UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50203
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMMY NARANJO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
July 23, 2001
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For deciding the sole issue presented — the district court’s
jurisdiction vel non to revoke Sammy Naranjo’s supervised release
subsequent to the expiration of that term — we must decide whether
18 U.S.C. § 3583(i) (under certain conditions, supervised release
may be revoked subsequent to completion of supervised-release-term)
permits post-term revocation if it is based upon a violation of a
supervised-release-condition that differs from the violation
alleged prior to term-completion as the basis for initiating the
revocation procedure. AFFIRMED.
1
Circuit Judge of the Ninth Circuit, sitting by designation.
I.
In 1988, Naranjo was convicted of conspiracy to possess with
intent to distribute, and distribution of, cocaine. He was
sentenced, inter alia, to concurrent terms of 46 months’
imprisonment and five years’ supervised release.
On 20 May 1997, four days before the expiration of his
supervised-release-term, Naranjo’s probation officer filed a
petition alleging Naranjo violated the conditions of his
supervision by conduct occurring in 1996: on 15 June, he drove
while intoxicated and under the influence of a controlled
substance; and, on 3 April, he and a convicted felon were arrested
for possession of cocaine. The petition stated that Naranjo had
been indicted in state court for intoxication assault on 4 May
1997; and that the possession charge had been dismissed. The
petition requested issuance of a warrant for Naranjo’s arrest but
also requested that the warrant be held in abeyance pending final
disposition of the state case. The warrant was issued that same
day — 20 May 1997.
Almost three years later, on 24 January 2000, long after the
supervised-release-term had expired, Naranjo’s probation officer
filed a second petition, modifying the first to allege Naranjo had
violated his supervised-release-conditions by pleading guilty on 27
October 1999 to 35 counts of a 54-count federal indictment,
concerning offenses committed during the supervised-release-term.
2
The next day, the Government moved to revoke Naranjo’s supervised
release because of that 27 October guilty plea. The motion did not
reference the 1996 conduct that had been the basis for the
original, pre-term-expiration revocation petition.
A revocation hearing was held on 2 March 2000. Naranjo
objected, claiming the court lacked jurisdiction to revoke his
supervised release. His objection was overruled, and Naranjo
pleaded “not true” to the Government’s allegations.
At the hearing, Naranjo’s probation officer testified that,
when he submitted the first petition in 1997, he was aware of the
pending federal indictment against Naranjo; and that, prior to any
action being taken on the first petition, he filed the second,
based on the federal conviction. He stated it was his
understanding that the 20 May 1997 arrest warrant tolled Naranjo’s
supervised-release-term. On cross-examination, he agreed: the
basis for the second petition was different from that for the
first; and the Government’s revocation motion was not based on the
allegations in that first petition. He explained that, as of that
day, 2 March 2000, the state case (concerning the 1996 offenses
referenced in the first petition) was still pending.
The district court revoked Naranjo’s term of supervised
release. He was sentenced to 12 months’ imprisonment, to run
consecutively to the 216 months’ imprisonment imposed pursuant to
his October 1999 guilty plea.
3
II.
As noted, the sole issue raised by Naranjo is one of statutory
interpretation: whether the post-term revocation is permitted by
§ 3583(i). That question is reviewed de novo. E.g., United States
v. Jimenez-Martinez, 179 F.3d 980, 981 (5th Cir. 1999). Our
research has not found any case in this, or any other, circuit
addressing this narrow statutory issue, other than the recently
decided United States v. Downs, No. 97-MISC.CR.-80E., 2000 WL
1568598 (W.D.N.Y. 19 Oct. 2000), discussed infra.2
The statute at issue provides:
The power of the court to revoke a term of
supervised release for violation of a
condition of supervised release, and to order
the defendant to serve a term of imprisonment
... extends beyond the expiration of the term
of supervised release for any period
reasonably necessary for the adjudication of
matters arising before its expiration if,
before its expiration, a warrant or summons
has been issued on the basis of an allegation
of such a violation.
18 U.S.C. § 3583(i) (emphasis added). Subsection (i) was added to
§ 3583 in 1994. But, this court held, under the pre-1994 version
of § 3583, that a district court had jurisdiction to revoke a term
of supervised release when, although an arrest warrant was issued
during the term, the revocation hearing was not held until after
2
United States v. Schimmel, 950 F.2d 432 (7th Cir. 1991),
cert. denied, 503 U.S. 965 (1992), cited by the dissent, was
decided before § 3583 was amended to include subsection (i).
