                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 09-3726
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                    CLIFFORD WAY,
                                             Appellant

                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. No. 2-94-cr-00379-002)
                       District Judge: Honorable J. Curtis Joyner
                                     ____________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 24, 2010

              Before: SMITH, FISHER and GREENBERG, Circuit Judges.

                                   (Filed: July 2, 2010)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Clifford Way appeals from a sentence imposed after the revocation of his

supervised release, arguing that the District Court lacked jurisdiction to impose the

sentence because his term of supervised release had already expired. Because the
initiation of revocation proceedings during Way’s term of supervised release extended the

Court’s jurisdiction to adjudicate the alleged violation after the term was set to expire, we

will affirm.

                                                I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On November 17, 1994, Way pled guilty in the United States District Court for the

Eastern District of Pennsylvania to conspiring to distribute and possess with intent to

distribute, and distributing and aiding and abetting the distribution of, more than 50 grams

of a mixture or substance containing a detectable amount of cocaine base, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and 846. Way was sentenced to 84 months of

imprisonment and five years of supervised release.

       After several supervised release revocations,1 Way began a three-year term of

supervised release on April 8, 2005, which was set to expire on April 7, 2008. One year

later, on April 8, 2006, Way was arrested and charged by state authorities with aggravated

assault, possession of an instrument of crime, simple assault, and recklessly endangering

another person, but was released on bail. Based on that arrest, the United States

Probation Office submitted a petition to the District Court stating that Way had violated


       1
           The prior revocations are not relevant to this appeal.

                                                 2
his supervised release and requesting that the Court issue a warrant for Way’s arrest and

hold a revocation hearing. A probation officer authored the petition, and a supervising

officer signed the petition, but neither officer formally attested to any statement in the

document by oath or affirmation. The District Court approved the petition and issued a

warrant for Way’s arrest on April 21, 2006.

       On June 2, 2006, as a result of a separate incident, Way was arrested again and

charged by state authorities with attempted murder, aggravated assault, kidnapping,

unlawful restraint, harassment, possession of an instrument of crime, terroristic threats,

and stalking. The Probation Office submitted an amended petition charging Way with an

additional violation, and the District Court appended the amendment to the original

violation petition. On May 20, 2009, Way was found guilty in state court of aggravated

assault and kidnapping stemming from the June 2, 2006 incident. He was sentenced to 10

to 20 years of imprisonment.

       Thereafter, on September 9, 2009, after holding a supervised release revocation

hearing, the District Court revoked Way’s supervised release and sentenced him to 49

months of imprisonment, to be served consecutive to the state term of 10 to 20 years of

imprisonment. Way filed a timely appeal.2




       2
           We have jurisdiction over the District Court’s final decision pursuant to 28 U.S.C.
§ 1291.

                                                3
                                             II.

       “We exercise plenary review over jurisdictional issues[.]” United States v.

Sczubelek, 402 F.3d 175, 178 (3d Cir. 2005) (reviewing de novo whether the district court

retained jurisdiction under 18 U.S.C. § 3583(i) to adjudicate a violation of the defendant’s

supervised release).

                                            III.

       On appeal, Way argues that the District Court lacked jurisdiction to revoke his

supervised release and impose a sentence because his term of supervised release expired

17 months prior to the revocation. In particular, Way contends that 18 U.S.C. § 3583(i),

which extends a court’s power to adjudicate a violation if a warrant was issued prior to

the term’s expiration, does not apply to his case because it violates the Ex Post Facto

Clause and, alternatively, because the warrant was not supported by “oath or affirmation”

as required by the Fourth Amendment. We hold that § 3583(i) does not apply to Way’s

case because it was enacted after Way’s offense conduct, but that the law prior to

§ 3583(i) conferred jurisdiction to revoke Way’s supervised release.3


       3
        Way also contends, as he must to prevail, that the District Court also did not have
jurisdiction pursuant to 18 U.S.C. § 3624(e), which tolls a term of supervised release
“during any period in which the person is imprisoned in connection with a conviction for
a Federal, State, or local crime unless the imprisonment is for a period of less than 30
consecutive days,” because Way had not yet been convicted during the relevant period of
imprisonment. There is a circuit split on whether pretrial detention constitutes
“imprisonment” for purposes of § 3624(e). Compare United States v. Morales-Alejo, 193
F.3d 1102 (9th Cir. 1999) (holding in the negative), with United States v. Molina-Gazca,
571 F.3d 470 (5th Cir. 2009) (holding in the affirmative), and United States v. Goins, 516

                                             4
       Congress enacted 18 U.S.C. § 3583(i) on September 13, 1994, as part of the

Violent Crime Control and Law Enforcement Act of 1994. The provision allows a court

to revoke a term of supervised release and order a term of imprisonment after the

expiration of the term of supervised release “for any period reasonably necessary for the

adjudication of matters arising before its expiration if, before its expiration, a warrant or

summons has been issued on the basis of an allegation of such a violation.” 18 U.S.C.

§ 3583(i). To start, Way alleges that application of § 3583(i) to his case violates the Ex

Post Facto Clause because his offense conduct occurred no later than August 23, 1994, a

couple weeks prior to the enactment date. While we agree that § 3583(i) does not apply,

we do not agree that we are presented with an Ex Post Facto issue.

