                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              February 14, 2017
                                   PUBLISH                   Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellant,

 v.                                                    No. 15-3084

 HOWARD COLLINS,

       Defendant - Appellee.



                 Appeal from the United States District Court
                          for the District of Kansas
                     (D.C. No. 2:05-CR-20087-JWL-3)


Richard A. Friedman, Attorney, Appellate Section, Criminal Division, United
States Department of Justice, Washington, D.C. (Barry R. Grissom, United States
Attorney, District of Kansas, James A. Brown, and Scott C. Rask, Assistant
United States Attorneys, Office of the United States Attorney for the District of
Kansas, Leslie R. Caldwell, Assistant Attorney General, and Sung-Hee Suh,
Deputy Assistant Attorney General, with him on the briefs), for Plaintiff-
Appellant.

Daniel T. Hansmeier, Appellate Chief, Kansas Federal Public Defender, Kansas
City, Kansas (Melody Bannon, Chief Federal Public Defender, Kansas Public
Defender, Kansas City, Kansas, with him on the brief), for Defendant-Appellee.


Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.


HOLMES, Circuit Judge.
      Howard Collins was serving a term of supervised release as part of his

sentence for knowingly and intentionally distributing more than five grams of a

mixture or substance containing cocaine base (i.e., crack cocaine), in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). His supervised release was revoked after

he failed several drug tests. He was reincarcerated and received a new term of

supervised release. Upon his release from prison, his supervised release was

revoked a second time after he again failed multiple drug tests and failed to

participate in a required substance-abuse program. Following his second

revocation, the district court sentenced Mr. Collins to twelve months’

imprisonment, having determined that the maximum term of imprisonment that it

could impose under 18 U.S.C. § 3583(e)(3) was one year. Exercising jurisdiction

under 28 U.S.C. § 1291, we reject this application of § 3583(e)(3), reverse the

district court’s sentencing order and remand the case, instructing the court to

vacate its revocation judgment and resentence Mr. Collins.

                                         I

      An undercover agent of the Kansas Bureau of Investigation arranged

through an informant to conduct three transactions involving the sale of crack

cocaine. On November 6, 2003, the agent purchased 7.11 grams of crack cocaine

at a roadside park near Baxter Springs, Kansas. Mr. Collins and the informant

were among the passengers in the vehicle from which the agent made the


                                         2
purchase. Following the first transaction, the informant supplied the agent with

two telephone numbers to arrange subsequent drug purchases. On November 13,

2003, after calling one of the telephone numbers and speaking with Mr. Collins,

the agent purchased 4.66 grams of crack cocaine in the parking lot of a shopping

mall in Pittsburg, Kansas. On December 9, 2003, after calling both telephone

numbers, the agent conducted a third transaction, this time purchasing 5.47 grams

of crack cocaine from Mr. Collins and two other males in the shopping mall in

Pittsburg. In an interview in November 2005, Mr. Collins recalled selling crack

cocaine on at least five other occasions.

      On August 17, 2005, Mr. Collins was indicted along with two other men on

charges of conspiracy to distribute and possess with intent to distribute more than

fifty grams of a mixture or substance containing cocaine base, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and three counts of knowingly and

intentionally distributing more than five grams of a mixture or substance

containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii).

Upon entering into a plea agreement, Mr. Collins was convicted on one count of

distribution, in violation of § 841(b)(1)(B)(iii). The district court imposed a

sentence of eighty-four months’ imprisonment to be followed by four years of

supervised release. Over the course of the next two years, for reasons not

material here, the district court reduced Mr. Collins’s prison term to sixty months;

his supervised release term remained unchanged.

                                            3
      After completing his prison sentence, Mr. Collins failed several drug tests

in October 2010 and his supervised release was revoked the following July. As a

result of this revocation, Mr. Collins was reincarcerated for a term of eighteen

months and sentenced to a new three-year term of supervised release. Upon his

second release from prison, Mr. Collins was found in possession of a controlled

substance, failed several drug tests, and was terminated from a substance-abuse

treatment program. At a revocation hearing on March 2, 2015, Mr. Collins

admitted to these supervised-release violations, and the district court revoked his

second supervised release term.

      Following this second revocation, the district court sentenced Mr. Collins

to twelve months’ imprisonment to be followed by a two-year term of supervised

release. In sentencing Mr. Collins, the district court determined that the statutory

maximum term of imprisonment that it could impose under 18 U.S.C.

§ 3583(e)(3) was one year, believing that it was restricted by the maximum

supervised release term that was authorized for the violation forming the basis for

(i.e., resulting in) the first revocation of supervised release, rather than the

maximum term authorized for the original offense of conviction, in resentencing

Mr. Collins. The government timely appealed from the district court’s final

judgment.




                                           4
                                           II

      The sole issue the government raises on appeal is whether the district court

erred in sentencing Mr. Collins to twelve months’ imprisonment under an

ostensible one-year statutory maximum based on § 3583(e)(3), which limits

reincarceration following revocation of supervised release to the “term of

supervised release authorized by statute for the offense that resulted in such term

of supervised release,” 18 U.S.C. § 3583(e)(3) (emphasis added). Resolution of

this issue turns on a question of statutory interpretation: in determining the

maximum allowable term of reincarceration following a second revocation of

supervised release, does § 3583(e)(3) refer to the original criminal offense for

which the defendant was convicted or the subsequent violation of the conditions

of supervised release that resulted in his first revocation? 1

      1
              We have previously identified this open question and declined to
answer it. See United States v. Lamirand, 669 F.3d 1091, 1099 n.7 (10th Cir.
2012) (“[F]ollowing the reasoning of [defendant’s] argument, the district court
would have been obliged to look to those offenses (i.e., the supervised-release
violations), instead of his underlying drug-trafficking conviction for purposes of
determining . . . the maximum imprisonment terms provided in § 3583(e)(3). . . .
We are disinclined, however, to reach the merits of this argument.”); United
States v. Hernandez, 655 F.3d 1193, 1197 (10th Cir. 2011) (“Mr. Hernandez
presses this appeal on the express understanding that the term offense as used in
§ 3583(e) refers to his underlying criminal conviction, and that very well may be
exactly right. Indeed, we have previously assumed it is, just as we do today.”
(citations omitted)). However, at least one panel of our circuit has affirmed a
district court order under § 3583(e)(3) according to the severity of the original
offense. See United States v. Olinger, 511 F. App’x 816 (10th Cir. 2013); cf.
United States v. Kelley, 359 F.3d 1302, 1303 n.1 (10th Cir. 2004) (assuming that
§ 3583(e) refers to defendant’s underlying criminal conviction); United States v.
                                                                       (continued...)

