         06-5379-cr
         USA v. McNaught

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 19th day of October, two thousand and ten.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                                06-5379-cr
18
19       ROBERT MCNAUGHT,
20
21                                     Defendant-Appellant.
22
23
24
 1   FOR APPELLANT:    ROLAND R. ACEVEDO, New York, NY
 2
 3   FOR APPELLEE:     PREET BHARARA, United States Attorney for
 4                     the Southern District of New York
 5                     (Christopher L. LaVigne, Katherine Polk
 6                     Failla, Assistant United States
 7                     Attorneys, of counsel) New York, NY.
 8
 9        Appeal from the United States District Court for the
10   Southern District of New York (Koeltl, J.)
11
12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the district court be

14   AFFIRMED.

15       Defendant-Appellant, Robert McNaught (“Appellant”),

16   appeals from a judgment entered on November 1, 2006, in the

17   United States District Court for the Southern District of

18   New York (Koeltl, J.) revoking Appellant’s prior term of

19   supervised release and sentencing him to a term of 30

20   months’ imprisonment to be followed by a new term of five

21   years’ supervised release.   We assume the parties’

22   familiarity with the underlying facts, the procedural

23   history, and the issues presented for review.1



         1
           Because Appellant failed to raise his present
     objection before the district court, we review his sentence
     for “plain error.” United States v. Villafuerte, 502 F.3d
     204, 207 (2d Cir. 2007). The “imposition of a sentence in
     violation of law would be plain error.” United States v.
     A-Abras Inc., 185 F.3d 26, 30 (2d Cir. 1999) (internal
     quotation marks omitted).
                                   2
1        Appellant’s sole claim on appeal is that the district

2    court erred in reimposing a term of supervised release of

3    five years after it revoked his initial term of supervised

4    release and sentenced him to a term of 30 months’

5    imprisonment.   Appellant argues that the maximum term of

6    supervised release applicable is five years less his term of

7    30 months’ imprisonment.    This argument is without merit.

8        Where a defendant violates the conditions of a term of

9    supervised release, 18 U.S.C. § 3583(h) authorizes a court,

10   subject to certain limitations, to revoke the original term

11   of supervised release and impose a term of imprisonment to

12   be followed by a new term of supervised release. “The length

13   of such a term of supervised release shall not exceed the

14   term of supervised release authorized by statute for the

15   offense that resulted in the original term of supervised

16   release, less any term of imprisonment that was imposed upon

17   revocation of supervised release.” Id.

18       In the present case, 21 U.S.C. § 841(b)(1)(A) provided

19   the original term of supervised release.    We apply the

20   version of the statute in effect at the time Appellant

21   committed the offense.     See United States v. Smith, 354 F.3d




                                     3
1    171, 172—73 (2d Cir. 2003).2    At that time, 21 U.S.C. §

2    841(b)(1)(A) stated: “[a]ny sentence under this subparagraph

3    shall, in the absence of such a prior conviction, impose a

4    term of supervised release of at least 5 years in addition

5    to such term of imprisonment . . . .”    The lack of a stated

6    maximum term in § 841(b)(1)(A) authorizes a maximum term of

7    lifetime supervised release.    “The rule in this circuit is

8    that in view of the ‘at least’ language, no maximum term of

9    supervised release is imposed by such a provision, and

10   therefore that the statutory maximum term of supervision

11   release is a life term."     United States v. Gibbs, 58 F.3d

12   36, 37–38 (2d Cir. 1995) (construing 21 U.S.C. §

13   841(b)(1)(C), which contains the same "at least" language as

14   § 841(b)(1)(A)).

15       Appellant argues that 18 U.S.C. § 3583(b) requires a

16   maximum five-year term of supervised release for Class A

17   felonies — which, by definition, includes a violation of 21

18   U.S.C. § 841(b)(1)(A).     See 18 U.S.C. § 3559(a)(1).

19   Appellant’s statement of the law is incomplete.     18 U.S.C. §

         2
            According to the Indictment, Appellant’s known
     narcotics related criminal activity occurred from about May
     2001 through the time of his arrest on or about July 12,
     2001. We therefore look to the version of 21 U.S.C. §
     841(b)(1)(A) in effect from February 18, 2000 to November 1,
     2002.
                                     4
1    3583(b) states: “[e]xcept as otherwise provided, the

2    authorized terms of supervised release are . . . for a Class

3    A . . . felony, not more than five years.”   Based in part on

4    the language, “[e]xcept as otherwise provided,” this Court

5    has held that § 841(b)(1)(A)'s minimum term of five years’

6    supervised release supercedes § 3583(b)(1)'s maximum term.

7    See United States v. Eng, 14 F.3d 165, 173 (2d Cir. 1994).

8    Consequently, in Eng, where 21 U.S.C. § 841(b)(1)(A) (1988)

9    provided the applicable term of supervised release, we held

10   that the district court did not violate 18 U.S.C. § 3583(b)

11   when it sentenced the defendant to a lifetime term of

12   supervised release following his term of incarceration.3


         3
            We note that on November 2, 2002, between the time
     Appellant committed the underlying narcotics offense and the
     time of his sentencing for that offense on December 20,
     2002, § 841(b)(1)(A) was amended to read in relevant part,
     “Notwithstanding section 3583 of Title 18, any sentence
     under this subparagraph shall, in the absence of such a
     prior conviction, impose a term of supervised release of at
     least 5 years in addition to such term of imprisonment . . .
     .” (emphasis added). This amendment made explicit what this
     Court held in United States v. Eng, 14 F.3d 165, 173 (2d
     Cir. 1994), namely that the provision in § 841(b)(1)(A) that
     a term of supervised release must be “at least 5 years”
     trumps the general provision in 18 U.S.C. § 3583(b) that
     such a term must be “not more than five years.” Though it
     made § 841(b)(1)(A) explicit on this issue, this amendment
     does not change the fact that at the time Appellant
     committed the narcotics offense, the law in this Circuit was
     clear that the maximum lifetime term of supervised release
     authorized by § 841(b)(1)(A) was controlling.
                                  5
1        In the present case, 18 U.S.C. § 3583(h) required the

2    district court to subtract Appellant’s term of 30 months’

3    imprisonment from the maximum lifetime term of supervised

4    release authorized by 21 U.S.C. § 841(b)(1)(A).   The five-

5    year term of supervised release the district court imposed

6    is well within that range.   Therefore, the district court

7    did not err in imposing this term of supervised release.

8        We have considered all of Appellant’s contentions on

9    this appeal and have found them to be without merit.   For

10   the foregoing reasons, the judgment of the district court is

11   hereby AFFIRMED.

12
13                                FOR THE COURT:
14                                Catherine O’Hagan Wolfe, Clerk
15
16
17




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