     Case: 10-10035 Document: 00511377275 Page: 1 Date Filed: 02/09/2011




               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                      Fifth Circuit

                                                                    FILED
                                                                  February 9, 2011
                                  No. 10-10035                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

STEPHANIE HAMPTON,

                                           Defendant - Appellant


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


Before KING, STEWART, and OWEN, Circuit Judges.
KING, Circuit Judge:
      The opinion issued on January 6, 2011, United States v. Hampton, No. 10-
10035, 2011 WL 31789 (5th Cir. 2011), is withdrawn and the following is
substituted.
      Defendant-Appellant Stephanie Hampton was sentenced to 24 months’
imprisonment when her supervised release was revoked. On appeal, Hampton
argues that her revocation sentence was illegal because, when aggregated with
her prior revocation sentence, the amount of imprisonment exceeded the
maximum amount of supervised release authorized for her original offense, in
violation of 18 U.S.C. § 3583(e)(3). We hold that § 3583(e)(3) does not require
aggregation of imprisonment imposed upon revocation of supervised release and
AFFIRM the district court’s revocation sentence.
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                                  No. 10-10035

             I. FACTUAL & PROCEDURAL BACKGROUND
      On October 3, 2007, Hampton pleaded guilty to one count of conspiracy to
possess stolen mail, a Class D felony. See 18 U.S.C. §§ 371, 3559(a)(4) (2006).
Hampton was sentenced to six months’ imprisonment and two years’ supervised
release. Hampton violated the conditions of her first supervised release, and it
was revoked by the district court. The district court then sentenced Hampton
to 24 months’ imprisonment and 12 months’ supervised release.
      Hampton violated the conditions of her second supervised release, and the
district court again revoked her release. At her revocation hearing, Hampton
argued that the statute governing supervised release revocation sentencing, 18
U.S.C. § 3583(e)(3) (2006), caps the aggregate amount of revocation
imprisonment that a defendant can serve at the amount of supervised release
authorized for the original offense by 18 U.S.C. § 3583(b).          According to
Hampton, § 3583(b) authorized a maximum of three years’ supervised release for
her Class D felony and, thus, she could not receive more than one year’s
imprisonment as a second revocation sentence because she had already served
two years’ imprisonment on her prior revocation sentence. The district court
rejected this argument and sentenced Hampton to 24 months’ imprisonment
with no additional supervised release. Hampton timely appealed.
                         II. STANDARD OF REVIEW
      We review de novo whether Hampton received a revocation sentence in
excess of the statutory maximum. See United States v. Vera, 542 F.3d 457, 459
(5th Cir. 2008) (quoting United States v. Sais, 227 F.3d 244, 246 (5th Cir. 2000)).




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                                  No. 10-10035

                                III. ANALYSIS
A.    Plain Meaning of § 3583
      When interpreting a statute, this court first looks to the language of the
statute itself. United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004). We are
bound to “follow the plain and unambiguous meaning of the statutory language.”
Id. (citation and internal quotation marks omitted). Terms not defined in the
statute itself should be given their “ordinary and natural meaning” and should
be interpreted according to the “overall policies and objectives of the statute.”
Id. (citation and internal quotation marks omitted).
      Under § 3583, a sentencing court may impose a term of supervised release
following the defendant’s imprisonment as part of the sentence. 18 U.S.C.
§ 3583(a). The amount of supervised release the sentencing court may impose
depends on the severity of the defendant’s offense. The authorized terms of
supervised release are:
      (1)    for a Class A or Class B felony, not more than five years;
      (2)    for a Class C or Class D felony, not more than three years; and
      (3)    for a Class E felony, or for a misdemeanor (other than a petty
             offense), not more than one year.
§ 3583(b).
      If the district court imposes a term of supervised release, that court then
sets conditions that must be followed by the defendant while on supervised
release. § 3583(d). If a court finds by a preponderance of the evidence that a
defendant has violated a condition of supervised release, that court may
      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 without credit for time previously served on