       The Ex Post Facto Clause, U.S. Const., Art. 1, § 9, “bars application of a law ‘that

changes the punishment, and inflicts a greater punishment, than the law annexed to the

crime, when committed[.]’” Johnson v. United States, 529 U.S. 694, 696 (2000) (quoting

Calder v. Bull, 3 Dall. 386, 390 (1798)). To prevail on such a claim, the defendant must

show that (1) “the law he challenges operates retroactively (that it applies to conduct

completed before its enactment)” and (2) “it raises the penalty from whatever the law

provided when he acted.” Id. Way cannot meet the first prong of this test because

Congress did not intend to apply § 3583(i) retroactively. See id. at 701-03 (holding that



F.3d 416 (6th Cir. 2008) (same). Because we find that the District Court had jurisdiction
based on the initiation of the revocation proceedings during Way’s term of supervised
release, we need not address this issue.

                                              5
Congress did not intend to apply 18 U.S.C. § 3583(h) – enacted jointly with § 3583(i) –

retroactively and thus that there was no Ex Post Facto issue under similar circumstances);

see also United States v. Bailey, 259 F.3d 1216, 1218 n.3 (10th Cir. 2001) (extending

Johnson’s reasoning to § 3583(i)).

       The issue, rather, is whether § 3583(i) applies to Way’s case. It does not. “[T]he

general rule [is] that when a statute has no effective date, absent a clear direction by

Congress to the contrary, [it] takes effect on the date of its enactment.” Johnson, 529

U.S. at 702 (quotations and citations omitted). The Supreme Court held in Johnson that

§ 3583(h), enacted together with § 3583(i), did not apply to the defendant in that case

because the provision “applies only to cases in which [the] initial offense occurred after

the effective date of the amendment, September 13, 1994.” Id. Here, Way’s offense

conduct occurred prior to § 3583(i)’s enactment date of September 13, 1994. Therefore,

we cannot apply § 3583(i) to Way’s case.

       This, however, does not necessarily mean that the District Court lacked jurisdiction

to revoke Way’s supervised release. We must further decide whether the Court would

have had jurisdiction under the law preceding § 3583(i). See, e.g., id. at 702-03 (“The

case turns . . . on whether § 3583(e)(3)[, the precursor to § 3583(h),] permitted imposition

of supervised release [under the facts presented].”). Although the prior statute, 18 U.S.C.

§ 3583(e)(3), is silent as to whether a court’s power to revoke supervised release

necessarily terminates at the end of the supervisory period, prior case law extended a



                                              6
court’s jurisdiction to adjudicate alleged probation and supervised release violations when

proceedings were initiated within the term of supervised release. For example, in

Franklin v. Fenton, 642 F.2d 760, 764 (3d Cir. 1980), we held that a warrant could be

executed after the expiration of parole if the original warrant was issued prior to the

expiration. Likewise, we held in United States v. Bazzano, 712 F.2d 826, 835 (3d Cir.

1983), that a court could revoke a term of probation after the term’s expiration if formal

revocation proceedings began within the term. Thereafter, other courts of appeals

reached similar decisions with regard to supervised release. See United States v. Neville,

985 F.2d 992, 996-97 (9th Cir. 1993) (finding that the failure to toll would create the

absurd result of exempting defendants who violate their conditions of supervised release

close to the end of their term); United States v. Barton, 26 F.3d 490, 491 (4th Cir. 1994)

(“We agree with the Ninth Circuit [in Neville] that courts retain jurisdiction to hold

hearings related to revocation of supervised release for a reasonable period after the term

of release expires when a petition charging a violation of the conditions of supervised

release is filed during the period of supervised release.”); see also United States v.

Sczubelek, 402 F.3d 175, 179 (3d Cir. 2005) (discussing above-cited cases). Section

3583(i) was thus not a drastic change from prior law. See United States v. Morales, 45

F.3d 693, 701 (2d Cir. 1995) (“[W]e believe that the most likely purpose of [§ 3583(i)]

was to make absolutely clear Congress’ earlier intention that sentencing courts have the




                                              7
authority to hold hearings to revoke or extend supervised release after expiration of the

original term if they issue a summons or warrant during the release period.”).

       In light of these prior decisions, we hold that, notwithstanding the inapplicability

of § 3583(i), the District Court had jurisdiction to revoke Way’s supervised release after

the term’s expiration because revocation proceedings were initiated within the term: the

Probation Office submitted a petition alleging that Way had violated his supervised

release; the District Court approved the petition and issued a warrant for Way’s arrest; the

Probation Office submitted an amended petition to incorporate the charges for which Way

was later convicted; and the District Court appended the amendment. Therefore, under

these circumstances, we see no legal impediment to the District Court’s adjudication of

Way’s alleged violation within a reasonable time – promptly after Way’s state-law

conviction – after his supervised release term was set to expire.4

                                             IV.

       For the foregoing reasons, we will affirm the District Court’s revocation of Way’s

supervised release and judgment of sentence.




       4
        We thus do not need to address Way’s alternative argument that § 3583(i) does
not apply because the warrant at issue was not supported by “oath or affirmation” as
required by the Fourth Amendment. Compare United States v. Vargas-Amaya, 389 F.3d
901, 904 (9th Cir. 2004) (requiring an “oath or affirmation” under § 3583(i)), with United
States v. Garcia-Avalino, 444 F.3d 444, 447 (5th Cir. 2006) (not requiring an “oath or
affirmation” due to the “the relaxed constitutional norms that apply in revocation
hearings”).

                                              8
