                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-1997

United States v. Dozier
Precedential or Non-Precedential:

Docket 96-5785




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Recommended Citation
"United States v. Dozier" (1997). 1997 Decisions. Paper 162.
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Filed July 18, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-5785

UNITED STATES OF AMERICA

v.

KEITH DOZIER, also known as Pete,
also known as Keith Bashir

Keith Dozier
Appellant

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. Action No. 92-cr-00054-01)

Argued: June 17, 1997

BEFORE: STAPLETON, LEWIS and ALDISERT,
Circuit Judges

(Opinion Filed July 18, 1997)

Faith S. Hochberg
United States Attorney
Kevin McNulty
Allan Tananbaum (Argued)
Assistant U.S. Attorneys
970 Broad Street
Room 502
Newark, NJ 07102
Attorneys for Appellee
Patrick A. Mullin (Argued)
Court Plaza North
25 Main Street, Suite 200
Hackensack, NJ 07601
Attorney for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:

In this case we must determine whether the Ex Post
Facto Clause of the United States Constitution is violated
when, upon revocation of supervised release, a defendant is
sentenced to a new term of supervised release, even though
such a new term was not authorized at the time the
defendant committed his underlying criminal offense. We
conclude that retroactive application of 18 U.S.C. § 3583(h),
which authorizes imposition of supervised release following
revocation of a prior term of supervised release, increases
the potential punishment for violations of supervised
release and, therefore, violates the constitutional
prohibition on ex post facto legislation. We will vacate the
defendant's sentence and remand to the district court for
resentencing.

I.

Appellant Keith Dozier was convicted in 1992 of the class
D felony of conspiracy to transport stolen motor vehicles
across state lines. See 18 U.S.C. § 371; id. at § 2313. In
June 1992, he was sentenced to 34 months in prison to be
followed by 36 months of supervised release--the maximum
term of supervised release that could be imposed on a
defendant convicted of a class C or D felony. 18 U.S.C.
§ 3583(b)(2). Dozier completed his period of imprisonment
in October 1994 and then began his 36 months of
supervised release.

In September 1996, Dozier pled guilty to various
violations of his conditions of supervised release. His
supervised release was revoked in November 1996 and he
was sentenced again. Given Dozier's criminal history

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category of IV, and the fact that his supervised release
violations were grade C, the Sentencing Guidelines
recommended a sentence of six to twelve months of
imprisonment. See U.S.S.G. 7B1.4. The district court
sentenced Dozier to six months of prison to be followed by
a new, 24-month term of supervised release. Together, the
total length of sentence imposed upon revocation of Dozier's
supervised release was 30 months.

The district court sentenced Dozier pursuant to 18 U.S.C.
§ 3583(h), which expressly permits the imposition of a new
term of supervised release upon revocation of an earlier
term of supervised release. However, § 3583(h) was not
enacted until September 13, 1994, more than two years
after Dozier committed his original offense of conviction.
Although Dozier did not argue before the district court that
application of § 3583(h) violated the Ex Post Facto Clause,
he brought this timely appeal to press that argument in
this court. We may only vacate Dozier's sentence if we find
that the district court committed plain error. See Fed. R.
Crim. P. 52(b).1

II.

The Ex Post Facto Clause of the Constitution states that
"no ex post facto Law shall be passed." Art. I, § 9, cl. 3.
"Two conditions must be satisfied before a law can be
deemed to transgress the ex post facto prohibition. First,
the law `must be retrospective, that is, it must apply to
events occurring before its enactment.' Second, the change
in the law must `alter[ ] the definition of criminal conduct or
increase[ ] the penalty by which a crime is punishable.' "
United States v. Brady, 88 F.3d 225, 228 (3d Cir. 1996),
cert. denied, 117 S. Ct. 773 (1997) (citations omitted); see
also California Dept. of Corrections v. Morales, 115 S. Ct.
1597 (1995).

The government concedes that the retrospective
_________________________________________________________________

1. The district court had jurisdiction over this federal criminal case
pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely
appeal from the imposition of a sentence pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).