4
the term expired. Jimenez-Martinez, 179 F.3d at 981. Accordingly,
subsection (i) is in part a codification of existing law in this
circuit. United States v. Schmidt, 99 F.3d 315, 318 n.1 (9th Cir.
1996); see also United States v. Morales, 45 F.3d 693, 701 (2d Cir.
1995) (“[W]e believe that the most likely purpose of the amendment
was to make absolutely clear Congress’ earlier intention that
sentencing courts have the authority to hold hearings to revoke or
extend supervised release after expiration of the original term if
they issue a summons or warrant during the release period”.
(emphasis added)).3
Naranjo contends § 3583(i) authorizes such post-term
revocation only when the warrant or summons is issued before term-
expiration on the specific basis of the alleged violation upon
which revocation is ultimately based. Therefore, according to
Naranjo, because, for revocation, the Government did not rely on
the 1996 conduct upon which his arrest warrant was issued, but
instead on his 1999 convictions that occurred more than two years
after term-expiration, the district court did not have
jurisdiction. The Government responds that, if, as in this case,
a warrant or summons has been issued before term-expiration, the
3
The dissent posits that § 3583(i) does not apply because it
was enacted after Naranjo’s sentence and supervised release were
imposed. Naranjo does not complain about a possible ex post facto
application of that subsection; quite to the contrary, he relies on
its plain language in support of his contention that the district
court lacked jurisdiction to revoke his supervised release.
5
district court has jurisdiction over violations committed, but not
charged, during that term.
It goes without saying that, for interpreting § 3583(i), we
look first to its plain language. E.g., United States v. Zavala-
Sustaita, 214 F.3d 601, 604 (5th Cir.), cert. denied, 121 S. Ct.
434 (2000). Unless there is sufficient indication otherwise, we
assume Congress intends the words used to carry their ordinary
meaning. Id. And, if these words are unambiguous, our inquiry
ends. Id.
Under subsection (i), a district court can “revoke a term of
supervised release for violation of a condition of supervised
release ... if, before its expiration, a warrant or summons has
been issued on the basis of an allegation of such a violation”. 18
U.S.C. § 3583(i) (emphasis added). The statute does not require
the pre-term-expiration-warrant to be based on an allegation
concerning the specific violation for which revocation may be
later, or ultimately, sought, however, because it uses the phrase
“such a violation” (emphasis added), not “such violation”.
If “such violation” had been used, it would refer back to the
phrase “violation of a condition of supervised release” employed
earlier in subsection (i) and concerning the actual post-term-
expiration revocation basis. The employed-phrase, “such a
violation” (emphasis added), however, includes more than just the
earlier employed “violation of a condition” permitting post-term-
6
expiration revocation. “Such a violation” (emphasis added), which
pertains to the basis for the requisite issuance of a pre-term-
expiration warrant, refers to, or references, any violation of a
condition of supervised release during the term, not just the one
on which revocation is ultimately based.4
To read the statute otherwise would render superfluous the use
of the article “a”. See United States v. Nordic Village, Inc., 503
U.S. 30, 36 (1992) (“a statute must, if possible, be construed in
such fashion that every word has some operative effect”). Instead,
as discussed, the statute’s plain language permits revocation based
on any violation of a condition of supervised release occurring
during the supervision term, even if not contained in a petition
for revocation filed during that term, so long as a warrant or
summons was issued during that term on the basis of an alleged
violation. And, as the Government correctly notes, once the
court’s post-term jurisdiction is preserved by the issuance of a
4
We do not, as the dissent suggests, consider the phrase “such
a violation” in isolation. Again, we emphasize that, when read in
conjunction with § 3583(i) as a whole, the phrase does not relate
back to the “violation of a condition of supervised release” on
which revocation is based, but refers instead to any violation
committed during the supervised release term, not just the one on
which revocation is based. Moreover, subpart (i) allows for a
“period reasonably necessary for the adjudication of matters
arising before its expiration ... if a warrant or summons has been
issued on the basis of an allegation of such a violation”.
(Emphasis added.) Plainly, revocation is not, as the dissent
concludes, linked to the particular “matter” or “matters” for which
a warrant or summons was issued.
7
warrant or summons during the term, there is no bar to amending the
petition, post-term, to include additional grounds for revocation,
so long as the defendant is given appropriate notice. See FED. R.
