                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0014p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       No. 07-5476
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 GEORGE BOOTH,
                                                  -
                                                 N
                    Appeal from the United States District Court
               for the Eastern District of Tennessee at Chattanooga.
                  No. 06-06034—R. Allan Edgar, District Judge.
                               Argued: October 30, 2008
                         Decided and Filed: January 12, 2009
           Before: KENNEDY, SUTTON, and McKEAGUE, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Robert H. Dietrick, DUANE MORRIS, Washington, D.C., for Appellant.
Christopher D. Poole, ASSISTANT UNITED STATES ATTORNEY, Chattanooga,
Tennessee, for Appellee. ON BRIEF: Robert H. Dietrick, DUANE MORRIS, Washington,
D.C., for Appellant. Christopher D. Poole, ASSISTANT UNITED STATES ATTORNEY,
Chattanooga, Tennessee, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       KENNEDY, Circuit Judge. George Booth appeals a sentence imposed pursuant to
the revocation of his supervised release term. The supervised release term was imposed as
part of a criminal sentence for drug-related offenses in the Middle District of Florida. He
asserts that the United States District Court for the Eastern District of Tennessee lacked
jurisdiction to penalize him for violations of this term of supervised release because in
granting the Government’s Rule 35(b) motion for reduction of sentence, the Florida district


                                            1
No. 07-5476          United States v. Booth                                             Page 2


court had eliminated his term of supervised release by failing to restate the supervised release
term of the original sentence in its order granting the motion. He argues that the Eastern
District of Tennessee was without jurisdiction to revoke a term of supervised release that did
not exist. The appellant bases this argument on both the plain language of the order granting
the Rule 35(b) motion and on the rule of lenity. The Government rejects appellant’s
interpretation of the Rule 35(b) order and argues that the language of the order leaves the
original supervised release term intact. Additionally, the Government contends that the
subsequent actions of the Florida district court reveal an intent to impose the original
supervised release period. Finally, the Government argues that the appellant’s argument
logically “defies acceptance” because of the appellant’s history and offense conduct that
were considered by the sentencing judge. Because the language of the motion and order are
clear, and because the Florida court’s later actions confirm its intent to retain the supervised
release term, we hold that the supervised release term remained in effect and AFFIRM the
sentence imposed by the United States District Court for the Eastern District of Tennessee
in its Revocation Judgment.

                                      BACKGROUND

        On July 5, 1990, appellant was arrested at a Florida motel in connection with an
attempt to purchase approximately forty kilograms of cocaine and thereafter charged in the
Middle District of Florida with (1) conspiracy to possess cocaine with intent to distribute in
violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(A); (2) use of a firearm in relation to
a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (3) possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g). J.A. at 44. On February 11, 1991,
appellant pleaded guilty to all three counts. J.A. at 44. On April 17, 1991, the Florida
district court determined that appellant had an adjusted offense level of 40, a criminal history
category of VI, and a resulting Guideline sentencing range of 30 years to life imprisonment.
Accordingly, the district court sentenced him to 55 years of imprisonment. In addition, the
district court sentenced him to a five-year term of supervised release, the statutory mandatory
minimum as provided in § 841(b)(1)(A).

        Thereafter, on March 28, 1996, the United States filed a motion in the Middle
District of Florida pursuant to Rule 35(b) requesting that the district court reduce the
No. 07-5476         United States v. Booth                                             Page 3


appellant’s term of imprisonment based upon his post-conviction substantial assistance to
the Government. The Rule 35(b) motion made no mention of the five-year term of
supervised release imposed at the time of sentencing on April 22, 1991. The motion asked
the court to reduce Booth’s offense level to 31 which, with a criminal history of VI, would
result in a Guidelines range of 188 to 235 months. In a letter attached to the motion,
Assistant United States Attorney Robert P. McGregor stated that if the motion were granted,
appellant would face approximately eight more years of “actual prison time.”

        On January, 12, 1998, the district court for the Middle District of Florida granted the
United States’ Rule 35(b) motion, stating in full as follows:

        Before the Court is the “Government’s In Camera Motion for Reduction of
        Sentence Pursuant to Fed. R. Crim. P. 35(b)” filed on March 28, 1996.
        Upon consideration, the Motion is GRANTED. The appellant’s sentence is
        reduced by nine (9) offense levels, from level 40 to level 31. The criminal
        history category remains at level VI. The appellant is sentenced to two
        hundred and twelve (212) months.
        ORDERED in Tampa, Florida, on January 12, 1998.

