Case o' The Week: Not an "Offense" to Violate Supervised Release in the Ninth - Jensen and Sec. 3146

The Hon. Susan Graber

If your client violates supervised release, is given prison time, and fails to surrender to serve the sentence imposed for the violation of supervised release, for what “offense” has he failed to appear?

(Careful - trick question). 

United States v. Jensen, 2013 WL 174387 (9th Cir. Jan. 14, 2013), decision available here.

Players: Decision by Judge Graber (above left), joined by Judges Wallace and Berzon. Hard-fought appeal by D. Nev. AFPD Brenda Weksler.

Facts: Jensen was convicted of unlawful possession of a mail key in violation of 18 USC § 1704. Id. at *1. He was sentenced to three years of supervised release following a custodial term. Id.

Soon after his release from prison Jensen violated supervised release. The district court revoked and sentenced him to 14 months in custody. Id. Jensen was ordered to self-surrender.

He didn’t.

Jensen was caught and pleaded guilty to failure to appear in violation of 18 USC § 3146. Id. The failure-to-appear statute, § 3146(b), has no fixed stat max: the maximum sentence is tied to the “offense” for which the defendant didn’t appear. Id. at *2. Jensen argued that the stat max was for the supervised release violation “offense” (with a two-year stat max). Id. The district court disagreed, and held the “offense” was the mail theft crime, which (under § 3146(b)) produces a stat max of five years for failure-to-surrender. Id. at *1. Jensen was sentenced to 27 months for the § 3146, failure-to-surrender crime. Id. at *1.

Issue(s): “The dispute in this case is which ‘offense’ is relevant: Defendant’s criminal offense or his violation of supervised release. If the mail-key offense is the measuring stick for purposes of § 3146(b)(1)(A), then subsection (ii) applies, and the statutory maximum for failure to appear is five years. By contrast, if his violation of supervised release is the relevant underlying offense for purposes of § 3146(b)(1)(A), then subsection (iii) applies, and the statutory maximum for failure to appear is two years.” Id. at *2.   

Held: “We have no trouble concluding that Defendant’s release was ‘in connection with’ the original criminal charge. Id. at *3. . . . We agree with the First, Sixth, and Seventh Circuits that the text clearly answers the interpretation question presented . . . . Nothing in the text of § 3146(b) or elsewhere suggests that Congress clearly intended that a violation of supervised release constitutes an ‘offense’ for purposes of § 3146; indeed, Congress used words that foreclose that possibility.” Id. at *4.

Of Note: 18 USC § 3146 is a weird statute. The way it is written, the statutory maximum of the underlying offense is a fact that increases the statutory maximum of the Section 3146 (failure to appear) crime. 

Facts necessary to increase a statutory maximum? That’s Apprendiville –indeed, the Ninth has held that it is Apprendi error when the government fails to prove that the defendant failed to surrender on a felony, rather than a misdemeanor. United States v. Locklin, 530 F.3d 908, 912 (9th Cir. 2008). 

Given Judge Graber’s new rule in Jensen, mustn’t the government allege and prove the specific type of offense that gives rise to the failure-to-appear beef? Or, at minimum, plead and prove the statutory maximum of that underlying offense? See 18 USC § 3145(b)(1)(A)(i)-(iv)? Apprendi mischief to be made, thanks to the new Jensen rule.

How to Use: Remember Jensen when advising clients who are permitted to self-surrender to on violations. Of course, it is always prudent to surrender when ordered to do so -- but beware Jensen significantly raises the stat-max stakes when a self-surrendering defendant loses his way to the clink.                                                   

For Further Reading: “The case of Alleyne v. United States . . . is a potentially historic dispute over the modern phenomenon of “mandatory minimum” sentences, and the roles of judges and juries in imposing such sentences.” So says SCOTUS blog contributor Lyle Denniston, For his thoughtful summary of the recent sharp argument on this (potentially) seminal case, visit his article here (“It … appeared that there was a fairly solid nucleus of Justices willing at least to seriously re-think the Harris precedent.) 

Ima ge of  the Honorable Susan P. Graber from http://www.law.gwu.edu/News/newsstories/Pages/2010_VanVleck.aspx

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at www.ndcalfpd.org

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