     Case: 13-10984   Document: 00512830634    Page: 1   Date Filed: 11/07/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 13-10984                   United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
UNITED STATES OF AMERICA,                                      November 7, 2014
                                                                 Lyle W. Cayce
                                         Plaintiff–Appellee,          Clerk
v.

JAY OSWALT,

                                         Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas


Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Jay Oswalt was convicted of three offenses. He was sentenced to three
concurrent terms of imprisonment and three concurrent terms of supervised
release. After revoking each term of supervised release, the district court
sentenced Oswalt to three consecutive six-month terms of imprisonment and
three concurrent 24-month terms of additional supervised release. Oswalt
argues that the terms of his supervised release exceed the statutory maximum
under 18 U.S.C. § 3583(h). He asserts that the district court erred by failing
to reduce the maximum term of supervised release for each count by all terms
of imprisonment imposed upon revocation even though two of the terms of
imprisonment were imposed for different counts. We affirm.
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                                       No. 13-10984
                                              I
       Oswalt was convicted of two counts of bank robbery and one count of
attempted bank robbery under 18 U.S.C. § 2113(a).                      He received three
concurrent terms of imprisonment of 63 months to be followed by three
concurrent terms of supervised release of 36 months. After serving his time in
prison, Oswalt began his supervised release.
       The district court later revoked Oswalt’s supervised release because it
determined that he had used and possessed certain controlled substances and
had failed to attend drug counseling. The court sentenced Oswalt to prison for
six months on each of his three counts, to run consecutively, for a total of 18
months of imprisonment. The court also sentenced Oswalt to 24 months of
supervised release on each count, to run concurrently.
       Oswalt did not object to the term of his supervised release in the district
court. However, he now contends that the supervised release exceeds the
maximum term allowed.             He argues that the district court should have
subtracted the sum of his three terms of imprisonment—18 months total—
from the statutory maximum term of supervised release for each of his
counts—36 months per count. Oswalt’s equation limits his supervised release
to 18 months per count, rather than the 24 months the district court imposed.
                                              II
       When a defendant argues that his sentence exceeds the statutory
maximum, we review the issue de novo, regardless of whether the defendant
properly preserved the objection to his sentence. 1 Accordingly, whether Oswalt
preserved error regarding the term of his supervised release is irrelevant.




       1United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008) (citing United States v. Sias,
227 F.3d 244, 246 (5th Cir. 2000)).
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                                     No. 13-10984
                                         III
      When a court revokes a term of supervised release and requires the
defendant to serve a term of imprisonment, the court may also impose another
term of supervised release following the defendant’s imprisonment, with
certain limitations. 2       The maximum term of supervised release following
revocation is limited by 18 U.S.C. § 3583(h):
      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. 3
This provision requires a two-step calculation. 4
      The first step requires the district court to “identify the term of
supervised release authorized for the defendant's original offense.” 5          The
parties do not dispute this portion of the calculation. Oswalt was convicted of
two counts of bank robbery and one count of attempted bank robbery under 18
U.S.C. § 2113(a). The three offenses each carried a maximum sentence of
twenty years, 6 making each offense a Class C felony. 7 For a Class C felony, a
court may impose a maximum term of three years of supervised release. 8
Accordingly, Oswalt’s three offenses originally carried a maximum of 36
months of supervised release, per count.




      2   18 U.S.C. § 3583(h).
      3   Id.
      4   Vera, 542 F.3d at 459.
      5   Id.
      6   18 U.S.C. § 2113(a).
      7   18 U.S.C. § 3559(a).
      8   18 U.S.C. § 3583(b)(2).
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                                        No. 13-10984
      The next step requires the district court to “subtract from the originally
authorized supervised release term ‘any term of imprisonment that was
imposed upon revocation of supervised release.’” 9 The parties disagree as to
how to apply this directive.
      Oswalt contends that the phrase “less any term of imprisonment that
was imposed upon revocation of supervised release” requires the district court
to combine the prison terms imposed for each individual count and subtract
that total term of imprisonment from each of the 36-month maximums of
supervised release for the respective counts. Oswalt’s calculation is as follows:
Count Maximum Term of Term of Imprisonment Calculation                        Maximum
      Initial Supervised After Revocation       (maximum term –               Term of New
      Release            (Served Consecutively) total imprisonment            Supervised
                                                after revocation)             Release
1         36 mos.              6 mos.                    36 – 18              18 mos.
2         36 mos.              6 mos.                    36 – 18              18 mos.
3         36 mos.              6 mos.                    36 – 18              18 mos.
Oswalt argues that his supervised release of 24 months per count exceeds the
authorized maximum by six months.
      The Government agrees with the district court’s interpretation of
§ 3583(h). The Government reads “less any term of imprisonment that was
imposed upon revocation of supervised release” to authorize the district court
to subtract only the term of imprisonment imposed on a particular count,
rather than the combined terms imposed on all counts revoked.                           The
Government’s calculation is set forth below:




      9   Vera, 542 F.3d at 459-60 (quoting 18 U.S.C. § 3583(h)).
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                                           No. 13-10984