The effect of this Rule 35(b) order was to reduce appellant’s term of imprisonment from 55
years to 212 months. The order was not signed by Judge G. Kendall Sharp, the original
sentencing judge. Instead, the motion was submitted to United States District Court Judge
Steven D. Merryday, who subsequently signed the order.

        On December 10, 2005, Judge Merryday signed an order transferring supervised
release to the Eastern District of Tennessee. The Transfer Order states it is for a period of
supervised release from January 10, 2006 through January 9, 2011. Judge Curtis L. Collier
accepted supervision for the Eastern District of Tennessee. Shortly thereafter, on January
10, 2006, appellant completed his greatly reduced 212-month term of imprisonment and was
released by the Bureau of Prisons and placed on supervised release. The supervised released
term was scheduled to expire on January 9, 2011, five years after appellant was released.
Id.

        On December 11, 2006, a Petition for Warrant for Offender was filed in the Eastern
District of Tennessee based upon appellant’s alleged violations of the conditions of his
supervised release, and an Amended Petition was filed on December 21, 2006. This
No. 07-5476         United States v. Booth                                               Page 4


Amended Petition listed the conditions that were allegedly violated, and stated that
appellant’s criminal history included two bank robbery convictions and convictions for
conspiracy to commit bank robbery, conspiracy to commit murder, and bail jumping. It
stated that appellant was on supervision for “offenses involving firearms and controlled
substances,” that appellant’s continued drug use presented a risk to the community, and that
he was also a risk of flight from supervision. Appellant was arrested and arraigned on March
20, 2007, and a revocation hearing was scheduled. The Dispositional Report prepared for
the revocation hearing stated that appellant was serving a five-year term of supervised
release that began in January 2006 and expired in January 2011.

        The revocation hearing was held on April 10, 2007. At the outset, appellant admitted
that he was subject to revocation based upon his possession and use of drugs and admitted
that while on supervision he had been charged, pleaded guilty, and been convicted in state
court for possession of drug paraphernalia, with a drug possession charge being dismissed.
Based on appellant’s criminal history for violence, his serious drug problem, and the
reduction of his initial sentence, the United States recommended a sentence of sixty months
of imprisonment. The district court found that appellant had violated the conditions of his
supervised release and revoked the term of supervised release. Taking into account the
relevant 18 U.S.C. § 3553(a) factors, the court sentenced appellant to 30 months of
imprisonment, to be followed by a thirty-month term of supervised release on the Florida
sentence. This term was to run concurrently with the 24 months of imprisonment to which
appellant was sentenced based on a violation of a supervised release term imposed in a
related case in the Eastern District of Tennessee. The court further recommended the Bureau
of Prisons’ 500-hour intensive drug treatment program.

        In response to the court’s request for questions, appellant raised the issue of the order
entered in the Middle District of Florida granting the Government’s Rule 35(b) motion and
sentencing appellant to 212 months of imprisonment. Appellant argued that the Rule 35(b)
reduction in the Middle District of Florida was “from 55 years to 212 months” and did not
mention any term of supervised release. Appellant personally argued that the order granting
the Rule 35(b) motion reduced the “whole sentence” to just 212 months with no term of
supervised release. The Tennessee district court disagreed and advised appellant of his right
to appeal. In response to the issue raised by appellant regarding the validity of the
No. 07-5476            United States v. Booth                                            Page 5


supervised release term in the Florida case, the court stated, “The Middle District of Florida
sentence included a period of supervised release from January 10, 2006 through January 9,
2011.”

                                          ANALYSIS

I. Standard of Review

           Appellant argues that the Tennessee district court was without jurisdiction to revoke
the term of supervised release imposed by the Florida court. “[T]he question of whether a
district court has jurisdiction to rule upon a petition to revoke a defendant’s supervised
release after the term of supervised release is alleged to have ended is a question of law that
is subject to de novo review.” United States v. Goins, 516 F.3d 416, 419 (6th Cir.
2008)(quoting United States v. Sturdivant, 1999 WL 1204689, at *2 (6th Cir. November 30,
1999)). Appellant alleges that the Middle District of Florida did not impose a term of
supervised release in its order modifying the sentence and that any revocation of the
non-existent term of supervised release would be beyond the district court’s jurisdiction. As
such, this dispute arises from a determination of law which we review de novo.

