UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50244
No. 99-50245
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PATRICK STIEFEL,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
March 20, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
In these consolidated appeals, Patrick Stiefel challenges the
district court’s revocation of his supervised release and its
imposition of a 14 month term of imprisonment. Because the
revocation and the resulting sentence were not in violation of law
or plainly unreasonable, we affirm.
I.
On April 7, 1992, Patrick Stiefel was sentenced to two terms
of 57 months imprisonment, to be followed by two years of
supervised release, all to be served concurrently, for two
violations of 18 U.S.C. § 2113(a), prohibiting bank robbery. After
serving his term of imprisonment, Stiefel was released on January
18, 1996, and began his supervised release. But on May 16, 1997,
the district court revoked Stiefel’s concurrent terms of supervised
release because, among other things, he failed a drug urinalysis.
The district court resentenced him to two terms of 10 months
imprisonment and 14 months supervised release, all to be served
concurrently. The order was entered nunc pro tunc on July 24,
1997. Stiefel did not appeal his resentencing.
On February 12, 1998, Stiefel began his second term of
supervised release. While serving that term, Stiefel filed on July
24, 1998, an application for writ of habeas corpus to vacate the
second term of supervised release. He alleged that under circuit
precedent the district court lacked authority pursuant to 18 U.S.C.
§ 3583(e)(3) to impose a term of supervised release along with a
term of imprisonment after the revocation of his initial supervised
release. Furthermore, Stiefel maintained that the 1994 amendment
to 18 U.S.C. § 3583, authorizing the imposition of supervised
release in addition to imprisonment after revocation of supervised
release, could not be applied in his case because it would violate
the Ex Post Facto Clause. On July 28, 1998, the district court
denied Stiefel’s application. Stiefel did not appeal that ruling.
On October 27, 1998, the government moved to revoke Stiefel’s
second term of supervised release, alleging that Stiefel tested
positive for cocaine in violation of his release conditions.
Stiefel contested that motion, filing a “Motion to Dismiss Petition
to Revoke Supervised Release,” which again stated that the district
court lacked authority to impose supervised release after his first
revocation. On November 12, 1998, the district court denied the
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government’s and Stiefel’s motions. In denying Stiefel’s motion,
the district court noted that it had rejected Stiefel’s contentions
earlier in the order denying his “Application for Writ of Habeas
Corpus and Entry of Nunc Pro Tunc Order.” It directed Stiefel to
continue in his term of supervised release until April 12, 1999,
under the same terms and conditions as previously set.
On February 4, 1999, the government again filed a motion for
revocation, alleging alcohol intoxication in violation of his
release. Stiefel responded by filing another “Motion to Dismiss
Petition to Revoke Supervised Release,” which presented the same
issues that the district court already determined in its orders
denying Stiefel’s previous “Motion to Dismiss Petition to Revoke
Supervised Release” and “Application for Writ of Habeas Corpus and
Entry of Nunc Pro Tunc Order.” The district court denied Stiefel’s
motion. Moreover, on February 25, 1999, it revoked Stiefel’s
second term of supervised release and resentenced him to two terms
of 14 months imprisonment to run concurrently. These consolidated
appeals ensued.
II.
Before proceeding to the specific matter on appeal, we note
that, in his brief, Stiefel also questions the district court’s
application of 18 U.S.C. § 3583(h) to his sentence after revocation
of his first term of supervised release in May 1997. Stiefel did
not explicitly address that issue in his “Notice of Appeal In Forma
Pauperis.” Indeed, that notice only mentions the sentence that the
district court meted out after the second revocation. Furthermore,
3
under Federal Rule of Appellate Procedure 4(b), a defendant’s
notice of appeal must be filed in the district court within 10 days
after the entry of either the judgment or the order being appealed.
See Fed. R. App. P. 4(b)(1)(A)(i) & (ii). Here, Stiefel never
filed a notice of appeal regarding his sentence after the first
revocation of supervised release. Although Stiefel ultimately
filed an application for writ of habeas corpus, that was not a
notice of appeal. Even if we considered that application to have
been a notice of appeal, it was clearly not within the 10 day
requirement of Rule 4(b).
Notwithstanding those insufficiencies, Stiefel asserts that a
challenge of his sentence after the first revocation may proceed
because the district court’s imposition of a second term of
supervised release was an illegal sentence. He argues that under
United States v. Henry, 709 F.2d 298 (5th Cir. 1983) (en banc), we
have the power to correct such illegal sentences at any time and
that a formal notice of appeal is not necessary. Stiefel’s
reliance on Henry is misplaced. The specific issue in that case
was whether a district court could alter parts of sentences that
were not illegal and which had been affirmed previously on appeal.
In discussing that issue, we noted the history of the district
courts’ power to correct sentences in relation to Rule 35 of the
Federal Rules of Criminal Procedure. At the time of Henry, Rule
35(a) provided in pertinent part that “[t]he court may correct an
illegal sentence at any time.” But in 1987, Rule 35 was amended,
and today, subsection (a) reads:
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The court shall correct a sentence that is determined on
appeal under 18 U.S.C. 3742 to have been imposed in
violation of law, to have been imposed as a result of an
incorrect application of the sentencing guidelines, or to
be unreasonable, upon remand of the case to the court .
. . .
There is no language that indicates that the court of appeals has
a right to correct any purportedly illegal sentence at any time.
Indeed, § 3742 does not permit an appeal beyond Rule 4(b)’s 10 day
period for appeal. See United States v. Early, 27 F.3d 140 (5th
Cir. 1994). In light of these facts, Stiefel has waived any appeal
of the sentence that he received upon revocation of his first term
of supervised release.
III.
