United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 7, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20365
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM ALLEN FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:
William Ferguson seeks to vacate his sentence imposed for
violating a condition of his supervised release. Specifically, he
asserts that his twenty-three-month term of incarceration and
subsequent six-month term of home detention during supervised
release combine to exceed the maximum statutory term for his
violation. He further asserts that the court erroneously
conditioned his supervised release on his abstention from tobacco
products and over-the-counter medications without a prescription.
We VACATE in part and REMAND for resentencing.
1
I
In July 1999, Appellant William Ferguson pleaded guilty to
possession of a machine gun in violation of 18 U.S.C. § 922(o).
The district court sentenced Ferguson to thirty-six months’
incarceration and three years of supervised release.
In October 2002, the United States Probation Office filed a
petition to revoke Ferguson’s supervised release, alleging six
violations, and Ferguson pleaded true to five of the six
allegations. The district court sentenced Ferguson to twenty-three
months of incarceration pursuant to § 3583(e)(3) and thirteen
months of supervised release under § 3583(h). The court ordered
Ferguson’s first six months of supervised release to be served in
home detention, and subjected the entire term of supervised release
to the conditions that he “not smoke, use snuff, or drink alcohol,”
and that he “take no patent medicines without a prescription, and
nothing stronger in terms of caffeine, a cup of coffee or Coca
Cola.” Further, the court ordered that Ferguson must obtain a
prescription to take “[a]spirin and cough syrup with codeine,” and
“NyQuil or sleeping potions with drugs and alcohol in them.”
On appeal, Ferguson challenges the six-months’ home detention
imposed in addition to the twenty-three months of incarceration,1
and he contends that the court erred by barring him from using
1
18 U.S.C. § 3583(e)(3) sets two years as the maximum
statutory term of incarceration for violating a condition of
supervised release resulting from a Class C felony. There is no
dispute that Ferguson’s underlying offense was a Class C felony.
2
tobacco products and OTC medications without a prescription during
his supervised release.2
II
A
A defendant’s failure to contemporaneously object to an
alleged error generally results in plain error review.3 However,
we review de novo a sentence that allegedly exceeds the statutory
maximum term.4
Section 3583 of Title 18 governs the imposition, modification,
or revocation of a term of supervised release.5 Section 3583
provides that when sentencing a defendant to a term of
incarceration, a court may include a term of supervised release to
2
Ferguson did not object to the term of his incarceration,
the term of his supervised release, or to the requirement that his
first six months of supervised release be served in home detention.
He did, however, object to the conditions that he not smoke or use
OTC medications without a prescription. The day after the
sentencing hearing, Ferguson filed a Motion to Correct Clear Error
pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure,
asserting that the six-month term of home detention was improper.
The district court denied that motion.
3
See, e.g., United States v. Mann, 161 F.3d 840, 867 n.91
(5th Cir. 1998).
4
United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000)
(explaining that “because a sentence which exceeds the statutory
maximum is an illegal sentence and therefore constitutes plain
error, our review of the issue presented in this appeal will be de
novo”).
5
Supervised release is different than probation: “probation
is imposed instead of imprisonment, while supervised release is
imposed after imprisonment.” United States v. Perez-Marcias, 335
F.3d 421, 427 n.13 (5th Cir. 2003).
3
follow imprisonment.6 The court may impose conditions on the
defendant’s term of supervised release.7 In addition to certain
mandatory conditions, § 3583(d) provides that a court may impose
“any condition set forth as a discretionary condition of probation
in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20),
and any other condition it considers to be appropriate.”8 Section
3563(b)(19) governs home detention, providing that a court may
require a defendant to “remain at his place of residence during
nonworking hours . . . , except that a condition under this
paragraph may be imposed only as an alternative to incarceration.”9
Similarly, the Sentencing Guidelines allow home detention only as
an alternative to incarceration.10
If a court finds that a prisoner violated a condition of his
supervised release, the court may revoke the 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.”11 However, when the
offense that resulted in the term of supervised release is a Class
6
18 U.S.C. § 3583(a).
7
18 U.S.C. § 3583(d).
8
Id.