II. The Tennessee district court did not err in finding that appellant was on supervised
release at the time the court revoked his period of supervised release.

           Appellant argues that although the Florida district court had imposed a statutory
minimum five-year term of supervised release in the original judgment, the same court later
sua sponte nullified the supervised release term when it granted the United States’ Rule 35(b)
motion and reduced the original term of imprisonment. On the foregoing facts, we find that
the United States District Court for Eastern District of Tennessee did not err in finding that
appellant was on supervised release at the time it revoked appellant’s period of supervised
release.

           A. The Florida district court’s order granted the Government’s motion to
           reduce appellant’s term of imprisonment
           Appellant argues that by omitting a reference to supervised release in the plain
language of the order, the Florida district court intended to eliminate the term of supervised
release it previously imposed on appellant. We must interpret the language of this order,
No. 07-5476         United States v. Booth                                             Page 6


however, together with the language of the motion that it granted. We held in Hendrie v.
Lowmaster, 152 F.2d 83 (6th Cir.1945), that “[t]he meaning of an ambiguous judgment or
order ‘must be determined by what preceded it and what it was intended to execute.’”
(quoting Union Pacific Railroad Co. v. Mason City & Railroad Co., 222 U.S. 237, 247
(1911)). In this case, the order was preceded by a motion that requested a reduction in
appellant’s term of imprisonment, not his term of supervised release. The order explicitly
granted that motion and, as requested, reduced appellant’s term of imprisonment. Contrary
to appellant’s interpretation of the order, the Florida district court did not have before it a
motion to reduce or eliminate the term of supervised release, and did not consider whether
to reduce or eliminate the supervised release term. In granting the motion, the court reduced
the term of imprisonment as requested by the Government and did not alter but rather was
silent as to the appellant’s term of supervised release.

        An examination of the motion in question reveals its limited scope. The motion
expressly requested a reduction in appellant’s term of imprisonment by nine offense levels.
The motion described appellant’s assistance to the United States and concluded as follows:

        5. The Government recommends that Booth’s sentence be reduced by nine
        (9) offense levels, from level 40 to level 31. The Guidelines sentencing
        range at level 31 with a criminal history of VI would then become 188-235
        months.
        WHEREFORE, the Government respectfully requests that this Motion be
        granted.
The motion did not request a reduction or elimination of the supervised release term imposed
in the original judgment. In a letter attached to the motion, Assistant United States Attorney
Robert P. McGregor made explicitly clear that the requested relief was a reduction in
appellant’s term of imprisonment. The letter stated that if the motion were granted, Booth
would face approximately eight more years of “actual prison time.”

        The language of the order further contradicts appellant’s position. In his order, the
district court judge stated, “the Motion is GRANTED.” Thus, the language of the order
appears to limit its scope to the relief requested in the Rule 35(b) motion. The order did not
resentence appellant, but granted the relief that the motion explicitly requested. Thus the
term of supervised release, imposed in the original judgment and not addressed in the motion
No. 07-5476           United States v. Booth                                           Page 7


or order, remained in effect. The United States’ Rule 35(b) motion and the order granting
the motion are, on their faces, expressly limited to a reduction in the term of imprisonment
and they provide no support for appellant’s position.

