Case o' The Week: The Ninth Don't Feel Our Writ Appeal - Repp, the IADA, and Resolving Violations of Supervised Release

 Form 12 resolutions have a bad Rep[p] in the Ninth.

 United States v. Repp, 2021 WL 613385 (9th Cir. Feb. 17, 2021), decision available here.

Players: Decision by Judge Tallman, joined by Judge Callahan and visiting DJ Christensen.  

Facts: Repp was on supervised release out of the CD Cal. Id. He committed a new federal crime, and was incarcerated in Arizona. Id.

  After the district court in L.A. signed an arrest warrant for the “Form 12” (alleging a violation of supervised release), a detainer was slapped on Repp. Id.

  Repp moved the L.A. District Court judge for a writ of habeas corpus ad prosequendeum, to the Warden at FCI Phoenix, directing the warden to transport him to L.A. to resolve the Form 12. Id.

  That motion was denied by the CD Cal. District Judge. Id. Repp appealed the denial of the order.

Issue(s): “May an inmate currently serving time on one federal sentence expedite the resolution of a newly lodged detainer to answer for a supervised release violation in another federal district that was triggered by his commission of the crime for which he is currently incarcerated?” Id. at *1.

Held: “Because the denial of Repp's motion is not a final or appealable collateral order, we lack jurisdiction over this appeal and must dismiss it.” Id.

Of Note: A motion for a “writ of habeas ad prosequendum” seems a laborious path to get a Form 12 in another district resolved. Why didn’t Repp just file an Interstate Agreement on Detainers Act (“IADA”) demand? See 18 USC App. 2 § 2. 

Because, to our great frustration, the IADA does not apply to detainers tied to violations of supervised release. See Repp, 2021 WL 613385, at *1 (quoting United States v. Bottoms, 755 F.2d 1349, 1350 (9th Cir. 1985)). While Bottoms interpreted the language of the IAD, it also strongly hinted that Congress should clean up the wording of this statute. See Bottoms, 755 F.2d at 1349.

The Ninth in Bottoms was right about the language of the IADA – it makes no sense that a serial bank robber can make an IADA claim to resolve all charged robbery cases in multiple jurisdictions, but an inmate with a hanging Form 12 cannot use the IADA to do the same thing. Note, however, that Repp only holds that the Ninth has no jurisdiction to consider Repp’s appeal – it does not appear to prohibit Repp’s “writ ad prosequendum” gambit. This creative writ approach appears to have survived, for us to try again with a more sympathetic district court.  

How to Use: Form 12 detainers have a real, negative impact on the access to programing in BOP custody, and on early release to half houses – exactly the opposite of what Probation should be encouraging. Until the IADA is fixed, this unfair discrepancy in lack of access to this mechanism (between “new” cases and Form 12 allegations) is an interesting theory for reduced custodial terms in Form 12 hearings (along the lines of the good ole’ Sanchez-Rodriguez “lost opportunity to serve a concurrent sentence” theory). See United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (en banc). Notably, in Repp Judge Tallman expressly flags this “procedural delay” argument as a pitch that Repp can make when he finally gets back to Los Angeles to be sentenced on his supervised release violation. See Repp, 2021 WL 613385, at *2.

For Further Reading: In 2013, history was made here in San Francisco when Attorney General Eric Holder announced the new “Smart on Crime” initiative. See Smart on Crime overview here. 

That brave reform effort worked -- and its principles were then adopted across the political divides. See article here. 

Judge Garland (finally) has a confirmation hearing scheduled for his new A.G. gig. See NPR article here. 

Our first question for His Honor? How quickly will DOJ revive A.G. Holder’s Smart on Crime principles?

 

 

Image of “Repp” from https://www.besttechtips.org/how-to-remove-repp-ransomware-and-decrypt-repp-files/ .

 

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

 

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Case o' The Week: Of Form 12s and Aggravated Mopery - Cate and Challenges to Convictions via Supervised Release

Q: Is it a federal crime to possess a gun with a felony prior, after having been convicted of a state offense carrying a max term of three months? 

