Some Reprieve in Supervised Release: New Limit on Authority to "Stack" Prison Terms for Violation … Plus New Approval of Crack Variance

United States v. Dillon, No. 12-2653.  Held:  (1) District court plainly errs when, for supervised release violation, court imposes consecutive terms of imprisonment on each of several counts if original sentence included only “a term” of supervised release; (2) In fashioning sentence for supervised release violation on part of defendant whose sentence was based on old “100-to-1” crack guideline, and who never got full benefit of Sentencing Commission’s amendments reducing disparate treatment of crack and powder offenses, district court should take account of defendant’s prior service of excessive prison term.

In the Sentencing Reform Act of 1984, Congress created supervised release for the purpose of assisting defendants’ reentry following lengthy periods of imprisonment.  The courts of appeals, however, have commonly held the supervised release regime to provide for extremely harsh punishment.  This development owes in no small part to the rule that, when supervised release is revoked, the sentencing judge may impose a consecutive term of imprisonment for each concurrent term of supervised release included in the original sentence.  See United States v. Dees, 467 F.3d 867 (3d Cir. 2006).  Under that rule, a defendant can be sentenced, for example, to up to seven years in prison for violating supervised release if he was originally convicted of a street-level drug offense with a gun.  This week, in Dillon, the Circuit identifies a limitation that reins in, to some degree, runaway revocation sentencing under this “stacking” rule.

In a unanimous decision authored by Judge Fisher, the Court holds that when the original sentence refers simply to “a term” of supervised release, only one term of post-revocation imprisonment may be imposed.  The limitation applies regardless of whether the judge who imposed the original sentence actually intended to impose multiple concurrent terms, and even where the judge was required to do so as a matter of law.

Percy Dillon (of United States v. Dillon fame, see 130 S. Ct. 2683 (2010)) was convicted on two counts of trafficking in cocaine (both crack and powder) and one count of using a firearm during and in relation to a drug trafficking crime.  Under the mandatory Guidelines, he was sentenced in 1993 to 322 months’ imprisonment.  By law, the district court was required to impose concurrent terms of supervised release on each of the drug counts.  Presumably out of inadvertence, the court instead pronounced a sentence whereby “the defendant shall be placed on supervised release for a term of five years.”

In 2011, following his release, Mr. Dillon was arrested and charged with violating the condition prohibiting him from associating with convicted felons or criminals, because he accepted a ride home from his cousin (his original codefendant) after smelling marijuana in the car.  The court found Mr. Dillon in violation, revoked supervised release, and imposed concurrent terms of imprisonment on each of the original counts.  On appeal, the Third Circuit reversed, holding that where “a district court’s sentence includes ‘a term’ of supervised release, the court may not sentence the defendant to multiple terms of reimprisonment and/or supervised release upon a subsequent revocation of supervised release.”

The Court rejected the government’s arguments that the district court, “despite what it said … actually meant to sentence Dillon to three concurrent terms of supervised release” and, moreover, was “obligated by law” to impose concurrent terms on two of the counts.  Such intentions and legal infirmity aside, “[a] defendant cannot be reimprisoned for violating the conditions of non-existent terms of supervised release.… In 1993, when the District Court sentenced Dillon to ‘a term’ of supervised release, it capped the number of supervised release terms it could revoke at any future proceeding at one.”

Dillon has important implications for the representation of defendants in revocation proceedings.  In determining the maximum authorized length of post-revocation imprisonment, it should not be presumed that the court may stack consecutive terms just because the defendant was originally convicted of multiple counts.  Rather, it is essential to review the original sentence to see whether separate, concurrent terms were specifically imposed on different counts by express pronouncement of the court.  If not, then the defendant may not be sentenced to imprisonment any greater in length than the maximums provided by 18 U.S.C. § 3583(e)(3); the supervising court may not exceed these limits by stacking consecutive terms that add up to more than the statutory maximum.  The Circuit implies that if there exists any exception to this rule, it is only where the judgment’s reference to “a term” reflects a clerical error, i.e., where the judge orally pronounced multiple concurrent terms, but the written judgment does not accurately reflect the sentence pronounced.

In vacating Percy Dillon’s sentence, the Third Circuit further ordered the district court to consider on remand that Dillon had served 28 more months in prison than the present crack guideline would direct.  This inequity was unusually palpable in Mr. Dillon’s case because he had actually been released upon the court’s granting of his Section 3582 motion to reduce sentence pursuant to the Sentencing Commission’s retroactive amendment to the crack guideline, which shrunk his Guidelines range to a period less than the time he had already served.  Putting aside this particularly egregious fact pattern, the same unfairness should be recognized whenever the defendant’s prison term concluded before sentence could be reduced pursuant to the Commission’s repeat amendments (circa 2007 and 2011) reducing the disparity embodied in the crack guideline.  Thus, at least where the defendant would have been eligible for a Section 3582 reduction, a supervising court in a crack case should always consider making dispensation for the fact that the defendant previously served what, it is now clear, was an excessive prison term.  For the Third Circuit’s most recent guidance concerning eligibility for Section 3582 reductions, see United States v. Flemming, —F.3d— , 2013 WL 3779977 (3d Cir. July 22, 2013) (career offenders), and United States v. Savani, —F.3d—, 2013 WL 2462941 (3d Cir. June 10, 2013) (substantial assistance departures).

Congratulations to Renee Pietropaolo and her colleagues at the Defender’s office in the Western District of Pennsylvania on a great win.