                    3
requirement is met here, and we see no reason to reject this
concession. A sentence imposed upon revocation of
supervised release is most properly viewed as a
consequence of the original criminal conviction. See United
States v. Beals, 87 F.3d 854, 859-60 (7th Cir. 1996)
(concluding that sentence imposed for violation of
supervised release must be considered punishment for
original crime because conduct violating supervised release
need not itself be criminal to be punished, and because
these violations need only be proven by preponderance of
evidence); United States v. Woodrup, 86 F.3d 359, 361 (4th
Cir.), cert. denied, 117 S. Ct. 332 (1996) (reaching same
conclusion); United States v. Soto-Olivas, 44 F.3d 788, 791
(9th Cir. 1995) (same); United States v. Meeks, 25 F.3d
1117, 1123 (2d Cir. 1994) (same); Commentary, U.S.S.G.
Ch. 7, Pt. A, para. 3(b) (describing violation of supervised
release as "breach of trust" in connection with original
sentence); but see United States v. Reese, 71 F.3d 582, 587-
90 (6th Cir. 1995), cert. denied, 116 S. Ct. 2529 (1996)
(concluding that because defendants have notice of
potential penalties for violations of supervised release at
time they commit these violations, such penalties are for
those violations and not for underlying criminal offense).
Therefore, to sentence Dozier under § 3583(h) is to
retrospectively apply a law passed in 1994 to criminal
conduct that occurred in 1992.

The issue we will focus our attention on is whether the
concededly retrospective application of § 3583(h) increases
the penalty to which Dozier is subject for revocation of his
supervised release. We must compare the penalty Dozier
could have received prior to passage of § 3583(h) with the
penalty he could have received after its passage. If under
§ 3583(h) Dozier may potentially be given a sentence
constituting an increased penalty over the maximum he
could have received prior to § 3583(h), then application of
that statute to him constituted an ex post facto violation.
See Miller v. Florida, 482 U.S. 423, 432 (1987) (rejecting
contention that there is no ex post facto violation when
defendant cannot definitively show that he would have
received lesser sentence under old statute); Lindsey v.
Washington, 301 U.S. 397, 401 (1937) ("[A]n increase in the
possible penalty is ex post facto, regardless of the length of

                   4
the sentence actually imposed, [when] the measure of
punishment prescribed by the later statute is more severe
than that of the earlier . . . .") (citations omitted).

When Dozier committed his offense of conviction in 1992,
the sentencing court's sentencing options upon revocation
of a term of supervised release were limited to those
specified in 18 U.S.C. § 3583(e). Section § 3583(e)(3)
provided, in relevant part, that the court could "require the
person to serve in prison all or part of the term of
supervised release without credit for the time previously
served on postrelease supervision . . . except that a person
whose term is revoked under this paragraph may not be
required to serve . . . more than 2 years in prison if the
offense was a class C or D felony." We have concluded that
§ 3583(e) did not permit imposition of a new term of
supervised release as part of a sentence imposed upon
revocation of the initial term of supervised release. See
United States v. Malesic, 18 F.3d 205 (3d Cir. 1994). Hence,
had Dozier's supervised release been revoked prior to the
passage of § 3583(h), the district court could only have
sentenced him to prison, for any period up to and including
24 months. No new term of supervised release could have
been imposed.

Section 3583(h) was enacted in September 1994. It
provides:

When a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment
that is less than the maximum term of imprisonment
authorized under subsection (e)(3), the court may
include a requirement that the defendant be placed on
a term of supervised release after imprisonment. 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.

18 U.S.C. § 3583(h).

Under § 3583(h), the sentencing court has far greater
sentencing flexibility than it had under § 3583(e) alone. As

                     5
before, the court may still sentence someone whose
criminal offense was a class D felony to any period of
imprisonment up to and including 24 months, as provided
under § 3583(e). In addition, if the court sentences such a
defendant to less than 24 months imprisonment, then the
court may also impose a new term of supervised release to
follow that imprisonment. Together, the length of the
imprisonment and the new supervised release can extend to
a total of 36 months, i.e. the maximum term of supervised
release authorized under § 3583(b)(2) for a class D felony.

Sentencing Dozier pursuant to § 3583(h) and not just
pursuant to § 3583(e) affected the sentence to which he was
subject in at least two important respects. First, it allowed
imposition of a new term of supervised release, whereas
prior to § 3583(h) Dozier would have been free of all
supervision following any incarceration the court might
impose. Second, it allowed the court to impose a "total
package" of penalties stretching to 36 months--the
maximum period of supervised release authorized under
§ 3583(b)(2)--rather than only 24 months--the maximum
period of incarceration authorized under § 3583(e)(3). Here,
for example, the district court sentenced Dozier to six
months in prison followed by 24 months of supervised
release for a total package of 30 months, while without
§ 3583(h) it could have only penalized Dozier for 24 months.2

These effects of § 3583(h) "increase the penalty" to which
Dozier is subject. Supervised release is punishment; it is a
deprivation of some portion of one's liberty imposed as a
punitive measure for a bad act. A defendant on supervised
release is subject to various terms and conditions which
restrict his freedom and which make him vulnerable to
further punishment should he violate them. Such
_________________________________________________________________

2. Dozier argues that § 3583(h) increases the punishment to which he is
subject in a third respect as well: the new term of supervised release
gives rise to the possibility of a second revocation of supervised release,
for which Dozier could again be sentenced to some combination of
imprisonment and yet another term of supervised release. Because we
conclude that the second term of supervised release and the potential for
a lengthier "total package" are alone enough to increase the penalty to
which Dozier was exposed, we need not pass judgment on this additional
contention.