A: Close enough for government work (and a fifteen month supervised release violation sentence!)

  United States v. Cate, 2020 WL 4914049 (9th Cir. Aug. 21, 2020), decision available here.

 Players: Decision by Judge Tashima, joined by Judges W. Fletcher and Rawlinson.

 Hard-fought appeal by (former) AFPD Matt Campbell, Fed. Defenders of E. Wa. & Idaho (now the Federal Public Defender of the United States Virgin Islands).

Facts: Cate was convicted of § 922(g)(1): having a gun after being convicted of a Washington third-degree-assault conviction. Id. at *1. He was later charged with violating supervised release. While that Form 12 was pending, the Ninth held that the state offense of conviction had a maximum sentence of the state sentencing range (here, three months). Id. at *2 (discussing United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019).

  Cate moved to terminate supervised release, arguing that this change in law meant that the underlying state offense was no longer a felony. Id. at *1.

   The district court held that Cate couldn’t challenge his federal conviction through terminating supervised release: he would have to pursue a habeas motion under 28 U.S.C. § 2255. Id. at *2.

  Cate’s challenge was denied, he was violated, and sentenced to 15 months. Id.

Issue(s): “In [United States v. McAdory, 935 F.3d 838, 840–41 (9th Cir. 2019)], we applied Valencia-Mendoza to hold that a defendant's convictions under Washington law were not felonies for purposes of § 922(g)(1) . . . . Cate . . . relies on McAdory to argue that his Washington offense was not a felony for purposes of § 922(g)(1) because the sentence to which he actually was exposed was less than a year.” Id. at *3.

Held: “Although this may be correct, the supervised release hearing was not the proper proceeding in which to challenge his underlying federal conviction.” Id. at *3.

  “[W]e agree with the district court that the validity of an underlying conviction cannot be challenged in a supervised release revocation proceeding.” Id. at *1. “Just as § 3583(e) does not authorize a district court to modify or rescind an allegedly illegal condition, it does not authorize a district court to vacate an allegedly illegal conviction. Instead, the underlying conviction must be collaterally attacked in a proceeding under § 2255, not in a supervised release revocation proceeding. . . . . In so holding, we join every other circuit to have addressed the question.” Id. at *3.

Of Note: Fifteen months custody in a COVID-infested federal prison, for a supervised release violation off of a federal conviction that isn’t actually a crime? Surely there are other equitable ways to skin this unjust cat?

The defense tried. It logically argued for a reduced sentence under § 3553(a)(1), since the defendant shouldn’t be on supervised release in the first place. Id. at *4. The district court was unmoved – and distressingly, so was the Ninth. Id. The Ninth concludes that the D.J.’s initial reference was a habeas path of relief was enough to check the sentencing box, and the custodial sentence was “reasonable.” Id.

Note some bad facts lurking beneath this decision, including a (probably drunken) vehicular manslaughter conviction that prompted the Form 12 in the first place. Id. at *1. Bad facts make bad law: Cate is a disappointing tolerance of supervision (and custodial terms for violations!) despite an unlawful underlying federal offense.

 How to Use: Judge Tashima concedes that this scenario is vulnerable to attack on direct appeal. Id. at *3 & n.2. And the tortuously slow road of habeas relief remains available as well. Id. at *1. Can a new Form 12 (and custody) be stayed while a quickly-filed § 2255 habe is litigated? Presumably (though unlikely that Cate’s DJ would have been so inclined given the reported outcome in this case).                                         

For Further Reading: Ten of the top ten COVID infection clusters in the United States are linked to correctional facilities. For a compelling editorial calling for decarceration, see Coronavirus cases in prison are exploding: More people need to be let out, available here.

 

Image of “three months” from https://vip.incomesharks.com/product/vip-3-month-membership/

 

 

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

 

 

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Case o' The Week: Miller Sure of Ped-i-Cure - Ped, Conditions of Supervised Release, and Limitations of Appellate Review

The Honorable Judge Eric Miller

  Ninth nixes appellate fixes.