CRIM. P. 32.1(a)(2).
Naranjo analogizes the amended petition to a superseding
indictment, which can relate back to the original indictment and be
considered timely only if it does not broaden the charges. See
Downs, 2000 WL 1568598, at *2 (holding § 3583(i) extends
jurisdiction to revoke supervised release only when a warrant or
summons is issued before the term’s scheduled expiration on the
specific basis of the alleged violation upon which revocation is
ultimately sought). Subsection (i), however, expressly provides
that the timely-issued warrant extends the district court’s
jurisdiction to revoke supervised release. 18 U.S.C. § 3583(i)
(“The power of the court to revoke a term of supervised release ...
extends beyond the expiration of the term of supervised
release....” (emphasis added)). Compare United States v. Schmick,
904 F.2d 936, 940 (5th Cir. 1990) (“The return of a timely
indictment tolls the statute of limitations as to the charges
alleged therein.”), cert. denied, 498 U.S. 1067 (1991), with United
States v. Morales-Alejo, 193 F.3d 1102, 1104 (9th Cir. 1999)
(holding, because supervised-release-term not tolled under 18
U.S.C. § 3624(e), warrant issued more than two weeks after
8
expiration of supervised release term did not preserve district
court’s jurisdiction).
In sum, and as Naranjo concedes, 18 U.S.C. § 3583(i) is not
ambiguous. And, because a warrant was issued during the term,
pending resolution of the state case against Naranjo, which state
case was still pending at the time of the revocation hearing, the
warrant preserved the court’s jurisdiction, after the term expired,
to proceed with revocation on the basis of the second amended
petition, concerning Naranjo’s 1999 guilty plea for offenses
committed during his supervised-release-term. See 18 U.S.C. §
3583(i).5
III.
For the foregoing reasons, the judgment is
AFFIRMED.
5
Although the dissent views the revocation as being “clearly
well beyond any period reasonably necessary to dispose of the
unrelated charge pending” at term-expiration, Naranjo does not
claim the revocation hearing was not held within a reasonable time.
In fact, he concedes “the jurisdictional question based on the
length of the delay, and its reasonableness, is not before the
Court”. (Emphasis added.)
9
GARWOOD, Circuit Judge, dissenting.
I respectfully dissent.
In my view, the majority’s virtually total reliance on the
article “a”, which appears as the next to the last word of section
3583(i), ignores the principle that “[i]n determining the meaning
of the statute, we look not only to the particular statutory
language, but to the design of the statute as a whole and to its
object and policy.” Crowder v. U.S., 110 S.Ct. 997, 1001 (1990).
Similarly, the Supreme Court has “[o]n numerous occasions . . .
noted that ‘[i]n expounding a statute we must not be guided by a
single . . . member of a sentence, but [m]ust look to the
provisions of the whole law, and to its object and policy.’” Pilot
Life Ins. Co. v. Dedeaux, 107 S.Ct. 1549, 1555 (1987) (additional
internal quotation marks and citations omitted). See also
Henrikson v. Guzik, 249 F.3d 395, 398 (5th Cir. 2001) (“It is
important to ‘look to the structure and language of the statute as
a whole’”).
10
Considering section 3583(i) as a whole,6 it does essentially
three things: (1) it recognizes the general rule that the power of
the court to revoke supervised release “for a violation of a
condition of supervised release” terminates at the expiration of
the supervised release term; (2) it provides a single exception to
this general rule for instances in which “before” the “expiration”
of the supervised release term “a warrant or summons has been
issued on the basis of an allegation of such a violation;” and it
provides that in such a case the court’s power “extends beyond the
expiration of the term of supervised release for any period
reasonably necessary for the adjudication of matters arising before
its expiration.”
Plainly, it is contemplated that the duration of the extension
is geared to the subject matter of any warrant or summons issued
before the supervised release term expires. In other words, the
power to revoke supervised release is extended only for so long as
reasonably necessary to dispose of that particular matter which was
pending when the term expired. That the statute presupposes a
6
18 U.S.C. § 3583(i) provides:
“(i) Delayed revocation.–The power of the court to revoke
a term of supervised release for violation of a condition
of supervised release, and to order the defendant to
serve a term of imprisonment and, subject to the
limitations in subsection (h), a further term of
supervised release, extends beyond the expiration of the
term of supervised release for any period reasonably
necessary for the adjudication of matters arising before
its expiration if, before its expiration, a warrant or
summons has been issued on the basis of an allegation of
such a violation.”
