In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1936
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ARLTON M C INTOSH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 991—Rebecca R. Pallmeyer, Judge.
A RGUED O CTOBER 28, 2010—D ECIDED JANUARY 21, 2011
Before M ANION, R OVNER, and S YKES, Circuit Judges.
M ANION, Circuit Judge. Carlton McIntosh was convicted
of escaping from federal custody, a violation of 18 U.S.C.
§ 751(a), and served a 41-month term of imprisonment
followed by a period of supervised release. On two sepa-
rate occasions, he violated the terms of his supervised
release and was ordered to serve terms of reimprison-
ment. After being ordered to serve a second reimprison-
ment period, McIntosh filed a motion to reconsider the
2 No. 10-1936
judgment, arguing that it violated his constitutional
rights, as articulated in Apprendi v. New Jersey, 530 U.S.
466 (2000). The district court denied the motion, and
McIntosh now appeals. We affirm.
In September 2003, McIntosh escaped from a cor-
rectional community center where he was serving a
sentence for money laundering. As a result, he was
charged with escaping from federal custody. By statute,
the maximum sentence for the offense is 60 months’
imprisonment. 18 U.S.C. § 751(a). Following a bench
trial, he was found guilty and sentenced to 41 months’
imprisonment, followed by three years of supervised
release.
In September 2006, McIntosh completed his term of
imprisonment and began serving his first period of super-
vised release. During this time, however, McIntosh vio-
lated the terms of his release by committing a crime,
failing to report to his probation officer, failing to
obtain work, and leaving the judicial district without
permission. Because of this conduct, in May 2007, the
district court revoked McIntosh’s supervised release
and sentenced him to an additional 14 months’ imprison-
ment and 22 months of supervised release.
In June 2008, McIntosh completed his second term of
imprisonment and again went on supervised release.
In August 2009, the government moved to revoke
McIntosh’s supervised release a second time. Over the
course of a three-day hearing, the government presented
evidence that had been recovered from McIntosh’s
house, including a driver’s license with McIntosh’s
No. 10-1936 3
picture and the name “Lamont Glass,” and two debit
cards with the names “Lamont Glass” and “Brent Spann.”
The government explained that “Lamont Glass” was
the name of McIntosh’s former cellmate. The govern-
ment also presented evidence that McIntosh had used
false identification to open two bank accounts in
Glass’s name; that he had obtained a tax refund in
Glass’s name without Glass’s knowledge or permission;
and that he had filed fraudulent federal income tax
returns, in which he claimed tax refunds on behalf of
several people whom he knew in prison and directed the
refunds to himself instead of to the individuals listed
on the tax return. In addition, the government presented
evidence that McIntosh failed to report his arrest
for criminal trespass to a motor vehicle involving the
theft of a rental car, his contact with a convicted felon
and federal inmate, his rental of two mailbox accounts,
and his opening of multiple bank accounts. The gov-
ernment also demonstrated that McIntosh had failed to
submit monthly supervision reports, make payments
on his restitution, and sufficiently report information
regarding his employment. Finally, the government
presented bank records from accounts in McIntosh’s
name, showing gas station charges and other purchases
made from locations outside the Northern District of
Illinois even though McIntosh had not received permis-
sion to travel outside the district.
Following the hearing, the district court ruled that
McIntosh had again violated the terms of his supervised
release in multiple ways including using false identifica-
tion to open bank accounts and to fraudulently obtain
4 No. 10-1936
money, failing to pay restitution, and failing to comply
with the reporting requirements for his supervised
release. Consequently, the district court revoked his
supervised release and sentenced McIntosh to serve
another 16 months of imprisonment, followed by
12 months of supervised release, which the district
court later modified to six months of supervised release.
McIntosh objected to the sentence, arguing that the
additional 16-month reimprisonment violated his rights
under Apprendi and should be reduced to five months.
The district court rejected McIntosh’s argument, and
he now appeals.
We review de novo challenges based on Apprendi.
United States v. Seymour, 519 F.3d 700, 709 (7th Cir. 2008).
Apprendi requires that “any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
On appeal, McIntosh argues that because sanctions for
violations of a supervised release are part of the penalty
for the initial offense, see Johnson v. United States, 529
U.S. 694, 700 (2000), when his terms of reimprisonment
are added to the original term of imprisonment and
exceed the statutory maximum, Apprendi protections
must apply. In McIntosh’s case, adding his second reim-
prisonment (16 months) to his initial imprisonment
(41 months) and the reimprisonment from the first viola-
tion of supervised release (14 months) gives a total of
71 months. This, of course, is greater than the 60-month
statutory maximum authorized for his original offense.
No. 10-1936 5
McIntosh argues this is a violation of his constitutional
rights under Apprendi.
Apprendi does not apply here. McIntosh’s underlying
offense, escaping from federal custody, has a 60-month
maximum term of imprisonment and is classified as a
Class D felony. See 18 U.S.C. § 751(a); 18 U.S.C. § 3559(a)(4).
Under 18 U.S.C. § 3583, when imposing a sentence for
a felony conviction, a district court “may include as part
of the sentence a requirement that the defendant be
placed on a term of supervised release after imprison-
ment.” 18 U.S.C. § 3583(a). The statute also authorizes
the district court to include provisions for violations of
the supervised-release conditions, including revocation
of the supervised release and reimprisonment. 18 U.S.C.