9
18 U.S.C. § 3563(b)(19).
10
U.S. SENTENCING GUIDELINES MANUAL §§ 5D1.3(e)(2), 5F1.2.
11
18 U.S.C. § 3583(e)(3).
4
C felony, as it was in this case, two years is the maximum term of
incarceration.12 Alternatively, a court may impose home detention
“except that an order [of home detention] may be imposed only as an
alternative to incarceration.”13
In addition to imposing a term of incarceration in response to
a defendant’s supervised release violation, a court may reimpose a
term of supervised release when the defendant “is required to serve
a term of imprisonment that is less than the maximum term of
imprisonment authorized under subsection (e)(3).”14 The reimposed
term “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.”15
B
Ferguson contends that after sentencing him to twenty-three
months’ incarceration, the court could only sentence him to one-
month of home detention without violating the two-year statutory
maximum term. He bases this argument on the plain language of §
3583. The government reads the statutory language differently. It
claims that “[i]nterpreting section 3563(b)(19) [home detention
12
Id.
13
18 U.S.C. § 3583(e)(4).
14
18 U.S.C. § 3583(h).
15
Id.
5
allowable as an alternative to incarceration] to mean that home
detention may only be ordered as a substitute to incarceration
makes no sense in the context of section 3563(b) and section
3583(d).” It would make no sense, according to the government,
because a defendant is not in prison when probationary conditions
are imposed under § 3563; therefore, “as an alternative to
incarceration” must refer to subsections (b)(10) [intermittent
custody by the Bureau of Prisons] and (b)(11) [confinement at
community corrections facility]. Alternatively, the government
asserts that the catchall provision of discretionary conditions
could justify the court’s order of home detention.
Given the language and interplay of § 3583 and § 3563,
Ferguson’s argument is more faithful to the plain meaning of the
applicable statutory provisions. The statutory framework governing
revocation and punishment for violating a condition of supervised
release - § 3583(e) - alone implies that incarceration and home
detention are alternative punishments that may not combine in
excess of the maximum statutory term of incarceration. When a
defendant violates a condition of his supervised release, a court
may choose to (1) impose the maximum sentence of incarceration
allowed under § 3583(e)(3); (2) order home detention “as an
alternative to incarceration” under § 3583(e)(4); or (3) order an
incarceration term less than the maximum allowable term and
reimpose a term of supervised release under § 3583(h). Sections
6
3583(e)(3) and (e)(4) make clear that incarceration and home
detention are mutually exclusive when a court imposes the maximum
sentence of incarceration; a court could not impose the maximum
term of incarceration under subsection (e)(3) and also impose a
period of home detention under (e)(4).16 The government does not
explain why the same limitation would not hold true when a court
imposes a partial sentence of incarceration.
The court’s power to order home detention as a condition of
supervised release stems from § 3583(d), which in turn refers to §
3563(b)(19). Sections 3563(b)(19) and 3583(e)(4), however,
indicate that unlike other discretionary conditions, home detention
is unique. Subsection (b)(19) specifically states that home
detention may be imposed “only as an alternative to incarceration.”
It is well-settled that “we should give the words of statutes their
plain meaning.”17 Webster’s Third New International Dictionary
defines “alternative” as “a proposition or situation offering a
choice between two things wherein if one thing is chosen the other
is rejected.”18 Accordingly, the plain meaning of “alternative”
leads to the conclusion that a court could not impose both a term
of incarceration (upon revocation of supervised release) and
16
See United States v. Leaphart, 98 F.3d 41, 43 (2d Cir.
1996).
17
Demette v. Falcon Drilling Co., Inc., 280 F.3d 492, 502 (5th
Cir. 2002).
18
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 63 (1961).
7
subsequent home detention during a reimposed term of supervised
release that, when combined, exceeds the allowable maximum
incarceration term.19
The government asks us to read the word “incarceration” in two
very different ways depending on which section is at issue. The
government concedes that § 3583(e)(4) provides home detention as an
alternative to incarceration. But it asserts that home detention
“as an alternative to incarceration” as a discretionary condition
to supervised release under §§ 3583(d) and 3563(b)(19) refers to
intermittent detention and community correction facilities.