                                           5
      To the extent that the government challenges the district court’s sentencing

order because the court allegedly failed to apply the correct law—and “to the

extent that determining the ‘correct law’ requires us to engage in statutory

interpretation—our review is de novo.” United States v. Burkholder, 816 F.3d

607, 611–12 (10th Cir. 2016); accord United States v. Porter, 745 F.3d 1035,

1040 (10th Cir. 2014); United States v. Sturm, 672 F.3d 891, 897 (10th Cir. 2012)

(en banc); see also United States v. Nacchio, 573 F.3d 1062, 1087 (10th Cir.

2009) (“We review questions of statutory interpretation de novo.”).

                                          A

                                          1

      At the outset, we provide a brief overview of the structure of 18 U.S.C.

§ 3583(e)(3) to clarify the nature of our interpretive inquiry. Section 3583(e)(3)

allows the district court to revoke a term of supervised release upon finding by a

preponderance of the evidence that the defendant has violated the conditions of

supervised release. The district court may then “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 . . . without credit for time previously served.”

18 U.S.C. § 3583(e)(3). However, Congress included a limiting principle in this

provision:

      1
      (...continued)
Swenson, 289 F.3d 676, 677 (10th Cir. 2002) (same), superseded on other
grounds by Hernandez, 655 F.3d at 1196.

                                          6
             [A] defendant whose term [of supervised release] 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[.]

Id. (emphasis added). As these plain terms reveal, the “offense that resulted in”

provision of § 3583(e)(3) operates to limit the maximum term of imprisonment

following the revocation of a term of supervised release. The provision is

triggered after a defendant’s term of supervised release has been revoked.

      It is undisputed that the limitation on the maximum term of imprisonment

under § 3583(e)(3) relates to the original crime of conviction when a defendant’s

supervised release term is revoked for the first time. However, Mr. Collins

argues that, following a second revocation of supervised release, the relevant

“offense” under § 3583(e)(3) is the violative conduct that gave rise to the first

revocation. 2 At Mr. Collins’s sentencing, the government disagreed, arguing that

      2
              At oral argument, the government framed Mr. Collins’s argument
such that the term “offense” in subsection (e)(3) of § 3583 refers to the revocation
(an act of the court), rather than the underlying transgression that gave rise to the
judicial act of revoking supervised release. The government contended that Mr.
Collins argued, in distinguishing United States v. Ford, 798 F.3d 655 (7th Cir.
2015), that subsection (e)(3) is referring to a revocation, not a violation of
supervised release. However, throughout his brief, and particularly in addressing
Ford, Mr. Collins refers to violations (i.e., transgressions). At oral argument,
counsel for Mr. Collins likened the word “conviction” to “revocation,” and
explained that revocation for an underlying transgression is a penalty analogous
to a conviction for underlying criminal conduct. Therefore, we understand Mr.
Collins’s argument as referring to penalizing violative conduct resulting in
                                                                         (continued...)

                                          7
§ 3583(e)(3)’s “offense that resulted in” language refers to the original crime of

conviction. If the government’s interpretation is correct—viz., if the statutory

maximum is based on Mr. Collins’s original offense, rather than the violation

resulting in his first revocation—then the maximum term of imprisonment that

Mr. Collins could serve under subsection (e)(3) is three years, rather than the one-

year maximum on which the district court based its ruling. In other words, to the

extent that Mr. Collins’s sentence was based on this legal error, his sentence

should reflect the three-year maximum for the class B felony for which he was

first sentenced. R., Vol. I, at 40 (listing Mr. Collins’s offense of conviction as

“distribution of more than five grams of cocaine base”); see 21 U.S.C.

§ 841(b)(1)(B) (2000) (restricting term of imprisonment for distribution of “5

grams or more of a mixture or substance . . . which contains cocaine base” to

“not . . . less than 5 years and not more than 40 years”); 3 18 U.S.C. § 3559(a)(2)

(classifying an offense with a maximum term of imprisonment of “twenty-five

years or more, as a Class B felony”).




      2
       (...continued)
revocation, just as criminal conduct resulting in conviction for a misdemeanor or
felony is penalized.
      3
             The current version of 21 U.S.C. § 841(b)(1)(B)(iii) prohibits the
distribution of “28 grams or more of a mixture . . . which contains cocaine base.”
21 U.S.C. § 841(b)(1)(B)(iii) (2012).

                                          8
                                          2

      Our “primary task in interpreting statutes [is] to determine congressional

intent.” Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1245 (10th

Cir. 2009) (quoting Russell v. United States, 551 F.3d 1174, 1178 (10th Cir.

2008)). In doing so, we begin “where all such inquires must begin: with the

language of the statute itself.” First Nat’l Bank of Durango v. Woods (In re

Woods), 743 F.3d 689, 694 (10th Cir. 2014) (quoting Ransom v. FIA Card Servs.,

N.A., 562 U.S. 61, 69 (2011)); see also United States v. West, 671 F.3d 1195,

1199 (10th Cir. 2012) (stating that “we first and foremost look to the statute’s

language to ascertain Congressional intent”). “It is well established that ‘when

the statute’s language is plain, the sole function of the courts—at least where the

disposition required by the text is not absurd—is to enforce it according to its

terms.’” Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (quoting Hartford

Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)); cf.

Antonin Scalia & Bryan A. Garner, R EADING L AW : T HE I NTERPRETATION OF

L EGAL T EXTS 56 (2012) (“[T]he purpose [of a statute] must be derived from the

text, not from extrinsic sources such as legislative history or an assumption about

the legal drafter’s desires.”). “We will look beyond the plain language of a

statute only if the result is an absurd application of the law.” United States v.

Brown, 529 F.3d 1260, 1265 (10th Cir. 2008); see also United States v. Sprenger,

625 F.3d 1305, 1307 (10th Cir. 2010) (“If the terms of the statute are clear and

                                          9
unambiguous, the inquiry ends and we simply give effect to the plain language of

the statute.” (quoting Toomer v. City Cab, 443 F.3d 1191, 1194 (10th Cir.

2006))).

      We do, however, construe statutory language within its broader context.

See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a

fundamental canon of statutory construction that the words of a statute must be

read in their context and with a view to their place in the overall statutory

scheme.”); accord Kunz v. United Sec. Bank (In re Kunz), 489 F.3d 1072, 1077

(10th Cir. 2007). Indeed, “the meaning of statutory language, plain or not,

depends on context.” In re Woods, 743 F.3d at 694 (quoting United States v.

Villa, 589 F.3d 1334, 1343 (10th Cir. 2009)). Put another way, “no statute is an

island unto itself. We can look around to provide substance and context to a

potentially unclear term.” United States v. Brune, 767 F.3d 1009, 1022 (10th Cir.

