United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2586
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Joseph H. Brown, *
*
Appellant. *
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Submitted: January 13, 2012
Filed: May 3, 2012
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Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Upon Joseph H. Brown’s second revocation of his supervised release, the
district court1 sentenced him to 90 days’ imprisonment to be followed by 57 months’
supervised release. Brown contends this sentence exceeds the maximum term of
supervised release set forth in 21 U.S.C. § 3583(b). We affirm.
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
I.
In 1992, Brown was convicted of conspiracy to distribute cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count One); aiding and abetting the
distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 18
U.S.C. § 2 (Counts Two and Five). The district court sentenced Brown to 262
months’ imprisonment on Count One and 240 months’ imprisonment on Counts Two
and Five. The court also sentenced Brown to 60 months’ supervised release on Count
One and 36 months’ supervised release on Counts Two and Five, to run concurrently.
Brown was released from prison in 2009. On May 12, 2010, the district court
revoked Brown’s supervised release, sentencing him to 90 days’ imprisonment,
followed by a new 60-month term of supervised release. Brown appealed the district
court’s determination, arguing that 18 U.S.C. § 3583 precluded the district court from
imposing a new term of supervised release longer than four years and nine months.
We affirmed the district court’s decision in United States v. Brown, 428 Fed. Appx.
664 (8th Cir. 2011) (unpublished) (per curiam). We concluded that the district court
“plainly erred in sentencing Brown to ninety days’ incarceration plus a fully sixty
months of supervised release[]” but that Brown had not met his burden to show that
he was prejudiced by the error because the district court could have imposed the same
sentence without error by extending Brown’s supervised release at least 90 days and
then revoking it. Id. at 666 (citing Johnson v. United States, 529 U.S. 694, 712
(2000)).
After being released from his 90-day sentence, Brown again violated the terms
of his supervised release. The district court sentenced him to another term of 90
days’ imprisonment, followed by a new 57-month term of supervised release. Brown
did not object to the sentence. On appeal, Brown contends that the district court erred
in extending his supervised release term beyond the five years set forth in 18 U.S.C.
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§ 3583(b). Brown also argues that the district court erred by deducting only one of
the two 90-day terms of imprisonment from his supervised release.
II.
Because Brown did not object to the district court’s sentence at the time of
sentencing, we review only for plain error. See United States v. Simons, 614 F.3d
475, 478-79 (8th Cir. 2010). “Plain error occurs if the district court deviates from a
legal rule, the error is clear under current law, and the error affects the defendant’s
substantial rights.” Id. at 479. Even if plain error is shown, we will not reverse
unless the error “also seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id.
Brown contends that the district court erred in extending the length of his
supervised release beyond the five-year period set forth in 18 U.S.C. § 3583(b)(1),
which provides: “Except as otherwise provided, the authorized terms of supervised
release are for a Class A or Class B felony, not more than five years.” In United
States v. LeMay, we held that the phrase “except as otherwise provided” in § 3583(b)
eliminates conflict with statutes authorizing terms of supervised release in excess of
the terms set forth in § 3583(b). 952 F.2d 995, 998 (8th Cir. 1991) (per curiam).
Brown was convicted of violating 21 U.S.C. § 841, a statute which authorizes
supervised release terms exceeding five years. 21 U.S.C. § 841(b)(1)(A) (requiring
“a term of supervised release of at least 5 years”). In essence, the terms of the
relevant sentencing statute, § 841, trump the general terms of supervised release
provided in § 3583(b).2
2
Brown also argues that the rule of lenity should apply. Because we find no
ambiguity in the construction of 18 U.S.C. § 3583(b) with 21 U.S.C. § 841 in
determining the maximum length of supervised release, the rule of lenity does not
apply to his case. See United States v. Golden, 669 F.3d 901, 903 (8th Cir. 2012).
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Brown argues that we should not follow LeMay and should instead follow
United States v. Hernandez, 436 F.3d 851 (8th Cir. 2006), which arguably conflicts
with LeMay. We are not free to choose between panel opinions, however, and to the
extent the cases are in actual conflict, LeMay controls. See Mader v. United States,
654 F.3d 794, 800 (8th Cir. 2011) (en banc) (holding that when panel opinions
conflict, the earliest controls).
Furthermore, the district court did not err in deducting only the 90-day term of
imprisonment imposed in Brown’s second revocation from his term of supervised
release. The issue of deducting the 90-day term of imprisonment imposed in Brown’s
first revocation was decided in Brown’s first appeal, and thus the law of the case
doctrine applies to this proceeding. “When an appellate court remands a case to the
district court, all issues decided by the appellate court become the law of the case, and
the district court on remand must ‘adhere to any limitations imposed on its function
. . . by the appellate court.’” United States v. Wisecarver, 644 F.3d 764, 770 (8th Cir.
2011) (alteration in original) (quoting United States v. Castellanos, 608 F.3d 1010,
1016 (8th Cir. 2010)). Accordingly, the district court did not plainly err in sentencing
Brown to 57 months’ supervised release to follow his 90-day term of imprisonment.
III.
The sentence is affirmed.
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