December 14, 2017

Tenth Circuit: 18 U.S.C. § 3583 Allows Sentences Greater than One Year for Violations of Terms of Supervised Release

The Tenth Circuit Court of Appeals issued its opinion in United States v. Collins on Tuesday, February 14, 2017.

The Tenth Circuit Court of Appeals had to determine if the maximum allowable term of incarceration following a second violation of the terms of supervised release under 18 U.S.C. § 3583(e)(3) refers to the original crime or the violation of the terms of the supervised release. Howard Collins was originally convicted of a Class B felony for knowingly and intentionally distributing more than five grams of (in this case) crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). After his initial period of incarceration, he was granted supervised release. After violating his supervised release once before, upon his second violation of the terms of his release, the court sentenced him to one-year re-incarceration under the belief that § 3583(e)(3) permitted a one-year maximum term.

Section 3583(e)(3) stipulates the maximum allowable period of re-incarceration where supervised release has been revoked is the length of the supervised release authorized by statute for the offense that resulted in the supervised release. On appeal, the government asserted that the district court improperly read the statute to preclude a re-incarceration period over one year. The government argued that the language of the statute relating to the “offense that resulted in such term of supervised release” referred to the original offense for which Collins was convicted (which would allow for a three year maximum), not the violation of his supervised release. In interpreting the statute, the court noted that revocation of supervised release, while often leading to incarceration, is not in and of itself a crime and is only subject to a preponderance of the evidence standard. As incarceration for a criminal offense under a standard less than beyond a reasonable doubt would be a violation of the Due Process Clause, the court reasoned that the “offense” referenced in the statute was the original offense for which Collins was charged.

Looking to the holding in the Supreme Court case of Kellogg Brown & Root Servs. Inc. v. United States ex rel. Carter, the court stated that the interpretation of the term “offense” to be the original offense for which someone was convicted is applicable to the entirety of Title 18, (at issue here). At the outset, Collins argues that the court’s interpretation of the term original must, in his case, relate to his violation of the terms of supervised release because the phrase “resulted in” requires actual causation, and “but for” his first violation of supervised release he would no longer be on a term of supervised release to violate. The court rejects this contention, stating that Collins’ reading of the statute and the holding in Burrage v. United States to require actual and proximate cause, if adopted, would require the court to to over look the aforementioned due process issues. Furthermore, the court states that ‘but-for’ his original conviction, he could not have been sentenced to a term of supervised release upon either revocation.

In further opposition to the court’s interpretation, Collins supports his own interpretation by asserting that the statutory history of § 3583(e)(3) and (h), including its cross-reference to § 3553(a)(1) leads to an interpretation that the term ‘offense’ means violation of his supervised release. The court, again citing Kellogg to reject Collins’ interpretation, said that because the term ‘offense’ under Title 18 has been interpreted to mean the original offense for which he was convicted, the cross-reference to § 3553 (a)(1) would also carry that interpretation. In Collins’ final challenge to the court’s interpretation, he asserted that because prior to a 1994 amendment the statute referred to “the offense for which the person was convicted” (emphasis added), as opposed to the current iteration that replaced ‘convicted’ with ‘offense’, Congress specifically intended to include violations of the terms of statutory release. The court also rejected these arguments under Kellogg, stating that because Title 18 refers to crimes as the original ‘offense’, the term must be given the same meaning throughout the statutory scheme. Furthermore, the court added, the amendment worked to actually expand the sentencing court’s authority, and an interpretation that limited the court’s ability to sentence a term of imprisonment for revocation of supervised release would be inconsistent with that intention.

The Tenth Circuit Court of Appeals reversed the sentencing order of one-year, and remanded the case with the instruction that the court vacate its revocation judgment and resentence Collins.

Tenth Circuit: District Court has Wide Discretion to Impose Special Conditions of Supervised Release

The Tenth Circuit Court of Appeals issued its opinion in United States v. Bowers on Friday, February 10, 2017.

Donald Bowers was charged and convicted on two counts of civil contempt in violation of 18 U.S.C § 401(3) for willfully and repeatedly violating a permanent injunction against him stemming from a civil trade secret misappropriation suit. Bowers was sentenced to fifteen months’ incarceration and, following his release, a thirty-six month period of supervised release, during which he would make monthly payments of the remaining amount he owed to the plaintiff in the underlying civil suit. Bowers appealed, claiming that the court erred by imposing payments to the plaintiff in the civil case as part of his supervised release, denying his motion for disclosure of the criminal referral, and sentencing him for a period that exceeded six months.

The underlying civil case did not actually include Bowers himself, but his son Lonny Bowers (Lonny) and the officers of WideBand, who were sued by ClearOne Communications, Inc. for misappropriation of trade secrets. Bowers became involved when he entered into an agreement with the defendants in the case to purchase WideBand’s assets in exchange for money to pay their legal fees. The court issued a temporary restraining order and preliminary injunction to stop the transfer of assets to Bowers.