Cir. 2014). In total, “[t]he plainness or ambiguity of statutory language is

determined by reference to the language itself, the specific context in which that

language is used, and the broader context of the statute as a whole.” Salazar v.

Butterball, LLC, 644 F.3d 1130, 1137 (10th Cir. 2011) (quoting Robinson v. Shell

Oil Co., 519 U.S. 337, 341 (1997)).

      To begin our inquiry, Congress’s specific choice of words in

§ 3583(e)(3)—that is, “the offense that resulted in the term of supervised

release”—is noteworthy. The term “offense” traditionally refers to crimes. See

                                          10
Kellogg Brown & Root Servs., Inc. v. United States, ex rel. Carter, --- U.S. ----,

135 S. Ct. 1970, 1976 (2015) (explaining that the “term ‘offense’ is most

commonly used to refer to crimes”); see, e.g., Offense, B LACK ’ S L AW D ICTIONARY

(10th ed. 2014) (defining the term “offense” as “[a] violation of the law; a crime,

often a minor one”); Offense, W EBSTER ’ S T HIRD N EW I NTERNATIONAL

D ICTIONARY 1566 (2002) (defining “offense” as “an infraction of law: CRIME,

MISDEMEANOR”); see also 22 C.J.S. Criminal Law § 3, at 4 (1989) (“The terms

‘crime,’ ‘offense,’ and ‘criminal offense’ are all said to be synonymous, and

ordinarily used interchangeably. ‘Offense’ may comprehend every crime and

misdemeanor, or may be used in a specific sense as synonymous with ‘felony,’ or

with ‘misdemeanor,’ as the case may be, or as signifying a crime of lesser grade,

or an act not indictable, but punishable summarily or by the forfeiture of a

penalty.”). The Supreme Court, although noting that “the term ‘offense’ is

sometimes used more broadly” and is “not necessarily synonymous” with the

word “crime,” affirmatively stated that it has a specific meaning within the

context of Title 18—the title at issue here. Kellogg, 135 S. Ct. at 1976 (noting

that, while the term offense is sometimes used to refer to noncriminal conduct,

“that is not how the word is used in Title 18”); cf. id. (“Although the term appears

hundreds of times in Title 18, neither respondent nor the Solicitor General,

appearing as an amicus in support of respondent, has been able to find a single

provision of that title in which ‘offense’ is employed to denote a civil

                                         11
violation.”). Moreover, the Court noted that when Title 18 was enacted, “the very

first provision, what was then 18 U.S.C. § 1, classified all offenses as crimes.”

Id. at 1977.

      Importantly, unlike offenses, violative conduct resulting in the revocation

of supervised release—although “often lead[ing] to reimprisonment”—“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 v. United

States, 529 U.S. 694, 700 (2000); see 18 U.S.C. § 3583(e)(3) (providing that a

court may revoke supervised release and require the defendant to serve a term of

imprisonment if it “finds by a preponderance of the evidence that the defendant

violated a condition of supervised release”). In contrast, “the Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which he is charged.”

In re Winship, 397 U.S. 358, 364 (1970). Because the revocation of supervised

release based on violative conduct does not carry the same burden of proof as the

burden required for conviction of a crime, we cannot call the violative conduct a

crime or, by extension, an offense. Thus, the “offense that resulted in” language

that Congress employed strongly suggests that § 3583(e)(3) imposes a statutory

maximum prison term based on the original criminal offense of conviction

resulting in a term of supervised release.




                                             12
      We are not alone in reaching this conclusion. More specifically, our

decision is informed by two of our sibling circuits—the First and Seventh

Circuits—which have explicitly held that, upon the revocation of a subsequent

term of supervised release, the statutory maximum prison sentence under

§ 3583(e)(3) is based on the original crime of conviction. See United States v.

Ford, 798 F.3d 655, 663 (7th Cir. 2015) (“The phrase ‘the offense that resulted in

the term of supervised release’ refers to the offense for which the defendant was

initially placed on supervised release.”); United States v. Tapia-Escalera, 356

F.3d 181, 185 (1st Cir. 2004) (“[W]here a second violation of conditions occurs,

[the offense that resulted in] language necessarily refers back to the original

offense of conviction . . . .”). Put another way, we join our sibling circuits in

concluding that the term “offense” in § 3583(e)(3) refers to the original offense of

conviction.

      Moreover, two other circuits, in rejecting slightly different arguments

raised by defendants challenging prison terms based on successive revocations,

have affirmatively stated that the “offense” referred to in § 3583(e)(3) is the

offense of conviction. See United States v. Cunningham, 800 F.3d 1290, 1292

(11th Cir. 2015) (“The ‘term of supervised release’ identified by § 3583(e)(3) is

that ‘authorized by statute for the offense.’ This plainly refers to the underlying

criminal offense resulting in conviction.”); United States v. Williams, 675 F.3d

275, 279 (3d Cir. 2012) (“Subsection (e)(3) refers to the ‘term of supervised

                                         13
release authorized by statute for the offense that resulted in such term of

supervised release.’ This language unambiguously sets the maximum prison

sentence by reference to the length of supervised release statutorily authorized for

the conviction offense . . . .”). 4

       We further note that other circuits, while not explicitly addressing the issue

before us, have assumed that the statutory maximums in § 3583(e)(3) are set by a

defendant’s underlying criminal conviction when considering the propriety of a

sentence following a second (or third) revocation of supervised release. See

United States v. Spencer, 720 F.3d 363, 370 (D.C. Cir. 2013) (affirming

defendant’s two-year prison sentence following second revocation of supervised

release for class C felony where defendant had served fourteen-month term for


       4
              The defendants in Cunningham and Williams argued that § 3583(h)
provides the relevant “term of supervised release authorized by statute for the
offense,” 18 U.S.C. § 3583(e)(3). See Cunningham, 800 F.3d at 1291; Williams,
675 F.3d at 279. In other words, they argued that subsection (h) establishes a cap
on the length of postrevocation imprisonment under subsection (e)(3). Both
courts found this argument at odds with the plain meaning and structure of
§ 3583, concluding that the length of postrevocation imprisonment is determined
by reference to the term of supervised release authorized by statute for the offense
of conviction, and therefore is not limited by the supervised release term
stemming from any prior violation resulting in revocation (i.e., the term
authorized by subsection (h)). See Cunningham, 800 F.3d at 1292; Williams, 675
F.3d at 279. “Indeed, subsections (b) and (h) establish a ‘term of supervised
release’ for different purposes: subsection (b) defines the term of supervised
release for the original offense, and subsection (h) defines the term of a
supervised release tail [i.e., the term of supervised release following a term of
postrevocation imprisonment]. Subsection (e)(3) clearly fixes the term of
post-revocation imprisonment according to the former . . . .” Williams, 675 F.3d
at 279.