This argument fails to persuade for various reasons. First,
it distorts the statutory language. If Congress intended to
prohibit courts from aggregating intermittent detention under
(b)(10) and residence at community correction facilities under
(b)(11) with home detention under (b)(19), it could have chosen
much clearer language to do so. Instead of stating that home
detention could be imposed only as an alternative to detention,
19
Although there is no case that disposes of the issue, the
Second Circuit has explained that a sentence of incarceration and
term of home detention are mutually exclusive. Leaphart, 98 F.3d
at 43 (“Home detention may be imposed as a condition of probation
or supervised release, but only as a substitute for imprisonment.
Here, the Magistrate Judge decided to sentence Leaphart to the
maximum possible term of imprisonment. Having made that decision,
she could not also sentence him to home detention. Accordingly,
Leaphart is not subject to any form of home detention during his
term of supervised release.”) (internal citations omitted).
Although Leaphart dealt with home detention as imposed through the
Sentencing Guidelines, the same language appears in § 3583, and the
same reasoning applies to this case.
8
Congress could have provided that home detention could not be
ordered concurrently with conditions (b)(10) and (b)(11). Second,
it is unclear why intermittent detention and residence at a
community correction facility would qualify as “incarceration.”
Finally, the government cites no authority in support of its
position, and even if its interpretation of § 3583 were as rational
as Ferguson’s interpretation, we may “choose the harsher result
[the government’s result, in this case] only when the legislature
has spoken in clear and definite language.”20 The language at issue
here does not clearly and definitely provide that a court may
combine the term of incarceration and home detention in excess of
the maximum term allowed by § 3583(e)(3). Accordingly, we may not
choose the harsher result.
Considering the plain statutory language, and the lack of
authority compelling us to avoid its plain meaning, the court erred
by imposing a term of incarceration as well as a term of home
detention that combine to exceed the maximum statutory term of
incarceration.
III
We now turn to the district court’s order barring Ferguson
from using tobacco products and OTC medications without a
prescription as conditions of supervised release.
A
20
United States v. Bass, 404 U.S. 336, 347 (1971).
9
When ordering a term of supervised release, certain conditions
are mandatory under § 3583(d) and § 5D1.3(b) of the Sentencing
Guidelines.21 Additionally, there is an array of discretionary
conditions that a court may impose.22 Although a court has broad
discretion in determining which conditions to impose, the
conditions must meet statutory criteria:
First, special conditions of supervised
release must be reasonably related to the
factors set forth in § 3553(a)(1), (a)(2)(B),
(a)(2)(C), and (a)(2)(D). These factors
include: (1) “the nature and circumstances of
the offense and the history and
characteristics of the defendant,” (2) the
need “to afford adequate deterrence to
criminal conduct,” (3) the need “to protect
the public from further crimes of the
defendant,” and (4) the need “to provide the
defendant with needed [training], medical
care, or other correctional treatment in the
most effective manner.”23
Even if these criteria are satisfied, the court may not impose
conditions that “involve a greater deprivation of liberty than is
reasonably necessary to achieve the latter three statutory goals.”24
21
Mandatory conditions include, for example, not committing
another federal, state, or local offense, and not unlawfully
possessing a controlled substance. See 18 U.S.C. § 3583(d); see
also U.S. SENTENCING GUIDELINES MANUAL §§ 5D1.3(a).
22
18 U.S.C. § 3583(d).
23
United States v. Paul, 274 F.3d 155, 164-65 (5th Cir. 2001)
(quoting 18 U.S.C. § 3553(a)(1)-(2) (1994), as included in §
3583(d)). These criteria have been incorporated into the
Sentencing Guidelines as well. See U.S. SENTENCING GUIDELINES MANUAL §§
5D1.3(b).
24
Paul, 274 F.3d at 165.