United States v. Ped, 2019 WL 6042813 (9th Cir. Nov. 15, 2019), decision available here.

Players: Decision by Judge Eric Miller, joined by Judges Owens and Ryan D. Nelson. 

  Supervised release win for AFPD Gia Kim, Central District of California.  

Facts: After a parole search for his brother produced guns at his house, felon Ped plead guilty, with a conditional plea agreement. The agreement allowed Ped to challenge the denial of a motion to suppress. Id. at *2.

  The district court imposed (old) standard conditions of supervised release: 1) that Ped “support his . . . . dependents and meet other family responsibilities,” that he 2) “work regularly at a lawful occupation,” and 3) that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Id. at *4.

  In United States v. Evans, 883 F.3d 1154 (9th Cir. 2018), the Ninth had held that these conditions were unconstitutionally vague. Id. Ped asked these conditions be corrected on appeal.

Issue(s): The government declined to assert the appeal waiver, and agreed that the conditions were unconstitutional. On appeal, “the government suggested that we rewrite the conditions and affirm the judgment as modified.” Id. at *4.

Held: “Upon further consideration, the government changed its position and argued that a remand is appropriate. We agree.” Id.

Of Note: The key aspect of the supervised release beef in Ped is not whether the conditions of supervised release are constitutional: they aren’t.

  Instead, Judge Miller spills a fair amount of ink explaining why the appellate court cannot cobble together a fix, and instead must vacate the contested conditions and remand for resentencing. Id. at *5.

  Judge Miller is a new Ninthjurist, and Ped may offer an interesting insight into his views of the limited roles of an appellate court. That worked well for the defense here – but we may be less keen on this district-court deference when we’re attacking a decision under an “abuse of discretion” standard.

How to Use: Ped won this S/R battle, but lost the parole-search war at the heart of this case. Id. at *1. 

  The cops in this case learned that Ped’s brother, who was on “post-release community supervision” (like parole), lived in a house where Ped also resided. Id. at *1. Three months later (and after the Probation Officer was given a new and updated address for the brother) the cops searched the brother’s old original residence without a warrant. Id. at *2. The cops discovered Ped, meth pipe in hand, and went on to extract Ped’s confession to the guns found at the house. Id.

  The suppression issue was whether these sloppy cops had probable cause to believe the brother still lived at Ped’s house, when they relied upon three-month old residence info and when they didn’t bother to learn the new and correct address given to the P.O. Id. at *3.

  “Meh - good enough for government work,” is the gist of the disappointing Fourth Amendment holding: “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Id. at *3.

  Ped, unfortunately, is an important – albeit fact-bound – decision on probable cause and parole searches of third-party residences. It merits a close read for parole-search cases.

                                               

For Further Reading: We defense attorneys review our clients’ priors. Turns out we should be checking cops’ priors as well. In a fascinating piece, the East Bay Times reveals the number of cops with “dubious backgrounds” in the McFarland Police Department. See article here.

  Want to see if a cop in your case has a conviction? This article has a link to a convicted-cop database, that you can use to run hundreds of current and former California law enforcement officers who were convicted of a crime since 2008. 

  With our Federal courthouse transforming into the Northern branch office of San Francisco’s Hall of Justice, see article here, this convicted-cop database is of particular interest to the NorCal federal defense bar.

Image of the Honorable Judge Eric Miller from https://www.youtube.com/watch?v=nHQYcZ9Kr98

Image of the Hall of Justice seal from https://www.kqed.org/news/11722940/san-francisco-investigator-disciplined-for-issuing-subpoena-under-false-pretenses 

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

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Case o' The Week: Conviction, Old, yet Ninth Upholds - Hohag and Conditions of Supervised Release, SORNA

The Hon. Judge Susan P. Graber

Not too old, if SORNA, we’re told.