§ 3583(e)(3). When the underlying offense is a Class D
felony, the maximum term of supervised release is
three years and the maximum term of reimprisonment
after the revocation of a supervised release is two years.
18 U.S.C. § 3583(b)(2), (e)(3).
McIntosh’s argument fails because a district court’s
authority to sentence is not based solely on 18 U.S.C.
§ 751(a), but on 18 U.S.C. § 3583 as well. That is to say,
by statute, a district court is not restricted to only
imposing a sentence of up to 60 months; instead, by
statute, a district court may impose a 60-month sen-
tence plus a three-year term of supervised release,
which may include an additional reimprisonment of up
to two years should the defendant violate terms of the
supervised release.
We previously rejected McIntosh’s argument in United
States v. Colt, 126 F.3d 981 (7th Cir. 1997). There, we
6 No. 10-1936
noted that the statutory interpretation suggested by
McIntosh would result in the anomaly where, in the case
of a criminal defendant sentenced at or near the maxi-
mum sentence for his offense, a district court could not
impose the period of incarceration authorized by § 3583
if the defendant’s supervised release was revoked. Id. at
983. We said that this “interpretation of § 3583 would
therefore imply that Congress authorized a punish-
ment that could never be imposed.” Id.
Nevertheless, McIntosh contends that our decision in
Colt is no longer controlling because it was decided
before Apprendi’s release. But the rule in Apprendi does
not apply to a sentence imposed under § 3583 following
the revocation of a supervised release. A violation
of supervised release is not a separate fact creating an
additional penalty on top of a defendant’s original sen-
tence that may go beyond the statutory maximum,
thereby requiring submission to a jury and proof beyond
a reasonable doubt. Rather, supervised release, and the
subsequent possibility of reimprisonment after a viola-
tion of that release, is a part of the original sentence
imposed by the sentencing court following a defendant’s
conviction by a jury based on proof beyond a reasonable
doubt. In other words, following his conviction, McIntosh
was sentenced to a period of imprisonment and granted
a period of “conditional liberty, the existence of which
depends on [McIntosh’s] observation of the limits of
his supervised release.” United States v. Cunningham,
607 F.3d 1264, 1268 (11th Cir. 2010). Accordingly, we
have continued to rely on Colt after the Apprendi decision,
albeit in unpublished orders. See, e.g., United States v.
No. 10-1936 7
Santiago, 250 Fed. App’x 736, 739 (7th Cir. 2007) (unpub-
lished); United States v. Kizeart, 251 Fed. App’x 352, 354 (7th
Cir. 2007) (unpublished); United States v. Braziel, 86
Fed. App’x 202, 204 (7th Cir. 2004) (unpublished). In
addition, since the Apprendi decision, every circuit court
to consider the supervised release revocation frame-
work under 18 U.S.C. § 3583 has concluded that there is
no constitutional violation. See United States v. Work,
409 F.3d 484, 489-92 (1st Cir. 2005); United States v.
Carlton, 442 F.3d 802, 807-10 (2d Cir. 2006); United States
v. Dees, 467 F.3d 847, 854-55 (3d Cir. 2006); United States
v. Johnson, 356 Fed. App’x 785, 790-92 (6th Cir. 2009)
(unpublished); United States v. Huerta-Pimental, 445 F.3d
1220, 1224-25 (9th Cir. 2006); United States v. Cordova, 461
F.3d 1184, 1186-88 (10th Cir. 2006); Cunningham, 607 F.3d
at 1266-68 (11th Cir. 2010). McIntosh’s constitutional
rights were not violated by the second revocation of his
supervised release and reimprisonment for an addi-
tional 16 months.
In his appeal, McIntosh also argues that there is insuf-
ficient evidence to support revoking his supervised
release. “We review a district court’s decision to revoke
a term of supervised release for an abuse of discretion.”
United States v. Young, 41 F.3d 1184, 1186 (7th Cir. 1994).
A district court may revoke a defendant’s supervised
release if it “finds by a preponderance of the evidence
that the defendant violated a condition of supervised
release.” 18 U.S.C. § 3583(e)(3).
As described above, the government presented plenty
of evidence that McIntosh used false identification to
8 No. 10-1936
open bank accounts and to fraudulently obtain money,
failed to pay restitution, failed to comply with reporting
requirements, and traveled outside the judicial dis-
trict without permission. McIntosh attempts to rebut
the evidence of false identification recovered from his
house by speculating that someone else was using
the identification to open bank accounts and obtain
money, but there is no explanation for how the fake
Illinois driver’s license with the name “Lamont Glass”
featured McIntosh’s photograph. Also, during the
hearing McIntosh conceded that he should have made
restitution payments. Finally, McIntosh did not rebut
the evidence of his failure to comply with the reporting
requirements of his supervised release or the evidence
of his travel outside the judicial district without permis-
sion. In sum, there is a preponderance of evidence
to support the finding that McIntosh violated several
conditions of his supervised release. Therefore, the
district court did not abuse its discretion in revoking
McIntosh’s supervised release.
For these reasons, we A FFIRM the judgment of the
district court.
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