        The Second Circuit, presented with an issue similar to that which we face in the
present case, held in United States v. Spallone that a district court’s order sentencing
defendant to “time served” but failing to mention previously imposed supervised release and
restitution obligations did not eliminate or modify these aspects of the original sentence. 399
F.3d 415, 425 (2d Cir. 2005). In reaching this conclusion, the court observed that “the
primary—often singular—concern of the parties and the court when applications are made
for sentence reductions [whether presented as pre-sentence motions for departure from the
Sentencing Guidelines or post-judgment motions under Rule 35(b)] is the term of
incarceration” rather than the supervised release term or restitution obligation because “the
very fact that a defendant will be subject to these non-incarceratory conditions may actually
enhance the likelihood of a defendant securing a reduction in his term of confinement.” Id.
at 425. In light of this reality, the court reasoned that, “a reviewing court should proceed
cautiously in assuming that a Rule 35(b) order reducing a defendant’s prison sentence to time
served also implicitly vacates all other punishments stated in the judgment of conviction,
including supervised release and restitution.” Id. at 425. Additionally, the court in Spallone
found that the fact that the district court proceeded in the form of an order rather than an
amended judgment indicated that the judge’s use of the term “sentenced” did not have the
“sweeping effect” of modifying the supervised release and restitution obligations. Id. at 426.
 As such, the court held that “[w]here an order is silent on a form of sentencing relief that
was neither raised nor argued, and particularly where that form of relief is not routinely the
focus of Rule 35(b) applications, we will not construe an ambiguity in the order to reach that
issue.” Id. at 426.

        We find the reasoning employed by the Second Circuit in the factually similar
Spallone instructive in appellant’s case. Here, as in Spallone, Judge Merryday chose to issue
an order rather than an amended judgment. Neither the Government’s Rule 35(b) motion
nor Judge Merryday’s order indicates that reduction of appellant’s supervised release
obligation was contemplated. Further, appellant failed to file any request to vacate his
supervised release term in conjunction with the Government’s motion. Absent evidence of
No. 07-5476         United States v. Booth                                            Page 8


any intent by the court or the parties to address appellant’s supervised release term, we
cannot conclude that the order sua sponte eliminated his non-incarceratory obligation.

        Appellant argues that under Eleventh Circuit law (under which Judge Merryday
operated), a district court must engage in a two-part analysis when deciding a Rule 35(b)
motion to reduce sentence: “First, the court must recalculate the sentence under the amended
Guidelines; second, the court must decide whether, in its discretion, it will choose to impose
a new sentence or retain the original sentence.” United States v. Cover, 164 F. App’x 885,
889 (11th Cir. 2006)(citing United States v. Bravo, 203 F.3d 778, 780-81 (11th Cir. 2000)).
Appellant argues that because Judge Merryday, having these two options, did not retain the
original sentence, he must have imposed a new sentence that did not include the supervised
release term. This argument fails, however, because Cover applies only to a modification
of a term of imprisonment under 18 U.S.C. §3582(c)(2) (based on a subsequently lowered
Guidelines range), not to a Rule 35(b) motion for reduction of sentence. The language from
Cover cited by appellant is therefore inapplicable here.

        Appellant relies on the canon of construction expressio unius est exclusio alterius,
meaning “the expression of one thing implies the exclusion of another thing,” to support his
interpretation of the order. See Equal Employment Opportunity Commission v. Kimberly-
Clark Corp., 511 F.2d 1352, 1362 (6th Cir. 1975)(citation omitted). This canon, however,
supports appellant’s interpretation only if Judge Merryday’s one-page order in fact
constitutes a “new sentence,” a proposition which we have rejected above. As we have
determined that the order simply grants the Government’s motion and does not impose a new
sentence, expressio unius instead works to appellant’s detriment. If we accept the order for
what it purports to be, that is, a simple order granting the government’s motion as requested,
then pursuant to expressio unius, the express mention of a reduction in the term of
imprisonment impliedly excludes the reduction of any other term of the original sentence.

        Appellant also attempts to apply the rule of lenity to support his case. He argues
that, to the extent the order reducing sentence is ambiguous, the rule of lenity should be
applied to construe it in his favor. He argues that the language of the order was ambiguous
because it was “substantively identical” to the language found to be ambiguous in Spallone.
Appellant’s Letter Brief at 2 (citing Spallone, 399 F.3d at 424). We need not determine
No. 07-5476          United States v. Booth                                             Page 9


