                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2005

USA v. Washington
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4465




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"USA v. Washington" (2005). 2005 Decisions. Paper 394.
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                                             NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ____________

                   No. 04-4465
                  ____________

        UNITED STATES OF AMERICA

                         v.

            BILLY WASHINGTON,
         also known as BILLY JACOBS


                  Billy Washington,
                           Appellant
                  ____________

  On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
             (D.C. No. 93-cr-00138-15
  District Judge: Honorable James McGirr Kelly
                   ____________

    Submitted Under Third Circuit LAR 34.1(a)
               September 23, 2005

Before: ROTH, McKEE and FISHER, Circuit Judges.

             (Filed: October 17, 2005)
                  ____________

           OPINION OF THE COURT
                ____________
FISHER, Circuit Judge.

       Appellant Billy Washington challenges the District Court’s statutory and

constitutional authority to impose a second term of supervised release following a prison

term imposed by the court for Washington’s violation of the conditions of his first

supervised release. We find no merit in Washington’s contention and will affirm the term

of supervised release imposed by the District Court. As we write only for the parties, we

set forth only those facts necessary to our analysis.

                                              I.

       On September 10, 1993, Billy Washington pleaded guilty to conspiracy to

distribute cocaine and marijuana, and on October 27, 1994, he was sentenced to 100

months imprisonment, and six years (72 months) of supervised release. While on

supervised release, Washington violated the conditions of his release, and on

November 23, 2004, the District Court, following a hearing, revoked Washington’s

supervised release, and ordered Washington to serve nine months of imprisonment, to be

followed by 63 months of supervised release.

                                              II.

       This is a timely appeal from a sentencing order, over which this Court has

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Our review of the District

Court’s interpretation of a provision of law is plenary. Gibbs v. Cross, 160 F.3d 962, 964

(3d Cir. 1998).



                                              2
                                             III.

       Washington argues that the 63 months of supervised release cannot be validly

imposed on him because, he contends, the statutory amendment authorizing the

imposition of the additional supervised release time was enacted subsequent to his

commission of the criminal conduct for which he was sentenced.

       Washington is wrong. The statute as it stood at the time he sold the cocaine fully

authorized the additional release time imposed on him. The Supreme Court addressed

precisely this legal question, in precisely this factual context, in Johnson v. United States,

529 U.S. 694 (2000). Johnson is dispositive here: the subsequent amendment,1 and thus

the Ex Post Facto Clause of the United States Constitution, Art. I, § 9, are not implicated.

       As the Supreme Court explained in Johnson, because supervised release is

imposed pursuant to sentencing power deriving from the original conviction, 529 U.S. at

701, statutory authority to impose supervised release must be found in the sentencing

statute as it stood at the time of the offense. This case, therefore, as did Johnson, “turns

... on whether § 3583(e)(3) permitted imposition of supervised release following

recommitment” at the time of the defendant’s criminal conduct. Id. at 702-03. The




       1
        Section 3583(h) was added to Title 18 in 1994, providing explicitly that “when a
term of supervised release is revoked and the defendant is required to serve a term of
imprisonment, the court may include a requirement that the defendant be placed on a term
of supervised release after imprisonment.”

                                              3
relevant language was the same at the time of Washington’s criminal conduct as it was at

the time of Johnson’s, namely, that the District Court was authorized to

       revoke a term of supervised release, and require the person to serve in
       prison all or part of the term of supervised release without credit for time
       previously served on postrelease supervision.

Id. at 697 (quoting 18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V)). The Court in Johnson

analyzed this language at some length, and concluded that for the entire duration of his

original sentence, the District Court retained the power to impose on Johnson either

prison time or supervised release. Id. at 713. The subsequent amendments to § 3583 only

made explicit the power that sentencing courts already had by virtue of the pre-

amendment language of §§ 3583(e) and (a). Id. at 708 (“There is no reason to think that

under [the pre-amendment] regime the court would lack the power to impose a

subsequent term of supervised release in accordance with its general sentencing authority

under 18 U.S.C. § 3583(a). This section provides that ‘[t]he court, in imposing a sentence

to a term of imprisonment for a felony or a misdemeanor, may include as a part of the

sentence a requirement that the defendant be placed on a term of supervised release after

imprisonment....’”).

                                             IV.

       In short, under the law as it stood at the time Washington committed his offense,

the District Court had the power both to revoke his supervised release and send him back

to prison upon violation of the terms of that release, and to impose an additional period of



                                              4
supervised release to follow that second term of incarceration. Within the temporal

confines of the original sentence (in this case 172 months)2 the District Court had the

power to impose upon Washington either imprisonment or supervised release, depending

on Washington’s conduct. In this case, Washington served 109 months in prison. Under

Johnson, therefore, the District Court had authority to order an additional 63 months of

supervised release, as it did. There is neither illegality nor the specter of ex post facto

punishment in the District Court’s treatment of Washington. Accordingly we will affirm

the sentencing order of the District Court.




       2
        Under § 3583(e)(3), incarceration imposed as a consequence of violation of
release conditions is to be served “without credit for time previously served on
postrelease supervision.” Thus Washington is not entitled to credit for the period of
supervised release served between his initial release from prison and his re-incarceration.

                                               5
