Case: 09-30426 Document: 00511047053 Page: 1 Date Filed: 03/10/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 10, 2010
No. 09-30426
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFERY THOMAS, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:
Jeffery Thomas, III, pleaded guilty to possession of a firearm by a
convicted felon, and, on April 23, 2003, the district court sentenced him to 46
months of imprisonment and three years of supervised release. Following the
service of his term of imprisonment, the district court revoked Thomas’s
supervised release, and it sentenced him to 24 months of imprisonment and one
year of supervised release. Following Thomas’s second release, the district court
again revoked his supervised release, and it sentenced him to an additional 24-
month term of imprisonment. Thomas appeals the sentence imposed following
the second revocation of his supervised release.
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No. 09-30426
Thomas argues that the district court violated the Ex Post Facto Clause
by applying the PROTECT Act amendment to 18 U.S.C. § 3583(e)(3) in his case
because his initial offense, conviction, and sentence all occurred before the
enactment of the PROTECT Act. See PROTECT Act, Pub. L. No. 108-21 § 101,
117 Stat. 650, 651. He maintains that under the pre-PROTECT Act version of
§ 3583(e)(3), he could only be sentenced to a cumulative total of 24 months of
imprisonment on all revocations of his supervised release because his original
conviction was for a Class C felony. Due to the prior sentence of 24 months of
imprisonment that he served upon the first revocation of his supervised release,
he maintains that the present sentence of 24 months of imprisonment exceedes
the statutory maximum. While Thomas maintains that he properly preserved
his argument in the district court, he contends that even if he failed to preserve
the issue, the imposition of a sentence exceeding the statutory maximum
constitutes plain error. The Government concedes that the sentence exceeded
the statutory maximum, and it joins Thomas’s request that the sentence be
vacated.
While Thomas argued in the district court that he could not be sentenced
to a further term of imprisonment because he had served 24 months of
imprisonment upon the first revocation of his supervised release, he did not raise
the Ex Post Facto Clause argument that he raises on appeal. Nevertheless,
“because a sentence which exceeds the statutory maximum is an illegal sentence
and therefore constitutes plain error,” we review this issue de novo. United
States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008) (internal quotation marks and
citation omitted).
Thomas’s original conviction was for possession of a firearm by a convicted
felon. The statutory maximum sentence for that offense was ten years of
imprisonment thereby making the offense a Class C felony. See 18 U.S.C.
§§ 924(a)(2), 3559(a)(3). Accordingly, the statutory maximum sentence of
imprisonment that the district court could impose upon the revocation of
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No. 09-30426
Thomas’s supervised release was 24 months of imprisonment. 18 U.S.C.
§ 3583(e)(3). Prior to the PROTECT Act amendment to § 3583(e)(3), the 24-
month maximum sentence that could be imposed for the revocation of supervised
release following a conviction for a Class C felony was a cumulative maximum
sentence that could be imposed for all revocations of supervised release. United
States v. Jackson, 329 F.3d 406, 407-08 (5th Cir. 2003). The PROTECT Act,
which went into effect on April 30, 2003, modified § 3583(e)(3) to provide that the
statutory maximum sentence that could be imposed upon the revocation of
supervised release applies upon “any such revocation,” and courts have
interpreted this language to mean that the statutory maximum sentence was no
longer cumulative. See Vera, 542 F.3d at 461 n.2 (citation omitted); United
States v. Lewis, 519 F.3d 822, 824-25 (8th Cir.) (citations omitted), cert. denied,
129 S. Ct. 166 (2008); see also PROTECT Act, Pub. L. No. 108-21 § 101, 117 Stat.
650, 651.
The PROTECT Act went into effect on April 30, 2003, after Thomas’s
initial offense, conviction, and sentencing. See, e.g., Lewis, 519 F.3d at 824.
“Since postrevocation penalties relate to the original offense,” to apply the post-
PROTECT Act version of § 3583(e)(3) to Thomas “would be to apply this section
retroactively (and to raise the remaining ex post facto question, whether that
application makes him worse off).” Johnson v. United States, 529 U.S. 694, 701
(2000). Prior to examining the Ex Post Facto Clause issue, however, we must
first determine whether Congress intended the PROTECT Act amendment to
§ 3583(e)(3) to apply retroactively. See id. Barring a clear statement of intent
for a statute to apply retroactively, statutes are not given retroactive effect. Id.
Although this court has not considered whether the PROTECT Act
amendments to § 3583(e)(3) apply retroactively, see United States v. Vera, 542
F.3d 457, 461 n.2 (5th Cir. 2008), the First Circuit has held that nothing in the
PROTECT Act “as it concerns § 3583(e)(3) suggests an effort to apply this
amendment retroactively.” United States v. Tapia-Escalera, 356 F.3d 181, 188
3
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No. 09-30426
(1st Cir. 2004). Furthermore, the Eight Circuit has also refused to apply the
PROTECT Act amendment to § 3583(e)(3) retroactively. United States v.
Hergott, 562 F.3d 968, 970 (8th Cir. 2009) (remanding for resentencing because
the appellant’s sentence violated the pre-PROTECT Act statutory maximum
under § 3583(e)(3)). Similarly, courts have also held that the PROTECT Act
amendment to § 3583(h) does not apply retroactively. See United States v.
Brown, 163 F. App’x 370, 373 (6th Cir. 2006); United States v. Peters, 147 F.
App’x 836, 837-38 (11th Cir. 2005). The reasoning in the decisions of our sister
circuits appears sound, and, accordingly, we accept the Government’s concession
that the PROTECT Act amendment to § 3583(e)(3) does not apply retroactively.
Thomas served 24 months of imprisonment upon the first revocation of his
supervised release, and, therefore, could not be sentenced to a further term of
imprisonment upon the second revocation of his supervised release under the
version of § 3583(e)(3) applicable to him.1 See United States v. Jackson, 329 F.3d
406, 407-08 (5th Cir. 2003). Accordingly, the judgement of the district court is
vacated, and the case is remanded to the district court with the instruction that
Thomas be discharged from custody.
VACATED AND REMANDED.
1
The reason that Thomas was serving a term of supervised release that could not be
revoked was the district court’s erroneous application of the post-PROTECT Act version of
§ 3583(h) upon the first revocation of Thomas’s supervised release. See Brown, 163 F. App’x
at 372-73; Peters, 147 F. App’x at 837-38.
4