Monday, October 7, 2013

A Life Sentence on the Installment Plan

In the halcyon days before the PROTECT Act, federal supervised release didn't have such an eternal feel.  Say you were convicted of a class C felony, like being a felon in possession of a firearm.  The statutory maximum for your violations of supervised release is two years. When that mean old P.O. sent you back to prison for fourteen months (due to what I am sure were trifling violations of your release conditions) and you re-emerged into society on a new term of supervised release, your exposure to more prison time was limited.  With a statutory maximum of two years, the term you had served (14 months) meant that you only faced an additional 10 months in custody for future violations of supervised release, no matter how scurrilous and reprehensible your behavior.

Those days are gone. They have been gone since the passage of the PROTECT Act in 2003, but almost no one in Kansas noticed until now, as practice under the old statute continued.  But the Tenth Circuit has recently spoken on this issue, aligning itself with all other circuits to preclude aggregation of prior sentences.  Here is what the PROTECT Act did: it added language to 18 U.S.C. 3583(e)(3) that a defendant could not be sentenced to imprisonment beyond the statutory maximum "on any such revocation".  (The statutory maximums are 5 years for a Class A felony, 3 years for a Class B, 2 years for a Class C or D, and one year for any other crime.)

"Any such revocation", says the Tenth Circuit, means any time a person gets revoked, their sentence is bounded only by the statutory maximum.  United States v. Hunt, 673 F.2d 1289 (10th Cir. 2012). Poor Mr. Hunt was revoked and sentenced to twelve months and a day, followed by more supervised release.  Upon release, he continued to sample cocaine, and was revoked again and sentenced to twelve months and a day again.  Under the old regime, upon release Mr. Hunt would have been free to abuse substances to his heart's content, because his two sentences would have been aggregated and would have reached the statutory maximum.  But in this cruel new world, Mr. Hunt's continued misbehavior earned him an additional sentence of eighteen months.

"Wait", you protest, "our Mr. Hunt is now serving more time than the statutory maximum!  Forty-two months in all!  And the statutory maximum is thirty-six months!"  Had you been listening, of course, you would recognize that there is no aggregation principle at all anymore- "any such revocation" means just that.  The district court is limited only by 18 U.S.C. 3583(h), which dictates that the, "length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release."  So, once a defendant has served thirty-six months or more on a class C felony, supervised release, and the opportunity to violate the conditions of supervised release, may no longer be imposed.

While this eventual limit on additional terms of supervised release has presumably relieved Mr. Hunt of his cyclical imprisonments, 3583(h) provides little comfort for other defendants.  Many narcotics conspirators, sex offenders, and terrorism defendants face a potential lifetime of supervised release.  For these defendants, there is no statutory maximum, and each can be returned to prison for five years at a time, re-emerging on supervised release forever.  

1 comment:

  1. Maybe there is an Apprendi argument that there is a right to a jury trial regarding the facts of any revocation that lead to a total sentence in excess of the original statutory maximum?

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