                                          14
prior revocation); United States v. Hampton, 633 F.3d 334, 339 (5th Cir. 2011)

(affirming two-years’ imprisonment following second revocation and noting that,

in the case of a class D felony conviction, “§ 3583(e)(3) imposes a two-year

per-revocation cap on revocation imprisonment”); United States v. Epstein, 620

F.3d 76, 78 (2d Cir. 2010) (affirming a two-year prison sentence following a

second revocation and noting that “18 U.S.C. § 3583 permits a court to impose a

maximum sentence of two years for violations of conditions of supervised release

for which the underlying offense was a class C or D felony” (emphasis added));

United States v. Knight, 580 F.3d 933, 936–37 (9th Cir. 2009) (finding that

“[u]nder § 3583(e)(3) the maximum term of imprisonment that [the defendant]

could receive upon [his third] revocation of . . . supervised release was two years”

based on his original class C felony conviction); United States v. Lewis, 519 F.3d

822, 825 (8th Cir. 2008) (“Section 3583(e)(3) was in effect in October 2003 when

[the defendant] committed the class C felony which produced his first period of

supervised release, and its plain language permitted imposition of a prison

sentence of up to 2 years for his second revocation . . . .”); United States v.

Hager, 288 F.3d 136, 137 (4th Cir. 2002) (affirming two-year prison term

following second revocation, “the maximum available under § 3583(e)(3) for an

underlying Class D felony” (emphasis added)), superseded on other grounds by

statute, PROTECT Act, Pub. L. No. 108-21, § 101(1), 117 Stat. 650, 651 (2003),




                                          15
as recognized in United States v. Ware, 639 F. App’x 919, 920 (4th Cir. 2016). 5

      Broadening our analytical lens, we turn to related Supreme Court caselaw

for guidance; it only reinforces our interpretation of the plain meaning of

§ 3583(e)(3). Specifically, in Johnson v. United States, the Court held that the

penalty for violating the terms of supervised release “relate[s] to the original

offense,” 529 U.S. at 701. In doing so, the Court rejected the very position

advanced by Mr. Collins here—that “revocation of supervised release ‘imposes

punishment for defendants’ new offenses for violating the conditions of their

supervised release.’” Id. at 699–700 (quoting United States v. Page, 131 F.3d

1173, 1176 (6th Cir. 1997)). In other words, the penalty for revocation is an

enhancement of the punishment for the original offense, not a punishment for

violating supervised release. The principle set forth in Johnson allows us to draw

the inference that any reference to an “offense that resulted in the term of

supervised release,” 18 U.S.C. § 3583(e)(3), is meant to refer to the offense for

which the defendant was first sentenced to supervised release.

      5
              A panel of the Sixth Circuit reached a similar conclusion in affirming
a sentence following a second revocation of supervised release. The court
rejected the defendant’s argument that “his previous post-revocation sentence—
seven months’ imprisonment and twelve months’ supervised release—set the
outer boundaries for his second revocation proceedings.” United States v.
Burrell, 455 F. App’x 667, 668 (6th Cir. 2012). The Sixth Circuit stated that,
“[b]ecause [the defendant’s] underlying conviction . . . authorized a supervised
release period of not less than two years and qualified as a Class D felony, the
district court had the post-revocation discretion to sentence [him] to up to two
years of imprisonment, 18 U.S.C. § 3583(e)(3).” Id. at 669 (emphasis added)
(citations omitted).

                                         16
      We find further support in drawing this inference from the “serious

constitutional questions” created by “construing revocation and reimprisonment

as punishment for the violation of the conditions of supervised release.” Johnson,

529 U.S. at 700. For instance, treating revocation as punishment for violating the

conditions of supervised release may present serious concerns related to the Fifth

Amendment prohibition against double jeopardy. See id. (“Where the acts of

violation are criminal in their own right, they may be the basis for separate

prosecution, which would raise an issue of double jeopardy if the revocation of

supervised release were also punishment for the same offense.”). Moreover, the

violative conduct resulting in a revocation 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. See 18 U.S.C. § 3583(e)(3). Revocation hearings,

therefore, lack the same Sixth Amendment protections accorded a defendant who

is subject to a criminal indictment. See, e.g., United States v. Granderson, 511

U.S. 39, 48 (1994) (“[T]he Government prosecuted him for cocaine possession

and afforded him the full constitutional protections of a criminal trial, rather than

the limited protections of a revocation hearing.”). However, “[t]reating

postrevocation sanctions as part of the penalty for the initial offense . . . avoids

these [constitutional] difficulties.” Johnson, 529 U.S. at 700; see, e.g., United

States v. Wyatt, 102 F.3d 241, 244 (7th Cir. 1996) (rejecting double jeopardy

challenge on the ground “that the revocation of [defendant’s] term of supervised

                                           17
release—which was imposed as part of the sentence for his marijuana

conviction—constituted a punishment for his possession of firearms”); accord

United States v. Beals, 87 F.3d 854, 859–60 (7th Cir. 1996), overruled on other

grounds by United States v. Withers, 128 F.3d 1167 (7th Cir. 1997); cf. United

States v. Meeks, 25 F.3d 1117, 1121 (2d Cir. 1994) (noting that revocation

hearings for “supervised-release violations that do constitute criminal conduct”

lack “certain fundamental constitutional protections”), abrogated on other

grounds by Johnson, 529 U.S. at 711. These constitutional difficulties are not

overcome, much less avoided, if we construe the “offense that resulted in”

language of § 3583(e)(3) as referring to the violative conduct resulting in

revocation. On the contrary, doing so places us squarely at odds with the Fifth

and Sixth Amendments. Our interpretation of § 3583(e)(3)—that the “offense

that resulted in” language is meant to refer to the offense for which the defendant

was first sentenced to supervised release—avoids these same constitutional

difficulties.

       Interpreting § 3583(e)(3) within the entire statutory scheme of Title 18

further evinces an intention to limit the meaning of “offense” to crimes of

conviction. More specifically, it follows from § 3583(a) of Title 18 that the term

“offense” in § 3583(e)(3) must refer to the original offense of conviction. See 18

U.S.C. § 3583(a) (“The 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

                                         18
requirement that the defendant be placed on a term of supervised release after

imprisonment . . . .”). Section 3583(a) authorizes supervised release “for a felony

or a misdemeanor,” that is, crimes. Id. (emphasis added); see, e.g., Felony,

B LACK ’ S L AW D ICTIONARY , supra (defining “felony” as “[a] serious crime usually

punishable by imprisonment for more than one year or by death” (emphasis

added)); Misdemeanor, B LACK ’ S L AW D ICTIONARY , supra (defining

“misdemeanor” as “[a] crime that is less serious than a felony and is usually

punishable by fine, penalty, forfeiture, or confinement (usually for a brief term)

in a place other than prison (such as a county jail)” (emphasis added)). Because

many supervised-release violations are noncriminal, see, e.g., Meeks, 25 F.3d at

1122 (noting the frequency of revocation hearings for conduct that is “not a

criminal offense”), and because a term of supervised release is only authorized for

crimes (i.e., misdemeanors or felonies) under § 3583(a), it follows that a

noncriminal violation of supervised release could not be an “offense” under

§ 3583(e)(3). In other words, noncriminal violations cannot themselves “result[ ]

in the term of supervised release,” 18 U.S.C. § 3583(e)(3).