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                                    No. 10-10035

         postrelease supervision . . . except that a defendant whose term is
         revoked under this paragraph may not be required to serve on any
         such revocation more than 5 years in prison if the offense that
         resulted in the term of supervised release is a class A felony, more
         than 3 years in prison if such offense is a class B felony, more than
         2 years in prison if such offense is a class C or D felony, or more
         than one year in any other case . . . .
§ 3583(e)(3). In addition to revoking the defendant’s supervised release and
imprisoning the defendant, the district 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
         sentence, less any term of imprisonment that was imposed upon
         revocation of supervised release.
§ 3583(h).
         Hampton argues that § 3583(e)(3) imposes two separate limits on the
amount of imprisonment a defendant can receive when the court revokes her
supervised release: an aggregate limit and a per-revocation limit. First, she
argues that the language at the beginning of § 3583(e)(3) allowing the district
court to “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” is an aggregate
limit.    According to Hampton, this portion of § 3583(e)(3) ensures that a
defendant’s aggregate amount of revocation imprisonment does not exceed the
amount of supervised release authorized for the underlying offense in § 3583(b).
Second, she argues that the language at the end of § 3583(e)(3) limiting the
revocation sentence “on any such revocation” to a number of years based on the
severity of the underlying offense is a per-revocation limit.


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                                       No. 10-10035

       We note that Hampton’s argument presents an issue of first impression.
Our last opinion to address whether § 3583(e)(3) required aggregation of prior
revocation imprisonment was United States v. Jackson, 329 F.3d 406 (5th Cir.
2003) (per curiam). In Jackson, we accepted the government’s concession that
the pre-2003 version of § 3583(e)(3) imposed an aggregate cap on revocation
imprisonment. Id. at 407–408. That reading of § 3583(e)(3) was derived from
language in the subsection stating that a defendant “whose term of supervised
release is revoked under this paragraph may not be required to serve more than”
a specified term of imprisonment based on the offense class.                       18 U.S.C.
§ 3583(e)(3) (2000). Congress amended § 3583(e)(3) in 2003 to state that a
defendant “may not be required to serve on any such revocation more than” a
specified amount of imprisonment. PROTECT Act, Pub. L. No. 108-21, § 101(1),
117 Stat. 650, 651 (2003) (amendment italicized). Hampton has conceded that
the portion of § 3583(e)(3) interpreted in Jackson, and amended by the
PROTECT Act, does not require aggregation.1 Thus, we need only determine
whether the phrase “term of supervised release authorized by statute” at the



       1
         We addressed whether the language that the PROTECT Act added to § 3583(e)(3)
imposed only a per-revocation cap on imprisonment in United States v. Shabazz, which is a
case we have decided today. No. 10-10553 (5th Cir. Jan. 6, 2011). In Shabazz, we held that
the phrase “may not be required to serve on any such revocation” at the end of § 3583(e)(3) acts
as a per-revocation cap on imprisonment. Id., slip op. at 3.
       We note that several other circuits have also interpreted the phrase “may not be
required to serve on any such revocation” in § 3583(e)(3) as a per-revocation cap on
imprisonment. See United States v. Epstein, 620 F.3d 76, 80 (2d Cir. 2010) (per curiam);
United States v. Knight, 580 F.3d 933, 937–38 (9th Cir. 2009); United States v. Lewis, 519 F.3d
822, 825 (8th Cir. 2008); United States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005) (per
curiam); United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir. 2004). None of those
courts, however, addressed the precise issue Hampton has presented: whether the phrase
“term of supervised release authorized by statute for the offense” at the beginning of
§ 3583(e)(3) acts as a separate, aggregate cap on revocation imprisonment.

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                                  No. 10-10035

beginning of § 3583(e)(3) caps the aggregate amount of revocation imprisonment
at the amount of supervised release authorized by § 3583(b).
      We disagree with Hampton’s interpretation and conclude that the
language at the beginning of § 3583(e)(3) allowing the district court to “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” does not require that court to credit
the defendant for prior terms of revocation imprisonment. Section 3583(e)(3)
allows a court to “revoke a term of supervised release,” and therefore, refers to
one particular revocation. Id. (emphasis added). Section 3583(e)(3) does not
explicitly require the sentencing court to consider any previous revocation
imprisonment, and the only reference to a previous term of supervised release
is an instruction not to credit “time previously served on postrelease supervision”
against the term of revocation imprisonment. Therefore, the language at the
beginning of § 3583(e)(3) does not require aggregation of revocation
imprisonment.
      Our reading of § 3583(e)(3) is harmonious with § 3583(h). Cf. United
States v. Caldera-Herrera, 930 F.2d 409, 412 (5th Cir. 1991) (per curiam)
(“Where possible, statutes must be read in harmony with one another so as to
give meaning to each provision.”). That subsection provides that a district court
may impose additional supervised release as part of a defendant’s revocation
sentence. The amount of supervised release the district court may impose “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


