United States v. Rivera-Newton

United States Court of Appeals
For the First Circuit

No. 01-2113

UNITED STATES,

Appellee,

v.

WILLIAM CORTES-CLAUDIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Lipez, Circuit Judge,

Campbell and Bownes, Senior Circuit Judges.

Rafael F. Castro-Lang for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, Chief, Criminal Division, were on
brief for the United States.

December 2, 2002
 CAMPBELL, Senior Circuit Judge. This appeal raises,

inter alia, the question of which statutory provision governs the

district court's imposition of a term of supervised release upon a

drug offender. A statute pertaining to federal crimes in general

provides that for Class A and Class B felonies, the maximum

supervised release term is five years. 18 U.S.C. § 3583(b)(2000).

Another statute, however, making criminal the drug offenses under

which this defendant was sentenced, provides for somewhat different

terms of supervised release and, in the defendant's circumstances,

mandates a supervised release term of "at least five years." 21

U.S.C. § 841(b)(1)(A) (1999). Most of the courts of appeal

considering the issue have held that the latter statute, 21 U.S.C.

§ 841, rather than 18 U.S.C. § 3583(b), determines the limits of

the supervised release terms a district court may impose upon drug

offenders sentenced thereunder. These same courts have interpreted

the "at least" terminology as implying that, in such cases, a term

of supervised release longer than five years is statutorily

authorized.

Having pled guilty in the district court to a drug

conspiracy charge involving, as the conspiracy's object,

substantive offenses under 21 U.S.C. § 841(a), William Cortes-

Claudio ("Cortes-Claudio") was sentenced to imprisonment and a ten-

year term of supervised release. He appeals from the latter,

arguing on the basis of 18 U.S.C. § 3583(b) that the maximum

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supervisory release term is five years. He also argues that the

district court committed plain error by neglecting to give him

advance notice that it was considering an upward departure (to ten

years) from the five year supervised release term provided in the

United States Sentencing Guidelines. See U.S.S.G. § 5D1.2(a)(1)

(2001).

We conclude that 21 U.S.C. § 841(b) controls, and that it

confers statutory authority upon the district court to impose the

ten-year term of supervised release that it chose. The district

court erred, however, in overlooking the Sentencing Guidelines

provision for a supervised release term of five years. The ten-

year term was thus an upward departure requiring the court to give

prior notice, see United States v. Burns, 501 U.S. 129, 135 (1990),

and to state on the record the aggravating circumstances that

warranted such a departure. Since the district court observed

neither requirement, we vacate and remand for re-sentencing of

Cortes-Claudio's supervised release term.

I. Background

Cortes-Claudio, pursuant to a plea agreement, pleaded

guilty to conspiracy to possess with intent to distribute five

kilograms or more of cocaine, one or more kilograms of heroin, and

multi-kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1)

(1999). The plea agreement set forth the statutory penalties for

Cortes-Claudio's offense including "a term of imprisonment which

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may not be less than ten years or more than life" and a "term of

supervised release of at least 5 years." § 841(b)(1)(A). While

Cortes-Claudio and the government agreed to a term of imprisonment

of 151 months, the parties did not stipulate to a specific

supervised release term. As to the supervised release term, the

plea agreement parroted the language of § 841(b) stating that "the

defendant understands that he can be sentenced to . . . a term of

supervised release of at least five (5) years."

Neither the pre-sentence report, nor the district court's

colloquy at the change of plea hearing, stated a specific

supervised release term. The pre-sentence report indicated that

the court "must impose a term of supervised release of at least

five (5) years" and that the term of supervised release "shall in

no event be less than any statutorily required term." The pre-

sentence report also stated that there was no basis for a departure

from the Guidelines. At the change of plea hearing, the judge

informed Cortes-Claudio of the sentence he could receive upon

pleading guilty, including "a supervised release term of not less

than five years."

Later, at the sentencing hearing, following a discussion

concerning an error in the pre-sentence report regarding a prior

conviction, the district court sentenced Cortes-Claudio to 151

months imprisonment and ten years of supervised release. Cortes-

Claudio did not object.