      Furthermore, as Kellogg indicated, other provisions of Title 18 treat the

word “offense” as referring to expressly criminal activity. See, e.g., 18 U.S.C.

§ 16 (defining “crime of violence” to mean an “offense” with certain

characteristics); id. § 921(a)(33)(A) (defining “misdemeanor crime of domestic

violence” to mean an “offense”). The titles of various provisions of the criminal

                                         19
code confirm this interpretation. See, e.g., id. § 19 (section titled “Petty offense

defined”); id. § 24 (section titled “Definitions relating to Federal health care

offense”); id. §§ 1341–51 (chapter titled “Mail Fraud and Other Fraud Offenses”);

id. §§ 3271–72 (chapter titled “Extraterritorial Jurisdiction over Certain

Trafficking in Persons Offenses”). These provisions, along with § 3583(a)’s

limitation of supervised release terms to punishment for felonies or

misdemeanors, indicate that Congress intended to restrict the meaning of the term

“offense” throughout Title 18, and particularly in § 3583(e)(3), to crimes of

conviction.

      In sum, based on the foregoing, we conclude that § 3583(e)(3) imposes a

statutory maximum prison term based on the original criminal offense of

conviction, not the violative conduct resulting in the revocation of supervised

release. Therefore, Mr. Collins’s sentence should reflect the three-year maximum

for the Class B felony for which he was first sentenced.

                                          B

      In arguing against this outcome, Mr. Collins holds steadfastly to the view

that the “offense that resulted in” language of § 3583(e)(3) imposes a statutory

maximum based on the violative conduct of his first revocation, not his original

crime of conviction. He asserts that his view conforms to the statutory history of

subsections (e)(3) and (h) of § 3583, as well as subsection (e)’s cross-reference to

18 U.S.C. § 3553(a)(1).

                                          20
      As an initial matter, however, Mr. Collins contends that “the offense that

resulted in the term of supervised release,” for his purposes, must be referring to

his first revocation, rather than his original conviction, because but for his first

revocation, he would not be serving the term of supervised release that was

revoked a second time. More specifically, he argues that under § 3583(e)(3), the

phrase “resulted in” is referring to actual causation, which must be both “the

necessary and sufficient cause of Mr. Collins’s second term of supervised

release.” Aplee.’s Br. at 14–15.

      In support of his causation argument, Mr. Collins points to a decision from

the Supreme Court—Burrage v. United States, --- U.S. ----, 134 S. Ct. 881

(2014)—addressing the causation requirement imposed by 21 U.S.C.

§ 841(b)(1)(C). 6 In Burrage, the Court began with the observation that causation

generally “consist[s] of two constituent parts: actual [i.e., but-for] cause and legal

[i.e., proximate] cause.” Id. at 887. Although holding that § 841(b)(1)(C)’s

“results from” language “imposes . . . a requirement of actual causality,” the

Court declined to decide whether a proximate-cause requirement also flows from

      6
             The statutory provision at issue in Burrage specifically provides that

             In the case of a controlled substance in schedule I or II, . . . such
             person shall be sentenced to a term of imprisonment of not more
             than 20 years and if death or serious bodily injury results from
             the use of such substance shall be sentenced to a term of
             imprisonment of not less than twenty years or more than life . . . .

21 U.S.C. § 841(b)(1)(C) (emphasis added).

                                           21
the statutory phrase. Id. at 887. We subsequently held that identical “results

from” language in 21 U.S.C. § 841(b)(1)(E) did not embody a proximate-cause

requirement. See Burkholder, 816 F.3d at 621 (“[Section] 841(b)(1)(E)’s

provision that ‘death . . . results from the use’ of a Schedule III controlled

substance requires only proof of but-for causation.”). 7

      Mr. Collins contends that the district court’s first revocation “resulted in”

his second term of supervised release because but for that revocation the term of

supervised release that Mr. Collins ultimately violated would not have existed. If

we accept Mr. Collins’s argument that § 3583(e)(3)’s use of the phrase “resulted

in” refers to his first revocation as the independently sufficient, actual cause of

his second term of supervised release, we would be forced to overlook Johnson.

That is, as discussed supra, Johnson held that “postrevocation penalties relate to

the original offense” and are not punishments for the violation of conditions of

supervised release. 529 U.S. at 700–01. Thus, as a categorical rule, the but-for

      7
              Distinct from “actual cause” or “but-for cause,” “proximate cause” or
“legal cause” means that the cause must be “legally sufficient to result in liability;
an act or omission that is considered in law to result in a consequence, so that
liability can be imposed on the actor.” Proximate Cause, B LACK ’ S L AW
D ICTIONARY , supra. As we recited in Burkholder, “proximate cause principles
inject a foreseeability element into [a] statute.” 816 F.3d at 613 (alteration in
original) (quoting Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or.,
515 U.S. 687, 713 (1995) (O’Connor, J., concurring)); see also In re Antrobus,
519 F.3d 1123, 1126–27 (10th Cir. 2008) (Tymkovich, J., concurring) (where “the
harm must ‘proximately’ result from the crime,” examining the record to discern
whether the defendant’s “crime was a reasonably foreseeable result of the illegal
[conduct]”). Mr. Collins has made an argument only with respect to but-for
causation, not proximate causation.

                                          22
cause here—i.e., the offense that resulted in the term of supervised release—must

be the offense of conviction. Id.

      Moreover, it does not follow under Johnson that a but-for analysis will lead

to only the first revocation. Mr. Collins’s revocation was not independently

sufficient to warrant his second term of supervised release. See Burkholder, 816

F.3d at 620 n.10 (“An event or condition is sufficient if its existence means that

another event or condition will occur. An event or condition is necessary if, in its

absence, another event or condition could not occur.”); see, e.g., United States v.

