                           File Name: 08a0766n.06
                           Filed: December 17, 2008
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          No. 07-5224

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
             Plaintiff-Appellee,                    )
                                                    )
                      v.                            ) ON APPEAL FROM THE UNITED
                                                    ) STATES DISTRICT COURT FOR THE
JEFFREY D. ROACH,                                   ) EASTERN DISTRICT OF TENNESSEE
                                                    )
           Defendant-Appellant,                     )
                                                    )
                                                    )

Before: GIBBONS and COOK, Circuit Judges; STEEH,* District Judge.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jeffrey Roach appeals the

district court’s sentencing of him after the revocation of his supervised release to a term of

imprisonment greater than his initial term of supervised release. Because we have previously held

that a postrevocation sentence may extend for longer than the original term of supervised release,

United States v. Marlow, 278 F.3d 581 (6th Cir. 2002), we affirm the district court’s decision.

                                               I.

       Roach was initially sentenced on June 21, 1991 to fifteen years imprisonment followed by




       *
       The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.

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three years of supervised release for, inter alia, possession of a firearm after having been convicted

of a felony. Roach served his time in prison and began the period of supervised release on March

24, 2005. The supervised release was revoked on March 6, 2006, when Roach “stipulated that he

[had] violated the terms of his supervised release by his possession of rock cocaine and marijuana

on September 15, 2005, which he had planned to trade for sex.” The district court considered the

violation guideline range of eight to fourteen months imprisonment, sentencing him to eight months

imprisonment followed by three years of supervised release.

       Roach served that term of imprisonment and began his second period of supervised release

on June 12, 2006. On July 2, 2006, Lieutenant Dan Cliff of the Morristown Police Department

observed an oncoming vehicle driving toward him in his lane. He let the vehicle pass, and then he

turned his car around and switched on his lights. He saw Roach throw a bag with white powder in

it and some white rocks out of the vehicle. Cliff radioed Officer Pete Shockley, who is a canine

officer for the Morristown Police Department, and told him that a suspect threw “dope” out of the

vehicle and told him the location to retrieve the contraband. Shockley retrieved the bag and twenty-

four rocks, and the substances field-tested positive for cocaine. The lab report on the substances was

also positive for crack cocaine.

       The Dispositional Report (“Report”) filed by the United States Probation Office stated that

the maximum statutory penalty faced by Roach under 18 U.S.C. § 3583(e)(3) if his supervised

release was revoked was sixty months incarceration, but because the defendant had previously served

a total of eight months for a supervised release revocation, the maximum sentence that could be

imposed would be fifty-two months incarceration. The Report stated that Roach had exhibited poor



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behavior and appeared to have “no intention of following any conditions set by the Court.” The

Report recommended that “Mr. Roach’s supervised release be revoked, and that he be sentenced

within the prescribed revocation range.” Roach objected to the Dispositional Report, arguing that

the Sixth Circuit decision in Marlow conflicted with the decision of the United States Supreme Court

in Johnson v. United States, 529 U.S. 694 (2000), and that the court lacked authority to impose a

post-revocation sentence longer than Roach’s initial three-year term of supervised release.

       The district court found by a preponderance of the evidence “that the defendant committed

the offenses of possession of a narcotic for resale and tampering with evidence.” Therefore, the

court found that he violated Standard Condition Seven of his supervised release, which states that

he “shall not purchase, possess, use, distribute or administer any controlled substance or any

paraphernalia related to any controlled substance, except as prescribed by a physician.” After noting

Roach’s lengthy criminal history, including three prior convictions for aggravated assault, and his

criminal history category of VI, the court found that Roach showed “a complete unwillingness to

abide by the terms and conditions of supervised release” as evidenced by his possession of illegal

narcotics within three weeks of being released from prison. District Court Order of Feb. 7, 2007 at

6. The court stated that because of Roach’s prior criminal record and the failure of numerous

incarcerations to deter his criminal behavior, the public had an important need to be protected from

his conduct. The district court found Roach’s violation guideline range to be fifty-one to sixty-three

months and sentenced him to a period of fifty-two months incarceration followed by no additional

term of supervised release on February 7, 2007. Roach filed a timely notice of appeal on February

7, 2007.



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                                                 II.

       We review de novo the determination of a district court’s authority to impose a sentence

following revocation of supervised release. United States v. VanHoose, 437 F.3d 497, 501 (6th Cir.

2006). Roach does not contest the procedural or substantive reasonableness of his fifty-two month

sentence. Roach instead argues that the district court erred in sentencing him to a term of

imprisonment that exceeds his original period of supervised release and that the term of

imprisonment must also be reduced by the eight-month portion of the original term of supervised

release that he already served because of a prior violation.