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 Following sentencing, however, Cortes-Claudio filed a

motion to correct his sentence. Believing the district court had

relied upon a prior conviction to increase his term of supervised

release from five years to ten years, Cortes-Claudio stated in his

motion that the district court had inadvertently imposed the ten-

year supervised release term required by § 841(b) for a defendant

with a prior conviction. He argued that because the government had

failed to file an information pursuant to 21 U.S.C. § 851,

indicating its intent to seek a higher sentence based on a prior

conviction, the maximum allowable supervised release term was five

years. 18 U.S.C. § 3583(b)(1).

The district court denied Cortes-Claudio's motion to

correct his sentence. United States v. Cortes-Claudio, 152 F.

Supp.2d 177, 178 (D.P.R. 2001). The court stated that it had not

relied upon a prior conviction in setting Cortes-Claudio's term of

supervised release. While the court recognized that 18 U.S.C. §

3583(b) provided for a maximum term of supervised release of five

years for a Class A felony,1 it concluded that the supervised

release provisions in § 841(b) trumped the maximums provided in §

3583(b). According to the court, the requirement in § 841(b) of

a minimum supervised release term of "at least 5 years" permitted

the court, in its discretion, to impose a supervised release term

1
Because the maximum term of incarceration authorized by law
is life imprisonment, see § 841(b), Cortes-Claudio's offense is
categorized as a Class A felony. 18 U.S.C. § 3559(a)(1).

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of up to life. Id. at 180. The court stated that ten years was

appropriate given the nature of Cortes-Claudio's offense.

According to the district court, in arriving at the ten-

year supervised release term, it considered all the relevant

evidence and circumstances "as well as the factors set forth in 18

U.S.C. § 3553(a)(2)." Id. at 180-81. The district court stated

that both the terms of imprisonment and the supervised release term

were "within the sentencing guidelines and appropriate considering

the nature of the offense." Id. at 181.

II. Discussion

A. Statutory Length of Supervised Release Terms

The first issue is whether the five-year maximum provided

in 18 U.S.C. § 3583 is applicable as a limitation upon the

supervised release term of Cortes-Claudio who was sentenced for

drug offenses pursuant to 21 U.S.C. § 841(b).

We begin with a close look at the language of the two

statutes. See Brady v. Credit Recovery Inc., 160 F.3d 64, 66 (1st

Cir. 1998). Defendants convicted of conspiracy to commit drug

offenses pursuant to 21 U.S.C. §§ 841(a) and 846, are subject to

the penalties described in § 841(b).2 Pursuant to § 841(b)(1)(A),

2
Section 841(b)(1)(A) describes penalties for defendants, like
Cortes-Claudio, convicted of drug offenses, including conspiracy,
see § 846, involving a particular quantity of drugs. The statute
requires, in pertinent part, "such person to be sentenced to a term
of imprisonment which may not be less than 10 years or more than
life and if death or serious bodily injury results from the use of
such substance shall be not less than 20 years or more than

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the district court was required to sentence Cortes-Claudio to a

term of imprisonment which could not be less than "10 years or more

than life" and a term of supervised release of "at least 5 years."

We have recently held that this language in § 841(b) establishes a

mandatory minimum term of supervised release, not a maximum.

United States v. Lopez, 299 F.3d 84, 90 (1st Cir. 2002). Our

holding in Lopez made clear that any apparent language to the

contrary in previous cases is limited to the specific facts of

those cases, and does not constitute precedent for the proposition

that language in drug statutes, such as 21 U.S.C. § 841, referring

to "at least 5 years" (or some other term) sets out the maximum

rather than a minimum only. United States v. Barnes, 251 F.3d 251,

261 (1st Cir. 2001); United States v. Barnes, 244 F.3d 172, 178

(1st Cir. 2001); Suveges v. United States, 7 F.3d 6, 8 (1st Cir.

1993). Given the plain meaning of "at least" and our Lopez

holding, we do not regard Barnes and its companion cases as stare

decisis in regard to the present issue concerning the upper limit

of a term of supervised release in a drug case.

We start, therefore, with the premise that the district

court was plainly required by § 841(b) to sentence Cortes-Claudio

to a minimum supervised release term of at least five years. In

life . . . . Any sentence under this subparagraph shall, in the
absence of such prior conviction, impose a term of supervised
release of at least five years in addition to such term of
imprisonment and shall, if there was such a prior conviction,
impose a term of supervised release of at least 10 years . . . ."