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                                  No. 10-10035

U.S.C. § 3583(h). This provision requires the revoking court to aggregate all
revocation imprisonment and credit that amount against any post-revocation
supervised release. Vera, 542 F.3d at 462. Section 3583(h), therefore, acts as a
cap on the aggregate amount of post-revocation supervised release a defendant
may receive. This, in turn, imposes an indirect limit on the aggregate amount
of revocation imprisonment. Once a defendant has received as much revocation
imprisonment as § 3583(b) authorizes for supervised release, the defendant is
no longer eligible for post-revocation supervised release. Because the defendant
will no longer be eligible for supervised release, she cannot be at risk for “an
endless cycle of consecutive terms of imprisonment and supervised release based
on a single underlying offense.” Jackson, 329 F.3d at 408 n.7.
      Nevertheless, Hampton raises several arguments challenging our reading
of § 3583(e)(3). First, she argues that our reading renders the phrase “term of
supervised release authorized by statute for the offense” at the beginning of
§ 3583(e)(3) surplusage. Hampton reasons that the felony class revocation limits
at the end of § 3583(e)(3) are shorter than, or equal to, the amount of supervised
release authorized by § 3583(b) for the same offense class, and, therefore, will
always be triggered instead of the limit at the beginning of § 3583(e)(3). In
Hampton’s case, for instance, § 3583(b) authorizes three years of supervised
release but § 3583(e)(3) imposes a two-year per-revocation cap on revocation
imprisonment.
      Although the phrase “term of supervised release authorized by statute”
does not control Hampton’s revocation sentence under our reading, it is not
superfluous language. This phrase grants the revoking court the authority to
impose a revocation sentence in excess of the amount of supervised release


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                                   No. 10-10035

authorized by the original sentencing court, provided it does not exceed the term
of supervised release authorized by § 3583(b), thereby “removing the otherwise
arguable limitation that a prison term imposed could never be longer than the
term of the revoked supervised release.” Jackson, 329 F.3d at 407 n.4; see also
Johnson v. United States, 529 U.S. 694, 705 (2000). If, instead of a two-year
term of supervised release, Hampton had been sentenced to one year of
supervised release initially, the revoking court was authorized to impose
revocation imprisonment without reference to the amount of supervised release
imposed by the original sentencing court, provided it did not exceed three years,
the amount allowed by § 3583(b). The language imposing a per-revocation cap
on revocation imprisonment at the end of § 3583(e)(3) would then limit the
maximum allowable revocation sentence to two years’ imprisonment.
      Second, Hampton points out that § 3583(e)(3) allows the revoking court to
sentence the defendant to prison for “all or part of the term of supervised release
authorized by statute . . . without credit for time previously served on
postrelease supervision” but does not explicitly allow the district court to ignore
prior revocation imprisonment.      Hampton argues that, under the statutory
canon of inclusio unius est exclusio alterius, the inclusion of one is the exclusion
of another, the reference to postrelease supervision without a reference to
postrelease incarceration implies that Congress intended § 3583(e)(3) to limit
aggregate revocation imprisonment by requiring the court to consider time
served on prior revocation imprisonment. However, the fact that § 3583(h)
indirectly imposes an aggregate limit on revocation imprisonment means that
we need not read a similar provision into § 3583(e)(3) where none is expressly
granted. Furthermore, the fact that § 3583(h) explicitly provides for aggregation


