                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2006

USA v. Dees
Precedential or Non-Precedential: Precedential

Docket No. 05-4949




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PRECEDENTIAL

   IN THE UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


        Case Nos.: 05-4949, 05-4950, 05-4951




           UNITED STATES OF AMERICA

                            v.

                    JOSEPH DEES,

                            Appellant


    On Appeal from the United States District Court
        for the Western District of Pennsylvania
    District Court Nos. 99-cv-122-01; 00-cr-126-01;
                    and 01-cr-156-01
    District Judge: The Honorable Arthur J. Schwab


   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                   October 26, 2006

 Before: SMITH, WEIS, and NYGAARD, Circuit Judges

               (Filed: November 8, 2006)
Counsel:      Lisa B. Freeland
              Kimberly R. Brunson
              Karen S. Gerlach
              1450 Liberty Center
              1001 Liberty Avenue
              Pittsburgh, PA 15222
              Counsel for Appellant

              Mary Beth Buchanan
              Laura S. Irwin
              Kelly R. Labby
              700 Grant Street, Suite 4000
              Pittsburgh, PA 15219
              Counsel for Appellee

                ________________________

                          OPINION

                ________________________


SMITH, Circuit Judge.

       Joseph Dees was sentenced to 51 months in prison and 36
months of supervised release on each of three separate
convictions of violating 18 U.S.C. § 1029(a)(2) (twice) and 18
U.S.C. § 2314. The sentences ran concurrently. After he left
prison, Dees engaged in criminal activity that constituted Grade

                               2
B violations of his supervised release. The Government filed a
motion to revoke his supervised release. The District Court
granted the motion, and sentenced Dees to the statutory
maximum of two years in prison for each underlying conviction,
but the sentences were imposed consecutively so that Dees was
sentenced to 72 months in prison. All of the issues presented by
Dees revolve around whether a district court can sentence a
defendant for revocation of supervised release conditions
consecutively even though the initial sentences ran concurrently.
Because we agree with the District Court that it has statutory
authority to impose consecutive sentences upon revocation of
concurrent terms of supervised release based upon the same
violation conduct, we will affirm the Judgment of the District
Court.

                               I.

        Joseph Dees pled guilty to one count of use of
unauthorized access devices in violation of 18 U.S.C. §
1029(a)(2) on March 16, 2001 after being indicted on July 22,
1999. That same day, Dees pled guilty to one count of interstate
transportation of stolen goods in violation of 18 U.S.C. § 2314
after being indicted on July 19, 2000. Dees then pled guilty to
another count of use of unauthorized access devices in violation
of 18 U.S.C. § 1029(a)(2) on August 10, 2001 after waiving
indictment. District Judge Donald Ziegler sentenced Dees for
all three crimes simultaneously on October 26, 2001. Dees was
sentenced to 51 months in prison and 36 months of supervised

                               3
release for each conviction, with the sentences to run
concurrently. Dees served his sentence and, almost immediately
after his release from prison, began to violate technical and non-
technical conditions of his supervised release. On April 6, 2005,
the Government filed a Motion to Revoke Supervised Release
along with an arrest warrant. Two months later, on June 16,
2005, a grand jury returned a two-count indictment that charged
Dees with use of unauthorized access devices and a related
credit card crime under 18 U.S.C. 1018(a)(1). The Government
filed an amended motion on June 16, 2005 that reflected more
details from the indictment.

       District Judge Arthur Schwab presided over Dees’
revocation hearing on September 29, 2005 because Judge
Ziegler had retired from the bench. After receiving testimony
from three witnesses, the District Court found that Dees
committed technical violations and non-technical Grade B
violations, including cocaine and heroin use as well as
unauthorized use of access devices and aggravated identity theft.
Judge Schwab then asked the Assistant U.S. Attorney (AUSA)
and the Federal Public Defender whether he had discretion to
impose consecutive rather than concurrent sentences for
violations of supervised release even though Dees’ initial
sentences for the three crimes ran concurrently. Because the
AUSA did not believe the District Court had discretion to run
the sentences consecutively, the AUSA asked for the statutory
maximum for the violations (24 months) to run concurrently.
Judge Schwab then had the AUSA read aloud 18 U.S.C. §

                                4
3584(a), which governs the imposition of concurrent or
consecutive terms when multiple terms of imprisonment are
imposed. The AUSA quickly changed his mind and stated that,
based on the plain meaning of § 3584(a), the District Court did
have the discretion to sentence Dees consecutively. At the
conclusion of this hearing, Judge Schwab sentenced Dees to 24
months in prison for violation of supervised release on each of
the three initial charges, but reserved ruling on whether he had
discretion to sentence Dees consecutively. Judge Schwab stated
that if he concluded that the District Court had the authority to
sentence Dees consecutively, then the sentence would be 72
months instead of 24 months.