11
nexus between the duration of the extension and the subject matter
of the warrant or summons issued before the expiration of the term
is evident from the fact that the stated condition that “a warrant
or summons has been issued” must be understood to embrace only
those warrants or summonses which are pending and undisposed of at
the end of the term–though its literal language is not so
restricted–else a charge based on warrant or summons issued and
disposed of by the court in a ruling favorable to the defendant
during the term would extend the power to revoke until after
expiration of the term on an unrelated charge for which a warrant
or summons was first issued after expiration of the term, a result
obviously inconsistent with the purpose and design (though not the
literal wording) of section 3583(i).7
Given, then, that the extension of the court’s power to revoke
supervised release is tied to the time reasonably necessary to
dispose only of the subject matter or matters of any one or more
then pending warrants or summonses alleging a violation or
violations of conditions, it would be illogical to hold that a
violation alleged for the first time in a warrant or summons issued
after the expiration of the terms could form the basis for a
7
And, obviously § 3583(i)’s reference to “matters arising
before its [the term’s] expiration,” though literally broad enough
to include, for example, a Title VII suit filed by the defendant
during, and pending before the sentencing court at the expiration
of, the term, cannot reasonably be read to include such a matter;
rather the phrase must be read to embrace only alleged violations
of the terms and conditions of supervised release.
12
revocation: the time reasonably necessary to dispose of the post-
expiration of term warrant might well–indeed probably would–extend
beyond the time necessary to dispose of the pre-expiration of term
warrant.
Had Congress not intended to limit revocation after expiration
of the term to conduct charged before the expiration of the term it
would not have required that a warrant or summons have issued
before the expiration of the term, but would instead merely have
allowed some post-expiration of term period–say six months or a
year–during which revocation could be ordered (on the basis of pre-
expiration of term conduct).
The obvious purpose of section 3583(i)–to allow supervised
release to be revoked on the basis of a pre-expiration of term
warrant or summons which cannot reasonably be disposed of by the
court before expiration of the term–is confirmed by its history.
The courts of appeal have uniformly held that section 3583(i), and
its probation counterpart, 18 U.S.C. § 3565(c),8 merely codified
the prior practice, which held that the court could, after the
8
Section 3565(c) provides:
“(c) Delayed revocation.–The power of the court to revoke
a sentence of probation for violation of a condition of
probation, and to impose another sentence, extends beyond
the expiration of the term of probation for any period
reasonably necessary for the adjudication of matters
arising before its expiration if, prior to its
expiration, a warrant or summons has been issued on the
basis of an allegation of such a violation.”
13
expiration of the term of supervised release or probation,9 revoke
the supervised release or probation on the basis of a violation
charged in a warrant or summons issued prior to the expiration of
the term. See, e.g., United States v. Neville, 985 F.3d 992, 998
(9th Cir. 1993); United States v. Barton, 26 F.3d 490 (4th Cir.
1994); United States v. Morales, 45 F.3d 693, 700-01 (2d Cir.
1995). As we said in United States v. Jimenez-Martinez, 179 F.2d
980, 981 (5th Cir. 1999), the language of Fed. R. Crim. P.
32.1(a)(2) which “provides for a hearing ‘within a reasonable time’
when a court is considering revocation” means that “the district
court could exercise jurisdiction to revoke a term of supervised
release and sentence an individual to prison when an arrest warrant
was issued during the term but the revocation hearing was not held
until after the term expired,” citing Neville, Barton, and Morales.
Plainly, this is speaking of revocation for the conduct for which
the warrant was issued, for the hearing within a reasonable time
provisions of Rule 32.1(a)(2) obviously do not apply to violations
that the authorities are unaware of. As Neville observed, the rule
that the hearing and action of the court on revocation can take
9
In the case of probation, § 3565(c) also restricted the
availability of revocation by requiring that the warrant or summons
issue prior to the expiration of the defendant’s actual term of
probation in contrast to the prior statute (former 18 U.S.C. §
3653) which merely required that the warrant or summons have issued
prior to the end of the maximum probation term which could have
been imposed (five years). See United States v. Neville, 985 F.3d
992, 998 n.13 (9th Cir. 1993); United States v. Barton, 26 F.3d
490, 492 n.4 (4th Cir. 1994).
