IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2009
No. 07-51229 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SCOTTY DUANE JACKSON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before GARWOOD, GARZA, and OWEN, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant Scotty Duane Jackson violated the conditions of his original
three-year term of supervised release. Following revocation, the district court
resentenced Jackson to fifteen months of imprisonment and seven more years
of supervised release. Jackson now contends that (1) the district court
erroneously calculated the statutory maximum for his new term of supervised
release and (2) his new seven-year term is unreasonable. For the following
reasons, we affirm the judgment of the district court.
I
In 2004, Jackson pled guilty to possession with intent to distribute
marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Jackson was
No. 07-51229
sentenced to thirty months of imprisonment and three years of supervised
release. In 2007, while on supervised release, Jackson pled guilty to assaulting
his then-girlfriend. Jackson’s release conditions were modified to include home
confinement and a prohibition of any contact with the girlfriend. Jackson
subsequently violated these conditions, and the government moved to revoke his
supervised release. At the revocation hearing, Jackson admitted that he failed
to follow the home-confinement rules, engaged in acts of intimidation against his
former girlfriend, and failed to heed the instructions of his parole officer. The
government asked for a lengthy sentence for the safety of the former girlfriend
and the public. The district court determined that Jackson was subject to a
maximum of two years’ imprisonment and a life-term of supervised release
pursuant to 18 U.S.C. § 3583(h). The court sentenced Jackson to fifteen months
of imprisonment and seven years of supervised release. Jackson did not object
at sentencing.
On appeal, Jackson challenged the reasonableness of his seven-year term
of supervised release, arguing that his release violations were unrelated to drugs
and not as serious as the district court suggested. A previous panel of this
Court granted Jackson relief on different grounds. See United States v. Jackson,
285 Fed.Appx. 149, 150 (5th Cir. 2008) (unpublished). The panel, relying on
United States v. Kelly, 974 F.2d 22 (5th Cir. 1992), sua sponte held that the
maximum new term of supervised release authorized by statute was three years
and modified Jackson’s sentence accordingly. Jackson, 285 Fed.Appx at 150.
The government subsequently petitioned for rehearing, arguing that Kelly had
been abrogated by statute. This Court granted the petition for rehearing and
withdrew the original panel opinion.
Jackson now contends that the district court erroneously calculated the
statutory maximum, as the prior panel opinion first suggested. Jackson also
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reiterates his original claim that his seven-year term of supervised release was
unreasonable.
II
Jackson first contends that the district court erred in determining that the
relevant statutes authorized up to a life-term of supervised release. He argues
that, following the revocation of an initial term of supervised release, 18 U.S.C.
§ 3583 establishes a three-year maximum for a new term of supervised release.
We review issues of statutory interpretation de novo. United States v. Ridgeway,
489 F.3d 732, 734 (5th Cir. 2007).
When an initial term of supervised release is revoked, the district court
may impose a new term of supervised release as part of a revocation sentence.
See § 3583(h). The maximum length of this new term is calculated as follows:
“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.” Id. Jackson’s original offense
was a class-C felony in violation of § 841.
The present controversy arises from the interaction of two statutes. The
specific drug statute under which Jackson was originally convicted requires a
term of release of at least three years and establishes no upper limit. See 21
U.S.C. § 841(b)(1)(C). However, the general statute governing supervised
release provides that, “[e]xcept as otherwise provided,” the maximum term for
class-C felonies is “not more than three years.” See 18 U.S.C. § 3583(b). In
Kelly, this Court harmonized the two statutes by holding that a defendant
convicted of a class-C felony in violation of § 841 must “receive a supervised
release term of not less than nor more than three years.” Kelly, 974 F.2d at 24
(applying the general maximums in § 3583 to initial sentencing under § 841).
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The prior panel in this case relied on Kelly and determined that Jackson could
only receive a new term of exactly three years.
However, Kelly’s relevant holding—that the three-year maximum in §
3583(b) applies during initial sentencing for a drug offense under § 841—has
been abrogated by statute. In 2002, Congress amended § 841 to provide that,
“[n]otwithstanding section 3583 of Title 18, any sentence imposing a term of
imprisonment under this paragraph shall . . . impose a term of supervised
release of at least 3 years.” § 841(b)(1)(C) (emphasis added to indicate new
text). The amendment was intended to clarify that the longer terms of
supervised release under § 841, “which may include lifetime supervised release,”
controlled over the lesser maximums in § 3583(b). See H.R. Rep. No. 107-685 at
188–89 (2002) (Conf. Rep.); see also United States v. Johnson, 331 F.3d 962, 967
n.4 (D.C. Cir. 2003) (explaining that the 2002 amendment “mak[es] it clear that
the term of supervised release for a conviction under [§ 841(b)(1)(C)] can exceed
3 years”). Accordingly, we now overrule Kelly in relevant part.
Jackson concedes that the general maximums found in § 3583(b) do not
apply during initial sentencing under § 841—in other words, Jackson concedes
that Kelly is no longer good law. Nonetheless, Jackson contends that the
maximums in § 3583(b) do apply when a district court reimposes a new term of
supervised release during revocation sentencing pursuant to § 3583(h). We have
never addressed this issue. Jackson raises several statutory-interpretation
arguments in favor of his construction of § 3583(h): First, he contends that
application of a life-term would render § 3583(h) inoperable because § 3583(h)
instructs the district court to subtract “any term of imprisonment that was
imposed upon revocation” from the proposed new term of supervised release.