10
Finally, the conditions must be “consistent with any pertinent
policy statements issued by the Sentencing Commission pursuant to
28 U.S.C. 994(a).”25
We review a court’s imposition of discretionary conditions for
an abuse of discretion.26 Examples of a court abusing its
discretion by imposing conditions that are overbroad or not
reasonably related to the offense or characteristics of the
defendant include (1) prohibiting a defendant from possessing a
firearm during probation when the underlying offense was negligent
discharge of a pollutant and the defendant had no history of
violence;27 (2) requiring a defendant to allow access to all
financial information to his probation officer when only certain
years of tax evasion were at issue;28 and (3) requiring a defendant
guilty of mail fraud and altering odometers to sell his car
business when barring his participation in the business during the
supervised release was sufficient to protect the public.29
B
In support of the court’s conditions that Ferguson not use
25
18 U.S.C. § 3583(d).
26
Paul, 274 F.3d at 165.
27
United States v. Voda, 994 F.2d 149, 153-54 (5th Cir. 1993).
28
United States v. Stafford, 983 F.2d 25, 28-29 (5th Cir.
1993).
29
United States v. Mills, 959 F.2d 516, 519-20 (5th Cir.
1992).
11
tobacco products, ingest any OTC medications, including aspirin,
and not take cough syrups with codeine, NyQuil, or sleeping potions
with drugs and alcohol without a prescription, the court pointed to
Ferguson’s history of drug abuse. The court found that Ferguson
“is dependent on external stimulation,” and has “demonstrated that
he is likely to hurt people while he’s being externally
stimulated.”
The district court did not abuse its discretion by ordering
the specific condition that Ferguson not use cough syrups with
codeine, NyQuil, or sleeping potions with drugs and alcohol without
a prescription during his term of supervised release. These
medications contain chemicals that may be addictive. Considering
Ferguson’s history with drug abuse, the court acted within its
discretion by requiring prescriptions for these particular
medications.
The government does not argue that the conditions regarding
tobacco and aspirin are reasonably related to the nature and
circumstances of the offense and history and characteristics of the
defendant, or that they involve no greater deprivation of liberty
than reasonably necessary for deterrence, public safety, or medical
care of the defendant. We find that the use of tobacco and aspirin
are not reasonably related to Ferguson’s violation for possessing
a machine gun. Moreover, given that there is no evidence that
tobacco and aspirin cause any violent or illegal conduct in
12
Ferguson, the conditions are not necessary for deterrence, public
safety, or medical care.
Regarding the condition that Ferguson not take any OTC
medication, Ferguson asserts that (1) the separate and unchallenged
conditions that he not unlawfully use controlled substances and
that he refrain from excessive use of alcohol sufficiently address
his conceded alcohol and drug problems; (2) the OTC condition is
not reasonably related to his offense or history because there is
no evidence that he has abused OTC medications; and (3) the
condition involves a greater deprivation of liberty than is
reasonably necessary to afford adequate deterrence to criminal
conduct and to protect the public. In response, the government
asserts that the condition is valid in light of Ferguson’s drug and
alcohol abuse because “[s]ome patent medicines contain precursor
chemicals in user quantities.” As an example, the government notes
that some cold, sinus, and allergy medications contain a “precursor
for the manufacture of methamphetamine.”
Given the complete bar to all OTC medications, the separate
conditions barring Ferguson from abusing alcohol and using illegal
drugs, and the district court’s failure to limit the condition in
any way, the court abused its discretion. There may very well be
certain OTC medications that contain chemicals capable of abuse
that could have a detrimental impact on Ferguson. There is no
indication that the district court made any finding on which
13
medicines were particularly troublesome other than the ones
specifically mentioned. As the condition stands now, Ferguson may
not use any OTC medication. With the breadth of the condition in
mind, it is clear that the condition is not reasonably related to
his offense or history, and it involves a greater deprivation of
liberty than is reasonably necessary to deter criminal conduct and
to protect the public.30
IV
For these reasons, we VACATE the sentence and REMAND for
resentencing. We VACATE the conditions of Ferguson’s supervised
release that he not use tobacco products or ingest any OTC
medications, but affirm the condition that Ferguson not use cough
syrups with codeine, NyQuil, or sleeping potions with drugs and
alcohol without a prescription.
30
See Voda, 994 F.2d at 153-54; Mills, 959 F.2d at 519-20.
14