White, 765 F.3d 1240, 1246 n.4 (10th Cir. 2014) (“The ‘based on’ clause is but

one of two necessary but not sufficient conditions that must be satisfied before a

district court is authorized to reduce a defendant’s sentence under

§ 3582(c)(2) . . . .”). In other words, but for Mr. Collins’s original conviction, he

could not be sentenced to a term of imprisonment or supervised release upon his

first or any subsequent revocation. Burrage does not artificially limit

§ 3583(e)(3) to the most recent event (i.e., Mr. Collins’s first revocation) in the

chain of actual causality. Imposing such a limitation here would contradict

Johnson. Therefore, Mr. Collins’s reliance on Burrage is misplaced.

      Nor is Mr. Collins’s position helped by § 3583(e)’s cross-reference to the

sentencing factors set forth in § 3553(a)(1). As a preliminary matter, under

§ 3583(e), the court must “consider[ ] the factors set forth in section 3553(a)(1),

(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)” before imposing a

                                          23
prison sentence following the revocation of supervised release. 18 U.S.C.

§ 3583(e). As relevant here, subsection (a)(1) of § 3553 requires the court to

consider “the nature and circumstances of the offense,” in the singular;

subsection (a)(4)(B) requires the court to consider “the applicable guidelines or

policy statements issued by the Sentencing Commission” “in the case of a

violation of probation or supervised release.” Mr. Collins contends that by cross-

referencing § 3553(a)(1), Congress intended the term “offense” in subsection

(e)(3)—which is also used in subsection (a)(1)—to refer to violations of

supervised release.

      Mr. Collins’s reliance on this cross-reference is misguided for two reasons.

First, as noted, Kellogg instructs that the term “offense,” at least as it is used in

Title 18, refers to criminal conduct. See Kellogg, 135 S. Ct. at 1976. Therefore,

Congress’s use of the term “offense” in subsection (e)(3) of § 3583 and

subsection (a)(1) of § 3553 must refer to a crime for which the defendant was

convicted, not violative conduct resulting in revocation. Second, consistent with

principles of statutory interpretation, subsection (e)(3)’s cross-reference to

§ 3553(a)(1) cannot be interpreted to refer to the transgression leading to

revocation when the cross-reference to § 3553(a)(4)(B) already does so. 8 See

      8
             Subsection (a)(4) directs courts to consider the policy statements and
sentencing ranges laid out in the United States Sentencing Guidelines Manual
(“Guidelines” or “U.S.S.G.”) in determining the appropriate sentence following a
violation of supervised release conditions. 18 U.S.C. § 3553(a)(4)(B) (“The
                                                                       (continued...)

                                          24
      8
        (...continued)
court, in determining the particular sentence to be imposed, shall consider . . . [,]
in the case of a violation of probation or supervised release, the applicable
guidelines or policy statements issued by the Sentencing Commission . . . .”).
Those policy statements in turn explicitly direct courts to consider the nature of
the defendant’s post-sentencing, post-incarceration, supervised release
misconduct in determining the appropriate sanction upon revocation of supervised
release. See U.S.S.G. Ch. 7, Pt. A. More specifically, these Guidelines policy
statements “provide[] for three broad grades of violations,” and these grades
classify only supervised release misconduct. U.S.S.G. Ch. 7, Pt. A, introductory
cmt. (3)(b); see id. § 7B1.1(a) (prescribing “three grades of . . . supervised release
violations”). And the only variable other than such misconduct (with its
associated grade) that affects the advisory sentencing ranges prescribed by the
policy statements is the defendant’s criminal history at the time of the original
criminal sentencing—viz., notably, the ranges are not affected by the offense of
conviction itself. See id. § 7B1.4(a) (Revocation Table) (“The criminal history
category is the category applicable at the time the defendant originally was
sentenced to a term of supervision.” (emphasis added)); see also United States v.
McBride, 633 F.3d 1229, 1232 (10th Cir. 2011) (“These policy statements serve
essentially the same role as the now-advisory sentencing guidelines issued by the
Commission. They represent an expert assessment of appropriate sentencing
practices, often informed by empirical data regarding actual sentencing
practices.”).

       Moreover, the Guidelines clearly distinguish between the statutorily
authorized maximum term of postrevocation imprisonment (i.e., the caps set by
18 U.S.C. § 3583(e)(3) based on the offense of conviction) and the advisory range
of postrevocation imprisonment that is based on the nature of the supervised
release violation resulting in revocation. See U.S.S.G. § 7B1.4(b)(1) (“Where the
statutorily authorized maximum term of imprisonment that is imposable upon
revocation is less than the minimum of the applicable range, the statutorily
authorized maximum term shall be substituted for the applicable range[.]”); see
also id. Ch. 7, Pt. A, introductory cmt. (3)(b) (noting that “the term of
imprisonment that may be imposed upon revocation of supervised release is
limited by statute” (emphasis added) (citing 18 U.S.C. § 3583(e)(3))); cf. United
States v. Jones, 2017 WL 405615, at *2 (10th Cir. Jan. 31, 2017) (“A district
court may vary from the sentencing range under the Guidelines after conducting
an ‘individualized assessment’ of the facts and considering the relevant 18 U.S.C.
§ 3553(a) factors.” (quoting Gall v. United States, 552 U.S. 38, 50 (2007))); id. at
                                                                        (continued...)

                                         25
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal principle of

statutory construction’ that ‘a statute ought, upon the whole, to be so construed

that, if it can be prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.’” (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)));

see also Elwell v. Okla. ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303,

1307 (10th Cir. 2012) (“[W]e are always hesitant to assume Congress included

pointless language in its statutory handiwork.”); Scalia & Garner, supra, at 174

(“If possible, every word and every provision is to be given effect (verba cum

effectu sunt accipienda). None should be ignored. None should needlessly be

given an interpretation that causes it to duplicate another provision or to have no

consequence.” (footnote omitted)). As § 3583(e) requires consideration of both

subsection (a)(1) and subsection (a)(4)(B) of § 3553, the requirement can be

plausibly interpreted to refer to the offense of conviction (i.e., subsection (a)(1))

and the transgression of revocation (i.e., subsection (a)(4)) separately.


      8
        (...continued)
*3 (“[A]lthough the sentence exceeded the Guidelines range [for his supervised
release violation], it fell within the statutorily permitted ranges of 48 and 24
months for Mr. Jones’s § 924(c) offense and § 922(g)(1) offense [i.e., his offenses
of conviction], respectively.” (emphasis added)). In other words, under the
Guidelines policy statements referenced by 18 U.S.C. § 3553(a)(4)(B), the nature
of a defendant’s misconduct resulting in supervised release revocation is relevant
solely to determining the grade of violation for purposes of calculating the
appropriate postrevocation sentencing range under the Guidelines. This is a
distinct inquiry from one related to the maximum term of postrevocation
imprisonment authorized by statute; that is where the caps of § 3583(e)(3) are
implicated.