United States v. Hohag, 2018 WL 3149773(9th Cir. June 28, 2018), decision available here.

Players: Decision by Judge Graber, joined by Judge M. Smith and DJ Hellerstein. 

  Hard-fought appeal by AFPD Francesca Freccero, D. Or. FPD.

Facts: Hohag was convicted of rape of a minor in 1992. Id. at *1. As part of that sentence, he was required to register as a sex offender. Id. 

  He moved to several states without registering, was arrested in Oregon in 2016, charged federally and convicted of failure to register as a sex offender. Id. 

  At sentencing, Hohag explained he had undergone sex offender treatment while incarcerated, and provided a polygraph confirming he was truthful in denying he’d had sexual contact with a minor since his release from supervision in ’02. Id. He was sentenced to time served. 

  The court imposed conditions of supervised release that included participating in a “sex-offense specific assessment” and submitting to polygraph testing “in conjunction with the . . . assessment.” Id.

Issue(s): “Defendant timely appeals, challenging only the two conditions of supervised release that relate to his history of sexual misconduct.” Id. at *2.

Held: “Together, T.M. and Johnson illustrate that, when we consider a condition of supervised release meant to address a defendant’s history of sexual misconduct, we look to at least two factors. First, as in every case, we consider the burdensomeness of the condition at issue. An assessment is significantly less burdensome than required treatment. Second, we ask whether the condition is reasonably necessary to accomplish one of the legitimate goals of supervised release. In answering that question in this context, we approach with some skepticism a condition that rests solely on an old sex offense. But when some recent event suggests that a defendant still poses a risk of engaging in sexual misconduct, there exists a greater need for a condition meant to address a defendant’s history of sexual misconduct.” Id. at *3.

  “Because the conditions at issue are not particularly burdensome and because they relate to Defendant’s crime of conviction, we conclude that the district court did not abuse its discretion.” Id. at *5.

Of Note: In United States v. T.M., 330 F.3d 1235, 1239–40 (9th Cir. 2003), the Ninth reversed sex-offender treatment conditions imposed on the back of an old sex-offense prior.

  In United States v. Johnson, 697 F.3d 1249, 1251 (9th Cir. 2012), the Ninth upheld a sex-offender assessment condition despite equally old priors.

  In the present case, Hohag, Judge Graber concedes (in a considerable understatement) that these cases arrive at “seemingly conflicting conclusions.” Id. at *3. The analysis in Hohag struggles to explain the distinctions, and concludes that the conditions here – an assessment – based on a “related” sex offense (a SORNA crime), support the conditions. Id. at *4-*5. It is a troubling outcome, assuring us that a sexual-assessment is a “minimal burden on [Hohag’s] liberty,” and that polygraph testing is a “relatively uninstrusive means of evaluating a defendant’s risk of engaging in sexual misconduct.” Id. at *3.

  Like it or no, Hohag joins T.M. and Johnson in the Ninth’s – complicated – guidance on supervised release conditions for sex offenders.

How to Use: A (small) hook in Hohag is the fact that the condition imposed was just an assessment – it was not the more intrusive sex-offender treatment. Id. at *4. Judge Graber relies on that heavily on that distinction while upholding the condition. Id.

  Push back when Probation wants a condition of treatment on an old offense: that falls closer to the prohibited conditions in T.M., in the spectrum laid out by Judge Graber in Hohag.  

                                               

For Further Reading: The defense argued that the Sentencing Commission did not recommend sex offender assessments as a condition of supervised release for SORNA convictions (like the one underlying Hohag). Id. at *4. “Meh,” sniffed the Ninth – Guideline conditions are “only advisory.” Id.

   Like the Ninth, the Second Circuit also seems increasingly indifferent to the Commissions’ wisdom. For an interesting piece on that trend, see Substantive Reasonableness Review Finally Getting Teeth in the Second Circuit, available here.