       The parties then briefed the issue. After briefing by the
parties, Judge Schwab concluded that he did have statutory
discretion to impose consecutive sentences for violations of
supervised release even though Dees’ initial punishments for the
underlying crimes ran concurrently. Accordingly, on October
24, 2005, the District Court issued a Memorandum Order and
three days later issued an Amended Judgment Order sentencing
Joseph Dees to three consecutive 24 month prison terms. Joseph
Dees now appeals.

                               II.

      The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We exercise jurisdiction over this appeal pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), which applies to

                               5
final sentences imposed in violation of law. See United States
v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).




                             III.

       Dees presents five issues on appeal. They are: 1)
Whether the District Court had statutory discretion under 18
U.S.C. § 3584(a) to impose consecutive sentences upon
revocation of concurrent terms of supervised release based upon
the same violation conduct, or whether 18 U.S.C. § 3583(e)(3)
removes this discretion; 2) Whether the 72-month sentence,
which exceeds Dees’ initial sentence by 21 months, was
“unreasonable”; 3) Whether the District Court violated the
Double Jeopardy Clause when it revoked Dees’ three concurrent
terms of supervised release and required him to serve three
consecutive terms in prison; 4) Whether the District Court
violated Dees’ Fifth and Sixth Amendment rights under
Apprendi, Blakely, and Booker by requiring Dees to serve three
consecutive terms in prison; and 5) Whether the District Court
violated the Fifth Amendment’s Due Process Clause when it
found a violation of Dees’ supervised release by a
preponderance of the evidence standard rather than a reasonable
doubt standard and imposed three consecutive terms in prison.

                              A.



                              6
       The first issue is whether the District Court had statutory
discretion under 18 U.S.C. § 3584(a) to impose consecutive
sentences upon revocation of concurrent terms of supervised
release based upon the same violation conduct. We exercise
plenary review of the legal issue of statutory construction. See
Lieberman v. Cambridge Partners, L.L.C. 432 F.3d 482, 486
(3d Cir. 2005).

       Section 3584(a) states in relevant part that:

       If multiple terms of imprisonment are imposed on
       a defendant at the same time, or if a term of
       imprisonment is imposed on a defendant who is
       already subject to an undischarged term of
       imprisonment, the terms may run concurrently or
       consecutively, except that the terms may not run
       consecutively for an attempt and for another
       offense that was the sole objective of the attempt.

18 U.S.C. § 3584(a). Dees contends that § 3584(a) has no
application in supervised release revocation proceedings under
§ 3583(e)(3). He argues that § 3583(e)(3) removes the
discretion of a District Court to impose consecutive sentences of
imprisonment for violations of supervised release. Section
3583(e)(3) states that, when certain conditions are met, a district
court can “revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised
release authorized by statute for the offense that resulted in such
term of supervised release.” See 18 U.S.C. § 3583(e)(3).

                                7
Section 3624(e) mandates that multiple terms of supervised
release run concurrently. See 18 U.S.C. § 3624(e) (stating that
“even in the case of a consecutive term of imprisonment ... any
term of supervised release imposed is to run concurrently with
any other term of supervised release imposed”). Dees combines
these statutes and concludes that, because supervised release
terms are always concurrent, the sentences imposed upon
revocation of such release cannot be consecutive. Under Dees’
reading of these statutes, the statutory maximum is 24 months,
but this term cannot be multiplied out to 72 months even though
there were three separate underlying crimes that formed the
basis of Dees’ supervised release sentence.

       Contrary to Dees’ assertions, 18 U.S.C. § 3584(a)
controls and permits a district court to impose consecutive terms
of imprisonment upon revocation of supervised release–even
when the sentences for the underlying crimes ran concurrently.
No fewer than six other circuits have agreed with the
proposition that § 3584(a) applies to not only the imposition of
one’s initial sentence but also to a sentence imposed upon
revocation of supervised release. See United States v. Deutsch,
403 F.3d 915, 917-18 (7th Cir. 2005) (per curiam); United States
v. Gonzalez, 250 F.3d 923, 926-29 (5th Cir. 2001); United States
v. Jackson, 176 F.3d 1175, 1176-79 (9th Cir. 1999) (per
curiam); United States v. Johnson, 138 F.3d 115, 118-19 (4th
Cir. 1998); United States v. Quinones, 136 F.3d 1293, 1294-95
(11th Cir. 1998) (per curiam); United States v. Cotroneo, 89
F.3d 510, 512-13 (8th Cir. 1996). Nothing in § 3584(a) states or

                               8
implies that the statute does not extend to revocation
proceedings. A district court has full authority under § 3584(a)
to sentence a defendant consecutively for violations of
supervised release.