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                                       No. 10-10035

of revocation imprisonment in connection with the phrase “term of supervised
release authorized by statute,” whereas § 3583(e)(3) does not for the identical
phrase, is strong evidence of congressional intent not to require aggregation in
§ 3583(e)(3). See Quarles v. St. Clair, 711 F.2d 691, 701 n.31 (5th Cir. 1983) (“[It
is] a well settled rule of statutory construction that where different language is
used in the same connection in different parts of the statute it is presumed that
the Legislature intended a different meaning and effect.” (internal citation and
quotation marks omitted)).2
       The amendment history of § 3583(e)(3) further supports our reading of the
statute. The current version of § 3583(e)(3) is, for purposes of our analysis, the
product of two amendments. Prior to 1994, § 3583(e)(3) authorized the district
court 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, if it finds by
       a preponderance of the evidence that the person violated a condition
       of supervised release . . . except that a person whose term is revoked
       under this paragraph may not be required to serve more than 3
       years in prison if the offense for which the person was convicted was
       a Class B felony, or more than 2 years in prison if the offense was a
       Class C or D felony . . . .
18 U.S.C. § 3583(e)(3) (Supp. V 1993).



       2
         Hampton argues that this same principle of statutory construction requires us to read
the phrase “term of supervised release authorized by statute” in § 3583(e)(3) as an aggregate
limit on revocation imprisonment because it lacks the words “on any such revocation,” which
create a per-revocation cap on revocation imprisonment in the same subsection. This
argument is based on a misreading of § 3583(e)(3). Read properly, the phrase “on any such
revocation” language already modifies the phrase “term of supervised release authorized by
statute”—it provides the exception to the court’s ability to sentence the defendant to the full
term of supervised release authorized by § 3583(b). See 18 U.S.C. § 3583(e)(3).

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                                  No. 10-10035

      In 1994 Congress amended § 3583(e)(3), and Hampton argues that the
added language requires us to aggregate revocation imprisonment. After the
1994 amendment, § 3583(e)(3) authorized the district court to “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 without credit for time previously served on
postrelease supervision.” Violent Crime Control and Law Enforcement Act of
1994, Pub. L. No. 103-322 § 110505(2)(B), 108 Stat. 1796, 2016–17 (1994)
(amendment italicized).
      This amendment produced two results. First, it allowed the revoking court
to impose a term of revocation imprisonment without being limited by the
amount of supervised release the original sentencing court imposed. Johnson,
529 U.S. at 705. Prior to this amendment, the revoking court could not impose
a revocation sentence that exceeded the supervised release sentence imposed by
the original sentencing court. Id.; see also United States v. Stewart, 7 F.3d 1350,
1352 & n.1 (8th Cir. 1993) (collecting cases). Second, sentencing courts began
to interpret the felony class revocation limits at the end of § 3583(e)(3) as
aggregate limits on revocation imprisonment. See Tapia-Escalera, 356 F.3d at
187 & nn.6–7 (citing 137 C ONG. R EC. S7772 (daily ed. June 13, 1991) and
collecting cases).
      Congress amended § 3583(e)(3) once again in the 2003 PROTECT Act. The
PROTECT Act added the phrase “on any such revocation” to the felony class
revocation limits, so that a defendant “may not be required to serve on any such
revocation more than” a certain number of years based on the felony class. Pub.
L. No. 108-21 § 101(1), 117 Stat. at 651 (amendment italicized). As Hampton


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                                  No. 10-10035

has conceded, this language now operates as a per-revocation limit on revocation
imprisonment. See, e.g., Epstein, 620 F.3d at 80.
      To reach Hampton’s reading of the phrase “authorized by statute” at the
beginning of § 3583(e)(3), however, we would have to go one step further. We
would have to read the PROTECT Act as transforming the phrase “authorized
by statute” at the beginning of § 3583(e)(3) into an aggregate cap on revocation
imprisonment. When this language was added in 1994, nothing suggested that
it was meant to impose a cap on the aggregate amount of revocation
imprisonment. See Jackson, 329 F.3d at 408 nn.4, 7. Moreover, prior to the
PROTECT Act this same language was not read as an aggregate cap on
revocation imprisonment because courts interpreted the shorter caps on
revocation imprisonment at the end of § 3583(e)(3) as imposing an aggregate
limit on revocation imprisonment. The PROTECT Act added the phrase “on any
such revocation” to the felony class revocation limits at the end of § 3583(e)(3)
but left the phrase “authorized by statute” at the beginning of § 3583(e)(3)
unaltered. Therefore, we decline to read the PROTECT Act as prohibiting
aggregation of revocation imprisonment in one part of § 3583(e)(3) and implicitly
requiring it in another.
      Hampton argues that, by allowing revocation imprisonment to exceed the
amount of supervised release authorized by § 3583(b), our reading of § 3583(e)(3)
creates the possibility that a defendant could receive a greater punishment than
that authorized for the original offense without the benefit of a trial in violation
of a defendant’s constitutional rights. However, it has always been the case that
the defendant could be punished for the underlying offense with revocation
imprisonment if she violates the conditions of supervised release even if the total