                                          26
Construing the cross reference to subsection (a)(1) in § 3583(e) to refer to the

transgression leading to revocation, rather than the offense of conviction, would

create a redundancy.

      Finally, Mr. Collins argues that the statutory history of subsections (e)(3)

and (h) of § 3583 suggest that only subsection (h) refers to the original offense of

conviction for purposes of identifying the relevant limiting “term of supervised

release.” Mr Collins’s argument is two-fold. First, he notes that prior to 1994 the

statutory maximum in subsection (e)(3) was based on “the offense for which the

person was convicted,” 18 U.S.C. § 3583(e)(3) (1988) (emphasis added). Mr.

Collins claims that by amending subsection (e)(3) to limit the statutory maximum

prison sentence to “the offense that resulted in the term of supervised release,”

Congress intended for “offense” to refer to the violative conduct of the first

revocation. See 18 U.S.C. § 3583(e)(3) (1994). Second, Mr. Collins notes that

§ 3583(h), which authorizes district courts to impose a new term of

postrevocation supervised release, limits such term to that “authorized by statute

for the offense that resulted in the original term of supervised release.” 18 U.S.C.

§ 3583(h) (emphasis added). 9 Subsection (e)(3) does not include the term

      9
            Subsection (h) of § 3583 pertains to the district court’s authority to
sentence a defendant to a term of supervised release following revocation of a
previous term. It provides the following:

             When a term of supervised release is revoked and the defendant
             is required to serve a term of imprisonment, the court may
                                                                    (continued...)

                                         27
“original.” According to Mr. Collins, Congress’s failure to amend subsection

(e)(3) to include the term “original” when it added subsection (h) suggests that

the “offense” referenced in subsection (e)(3) has a broader meaning than the

“original” offense of conviction. 10

      9
          (...continued)
                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) (emphasis added).
      10
             Mr. Collins also makes a closely related argument based on the
“general principle of statutory construction that when ‘Congress includes
particular language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’” Barnhart v. Sigmon Coal Co.,
Inc., 534 U.S. 438, 452 (2002) (quoting Russello v. United States, 464 U.S. 16, 23
(1983)). Mr. Collins, however, ignores another equally compelling canon of
interpretation that cuts against this argument—viz., “[a] word or phrase is
presumed to bear the same meaning throughout a text,” Scalia & Garner, supra, at
170. Mr. Collins’s interpretation would require that we assign a different
meaning to the word “offense” as it appears in subsections (e)(3) and (h). “No
canon of interpretation is absolute,” Scalia & Garner, supra, at 59, rather “[t]hey
are guides that ‘need not be conclusive,’” Chickasaw Nation v. United States, 534
U.S. 84, 94 (2001) (citation omitted). Applying the principle Mr. Collins
proposes would be at odds with the statutory scheme of Title 18, in which the
term “offense” refers only to misdemeanors and felonies, and, as we have
previously held, “no statute is an island unto itself.” Brune, 767 F.3d at 1022; see
Kellogg, 135 S. Ct. at 1976. Accordingly, guided by Kellogg, subsections (e)(3)
and (h) should not be interpreted in a manner inconsistent with the plain language
of the term “offense,” when viewed in the context of Title 18. Nor does our
interpretation, as Mr. Collins contends, render “the term ‘original’ in § 3583(h)
                                                                        (continued...)

                                            28
      We dispatch with Mr. Collins’s arguments first by zeroing in on Congress’s

use of the word “offense” in § 3583(e)(3). Congress could only have meant to

limit the meaning of the term “offense” in subsection (e)(3) to the offense of

conviction. Given that Kellogg held that the term “offense” in Title 18 refers to

crimes (i.e., misdemeanors and felonies), see 135 S. Ct. at 1976—as opposed to

violations of conditions of release—that term (i.e., “offense”) must be accorded

the same meaning throughout the statutory scheme. See Villa, 589 F.3d at 1343

(noting that the court must “consider not only the bare meaning of the [text] but

also its placement and purpose in the statutory scheme” (alteration in original)

(quoting Bailey v. United States, 516 U.S. 137, 145 (1995))).




      10
         (...continued)
. . . superfluous.” Aplee.’s Br. at 27. On the contrary, as explained infra note 12,
there is a common sense explanation for the inclusion of “original” in subsection
(h) that undermines Mr. Collins’s superfluity argument.

                                         29
       Moreover, the statutory history in fact contradicts the strained reading Mr.

Collins attempts to impart to § 3583. 11 Prior to 1994, subsection (e)(3) authorized

a 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 . . . 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.

21 U.S.C. § 3583(e)(3) (1988) (emphases added). In 1994, Congress added the

provision at issue here—i.e., “authorized by statute for the offense that resulted in

such term of supervised release”—immediately before the words “without credit.”

In doing so, Congress “expanded the sentencing court’s authority, allowing the

court to impose a revocation sentence up to the statutory maximum even when the

actual sentence of supervised release is shorter.” United States v. Hunt, 673 F.3d

1289, 1292 (10th Cir. 2012); see also Johnson, 529 U.S. at 705 (noting that prior

to the 1994 amendments subsection (e)(3) did not allow a court to impose a

       11
              The government did not make this specific argument regarding the
statutory history of § 3583, however, “we are not limited to the parties’ positions
on what a statute means, because we review a question of statutory construction
de novo.” WWC Holding Co., Inc. v. Sopkin, 488 F.3d 1262, 1276 n.10 (10th Cir.
2007); see also Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir. 2006) (“We are
required to interpret federal statutes as they are written . . . and [therefore] are not
bound by parties’ [positions].”); cf. Kamen v. Kemper Fin. Servs. Inc., 500 U.S.
90, 99 (1991) (“When an issue or claim is properly before the court, the court is
not limited to the particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper construction of
governing law.”).

                                           30
postrevocation prison term “equal to the maximum authorized length of a term of

supervised release”); Spencer, 720 F.3d at 366 (“The [1994]

amendments . . . extended imprisonment upon revocation up to the terms

authorized by § 3583(b), i.e., those terms ‘authorized by statute for the offense

that resulted in such term of supervised release.’”); Hampton, 633 F.3d at 339

(describing the 1994 amendment as “removing the otherwise arguable limitation

that a prison term imposed could never be longer than the term of the revoked

supervised release” (quoting United States v. Jackson, 329 F.3d 406, 408 n.4 (5th

Cir. 2003), superseded on other grounds by statute, PROTECT Act, Pub. L. No.