What is properly before this court is Stiefel’s challenge of
the district court’s revocation of his second term of supervised
release and its imposition of a 14 month term of imprisonment. We
will uphold Stiefel’s sentence after revocation of supervised
release “unless it is in violation of law or is plainly
unreasonable.” United States v. Mathena, 23 F.3d 87, 89 (5th Cir.
1994) (citing United States v. Headrick, 963 F.2d 777, 779 (5th
Cir. 1992)).
Steifel first contends that the second term of supervised
release, which he violated and which he is being punished for with
a 14 month term of imprisonment, was unconstitutionally meted out
by the district court after he violated his first term of
supervised release and, as such, should not form the basis for any
subsequent sentences. In essence, he attacks his current term of
imprisonment by asking us to review the sentence that he originally
5
failed to appeal. That argument, however, is foreclosed. The
district court addressed Stiefel’s constitutionality contention in
its order denying his “Application for Writ of Habeas Corpus and
Entry of Nunc Pro Tunc Order.” There, the district court
specifically concluded that the application of § 3583(h) to
Stiefel’s first revocation did not violate the Ex Post Facto
Clause. Because that issue was fully litigated, the doctrine of
res judicata bars any further litigation. See United States v.
Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994) (“[I]ssue preclusion
prohibits a party from seeking another determination of the
litigated issue in the subsequent action.”).
Stiefel next argues that the district court did not have
authority pursuant to 18 U.S.C. § 3583(e) & (h) to incarcerate him
for a second violation of supervised release because those
provisions do not speak of second revocations. Section 3583(e)(3)
states, in pertinent part, that “[t]he 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 without credit for time previously served on postrelease
supervision . . . .,” while § 3583(h) allows the district court the
leeway of combining prison time and supervised release when
resentencing a defendant who violates supervised release.1
1
The version of § 3583(e)(3) in effect at the time of
Stiefel’s original sentencing in 1992 also had language to that
same effect. As for § 3583(h), it provides:
When a term of supervised release is revoked and
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Although neither provision mentions second or further revocations,
they do permit more than one revocation of supervised release. The
grant of statutory authority in § 3583(e) refers to the district
court’s general power to revoke a term of supervised release after
considering certain factors. Hence, the issue under § 3583(e) is
not whether a second revocation may occur, but whether the district
court, after considering certain factors, believes that revocation
is appropriate for a defendant on supervised release. If a
defendant is on supervised release and the district court believes
that revocation is appropriate pursuant to § 3583(e)(3), then the
district court may require the defendant to serve prison time.
That is apparently what occurred in the present case, and we see no
violation of law or unreasonableness in the district court’s
decision.
Finally, Stiefel believes that the time periods noted in
§ 3583(e) & (h) are absolute and were fixed at the time of his
first revocation. Therefore, he contends that, when the district
court resentenced him at the first revocation in May of 1997 to 24
more months of imprisonment and supervised release, it set the
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 U.S.C. § 3583(h).
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putative discharge date as April of 1999,2 and as such, it could
not have resentenced him beyond that date at the second
revocation.3 That argument is without merit. At his first
revocation, Stiefel was resentenced to 10 more months of
imprisonment and 14 months of supervised release. Due to his
failure to comply with the conditions of the second term of
supervised release, the district court again revoked Stiefel’s
supervised release and resentenced him to 14 months of
imprisonment, without credit for the 12 months served on supervised
release. That was consistent with the strictures of § 3583(e)(3).
And there is nothing in § 3583(e) that directly states that the
time periods in that statute are absolute and fixed from the time
of the first revocation.
It is true that before the 1994 amendments to § 3583,
revocation of supervised release normally resulted in fixed terms
of imprisonment or supervised release because supervised release
could not be ordered in addition to prison time. Thus, upon
revocation, the district court could extend a defendant’s
supervised release to the maximum authorized under law pursuant to
§ 3583(e)(2), or it could imprison a violating defendant to a
definite term of imprisonment depending on the classification of
2
Stiefel was credited with one month’s prison time; thus,
the total time of restrained liberty would have terminated early in
April of 1999, rather than May of 1999.
3
Thus, Stiefel argues that, at the second revocation in
February of 1999, the district court should have deducted the 12
months that Stiefel spent on his second term of supervised release
from the 14 month term of imprisonment so that he would be released
by April of 1999.
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the defendant’s offense pursuant to § 3583(e)(3).4 In the instant
case, the supervised release could have been extended from the
original two years to three years, or the district court could have
ordered Stiefel incarcerated for up to two years of imprisonment.5
But at the time of the first revocation, the district court did not
solely rely on § 3583(e). Instead, the district court utilized
that section with § 3583(h) and formulated its sentence. Read in
conjunction with § 3583(h), § 3583(e) need not be interpreted as
reflecting any fixed or absolute terms of supervised release or
imprisonment.6 Based on these considerations, we find Stiefel’s
arguments to be without merit and hold that no violation of law or
unreasonableness was committed on the part of the district court.
4
The terms were essentially fixed under the old § 3583
because after finishing the imprisonment time, a defendant would be
released with no further supervised release that could ostensibly
be violated to create further restraints on liberty.
5
Stiefel’s offense that resulted in supervised release was
a Class C or D felony.
6
Although this raises the hypothetical of a never-ending
punishment and the possibility of an Ex Post Facto violation as to
the first revocation, that argument is foreclosed due to Stiefel’s
failure to appeal and because of the doctrine of res judicata. See
discussion supra. As to the sentence after the second revocation,
there is no such hypothetical danger since apparently the district
court only applied § 3583(e)(3). Stiefel has no more supervised
release that he could possibly violate to cause further restraints
on liberty.
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IV.
For the assigned reasons, we affirm the district court’s
revocation of Stiefel’s second term of supervised release and its
imposition of a 14 month term of imprisonment.
10