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                                       No. 10-10035

amount of time that the defendant thereby spends in prison exceeds the
statutory maximum for the underlying offense. United States v. Hinson, 429
F.3d 114, 116 n.7 (5th Cir. 2005). As we have previously noted:
       The federal criminal statutory scheme envisions that there can be
       at least two components of a sentence: 1) a term of imprisonment
       up to the maximum prison term permitted in a statute delineating
       the penalty for a particular offense . . . , and 2) a term of supervised
       release as delineated in section 3583 with the potential for
       additional prison time if the terms of supervised release are
       violated.
Id. at 116–17. Our reading of § 3583(e)(3) does not alter this framework, and we,
therefore, reject Hampton’s constitutional argument.3
       Hampton finally argues that we should apply the rule of lenity to resolve
any statutory ambiguity in her favor. The rule of lenity is based on the notion
that it is “the legislature and not the courts that should define criminal activity,
and . . . that fair warning should be accorded as to what conduct is criminal.”
United States v. Marek, 238 F.3d 310, 322 (5th Cir. 2001). The rule should be
invoked only when, “after seizing everything from which aid can be derived, we
can make no more than a guess as to what Congress intended.” Reno v. Koray,


       3
         Hampton also makes a related Rule 11 argument. Federal Rule of Criminal Procedure
11 requires the sentencing court to inform the defendant of “any maximum possible penalty,
including imprisonment, fine, and a term of supervised release” prior to accepting a guilty
plea. FED . R. CRIM . PROC . 11(b)(1)(H). Hampton argues that our reading of § 3583(e)(3)
prevents the sentencing court from clearly expressing the maximum punishment a defendant
can receive for a crime. We are not persuaded. First, Hampton does not challenge the district
court’s explanation of the maximum possible penalty during her own plea colloquy, nor can
she, see Hinson, 429 F.3d at 116 & n. 8 (stating that a defendant “may not use an appeal of the
revocation of her supervised release to attack her original sentence directly or collaterally”),
so we need not address the issue in her case. Second, assuming, without deciding, that the
possibility of more than one revocation sentence should be disclosed to a defendant at the time
of his Rule 11 colloquy, we are confident that the district court will be able to confect the
necessary disclosure.

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515 U.S. 50, 65 (1995) (internal citations and quotation marks omitted). As
noted above, we have concluded that § 3583(e)(3) is not ambiguous, so the rule
of lenity is inapplicable.4
B.     Hampton’s Revocation Sentence
       Turning, at last, to Hampton’s revocation sentence, we conclude that the
district court’s revocation sentence of 24 months’ imprisonment was proper.
Hampton committed a Class D felony. Section 3583(e)(3) authorizes the district
court to impose up to two years’ revocation imprisonment for violating the
conditions of supervised release for such a felony.
                                    IV. C ONCLUSION
       For the foregoing reasons, the judgment of the district court revoking
Hampton’s supervised release and sentencing Hampton to 24 months’
imprisonment is AFFIRMED.




       4
         Hampton argues, in the alternative, that we should read the language “term of
supervised release authorized by statute for the offense” at the beginning of § 3583(e)(3) as a
reference to the amount of supervised release authorized by § 3583(h) rather than § 3583(b).
Hampton provides no support for her reading and it is merely a recapitulation of her
aggregation argument, which we have addressed at length in this opinion.

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