       The Seventh Circuit rejected almost the exact argument
offered by Dees in Deutsch. In Deutsch, the defendant similarly
argued that § 3583(e) and § 3624(e) should be read together to
preclude the imposition of consecutive terms of imprisonment
on revocation. 403 F.3d at 917. Rejecting the argument that §
3624(e) must be applied alongside § 3583(e)(3), the Court
stated, “[n]o plausible reading of [§ 3624(e)] supports
[defendant’s] argument that it forbids a district court from
imposing consecutive terms of imprisonment upon revocation of
supervised release.” Id. Section 3583(e)(3) similarly provides
no support, because the language of that statutory section
focuses only on total punishment. See id. at 917-18 (stating that
the restrictions in § 3583(e)(3) “limit only the length of each
term, not the length of overall punishment; therefore, when each
individual term is lawful ... it may be stacked consecutively with
other lawfully imposed terms”).

        Section § 3584(a) by its own terms governs “multiple
terms of imprisonment,” and every court of appeals to address
the issue has concluded that the statute applies not just to initial
sentencing, but also extends to revocation proceedings. See 18
U.S.C. § 3584(a). Dees’ argument finds no support in the text
of the statutes he cites. On the contrary, § 3584(a) plainly

                                 9
permits the District Court to impose sentences of imprisonment
concurrently or consecutively. Because neither § 3583(e) nor §
3624(e) limit § 3584(a), the District Court had full discretion to
sentence Dees according to this latter statute. See also
Gonzalez, 250 F.3d at 925-28; Jackson, 176 F.3d at 1177-78.
We find no error by the District Court in imposing consecutive
sentences.

                               B.

       The second issue is whether the 72-month sentence,
which exceeded Dees’ initial sentence by 21 months, was
unreasonable. Prior to Booker, this Court reviewed district court
revocation sentences for abuse of discretion that resulted in a
“plainly unreasonable” sentence. See United States v. Schwegel,
126 F.3d 551, 555 (3d Cir. 1997) (per curiam); 18 U.S.C. §§
3742(a)(4), (e)(4), and (f)(2). Dees contends that this standard
has been supplanted by one of reasonableness under the
applicable § 3553(a) factors. Because Dees’ sentence satisfies
either standard, we need not decide now which standard of
review applies to violations of supervised release.

       On appeal, Dees contends that his 72-month revocation
sentence was unreasonable because the District Court’s
purported intent behind the sentence was punitive. Dees notes
that his revocation exceeded his initial 51-month sentence.
Again, this comparison misses the point that his initial prison
term was for three different sentences, albeit served

                               10
concurrently.

       The District Court correctly stated that the theory behind
sanctioning violations of supervised release is to “sanction
primarily the defendant’s breach of trust, while taking into
account, to a limited degree, the seriousness of the underlying
violation and the criminal history of the violator.” See U.S.
S ENTENCING G UIDELINES M ANUAL ch. 7, pt. A, introductory
cmt. A district court’s primary consideration in handing down
a revocation sentence is the defendant’s breach of trust.
Additionally, a district court may consider the Sentencing
Guidelines revocation table in U.S.S.G. § 7B1.4(a), which even
before Booker was advisory. See United States v. Blackston,
940 F.2d 877, 893 (3d Cir. 1991).

       The District Court took into account the proper factors
when sentencing Dees to three consecutive 24 month terms of
imprisonment. The District Court, during the revocation
hearing, found that Dees’ technical and Grade B violations
along with his criminal history gave him an advisory sentencing
guideline range of 21 to 27 months under § 7B1.4. The District
Court properly recognized that the statutory maximum capped
Dees’ possible sentence at 24 months. As noted by Judge
Schwab, Judge Ziegler initially issued three separate Judgment
and Conviction Orders, each of which imposed a supervised
release period of three years. With respect to giving Dees the
maximum sentence allowed by statute, the District Court
considered Dees’ multiple and flagrant breaches of trust that

                               11
began almost immediately upon his release from prison, and
indicated that rehabilitation had not been achieved during this
first term of imprisonment. In this case, sentencing Dees to the
statutory maximum was reasonable due to the repeated
violations of the terms of his supervised release and his breach
of the Court’s trust. We decline to find a sentence imposed
upon revocation unreasonable simply because it exceeds the
initial sentence of imprisonment when the District Court has
ably identified the reasons warranting such punishment.

                              C.

       Dees next argues that the District Court violated the
Double Jeopardy Clause when it revoked his three concurrent
terms of supervised release based on the same conduct and
required him to serve three consecutive terms in prison. We
exercise plenary review over the District Court’s resolution of
constitutional issues, including legal questions concerning
Double Jeopardy challenges. United States v. Aguilar, 849 F.2d
92, 95 (3d Cir. 1988).