In the civil case against WideBand, the jury returned a verdict against the defendants that included compensatory damages against all the defendants, and punitive damages against two of the WideBand officers (not including Lonny). The day after the verdict in the WideBand case, Bowers filed a statement to perfect a security interest in all of WideBand’s assets. When the court ordered Bowers to appear to show why he was not in contempt for violating the existing temporary restraining order, he failed to appear, and the court determined that he was also subject to the existing restraining order as he acted in concert with the defendants in the WideBand case.

After Bowers failed to appear in multiple contempt hearings and again violated the permanent injunction by setting up and operating DialHD, Inc., a company that used the assets of WideBand, the court issued a memorandum decision and civil contempt order against Bowers for violating the permanent injunction, and directed Bowers to self-surrender for incarceration and pay ClearOne’s reasonable attorney fees and costs. Bowers failed to purge himself of the contempt charge, and the court issued a bench warrant for his arrest. The court rejected both of Bowers’ appeals from the civil cases.

The district court entered a civil judgment against Bowers in an amount of $57,188.61 in attorney fees for violating the permanent injunction, an amount of $22,743.88 to pay ClearOne’s costs and fees from the original ClearOne civil case, and $8,648 in appellate attorney fees in connection with his first appeal in the civil case. In relation to the contempt cases against Bowers, the district court judge who presided over the civil case sent a memo regarding the referral of criminal contempt charges for Bowers to the United States Attorney for the District of Utah, outlining the details of the civil case. A federal grand jury returned an indictment against Bowers for willfully disobeying the permanent injunction and civil contempt order, both in violation of 18 U.S.C. § 401(3). A jury found Bowers guilty on both counts.

Bowers was sentenced to fifteen months’ imprisonment, followed by a term of three years supervised release, during which he would make monthly payments to ClearOne. On appeal, Bowers argued that the district court abused its discretion by ordering him to make monthly payments to ClearOne, denying his motion to compel the government to disclose the criminal referral, and argued that his sentence is illegal because 18 U.S.C. § 402 limits sentences like those Bowers committed to no more than six months.

As to his first contention regarding the imposition of payments as a condition of his supervised release, the court stated that district court has broad discretion to impose special conditions of supervised release, stating that the conditions must only (1) be reasonably related to the nature and history of the defendant’s offense, the deterrence of criminal conduct, the protection of the public from the defendant’s crimes, or the defendant’s educational and other correctional needs; (2) involve no deprivation of liberty than is reasonably necessary; and (3) be consistent with pertinent policy statements issued by the Sentencing Commission. The court rejected Bowers’ argument, stating that the special condition in this case satisfies all of the requisite elements.

Bowers’ second argument on appeal, that the district court erred in denying his motion to discover the criminal referral, was also rejected by the court, as the information in the referral did not contain oral or written statements or other evidence that would render it discoverable under Fed. R. Civ. P. 16. Finally, the court also rejected Bowers’ argument that a sentence of fifteen months for his crimes was illegal under § 402, as he did not raise it at the district court level and therefore waived his right to assert the argument at the appellate level. The court added, however, that even if Bowers had not waived the argument, he still would not be entitled to relief because he was not charged under §402, but under § 401, which does not impose a maximum punishment.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Warrantless Search Condition of Supervised Release Not Limited to Sex Offenders

The Tenth Circuit Court of Appeals issued its opinion in United States v. Flaugher on Friday, November 13, 2015.

In 2006, Walter Flaugher pleaded guilty to one count of conspiracy to distribute methamphetamine and was sentenced to 57 months’ imprisonment followed by five years of supervised release. In 2014, the U.S. Probation Office filed a petition to revoke his supervised release based on several alleged violations. Flaugher stipulated to one of the violations, use of methamphetamine. The district court revoked his supervised release, sentencing him to 12 months and one day in prison followed by three years of supervised release. The district court also imposed a supervised release condition of submission to warrantless search, over Flaugher’s counsel’s objection.

Flaugher appealed, contending 18 U.S.C. § 3583(d) prohibits district courts from imposing the warrantless search condition other than for felons required to register under SORNA. The Tenth Circuit disagreed. The Tenth Circuit rejected Flaugher’s argument that the warrantless search provision applicable to defendants subject to SORNA is precluded for non-felons or felons who are not subject to SORNA. The Tenth Circuit noted that § 3583(d)’s “any other condition” provision specifically allows district courts to impose any condition of supervised release it deems necessary, as long as three limitations are met. This language does not preclude application of a warrantless search condition. The Tenth Circuit further noted that there is nothing in the SORNA warrantless search condition that limits it to sex offenders. The Tenth Circuit found that Flaugher’s proposed construction would render some of the text void or superfluous, and found that its own reading gave full effect to each of the words.

The Tenth Circuit affirmed the district court’s imposition of the warrantless search condition of supervised release.