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arguing that five years is also a maximum in respect to the

permissible term of supervised relief, Cortes-Claudio would have us

borrow from a different statute, § 3583(b), applying to federal

crimes generally. Section 3583(b) specifies,

Except as otherwise provided, the authorized
terms of supervised release are --
(1) for a Class A or Class B felony, not more
than five years;
(2) for a Class C or Class D felony, not more
than three years; and
(3) for a Class E felony, or for misdemeanor
(other than a petty offense) not more than one
year.

18 U.S.C. § 3583(b)(emphasis supplied). Because Cortes-Claudio was

convicted of a Class A felony, he argues that he is subject to a

term of supervised release of "not more than five years."

The issue presented is whether § 841(b), which contains

sentences applicable to specific drug offenses and conspiracy to

commit such offenses, under which Cortes-Claudio was sentenced,

takes precedence over the more general § 3583(b) in regard not only

to the minimum five-year term expressly set forth in § 841(b) but

also to the unspecified lengthier terms implied if not specifically

set forth in the "at least" phraseology. We think it does. In so

holding, we join the majority of circuits that have considered this

issue and that have held that § 3583(b) does not limit the length

of supervised release terms in cases under § 841. E.g., United

States v. Sanchez-Gonzalez, 294 F.3d 563, 565 (3d Cir. 2002);

United States v. Kurkowski, 281 F.3d 699, 703 (8th Cir.), cert.

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denied, 123 S. Ct. 210 (2002); United States v. Sanchez, 269 F.3d

1250, 1286-88 (11th Cir. 2001) (en banc), cert. denied, 122 S. Ct.

1327 (2002); United States v. Page, 131 F.3d 1173, 1178 (6th Cir.),

cert. denied, 525 U.S. 828 (1998); United States v. Eng, 14 F.3d

165, 172 (2d Cir. 1994).3

The language of § 3583(b), as well as of § 841, supports

the conclusion that penalties for drug offenses within the latter

should be imposed with direct reference to § 841(b), not § 3583(b).

Section 3583(b) itself begins with the phrase "[e]xcept as

otherwise provided." This proviso indicates that § 3583(b) yields

to other more specific statutes, such as § 841, that make different

provisions for terms of supervised release for particular offenses.

See, e.g., Sanchez-Gonzalez, 294 F.3d at 566; Eng, 14 F.3d at 172.

Because § 841 does "otherwise provide" supervised release terms,

its provisions rather than those of § 3583(b) apply to drug

offenders like Cortes-Claudio.

It is true that § 841(b) does not set out a specific

maximum term of supervised release. It does, however, require a

3
Only the Fourth and Fifth Circuits have determined that §
3583(b) limits the length of a supervised release term imposed
pursuant to § 841. E.g., United States v. Good, 25 F.3d 218, 221
(4th Cir. 1994); United States v. Kelly, 974 F.2d 22, 25 (5th Cir.
1992). As the Fourth Circuit recently recognized, the reasoning
adopted by these circuits can lead, in some instances, to clearly
inappropriate results. United States v. Pratt, 239 F.3d 640, 647
n.4 (4th Cir. 2001) (recognizing that this rule "creates a somewhat
anomalous result" and opining that perhaps its decision in Good
should be overruled).

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minimum term of supervised release of "at least five years," and

this phraseology plainly implies the option of a term longer than

five years. To allow § 3583(b) to limit to five years the

supervised release term set forth in § 841(b) would, in Cortes-

Claudio's case, rob the phrase "at least" contained in the latter

statute of any meaning whatever. See, e.g., United States v.

Williams, 65 F.3d 301, 309 (2d Cir. 1995). It is "a cardinal

principle of statutory construction" that "a statute ought, upon

the whole, to be so construed that, if it can be prevented, no

clause, sentence, or word shall be superfluous, void, or

insignificant." Duncan v. Walker, 533 U.S. 167, 174 (2001)

(internal quotation marks omitted); Herman v. Hector I. Nieves

Transp., Inc., 244 F.3d 32, 36 (1st Cir. 2001) ("A primary canon of

statutory construction is that a statute should be construed so as

not to render any of its phrases superfluous."). A further reason

for not imputing § 3583(b)'s five-year maximum term to § 841

offenders is that, in some other instances, this would actually

make it impossible to carry out the specific mandates set forth in

§ 841. See Eng, 14 F.3d at 172 (dividing cases under § 841 into

different categories, including those like the present where §

841(b)'s mandatory minimums would be § 3583(b)'s maximum, and

others where an actual conflict would exist between the minimum

period of supervised release mandated under § 841 and the maximum

permitted by § 3583).