Image of the Honorable Judge Susan P. Graber from https://twitter.com/scotusambitions/status/570100615684227072

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Buys Probation's Hard Cell - Misraje and "Bright Line" Prohibitions of Cell Phones on Supervision

 Coffee and cell phones: a dangerous combination.

United States v. Misraje, 2018 WL 1998294 (9th Cir. April 30, 2018), decision available here.

Players: Decision by visiting Maine District Judge Woodcock, joined by Judges Berzon and Bybee. 

  Hard fought appeal by AFPD Jonathan Schneller, C.D. Cal.

Facts: Misraje was on supervised release after a child porn conviction. Id. at *1. One condition prohibited him from possessing or using a computer or computer-related device not disclosed to his PO. Id.

  At a coffee shop, Misraje was handed a smartphone by a friend, and looked at an internet website about public storage facilities. Id. at *3. His PO was at the coffee shop, and took pictures of Misraje holding the phone. Id.

  A Form 12 was filed, an evidentiary hearing held, supervision was revoked, and Misraje got a year and a day in custody. Id. at *2.

Issue(s): “Misraje alleges that merely holding his friend’s cellphone and looking at the screen does not constitute ‘use’ of the phone, and, thus, could not violate the undisclosed-device condition.” Id. at *2.

Held: “The district court did not err in determining that Misraje ‘used’ the smartphone in the coffee shop.” Id. at *3.

  “On the basis of evidence that Misraje actually possessed and used his friend’s smartphone – a device that he had not disclosed to the supervising officer – the district court properly concluded Misraje violated the condition against possession and use of an undisclosed device.” Id.  

Of Note: Bad facts, as the trope goes, make bad law. There is an unfortunate backstory for the Misraje holding reported above.

  Before the coffee shop incident described above, Misraje went to Wal-Mart and used a display computer to tap into a nearby McDonald’s internet connection. Id. at *1. He found child porn using the Wal-Mart computer, took a picture of it on his own phone, and later showed this picture-of-a-porn-picture to a minor. Id. That far more troubling Wal-Mart episode was the subject of a separate Form 12 allegation – and is the conspicuous factual context to the otherwise-innocent coffee shop event.

  Would a Probation Officer have pursued, a district judge have revoked, and the Ninth have affirmed, a violation charge based on an otherwise-innocent coffee shop episode alone? Doubtful, but the die is cast: for child porn clients on supervision, cell phones (however innocent) are strict liability devices.

How to Use: After Misraje, if a friend hands a child porn supervisee a cell phone to look at the Warriors’ score, and the supervisee doesn’t tell his P.O., he has violated what District Judge Woodcock describes as a “bright line prohibition.” Id. at *3. We should worry about this boundless condition, and have a frank talk to our child porn clients about Misraje before they start supervision.

  More importantly, the opinion illustrates that this condition of supervised release merits challenge and some reasonable limitation at the original sentencing (like a more rational definition of the “use” of a computer-related device.)

                                               

For Further Reading: For a client convicted of a child pornography offense, the custodial sentence is just part of the long, long punishment that awaits. Conditions of supervised release for sex offenders are onerous, and – as illustrated by Misraje – can be “bright line,” strict liability traps. 

  For a basic overview of supervised release, and the (many) conditions that the Sentencing Commission want imposed, see U.S. Sentencing Commission, Office of General Counsel, “Primer: Supervised Release,” Apr. 2017, available here.

  This Primer makes a point of identifying the mandatory, and recommended, conditions of supervised release for sex offenses. See, e.g., id. at 5.A.1.2 (discussing mandatory conditions of supervised release for sex offenders). 

  A helpful starting point when thinking about how to restore some rationality towards supervision in these emotionally-charged cases.  

Image of “No Cell Phones” mug from https://www.amazon.com/Cell-Phones-Lukes-Diner-Merchandise/dp/B06WLGZ7F5.

Steven Kalar, Federal Public Defender Northern District of California. Website available at www.ndcalfpd.org 

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Case o' The Week: Faster than a speeding jet - Shimabukuro and Custodial Terms for Supervised Release

  Defense counsel flew for six hours, from SFO to Honolulu, after oral argument in San Francisco

  The Ninth was considerably faster: it took only four hours to deliver the per curiam victory.