14
place after the end of the term where revocation proceedings are
begun by warrant or summons (or other means) within the term, make
sense because otherwise “the only way to sanction a violator of
supervised release toward the end of the term would require
immediate revocation of supervised release upon being informed of
the violation. Yet, due process concerns prevent a court from
immediately revoking supervised release without a hearing.” Id. at
996-97.10 Again, it is plain that this is speaking of revocation
on the basis of conduct charged in a warrant or summons issued or
motion filed before the end of the term, as the court would never
be faced with the question of “immediately revoking supervised
release without a hearing” for uncharged conduct.
The appropriate construction of the probation and supervised
release revocation statutes in the present respect was directly
addressed approximately a decade ago in United States v. Schimmel,
950 F.2d 432 (7th Cir. 1991). There a petition to revoke probation
was filed with the five year period allowed by former section 3653
(see note 4, supra), but after the five year period expired a
second petition to revoke was filed and it was the second petition
10
See also id. at 998, stating that “courts uniformly
interpreted” the probation statute “to mean ‘that as long as formal
revocation proceedings are commenced (by arrest warrant or
otherwise) within the five-year period, probation can be revoked,
even if the revocation hearing starts and the actual revocation
takes place after the end of the five-year period.’” (inside
quotation marks supplied; quoting United States v. Bazzano, 712
F.2d 826, 835 (3d Cir. 1983) (en banc).
15
that the district court acted on in revoking probation. In
determining whether the district court could properly revoke
probation on this basis, the Seventh Circuit applied the
“superseding indictment” rule, under which if an indictment is
filed within the limitations period, and a superseding indictment
is filed after limitations has run, then “‘[t]o the extent that the
new language [in the superseding indictment] broadens the timely
original charges, the superseding charges are barred by the statute
of limitations.’” Id. at 436. The test is “‘whether a superseding
indictment substantially changes the original charges.’” Id. The
Seventh Circuit upheld the revocation in Schimmel because the
second petition charged the same conduct as did the first, its
“change in language from the first petition is of no substance” and
“[n]o broader charge is contemplated by the second petition.” Id.
at 436-37.
Similarly, in United States v. Downs, 2000 WL 1568598
(W.D.N.Y. Oct. 19, 2000), the district court applied the
superseding indictment rule in a case under section 3583(i) in
which a petition to revoke and a warrant charging two violations
were issued before the expiration of the term and a third violation
was included for the first time in an amended petition to revoke
filed after the expiration of the term. The court held that only
the originally charged two violations, and not the third added
after expiration of the term, could be considered.
16
I would follow the rule of Schimmel and Downs. It is
noteworthy that despite the many decades of litigation concerning
the timeliness of revocation of probation or supervised release,
this is apparently the first decision which has ever held that a
timely initiation of proceedings to revoke supervised release or
probation on a particular ground or grounds extends the
jurisdiction of the district court to revoke on completely
unrelated grounds as to which no revocation proceedings were
initiated or summons or warrant issued within the supervised
release or probationary term.11
Finally, I note that the majority’s almost total reliance on
the article “a” which constitutes the next to last word of section
3583(i) is misplaced for yet another reason. The present case is
not governed by section 3583(i) because Naranjo’s sentence and
supervised release were imposed in 1988 and section 3583(i) was not
enacted until 1994. See Morales, 45 F.3d at 696 n.1. The majority
looks to section 3583(i) only because it considers it declaratory
of previously existing law. But nothing in previously existing law
supports the majority’s holding. The rationale of the earlier
decisions is entirely to the contrary–namely that when revocation
proceedings were instituted (by issuance of warrant, summons or
11
Or within the five year period specified in former § 3653
(see note 4 supra).
17
otherwise) within the supervised release or probation term,12 then
the jurisdiction of the district court to revoke probation or
supervised release on the substance of those charges would extend
for a reasonable time after the expiration of the term because it
was contemplated that there would be a hearing on those charges.
Obviously, that rationale does not apply to unrelated charges filed
for the first time after the expiration of the term. Schimmel.
Finally, here revocation was ordered solely on the basis of
conduct first charged over two and a half years after the term of
supervised release expired, clearly well beyond any period
reasonably necessary to dispose of the unrelated charge pending
when the supervised release term expired.
Accordingly, I respectfully dissent from the affirmance of the
revocation of supervised release.
12
Or, in cases governed by former § 3653, within the specified
five year period. See note 4 supra.
18