According to Jackson, if the proposed new term of release was life (as
permissible under § 841), then it would be impossible to subtract any numerical
figure from that term. Second, Jackson contends that Congress could have
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expressly imported the longer maximums of § 841 into revocation sentencing
under § 3583(h) if such was their intent. Cf. § 3583(j) (noting that,
“notwithstanding subsection (b), the authorized term of supervised release” for
certain terrorism offenses “is any term of years or life.”). Finally, Jackson also
contends that the doctrine of constitutional avoidance favors his interpretation.
According to Jackson, imposing a new term of supervised release that is longer
than his original term of three years might violate the Double Jeopardy clause
because he had a “legitimate expectation of finality in his original sentence.” See
United States v. Rodriguez, 114 F.3d 46, 48 (5th Cir. 1997) (explaining that
resentencing does not constitute double jeopardy unless the defendant had a
“legitimate expectation of finality”).
We find that the district court did not err in calculating the maximum
sentence. Jackson’s basic argument—that a court should apply the maximums
in § 3583(b) instead of those in § 841 during revocation sentencing under §
3583(h)—is contrary to the plain meaning of § 3583(h). Upon revocation,
subsection (h) clearly establishes the maximum term of supervised release a
court may reimpose: A court may reimpose up to “the term of 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.” § 3583(h)
(emphasis added). Here, the offense that resulted in Jackson’s original term of
supervised release was a drug offense in violation of § 841(b)(1)(C). The term of
release authorized for such an offense is any term three years or greater. Thus,
under a plain reading of § 3583(h), the district court may impose any term three
years or greater, less the fifteen months of new imprisonment Jackson received.
Jackson’s statutory-interpretation arguments in favor of the lesser maximums
in § 3583(b) cannot overcome the plain meaning of § 3583(h).
Moreover, there is no danger of double jeopardy here: Post-revocation
sanctions are not a separate penalty for purposes of the Double Jeopardy
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clause—they are part of the penalty for the original offense. Johnson v. United
States, 529 U.S. 694, 700–01 (2000). Jackson could not have had a “legitimate
expectation of finality” in his original term of supervised release, as the
statutory framework clearly authorizes a new and potentially longer term of
supervised release upon revocation. See § 3583(h).
Finally, Jackson’s proposed approach creates logical inconsistencies.
Under Jackson’s theory, when a defendant is convicted of a drug crime under §
841, the court can sentence him to a life-term of supervised release. However,
if the defendant violates the conditions of his supervised release at the beginning
of his life-term, then the court can only resentence him to a three-year term
during revocation sentencing. This approach would frustrate the purpose of the
longer terms of release found in § 841(b) and create an unintended benefit to
violating the conditions of a lengthy initial term.
In sum, we hold that the plain language of § 3583(h) conditions the
maximum new term of supervised release on the term authorized for the original
criminal offense. The general maximums in § 3583(b) do not apply to revocation
sentencing when the original offense was a conviction under § 841(b)(1)(C).
Because the authorized term under § 841(b)(1)(C) is any term three years or
greater, the district court did not err in holding the new maximum to be a life-
term.
III
Jackson next contends that his seven-year term of supervised release was
unreasonable. Because Jackson did not object to his revocation sentence in the
district court, we review for plain error. See United States v. Peltier, 505 F.3d
389, 391–92 (5th Cir. 2007) (applying plain-error review to unraised issues
regarding the reasonableness of a sentence); United States v. Ramirez, 264
Fed.Appx. 454, 457 (5th Cir. 2008) (unpublished) (applying plain-error review
to unraised errors regarding a revocation sentence). Under this standard,
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Jackson must show (1) an error; (2) that is plain; and (3) that affected his
substantial rights. Peltier, 505 F.3d at 392.
Jackson first contends that his supervised-release term was overly long
because his release violations did not implicate the drug-related concerns of §
841. It is true that Congress authorized lengthy supervised-release terms in §
841 in order to combat drug-related offenses. See United States v. Eng, 14 F.3d
165, 172–73 (2d Cir. 1994). However, Jackson cites to no authority requiring a
nexus between the type of release violation and the underlying purpose of the
original statute. As noted above, post-revocation sanctions are considered part
of the penalty for the original offense. Johnson, 529 U.S. at 700–01.
Second, Jackson contends that the district court overstated the seriousness
of his release violations. He argues that his actions toward his former girlfriend
“did not point to a threat of harm” such as to justify a seven-year term. See 18
U.S.C. § 3553(a)(2)(C) (citing the need to “protect the public” as an appropriate
sentencing factor). After Jackson was instructed to have no further contact with
his former girlfriend, the evidence indicates that Jackson (1) sent her a verbal
message that he could “get her anytime”; (2) sent her several letters blaming her
for his problems; and (3) waited outside her house in the very early morning to
tell her to drop the charges against him. Given Jackson’s past assault of the
former girlfriend, the district court’s determination that Jackson posed a
legitimate threat was reasonable. Accordingly, the district court did not commit
plain error in sentencing Jackson to a seven-year term of supervised release.
V
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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