       Dees’ argument on this issue is without merit. The
Supreme Court has stated that it “attribute[s] postrevocation
penalties to the original conviction.” Johnson v. United States,
529 U.S. 694, 701 (2000). This position finds support in 18
U.S.C. § 3583(a), which notes that supervised release is “a part
of the sentence.” When read as such, a revocation sentence
should be seen as part of the initial sentence, even when the

                              12
same act triggers multiple revocations. See United States v.
Soto-Olivas, 44 F.3d 788, 790 (9th Cir. 1995). Coupled with the
conclusion that a district court has statutory discretion under 18
U.S.C. § 3584(a) to impose consecutive sentences upon
revocation of concurrent terms of supervised release, Double
Jeopardy is not implicated here. See also United States v. Clark,
984 F.2d 319 (9th Cir. 1993) (holding that a defendant who was
on probation and supervised release for separate offenses could
be re-sentenced consecutively for the same conduct that led to
his probation/supervised release violation).

                               D.

        Next, Dees asserts that the District Court violated his
Fifth and Sixth Amendment rights under Apprendi, Blakely, and
Booker by requiring him to serve three consecutive terms in
prison after the revocation of his supervised release. See
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Blakely v.
Washington, 542 US 296 (2004); United States v. Booker, 543
U.S. 220, 260 (2005). We exercise plenary review over the
District Court’s application of the Sentencing Guidelines and
Fifth and Sixth Amendment claims at issue here. United States
v. Williams, 235 F.3d 858, 861 (3d Cir. 2000).

       Joseph Dees contends that his revocation sentence was
unconstitutional under Apprendi, Blakely, and Booker because
it exceeded the statutory maximum of 51 months under the
mandatory Sentencing Guidelines which governed pre-Booker.

                               13
Dees’ argument on this point is without merit. Dees was not
sentenced beyond the statutory maximum. The statutory
maximum for each term of supervised release can be imposed
upon revocation. Dees received 24 months for each underlying
offense. Dees inappropriately aggregates the three revocation
sentences and then compares them to the initial 51-month
concurrent sentence. Further, while this Court has not addressed
the supervised release scheme post-Booker, other Courts of
Appeal to do so have concluded that Booker has left the
constitutionality of supervised release untouched. See United
States v. Faulks, No. 05-5168, 2006 WL 2683300, at *1 (4th
Cir. Sept. 19, 2006) (per curiam) (stating that there is no basis
in law to support the argument that Booker invalidated the
supervised release statute ... or rendered it unconstitutional”);
United States v. Huerta-Pimental, 445 F.3d 1220, 1224 (9th Cir.
2006) (“Because the revocation of supervised release and the
subsequent imposition of additional imprisonment is, and always
has been, fully discretionary, it is constitutional under Booker.”);
United States v. McNeil, 415 F.3d 273, 276-77 (2d Cir. 2005).

        Dees argues in the alternative that he was convicted only
of a Class E felony rather than a Class C felony, which means
that the maximum revocation he can receive is one year or three
years if the sentences run consecutively. The premise behind
this statement is that, for supervised release purposes, the
Guidelines maximum rather than the statutory maximum
determines the maximum length of the revocation sentences.
This argument is mistaken. Each of the three underlying

                                14
offenses are, by statute, Class C or D felonies. See 18 U.S.C. §
1029(a)(2) (for two of the counts); 18 U.S.C. § 2314. By
statute, the authorized revocation sentence was two years for
each underlying offense. See 18 U.S.C. § 3583(e)(3) (two years
maximum for both Class C and D felonies).

                               E.

       The final issue is whether the District Court violated the
Fifth Amendment’s Due Process Clause when it found a
violation of Dees’ supervised release by a preponderance of the
evidence standard rather than a reasonable doubt standard and
imposed three consecutive terms in prison. We exercise plenary
review over a due process claim. United States v. Barnhart, 980
F.2d 219, 222 (3d Cir. 1992).

        When discussing conduct that could trigger a revocation
of supervised release, the Supreme Court has stated that
“[a]lthough such violations often lead to reimprisonment, the
violative conduct need not be criminal and need only be found
by a judge under a preponderance of the evidence standard, not
by a jury beyond a reasonable doubt.” Johnson, 529 U.S. at 700.
This preponderance of the evidence standard comes from 18
U.S.C. § 3583(e)(3) (stating that a district court can revoke
supervised release if the court “finds by a preponderance of the
evidence that the defendant violated a condition of supervised
release”).



                               15
        Apprendi and Booker do not invalidate the preponderance
of the evidence standard. See, e.g., Huerta-Pimental, 445 F.3d
at 1225 (“There is no right to a jury trial for such post-
conviction determinations.”); United States v. Carlton, 442 F.3d
802, 807-10 (2d Cir. 2006); United States v. Cordova, 461 F.3d
1184 (10th Cir. 2006); United States v. Hinson, 429 F.3d 114,
117 (5th Cir. 2005).

                              IV.

       For these reasons, we will affirm the Judgment of the
District Court.




                              16