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 Our interpretation of the two statutes is consistent with

the legislative history. See Page, 131 F.3d at 1179. When

Congress enacted the Anti-Drug Abuse Act of 1986, it amended §

3583(b) to add the phrase "[e]xcept as otherwise provided" at the

same time it included the supervised release terms set forth in §

841(b) and maintained the words "at least" before the specified

minimum term. Act of Oct. 27, 1986, Pub. L. No. 99-570, 1986

U.S.C.C.A.N. (100 Stat.) 3207-6.4

Defendants convicted of drug offenses have traditionally

been subject to sentences different from those imposed upon

defendants convicted under other federal laws. See Bifulco v.

United States, 447 U.S. 381, 392 (1980). Prior to the creation of

the "supervised release term" to which defendants now must be

sentenced, defendants generally were subject to a period of

"parole." As defendants were often released prior to serving their

entire sentence, the length of a non-drug offender's parole was

normally dictated by how much time remained on his or her original

4
Our interpretation is also consistent with how courts
interpreted the statute prior to the adoption of the sentencing
guidelines. Specifically, Congress provided that a defendant
sentenced under the prior version of § 841 be subject to "at least
five years of special parole." Courts interpreting this
phraseology assumed that Congress provided a mandatory minimum term
of special parole with a possible special parole term of life.
See, e.g., Fowler v. United States Parole Comm'n, 94 F.3d 835, 840
(3rd Cir. 1996); People v. Materne, 72 F.3d 103, 106 (9th Cir.
1995); United States v. Osment, 13 F.3d 1240, 1242 (8th Cir. 1994).
Except for the substitution of "supervised release term" for "term
of special parole" the language of § 841 remained largely intact
after Congress instituted the sentencing guidelines.

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sentence. Defendants convicted of drug offenses, however, were

required to be sentenced by statute to a "special parole term" that

was distinct from their original sentence. See id. (noting the

intent of the special parole term was "to give the judges another

tool for sentencing and another means of protecting society when

dealing with the drug violator."). When Congress eliminated parole

and instituted in its stead supervised release terms, it continued

to treat drug offenders separately from other criminals in respect

to supervised release, substituting "supervised release term" for

"special parole term" in § 841(b) and providing specific directions

relative to those sentenced under that statute. See Gozlon-Peretz

v. United States, 498 U.S. 395, 402 (1991).

We, therefore, find no error in the district court's

conclusion that the statutory supervised release terms for

defendants convicted of drug offenses under § 841(a) are as

described in § 841(b), and that those run from the mandatory

minimum up to the life of the defendant. Section 841(b)(1)(A), the

provision under which Cortes-Claudio was sentenced, provides for a

mandatory minimum term of at least five years of supervised release

up to a maximum supervised release term of life.

B. Sentencing Guidelines and Supervised Release Terms

Even assuming that the court had statutory authority to

impose a ten-year term of supervised release, Cortes-Claudio argues

that the district court committed error when it sua sponte departed

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upward from the supervised release term set forth in the Sentencing

Guidelines. See 18 U.S.C. §§ 3553(a) and 3553(b) (2000); U.S.S.G.

§ 5K2 (2001). According to Cortes-Claudio, the Guidelines, if not

the statute under which he was sentenced, mandates that the

district court impose a term of five years supervised release. See

§ 5D1.2. Relying on § 5D1.2 of the Guidelines, Cortes-Claudio

contends that his ten-year supervised release term was an upward

departure from the guideline range. If the court intended to

depart from the guideline sentence, Cortes-Claudio contends that it

was required to provide advance notice to the parties. See United

States v. Burns, 501 U.S. 129, 135 (1990) (holding that a district

court may not sua sponte upwardly depart from the guideline

sentencing range without first notifying the defendant of its

intention to do so and specifically identifying the ground on which

it contemplates departing upward).