  United States v. Shimabukuro, 2018 WL 1755526 (9th Cir. Apr. 12, 2018), decision available here.

Players: Per curiam defense win by Chief Judge Thomas, Judge Friedland, and DJ Olguin (delivered four hours after oral argument! See argument link here). 

  New speed-to-victory record set by First Ass’t Fed. Public Defender Alexander Silvert, argued by Fed. Defender Peter Wolff, District of Hawai’i.

Facts: Shimabukuro’s supervised release was revoked three times over eight years. Id. The second time he was sentenced to time served, and 41 months of supervised release, “with 150 days of intermittent confinement at the Federal Detention Center in Honolulu.” Id.

  When he violated the third time, he was sentenced to seventeen months of imprisonment with no term to follow. Id. Shimabukuro protested that this term exceeded the maximum “cap,” if the court counted the 150 days of intermittent confinement from the second supervised release revocation. Id. (referring to the custodial cap set forth in the version of 18 USC § 3583(e)(3) in effect in at the time of the original offense). 

  The district court disagreed, concluding that intermittent confinement does not count as time “in prison.” Id.

Issue(s): “Defendant Wallace Shimabukuro’s appeal of the term of imprisonment imposed after he violated the conditions of his supervised release requires us to decide whether intermittent confinement counts against the cap 18 U.S.C. § 3583(e)(3) (2002) places on the amount of time ‘in prison’ a district court may impose when revoking a defendant’s supervised release.” Id. at *1.

Held: “We hold that it does.” Id. “The 150 days that Shimabukuro spent at the Federal Detention Center constitute time spent ‘in prison’ and thus should have been included in the district court’s calculation of the aggregate time it previously had required Shimabukuro to spend ‘in prison.’ Any other result would defy the plain language of the statute.” Id. at *2.

Of Note: Custodial “aggregation” is from the old-school version of § 3583(e)(3). The statute was amended in April 2003 (a month after Shimabukuro’s original conspiracy offense was completed). Id. at *1 & n.1. 

  The old version of § 3583(e)(3) – at issue here – required district courts to aggregate prison time imposed and credit that towards a custodial “cap” for revocations. Id. at *2 & n.3. 

  Keep an eye on April 2003, and the original offense date, as the dividing line: that good aggregation / custodial cap for supervised release violations is only available to our clients who’ve been entangled in the federal system for fifteen years or more. Id. at *1 & n.1.

How to Use: Like “conditional pleas,” the “intermittent confinement” in Shimabukuro is a mythical beast not found in NorCal. The Bay Area is one of the few large metropolitan areas that have been cheated out of a Federal Detention Center. See generally list of prisons here. 

  When intermittent confinement is attempted in our local county jails it inevitably goes poorly: low-security federal defendants have been warehoused in full-lock down cells, way out in Sacramento jails, for intermittent weekend confinements.

  Consider this aggravating local quirk as a basis for a Section 3553(a) variance. As a practical matter, a ND Cal client can’t realistically serve an intermittent confinement sentence that is permitted in the guidelines – a sentence that is available to defendants in Hawaii, and Texas, and Florida, and Louisiana, and Pennsylvania, and the many other districts that have FDCs.

                                               

For Further Reading: A "just enough" Sentencing Commission has managed to adopt a new slate of amendments. See press release, here. 

    (The Commissioners don't exactly look thrilled at the news.)  

   A “reader friendly” version of the amendments can be found here. 

  Take a close look at “Alternatives to Incarceration for Nonviolent First Offenders:” there's some good new commentary language that is fair game to be used at sentencing now, before the Nov. 1, 2018 effective date.

Image of Hawaiian airlines jet from http://www.businessinsider.com/hawaiian-airlines-ceo-says-asia-growth-opportunity-2018-1

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Down for the Count(s) - Hertler and Max Time for Supervised Release Violations

  Time served on supervised release violations reduces exposure on future S/R terms.

