Monday, January 19, 2015

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 Hertler admitted the allegations, was revoked, and sentenced to “consecutive terms of nine months of imprisonment on Count 1 and three months on Count 2.”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 Hertler admitted to possessing sexually explicit movies, was revoked, and was sentenced to fifteen months of imprisonment on Count 1 and one month on Count 2, to run concurrently.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. 

Steven Kalar, Federal Public Defender ND Cal. Website at


Labels: , , ,


Post a Comment

<< Home