108-21, § 101(1), 117 Stat. 650, 651 (2003), as recognized in Hampton, 633 F.3d

at 338)). In other words, the 1994 amendment was implemented to overcome a

perceived limitation imposed by the first clause of subsection (e)(3): it directed

courts to impose a post-revocation term of imprisonment based on the term of

supervised release authorized by statute for the offense of conviction, rather than

the term of supervised release set by the original sentencing court.

      Mr. Collins’s interpretation of the amendment is implausible in light of this

background. He contends that the very same provision—i.e., “the offense that

resulted in the term of supervised release”—had the exact opposite effect when it

was also added to the limiting clause at the end of subsection (e)(3) in place of

the “offense for which the person was convicted.” “A word or phrase is presumed

to bear the same meaning throughout a text,” Scalia & Garner, supra, at 170, and

                                         31
we see no reason to depart from this fundamental canon of statutory interpretation

here.

        Nor are we persuaded that Congress’s inclusion of the term “original” in

subsection (h) demands a different result. We are aware of no canon of statutory

interpretation that presumes Congress must amend one provision of a statute in

order to retain its plain meaning after adding a new provision to that statute that

more precisely expresses the meaning of the same statutory language. On the

contrary, when preamendment language—be it in a statute, jury instructions, a

contract, or any other legal instrument—was sufficient to support a construction,

but was subsequently amended to more precisely express the same meaning, the

amendment does not itself abrogate the prior construction. This is especially true

of Congressional enactments. See Consumer Prod. Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102, 117 (1980) (“[T]he views of a subsequent Congress

form a hazardous basis for inferring the intent of an earlier one.” (quoting United

States v. Price, 361 U.S. 304, 313 (1960))); In re Roser, 613 F.3d 1240, 1247

(10th Cir. 2010) (“[A] later legislature cannot change the meaning of a statute; it

can only amend the statute.”); Chelette v. Harris, 229 F.3d 684, 686 (8th Cir.

2000) (“When Congress repeatedly amends only some portions of a statute, we

infer that it intends no change to the law of unamended portions.”); Am. Cas. Co.

of Reading v. Nordic Leasing, Inc., 42 F.3d 725, 732 n.7 (2d Cir. 1994) (“Where

sections of a statute have been amended but certain provisions have been left

                                          32
unchanged, we must generally assume that the legislature intended to leave the

untouched provisions’ original meaning intact.”). Therefore, Congress’s decision

to include a clarifying descriptor in subsection (h) does not require us to

reconsider the meaning of subsection (e)(3). As noted, Kellogg requires the

conclusion that the “offense that resulted in” language of subsection (e)(3) must

refer to the original crime of conviction, and the addition of subsection (h) does

not alter our calculus in that regard. 12

       In sum, we are convinced that the plain language and statutory context of

the “offense that resulted in” language in § 3583(e)(3) reveals a clear

congressional choice to limit the term of imprisonment, following a revocation of

supervised release, based on the original crime of conviction.

       12
              We also note a much more plausible explanation for Congress’s
inclusion of the term “original” in subsection (h). As a general matter, subsection
(e)(3) dictates the term of imprisonment that can be imposed following
revocation, and subsection (h) dictates the term of supervised release that can be
imposed following revocation. Subsection (h) was added to § 3583 in 1994.
Prior to this time, courts could not impose an additional term of supervised
release after revoking a defendant’s original term of supervision. Given the
purpose of subsection (h)—i.e., to allow for new terms of supervised release in
addition to the original term—it is not surprising that Congress chose to include
the modifier “original” when describing the term of supervised release that courts
should look to when determining the maximum new term of supervision that may
be imposed. Mr. Collins would have us hold that, by including this clarifying
term in subsection (h), Congress implicitly intended to create a sweeping change
to subsection (e)(3). This we cannot do. “Congress . . . does not alter the
fundamental details of a [statute] in vague terms or ancillary provisions—it does
not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 468 (2001); cf. Kellogg, 135 S. Ct. at 1977 (“Fundamental
changes in the scope of a statute are not typically accomplished with so subtle a
move.”).

                                            33
                                          C

      We thus hold that the statutory-maximum prison sentence under

§ 3583(e)(3) for a defendant who, like Mr. Collins, has violated a second or

subsequent term of supervised release is based on the severity of the first offense

for which he was sentenced to supervised release (i.e., the offense of conviction).

Therefore, Mr. Collins must be resentenced based on the three-year statutory

maximum for his offense of conviction (i.e., a class B felony), rather than the

subsequent violation of the conditions of his release that resulted in revocation.

                                         III

      For the foregoing reasons, we REVERSE the district court’s sentencing order

and REMAND the case, instructing the court to VACATE its revocation judgment

and resentence Mr. Collins consistent with this opinion. 13

      13
             According to Federal Bureau of Prisons records, Mr. Collins was
released from prison on February 5, 2016. At that time, he still had to complete a
two-year term of supervised release. It is important to highlight that, as we read
controlling precedent, our instruction to the district court to resentence Mr.
Collins does not present any double-jeopardy concerns. The Double Jeopardy
Clause prohibits “sentence adjustments that upset a defendant’s legitimate
‘expectation of finality in his sentence.’” Warnick v. Booher, 425 F.3d 842, 847
(10th Cir. 2005) (quoting United States v. DiFrancesco, 449 U.S. 117, 136
(1980)). But this rule is subject to at least two caveats: (1) “[T]here can be no
reasonable expectation of finality when a statute gives the government a right to
appeal—at least not until expiration of the time for appeal to be taken,” United
States v. Earley, 816 F.2d 1428, 1433 (10th Cir. 1987) (interpreting
DiFrancesco); accord United States v. Smith, 929 F.2d 1453, 1457 (10th Cir.
1991) (“[A] criminal defendant whose sentence is appealable by the government
under a statutory provision allowing for such an appeal, remains under the
jurisdiction of the courts and can acquire no legitimate expectation in the finality
                                                                        (continued...)

                                         34
      13
         (...continued)
of his original sentence, at least not until the time for appeal has expired.”); and
(2) “A defendant cannot acquire a legitimate expectation of finality in a sentence
which is illegal, because such a sentence remains subject to modification.”
United States v. Rourke, 984 F.2d 1063, 1066 (10th Cir. 1992). Taken together,
these provisions allow us to conclude, with the Ninth Circuit, that “[t]here can be
no expectation of finality in sentences that are illegal and that were under
challenge by the government.” United States v. Arrellano-Rios, 799 F.2d 520,
524 (9th Cir. 1986). We have apparently not addressed a situation like this,
where a district court is directed to resentence an individual already released from
the imprisonment portion of his sentence. Nonetheless, we are confident in light
of controlling precedent that Mr. Collins has not acquired a legitimate expectation
of finality in his sentence. After all, he still must serve out the supervised release
portion of his sentence. Therefore we deem this disposition appropriate.

                                        -35-