  Except when it doesn’t.

United States v. Hertler, 2015 WL 178350 (9th Cir. Jan. 15, 2015), decision available here.

Players: Decision by Judge Paez, joined by Judges Pregerson and Watford. Hard-fought

Hon. Judge Richard Paez

appeal by D. Montana AFPD Andrew Nelson.

Facts: Hertler plead guilty to possession and distribution of child porn. Id. at *1. In addition to a custodial term, the district court imposed a thirty-six month concurrent term of supervised release. Id. Soon after release Hertler’s PO filed a Form 12 alleging several violations. Id. Hertler admitted the allegations, was revoked, and sentenced to “consecutive terms of nine months of imprisonment on Count 1 and three months on Count 2.” Id. The court also imposed concurrent terms of supervised release on each of the two counts. Id. Within two weeks from release on this violation, Hertler was charged with a new Form 12. Id. Hertler admitted to possessing sexually explicit movies, was revoked, and was sentenced to fifteen months of imprisonment on Count 1 and one month on Count 2, to run concurrently. The court also imposed a twenty month term of supervised release on Count 2. Id. at *2.

Issue(s): “[ ] Hertler appeals a postrevocation term of supervised release. He argues that the new term of twenty months exceeds the maximum period that can be imposed under 18 U.S.C. § 3583(h). That subsection authorizes a district court to impose a postrevocation term of supervised release up to the statutory maximum, but requires the court to reduce the length of supervised release by ‘any term of imprisonment that was imposed upon revocation of supervised release.’ Hertler contends that the phrase ‘any term of imprisonment’ in § 3583(h) refers to any term of imprisonment imposed for all offenses following the latest revocation of supervised release. He therefore argues that the district court erred when it construed this clause to refer only to all terms of imprisonment imposed for a single underlying offense. He further argues that, as a result of this error, the district court concluded that he was eligible for up to thirty-two months of additional supervised released when he should have been sentenced to no more than nine.” Id. at *1.

Held: “[W]e agree with the construction of ‘any term of imprisonment’ adopted by the district court, the Eighth Circuit . . . and the Fifth Circuit . . . . We therefore affirm.” Id.

Of Note: The rule of lenity takes a ding in this opinion. Id. at *6. Judge Paez concludes that there is no “grievous ambiguity” in the statute, and that § 3583’s “text and structure allow us to conclude that the most reasonable interpretation of § 3583(h) is the one advanced by the government.” Id. at *6. A disappointing discussion of our favorite rule of statutory construction.

How to Use: Grab a scratch pad and a calculator. 

  In a nutshell, the supervised release statute requires the district court to knock time served for violations off of the maximize term of supervised release. Id. at *3. It is established law that the court should aggregate all of the time served on various violations, to determine the maximum term of supervised release. Id. at *2. Hertler (compellingly) argued the court should aggregate all violation time served on various counts, and apply them against the sole concurrent supervised release max. Id. The Court doesn’t buy it, and ultimately agrees with the government that “any term of imprisonment” in Section 3583 (the supervised release statute) refers to “terms of imprisonment imposed with respect to the same underlying offense.” Id. at *4 (emphasis in original). 

  Add Hertler to your S/R research files – you’ll need it (and an abacas) to calculate your client’s Form 12 exposure when the original conviction had multiple counts.

                                               

For Further Reading: ND Cal CJA Attorney Mark Vermuelen was part of a team that recently secured a remarkable victory in the ED Cal. See Sacramento Bee article here. 

   The new deal for Eric McDavid came after staggering Brady / Giglio violations were revealed – violations never adequately explained to presiding Judge England. Id. Yet another outbreak, in Judge Kozinski’s “epidemic of Brady violations.” See blog here. 

Image of the Honorable Judge Richard Paez from http://www.eastvalleytribune.com/image_4346b866-e090-11df-83f3-001cc4c03286.html

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

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