A district court is required by statute to sentence

within the guideline range absent aggravating or mitigating

circumstances. 18 U.S.C. § 3553(b). Under the Guidelines, Cortes-

Claudio was subject to a five-year supervised release term. §

5D1.2(a)(1); see also United States v. Sasson, 62 F.3d 874, 891

(7th Cir. 1995). Section 5D1.2(a)(1) provides that if a term of

supervised release is ordered the length of the term for a Class A

or B felony "shall be at least three years but not more than five

years." The term of supervised release imposed, however, cannot

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drop below the statutory minimum. 5D1.2(b). Here, the guideline

range for supervised release was three to five years and the

statutorily required minimum sentence was five years. Thus, the

guideline sentence was five years, with no special exception for

drug offenses. See United States v. Mora, 22 F.3d 409, 413 (2d

Cir. 1994). A sentence that exceeds the guideline range is

considered an "upward departure." See United States v. Harotunian,

920 F.2d 1040, 1042-43 (1st Cir.1990) (defining a departure as a

sentence outside the guideline sentencing range). Thus, when the

district court imposed a ten-year supervised release term, it

departed upward from the Guideline sentence, requiring advance

notice to the parties, Burns, 501 U.S. at 138-39, and also an

explanation for the departure. 18 U.S.C. § 3553(b); § 5K2 U.S.S.G.

Here the court apparently overlooked the fact that it was

departing from the guideline range when it imposed a ten-year term

of supervised release. It stated that both the term of

imprisonment and the ten years of supervised release were "within

the sentencing guidelines." Cortes-Claudio, 152 F. Supp.2d at 181.

This faulty assumption led to the two additional errors already

suggested. The court did not provide the parties notice of a

potential upward departure, see Burns, 501 U.S. at 135, and the

court did not make the required findings of an aggravating or

mitigating circumstance to support the departure, see Sasson, 62

F.3d at 891 (requiring advance notice and an explanation for an

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upward departure from five years supervised release to ten years

supervised release); Eng, 14 F.3d at 171 (concluding that judge had

to find "aggravating circumstance" before departing upward to a

life time supervised release term); United States v. Stevens, 985

F.2d 1175, 1188 (2d Cir. 1993) (requiring advance notice and a

statement of reasons for departure for a life supervised release

term).

Cortes-Claudio did not, it is true, object at the time of

sentencing to the supervised release term. Generally, when a party

fails to contemporaneously object to an error in sentencing we

review only for plain error. United States v. Albanese, 287 F.3d

226, 227 (1st Cir. 2002). We have recognized, however, in the

context of sentencing, that a post-sentence objection is not

necessarily required to preserve the issue for appeal if the

defendant could not reasonably have anticipated the issue would

arise until after the court ruled. United States v. Gallant, 306

F.3d 1181, 1188-89 (1st Cir. 2002); see also United States v.

Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (concluding that in the

sentencing context there are circumstances that permit a court to

relax the otherwise rigorous standards of plain error review to

correct sentencing errors). The defendant could not have

anticipated the district court's decision to impose a ten-year

supervised release term. Neither the pre-sentence report nor the

Assistant United States Attorney advocated a sentence that exceeded

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the guidelines range. Nor did the court provide notice to the

parties that it intended to depart from the guideline sentence.

And it did not invite argument on the length of the supervised

release term. Until the court announced the sentence, the

defendant was without actual or constructive notice of the

likelihood of a term of supervised release that exceeded the

guideline range. As in Gallant, "given the facts here, we think it

simply would be unfair and unwise as a matter of policy" to hold

that Cortes-Claudio waived this argument. 306 F.3d at 1189. We

thus need not reach the question whether the upward departure

amounted to plain error. But see United States v. Mangone, 105

F.3d 29, 35 (1st Cir. 1997) (lack of Burns notice constituted plain

error); United States v. Carmichael, 216 F.3d 224, 227 (2d Cir.

2000) (finding plain error when supervised release term exceeded

term allowed by guidelines); United States v. Valentine, 21 F.3d

395, 398 (11th Cir. 1994) (lack of Burns notice was plain error).

We accordingly vacate the ten-year supervised release

term and remand to the district court for re-sentencing as to the

length of the term of supervised release. Should the district

court believe that aggravating circumstances "of a kind, or to a

degree, not adequately taken into consideration by the Sentencing

Commission" appear to justify an upward departure, it must give

advance notice to the defendant and the government and the grounds

of its likely intent to depart upward. See Burns, 501 U.S. at 135.

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If the court thereafter finds that aggravating circumstances not

considered by the Sentencing Commission are such as to warrant a

sentence different from that proscribed in the Guidelines, it must

set forth those reasons on the record. 18 U.S.C. § 3553.

So ordered.

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