                    6
subsequent punishment may again include more
imprisonment and more supervised release. The length of
the "total package," therefore, is the length of time the
defendant suffers either a total or substantial deprivation of
his liberty. It is the measure of the period to which he is
subject to government supervision. Increasing that length
from a maximum of 24 months to a maximum of 36
months clearly increases the penalty authorized upon
revocation of supervised release.

The government insists that we must balance against
these detriments to Dozier the fact that the court must
sentence Dozier to less than the maximum period of
incarceration if it wishes to impose a new term of
supervised release. Because incarceration is a more severe
punishment than supervised release, the government
continues, the greater likelihood of receiving less than the
maximum authorized period of imprisonment is the most
important effect of § 3583(h), and that effect alone
demonstrates that § 3583(h) will frequently not hurt
defendants in Dozier's position.

This reasoning, however, cannot justify retrospective
application of § 3583(h) to Dozier. Contrary to the
government's suggestion, there has been no reduction in
the maximum prison term to which Dozier is exposed. He
could be sentenced to 24 months imprisonment following
passage of § 3583(h), just as he could have been prior to its
passage. Retrospective application of § 3583(h) violates the
ex post facto prohibition if there is the potential that such
application may even once result in a harsher sentence
than previously authorized. The possibility that post-
3583(h) sentences may frequently be less onerous than
otherwise is insufficient to redeem the statute. It is true, as
the government emphasizes, that if the sentencing court
wants to impose a new term of supervised release it must
impose less than the 24-month maximum term of
imprisonment. But in exchange for sentencing Dozier to
just one day less than 24 months of prison the court can
impose up to 12 additional months (plus one day) of
supervised release. We have no doubt that a sentence of 23
months and 29 days in prison followed by 12 months and
a day of supervised release is a greater penalty than 24
months in prison.

                    7
We also reject the government's contention that we are
precluded from finding an ex post facto violation here by
virtue of our decision in Brady, 88 F.3d at 225. Although
Brady upheld § 3583(h) against an ex post facto challenge,
that case only considered a situation where the underlying
criminal conduct was a class A felony. The same analysis
we employed in Brady compels the conclusion that there is
an ex post facto violation here.

For a class A felony, as was involved in Brady,
§ 3583(b)(1) authorizes imposition of a term of supervised
release of up to five years. Upon revocation of supervised
release, § 3583(e)(3) authorizes imposition of a period of
imprisonment of up to five years. Thus, for a class A felony,
the (b)(1) cap on supervised release is no greater than the
(e)(3) cap on imprisonment. Since both caps arefive years,
§ 3583(h)'s predicating the length of the total package of
revocation sentence on the (b)(1) cap on supervised release
rather than on the (e)(3) cap on imprisonment makes no
practical difference.3 Application of § 3583(h) to Brady
meant that he could be sentenced to any combination of
prison and supervised release up to a total package of five
years, but this was no more severe a penalty than the five
years of imprisonment to which he was subject prior to
§ 3583(h).

The statutory structure is quite different for class B, C,
and D felonies, and so our conclusion with respect to these
classes of felonies must differ as well. For class B, C, and
D felonies, there is a discrepancy between the amount of
supervised release authorized and the amount of
incarceration that can be imposed. For class B felonies,
§ 3583(b)(1) authorizes up to five years of supervised
release, but § 3583(e)(3) allows only a maximum of three
years of prison to follow revocation. Section 3583(b)(2)
authorizes up to three years of supervised release for class
C and D felonies but § 3583(e)(3) allows only two years of
prison upon revocation. Since § 3583(h) ties the length of
the total package to the length of supervised release
permitted under § 3583(b), and since this length exceeds
_________________________________________________________________

3. The same is true for class E felonies, where (b)(1) authorizes a year of
supervised release and (e)(3) authorizes a year of imprisonment.

