFFIRMED as MODIFIED.


Opinion Footnotes

[15] *fn1 When the underlying offense was committed, in May 1995, bank theft exceeding $100 carried a maximum imprisonment term of ten years, while such theft in an amount not exceeding $100 carried a maximum term of one year. 18 U.S.C. § 2113(b) (1995). By § 606(a) of Pub. L. 104-294, 110 Stat. 3511, effective October 11, 1996, the figure "$1,000" was substituted for "$100" throughout § 2113. An offense carrying a maximum sentence of less than 25 years but ten or more years is a Class C felony. § 3559(a)(3).

[16] *fn2 § 3583(e) provides that "The court may . . . (1) . . . (2) . . . (3) 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 without credit for time previously served on postrelease supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve 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; or (4) . . . ."

[17] *fn3 Subsection (h) of § 3583 provides: "(h) Supervised release following revocation.- - When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release."

[18] *fn4 Before the 1994 amendments, § 3583(e)(3) provided as follows: "(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a conviction of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony." The 1994 amendments rewrote § 3583(e)(3) into its present language (see note 2, supra). The substantive changes appear to be essentially the following, viz: (i) the insertion of "authorized by statute for the offense that resulted in such term of supervised release" just before the words "without credit", thus removing the otherwise arguable limitation that a prison term imposed could never be longer than the term of the revoked supervised release; and (ii) the addition of an express 5 year limitation on prison terms for class A felonies.

[19] *fn5 See 137 Cong. Rec. S 7769-72 (daily ed. June 13, 1991).

[20] *fn6 Brings Plenty did not involve the length of confinement, but rather the length of supervised release, imposable in such a situation. Beals was an ex post facto challenge to a term of supervised release imposed on initial revocation and its result does not in any sense appear to rest on its statements concerning confinement imposable on a second revocation being limited by credit for confinement imposed on the initial revocation.