[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14011 May 11, 2006
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00355 CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHELE RENEE CENNA,
a.k.a. Mikey,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Georgia
(May 11, 2006)
Before DUBINA, MARCUS and PRYOR, Circuit Judges.
DUBINA, Circuit Judge:
I.
Appellant Michele Renee Cenna (“Cenna”), a federal prisoner, appeals her
12-month sentence followed by one year of supervised release for misdemeanor
possession of marijuana and heroin, in violation of 21 U.S.C. § 844(a). Cenna
argues that, in light of the Supreme Court’s holding in Johnson v. United States,
529 U.S. 694 (2000), the district court imposed an illegal sentence in excess of the
statutory maximum when it gave her the maximum term of imprisonment in
addition to one year of supervised release. Cenna argues that because any
imprisonment given for violating supervised release would result in a greater
period of incarceration than permitted by the statute of conviction, the sentence
violates the statutory maximum. For the reasons that follow, we affirm.
II.
We review the application of the law to a sentence de novo. United States v.
Robinson, 935 F.2d 201, 203 (11th Cir. 1991). The scope of the permissibility of
supervised release after a term of imprisonment is outlined in 18 U.S.C. § 3583(a)-
(i). A defendant’s supervised release term is a separate part of, or in addition to,
the term of imprisonment authorized by the substantive statute applicable to the
crime of conviction. See id. at § 3583(a); United States v. Jenkins, 42 F.3d 1370,
1371 (11th Cir. 1995). In Jenkins, we held that 18 U.S.C. § 3583(a) “allows the
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district court to include supervised release as ‘part of the sentence,’ not as part of
the imprisonment.” Id. (citation omitted). Thus, “courts can order supervised
release in addition to the maximum term of imprisonment available by statute.”
Id.; see also United States v. Proctor, 127 F.3d 1311, 1313 (11th Cir. 1997).
Although we have not addressed the issue since the Supreme Court decided
Johnson, the settled law pre-Johnson was that a court may impose the maximum
term of imprisonment under the statute of conviction and a term of supervised
release, because supervised release is an independent part of a defendant’s
sentence. Jenkins, 42 F.3d at 1371.
III.
Johnson interprets § 3583(e)(3) and (h), which deal not with the question of
whether supervised release is permissible, but what happens once the terms of
supervised release are violated and a new term of supervised release is invoked
after reimprisonment. In Johnson, the defendant argued that the Ex Post Facto
Clause prohibited a further term of supervised release after his reimprisonment
under 18 U.S.C. § 3583(h), because Congress did not intend for that statute to
apply retroactively. Johnson, 529 U.S. at 701. The Court agreed but also found
that Johnson’s term of supervised release after his reimprisonment was permitted
under § 3583(e)(3). Id. at 704, 713. The Court stated that because doing
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otherwise would implicate “serious constitutional questions, . . . [w]e therefore
attribute postrevocation penalties to the original conviction.” Id. at 700-01.
Cenna takes this statement to mean that because she was given her statutory
maximum plus a term of supervised release, her sentence is in excess of the
statutory maximum and therefore illegal. To the extent that Cenna is arguing that
her sentence as it stands now is illegal, we disagree. Johnson did not address this
issue. Other courts have found that Johnson did not change the well-settled rule
that a term of supervised release may be imposed in addition to the statutory
maximum term of imprisonment. See, e.g., United States v. Work, 409 F.3d 484,
489-91 (1st Cir. 2005) (citing Johnson while noting that “courts routinely have
held that the combined sentence of years of imprisonment plus years of supervised
release may exceed the statutory maximum number of years of imprisonment
authorized by the substantive statute applicable to the crime of conviction”);
United States v. Hinson, 429 F.3d 114, 115-16, 118-19 (5th Cir. 2005).
IV.
Cenna argues that her sentence is illegal because “[i]f her supervised release
is violated, no additional prison time could be imposed.” She has not pointed to
any case from any circuit that supports her argument that the reasoning in Johnson
mandates a finding that her sentence is illegal, and we decline to adopt her
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position. See United States v. Wirth, 250 F.3d 165, 170 n.3 (2d Cir. 2001)
(“Nothing in the Johnson Court’s retroactivity discussion compels us to depart
from the well-settled rule that punishment for a violation of supervised release,
when combined with punishment for the original offense, may exceed the statutory
maximum for the underlying substantive offense.”). Moreover, § 3583(e)(2) and §
3583(e)(4) contemplate that reimprisonment is not the only possible punishment
for violation of post-release supervision. Specifically, the district court may
“extend a term of supervised release,” § 3583(e)(2), and/or “order the defendant to
remain at his place of residence during nonworking hours,” § 3583(e)(4).
For the above-stated reasons, we affirm Cenna’s sentence.
AFFIRMED.
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