                    8
the length of imprisonment authorized under § 3583(e),
application of § 3583(h) allows imposition of a sentence two
years longer than before for class B felonies (five years
rather than three) and one year longer for class C and D
felonies (three years as opposed to two).4 These lengthier
periods of restricted liberty authorized under § 3583(h)
mean that application of this provision impermissibly
increases the punishment for those who commit class B, C,
or D felonies. Brady in no way bars us from recognizing
this fact.

Finally, the government notes that if we remand for
resentencing the district court will be free to impose up to
24 months of imprisonment and speculates that Dozier will
be displeased with a lengthier prison sentence even though
he will avoid the 24 months of supervised release. However,
Dozier's counsel assures us that Dozier is aware of this
possibility and that he has chosen to press this appeal, as
is his right. As the Seventh Circuit stated in a similar
context, even if Dozier's appellate court triumph is but a
"pyrrhic victory" which may "come[ ] at a price" to him,
"[c]oncern for [Dozier] cannot expand a. . . court's power
_________________________________________________________________

4. We are aware that four circuits have found no ex post facto violation
in retrospective application of § 3583(h) with regard to any class of
felony. See United States v. St. John, 92 F.3d 761 (8th Cir. 1996); see
also United States v. Johnson, 114 F.3d 1189 (Table), 1997 WL 327316
(6th Cir. 1997); United States v. Wash, 97 F.3d 1465 (Table), 1996 WL
536563 (10th Cir. 1996); United States v. Sandoval, 69 F.3d 531 (Table),
1995 WL 656488 (1st Cir. 1995), cert. denied, 117 S. Ct. 77 (1996).
However, three of these circuits had, prior to § 3583(h), construed
§ 3583(e) to permit imprisonment and supervised release. See United
States v. O'Neil, 11 F.3d 292 (1st Cir. 1993); United States v. Schrader,
973 F.2d 623 (8th Cir. 1992); United States v. Boling, 947 F.2d 1461,
1463 (10th Cir. 1991), overruled by United States v. Rockwell, 984 F.2d
1112 (10th Cir. 1993). Unlike in our circuit, therefore, enactment of
§ 3583(h) did not alter the potential punishment in these three circuits.
The final circuit to find no ex post facto violation treats the sentence
imposed upon revocation of supervised release as having an existence
entirely independent of the original criminal conduct, and therefore holds
that application of a statute passed after the original criminal conduct
but before the revocation of supervised release does not implicate the ex
post facto prohibition. See United States v. Reese, 71 F.3d 582 (6th Cir.
1995).

                   9
under the law." United States v. McGee, 981 F.2d 271, 276
(7th Cir. 1992). On remand, the district court must
resentence Dozier consistent with the sentencing authority
it possessed at the time Dozier committed his underlying
criminal offense.

III.

Since Dozier did not raise an ex post facto objection to
his sentence in the district court, we can only vacate his
sentence if the ex post facto violation we have found
constitutes plain error. See Fed. R. Crim. P. 52(b) ("Plain
errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the
court."). We conclude that it does.

We engage in a four-step analysis to determine whether
an error can be corrected on appeal despite not having been
raised in the trial court. We ask (1) whether there was an
error, (2) that was plain, i.e. "clear" or"obvious," (3) that
affected substantial rights, and (4) that calls for the
exercise of our discretion to take corrective action because
the error creates a miscarriage of justice or seriously affects
the fairness, integrity, or public reputation of judicial
proceedings. See United States v. Retos, 25 F.3d 1220,
1228-32 (3d Cir. 1994) (deriving four steps from United
States v. Olano, 507 U.S. 725, 732-37 (1993)).

All four conditions are satisfied here. As we have
explained, the district court's retrospective application of
§ 3583(h) to sentence Dozier to a new term of supervised
release was error. This error was plain because it is clear
that imposing a total sentence of 30 months is a greater
penalty than the 24-month maximum authorized prior to
enactment of § 3583(h). There is no doubt that this error
affects Dozier's substantial right of liberty, since it extends
by at least six months the period during which his liberty
is restricted and he is subject to governmental supervision.
Imposing on the defendant a sentence that the law did not
authorize at the time he committed his crime is a
miscarriage of justice and seriously affects the fairness and
integrity of judicial proceedings. Therefore, we will exercise
our discretion and vacate the sentence as plain error.

                    10
IV.

Retrospective application of § 3583(h) to those who
committed class B, C, or D felonies prior to September 14,
1994 increases the punishment that can be imposed on
such defendants and is, thus, contrary to the constitutional
prohibition on ex post facto legislation. Therefore, we will
vacate Dozier's sentence and remand to the district court
for resentencing consistent with this opinion.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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