whether or not the language here was ambiguous, however, because the rule of lenity is
inapplicable in this context. While appellant notes that the Second Circuit did not address
the rule of lenity in Spallone, he fails to acknowledge that the reason for this omission was
presumably the irrelevance of the rule of lenity to the situation presented in Spallone and in
this case. Courts apply the rule of lenity to resolve ambiguities in favor of a defendant when
a criminal statutory term is ambiguous and cannot be clarified by the statute’s history or
structure. See United States v. Jackson, 401 F.3d 747, 750 (6th Cir. 2005). Appellant cites
no authority for the proposition that the rule of lenity may be applied to resolve ambiguity
in a judgment or order.      Even if the order were ambiguous, the rules of construction
applicable to judgments and decrees would instruct us to resolve the ambiguity by looking
at “the intent and purpose of the court.” See Spallone, 399 F.3d at 424; 50 C.J.S. Judgments
§ 534. Consideration of the order’s purpose would compel the construction applied by Judge
Edgar, i.e., that Judge Merryday did not implicitly vacate the term of supervised release
originally imposed when he granted the Government’s motion to reduce the term of
imprisonment.

        B. Transfer of supervision over this case by the sentencing judge reveals the
        Florida court’s intent to retain the supervised release term
        If the language of the motion and order leave any doubt as to the effect of the Florida
district court’s granting of the Government’s motion, the Florida district court’s later actions
evidence its intent in granting the motion and further contradict appellant’s position.

        At the time of appellant’s release from prison, Judge Merryday, the same judge who
granted the motion reducing the term of imprisonment, transferred supervision of appellant’s
five-year supervised release term to the Eastern District of Tennessee. This action reveals
an intent on the part of Judge Merryday at the time he granted the motion to retain the term
of supervised release from the original judgment. If, in granting the motion, Judge Merryday
had intended to nullify appellant’s term of supervised release, he would not have thereafter
transferred the period of supervised release to Tennessee. Instead, this transfer reveals that
Judge Merryday was acting in conformity with the court’s prior judgment, which imposed
a statutory mandatory five-year minimum of supervised release, and which remained in
effect at the time appellant completed his term of imprisonment. Appellant’s argument is
thus contradicted by the actions of the Florida district court after his release.
No. 07-5476         United States v. Booth                                             Page 10


        C. Interpreting the order as imposing a lengthy term of imprisonment
        without a supervised release term would be unreasonable in light of the
        sentencing considerations before the district court
        As the appellant correctly argues, we have held that a district court may depart from
the Sentencing Guidelines where the Government files a “substantial assistance” motion to
reduce a defendant’s sentence. United States v. Snelling, 961 F.2d 93, 97 (6th Cir. 1991).
This court has also held, however, that in departing from the Guidelines, a district court may
not impose a sentence which is either specifically prohibited by statute or unreasonable. Id.
While the relevant statute does not specifically prohibit eliminating the supervised released
term, no reasonable interpretation of Judge Merryday’s order would permit the argument that
Judge Merryday imposed no term of supervised release and was imposing only a term of
imprisonment in view of the criminal violations before him. See Spallone, 399 F.3d at 425-
26.

        In this case, the Florida district court had the authority to depart from the Guidelines
and impose a sentence which was reasonable. Snelling, 961 F.2d at 97. The appellant in this
case was an Armed Career Criminal with numerous violent felonies who was originally
sentenced to a term of 55 years of imprisonment and to a statutory minimum five-year term
of supervised release. J.A. at 103. The motion that Judge Merryday had before him made
clear that Booth had an adjusted offense level of 40, a criminal history category of VI, and
a resulting Guideline sentencing range of 30 years to life imprisonment. Even absent the
intent evident in Judge Merryday’s subsequent Transfer Order, the sentencing considerations
before Judge Merryday make it unreasonable for us to conclude that he intended to return
appellant to the community without any supervision after a term of over seventeen years of
imprisonment. While not bound by the Guidelines in ruling on the Rule 35(b) motion, it
would be a considerable departure for a court to completely eliminate a supervised released
term when the Guidelines range of the original sentence mandates a court to impose, at
minimum, five years of supervised release. Certainly the goals of sentencing, including
protecting the public from “further crimes of the defendant” and providing defendants with
“needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner” could not be fulfilled by nullifying appellant’s period of
supervised release. See 18 U.S.C. § 3553(a).
No. 07-5476         United States v. Booth                                       Page 11


                                     CONCLUSION

        We AFFIRM the ruling of the United States District Court for the Eastern District
of Tennessee and conclude that appellant was serving a five-year period of supervision on
his Middle District of Florida conviction at the time of revocation.