       When Roach was originally convicted and sentenced in 1991, 18 U.S.C. § 3583(e)(3)

authorized district courts to “revoke a term of supervised release, and require the defendant to serve

in prison all or part of the term of supervised release . . . without credit for time previously served

on postrelease supervision.” The text of § 3583(e)(3) did not address the issue of whether a district

court could impose an additional term of supervised release after revoking the original term of

supervised release and ordering re-imprisonment. See Johnson, 529 U.S. at 698 (stating that the

power to impose another term of supervised release following imprisonment was “not readily

apparent from the text of § 3583(e)(3)”). Congress amended § 3583 in 1994 to add subsection (h),

which explicitly provides that courts may impose another term of supervised release after an initial

period of supervised release has been revoked and a term of imprisonment imposed upon a

defendant. Id. Subsection (h) also states that “[t]he 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



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of supervised release.” 18 U.S.C. § 3583(h).

        In Johnson, the Supreme Court held that § 3583(h) does not apply retroactively to offenses

committed before the effective date of the amendment, September 13, 1994. Johnson, 529 U.S. at

702. However, Johnson affirmed an additional period of supervised release imposed after the initial

term of supervised release was revoked and the defendant reimprisoned based upon § 3583(e)(3).

Id. at 713. The Court found that § 3583(e)(3) retained linguistic continuity from the preguidelines

practice and that Congressional intent favored allowing reimposition of supervised release following

reimprisonment. Id. As Roach acknowledges, Johnson did not specifically rule about the duration

of the new term of supervised release.

        In United States v. Marlow, this court applied the principles from Johnson to a case where

the defendant was initially sentenced to prison time and four years of supervised release. Marlow,

278 F.3d at 582. After Marlow violated the conditions of his supervised release, the district court

revoked his release and sentenced him to serve twenty months in prison followed by a new four-year

term of supervised release. Id. Marlow appealed, and this court held that while § 3583(e)(3) did not

authorize a new sentence longer than the initial term of supervised release, the district court’s general

sentencing authority under § 3583(a) gave the court authority to impose an additional term of

supervised release after postrevocation incarceration. Id.

        Roach argues that we should overrule Marlow, relying on the Seventh Circuit’s rejection of

the Marlow rule in United States v. Russell, 340 F.3d 450 (7th Cir. 2003). In Russell, the Seventh

Circuit acknowledged that “a combined term of reincarceration and additional supervised release

under § 3583(e)(3) could not exceed the length of the original term of supervised release” and the



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district court could not impose a sentence longer than the original term of supervised release under

§ 3583(a). Id. The Seventh Circuit opined that the Marlow court improperly relied upon a section

of the Johnson opinion that explained the consequences of the dissent’s interpretation of the statute

at issue. In addition, it found that “the plain meaning of § 3583(a)’s text strongly suggests that

subsection applies only to the initial setting of a supervised release term.” Id. at 456. Finally, the

Seventh Circuit found that Marlow’s interpretation would allow district courts to bypass § 3583(e)(3)

and would render the exchange between Justice Souter’s majority opinion and Justice Scalia’s

dissent in Johnson moot because the Johnson court would not have had to determine whether §

3583(e)(3) allows the imposition of the sentence if the sentence could simply be imposed under §

3583(a). Id. at 457.

       A panel of this court also questioned Marlow in dicta in United States v. VanHoose, 437 F.3d

at 505. VanHoose was originally sentenced to imprisonment and three years of supervised release.

Id. at 499. Upon violating the terms of his supervised release, VanHoose’s supervised release was

revoked and he was sentenced to two years in prison and two years of supervised release. Id. The

panel criticized the Marlow decision for misreading Johnson, for making Johnson a “pointless

exercise,” and for ignoring the canon of statutory interpretation that the specific § 3583(e)(3) governs

the general § 3583(a). Id. at 505. Nonetheless, the panel upheld VanHoose’s sentence, writing:

“Even though it appears that Marlow was wrongly decided, it will continue to bind this and future

panels unless and until the en banc court reconsiders the question or the Supreme Court corrects the

error.” Id. at 505-06.

       Marlow constitutes the law of this Circuit and therefore controls the outcome of this case.



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United States v. Roach, No. 07-5224

See id. We are not sitting en banc and have no authority to disregard a Sixth Circuit precedent on

point, nor does this issue seem worthy of en banc review. See Dingle v. Bioport Corp., 388 F.3d

209, 215 (6th Cir. 2004) (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th

Cir. 1985)). In addition, Marlow’s reasoning has substantive merit. Section 3583(a) vests in the

district court broad sentencing authority to impose supervised release after imprisonment, and it is

a fair interpretation of that provision to assume that § 3583(a) provides valid authority to impose a

postrevocation sentence greater than the original period of supervised release. Therefore, we

conclude that the district court did not err in sentencing Roach to a term of imprisonment that

exceeded his original period of supervised release.

       Roach’s second contention, that the district court did not reduce his sentence by that portion

of the original term of supervised release which he served by reason of a previous supervised release

violation, has no merit. Contrary to Roach’s assertion, the district court did reduce his sentence by

the eight months he previously served, as the Dispositional Report had recommended. Roach’s

previous incarceration of eight months for a previous supervised release violation has already been

taken into account by his sentence of fifty-two months incarceration, eight months lower than the

sixty-month statutory maximum.

                                               III.

       For the foregoing reasons, we affirm the judgment of the district court.




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