 Count Maximum Term of Term of Imprisonment Calculation                       Maximum
       Initial Supervised After Revocation       (maximum term –              Term of New
       Release            (Served Consecutively) term          of             Supervised
                                                 imprisonment on              Release
                                                 that count)
 1         36 mos.              6 mos.                    36 – 6              30 mos.
 2         36 mos.              6 mos.                    36 – 6              30 mos.
 3         36 mos.              6 mos.                    36 – 6              30 mos.
The Government contends that the limit set by § 3583(h) is 30 months and
therefore, that Oswalt’s 24 months of supervised release per count falls within
that statutory limit.
      This court agreed with the Government’s interpretation of § 3583(h) in
United States v. Thomas, an unpublished opinion. 10 Although that opinion
does not bind this panel, 11 we conclude that it correctly construed § 3583(h).
       Oswalt argues that the plain meaning of the words “any term of
imprisonment” unambiguously requires a district court to subtract all terms of
imprisonment imposed upon the revocation of supervised release from the
subsequent term of supervised release. In the alternative, he argues that even
if § 3583(h)’s reference to “any term” is ambiguous, the rule of lenity requires
us to construe the statute in favor of the defendant.
      We previously addressed the meaning of “any term” in § 3583(h) in
United States v. Vera. 12 The district court in that case had twice revoked Vera’s
supervised release, which had been imposed for a single count of transporting
an illegal alien. 13 Following the second revocation, the district court calculated
Vera’s new term of supervised release by subtracting only the term of


      10   551 F. App’x 223, 224 (5th Cir. 2014) (per curiam).
      11   See 5TH CIR. R. 47.5.4.
      12   542 F.3d 457 (5th Cir. 2008).
      13   Id. at 458-59.
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                                         No. 13-10984
imprisonment that had been imposed because of the second revocation. 14 Vera
argued that the district court erred because it failed to also subtract the term
of imprisonment he served after the first revocation of his supervised release. 15
       We agreed with Vera that the district court was required to reduce his
supervised release by the “aggregate length of any terms of imprisonment that
have been imposed upon revocation.” 16 We found decisions from other circuits
persuasive. 17 The Fourth Circuit applied a plain-meaning approach, as Oswalt
does here: “When the word ‘any’ is properly read in its § 3583(h) statutory
context, Webster’s Third New International Dictionary provides that the word
‘any’ means ‘all.’” 18 The Eighth and Eleventh Circuits, in addition to looking
to the plain meaning of the text, also found support in the relevant legislative
history. 19 The sponsor of an earlier bill, which created a formula identical to
the one found in § 3583(h), provided an example where a defendant, like Vera,
was credited for his terms of incarceration following both his first and second
revocations of supervised release. 20 Accordingly, we held that the district court
erred in not subtracting both of Vera’s postrevocation terms of imprisonment. 21
       However, Vera read § 3583(h)’s use of “any term of imprisonment” in the
context of multiple revocations for a single count and did not address the


       14   Id. at 459.
       15   Id.
       16 Id. at 462 (quoting United States v. Mazarky, 499 F.3d 1246, 1250 (11th Cir. 2007))
(internal quotation marks omitted).
       17   See id. at 460-62.
       18   United States v. Maxwell, 285 F.3d 336, 341 (4th Cir. 2002).
       19See Vera, 542 F.3d at 460-61 (citing Mazarky, 499 F.3d at 1250 and United States
v. Brings Plenty, 188 F.3d 1051, 1054 (8th Cir. 1999) (per curiam), superseded by statute on
other grounds, Prosecutorial Remedies and Tools Against the Exploitation of Children Today
Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650).
       20   102 CONG. REC. S7,771 (daily ed. June 13, 1991) (statement of Sen. Thurmond).
       21   Vera, 542 F.3d at 462.
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                                         No. 13-10984
question Oswalt presents today: how to interpret the same language where a
defendant’s supervised release has been revoked for the first time but on
multiple counts. The Eighth Circuit has addressed this question, and it agreed
with the Government. 22
       In United States v. Zoran, the Eighth Circuit rejected the argument
Oswalt makes here:
       [T]he plain text of § 3583(h) provides that a term of postrevocation
       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.” Given the
       statute's consistent use of “term” and “offense” in the singular
       form, we think the subsequent phrase “any term of imprisonment”
       plainly refers to “all postrevocation terms of imprisonment
       imposed with respect to the same underlying offense.” 23
The Eighth Circuit’s construction of § 3583(h) is clearly correct. The formula
in § 3583(h) is count specific and does not contemplate subtracting the
postrevocation terms of imprisonment imposed on all counts.
       Oswalt argues that the district court’s failure to aggregate across counts
fails to serve the purposes of the supervised-release statute. He asserts that
supervised release aims to rehabilitate rather than punish, 24 pointing to the
fact that a court may not consider what is “just punishment for the offense”
when setting the terms and conditions of supervised release. 25




       22   United States v. Zoran, 682 F.3d 1060, 1064 (8th Cir. 2012).
       23   Id. (quoting, in part, Maxwell, 188 F.3d at 342).
       24   See United States v. Johnson, 529 U.S. 53, 59 (2000).
       25 Compare 18 U.S.C. § 3553(a)(2)(A) (listing the provision of “just punishment for the
offense” as a factor for the court to consider when imposing a sentence), with § 3583(c) (stating
a court can only consider certain factors when deciding to impose a term of supervised release,
and the provision of “just punishment for the offense” is not one of them).
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                                        No. 13-10984
      Oswalt’s argument about the purposes of supervised release is
unavailing because it conflicts with the clear meaning of § 3583(h). In any
event, the statute requires the sentencing judge to consider factors unrelated
to rehabilitation.       The district court must consider whether the term of
supervised release would “afford adequate deterrence to criminal conduct” and
“protect the public from further crimes of the defendant.” 26
                                       *        *     *
      For the foregoing reasons, the sentence of the district court is
AFFIRMED.




      26   18 U.S.C. §§ 3553(a)(2)(B)-(C), 3583(c).
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