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Friday, February 14, 2014

Ind. Decisions - 7th Circuit decides one Indiana case today

In USA v. Steven Perry (ND Ind., Miller), a 9-page opinion, Judge Bauer writes:

In 2004, Steven Perry (“Perry”) was charged with four counts relating to the possession and transportation of child pornography. He pleaded guilty to two counts and was sentenced by the district court to concurrent 46- and 60-month terms of imprisonment to be followed by three- and five-year terms of supervised release. In 2009, Perry violated the terms of his supervised release and was sentenced to three months’ imprisonment and four years of supervised release. In 2013, Perry violated the terms of his supervised release once again. The district court sentenced Perry to a five-year term of imprisonment as well as a ten-year term of supervised release. In its written judgment, the court imposed four new conditions of supervision. Perry now appeals the five-year sentence imposed by the district court as well as the additional conditions of supervision. * * *

[A] The current version of 18 U.S.C. § 3583(k) states, “[i]f a defendant required to register under the Sex Offender Registration and Notification Act (SORNA) commits any criminal offense … the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment … . Such term shall not be less than 5 years.”

This version of the statute, however, did not take effect until July 27, 2006, and nothing in the language of the statute indicates that Congress intended the statute to apply retroactively. When Perry committed his initial offense in 2003, § 3583(k) stated, “[A] defendant whose term [of supervised release] is revoked under this paragraph may not be required to serve on any such revocation … more than 2 years in prison if such offense is a class C or D felony … .”

Perry argues, and the government concedes, that since Perry committed his original offense in 2003 and the offense constituted a class C felony, he was subject to the statutory two-year maximum term of imprisonment outlined in the 2003 version of § 3583(k). We agree, and so vacate Perry’s fiveyear term of imprisonment and remand with instructions to the district court to sentence Perry to no more than two years’ imprisonment pursuant to the 2003 version of § 3583(k). * * *

[B] Perry acknowledges that he is subject to the maximum twoyear term of imprisonment allowed by § 3583(k) for violating the terms of his supervised release. He contends, however, that he should be credited for time served. Since he served three months in prison in 2005 for a prior violation of his supervised release, Perry argues that his new sentence should be, at most, twenty-one months.

Perry’s case presents an issue of first impression in this circuit—whether a defendant’s past time served due to a prior revocation of his supervised release should count towards and so limit the maximum sentence the district court can impose for a subsequent violation of his supervised release under 18 U.S.C. § 3583(e)(3). Though Perry now claims that this issue is not ripe for our review, Perry squarely placed the issue before this Court when he argued that “the correct statutory provisions provide that Mr. Perry may serve no more than 21 months’ imprisonment on the revocation.” We now turn to the statute at issue. * * *

We agree with the reasoning of our sister circuits and hold that prior time served for violations of supervised release is not credited towards and so does not limit the statutory maximum that a court may impose for subsequent violations of supervised release pursuant to § 3583(e)(3). As such, Perry’s three months’ time served for a prior violation of his supervised release will not be credited towards or limit the statutory maximum the district court may impose for his most recent violation of supervised release. On remand, the district court may impose up to two-years’ imprisonment for Perry’s latest violation of the terms of his supervised release. * * *

[C] Perry also contests the four special conditions of supervised release the district court added in its written judgment. Perry asks this court to vacate those conditions and to replace them with the conditions the court orally imposed at his revocation hearing.

“The rule in such situations is clear: ‘if an inconsistency exists between a judge’s oral and the later written sentence, the sentence pronounced from the bench controls.’”

For the reasons mentioned above, we VACATE Perry’s sentence and the additional conditions of supervision imposed by the district court in its written judgment. We REMAND with instructions to the district court to sentence Perry to no more than two years’ imprisonment for his latest violation of supervised release, and to determine Perry’s conditions of supervision.

Posted by Marcia Oddi on February 14, 2014 06:58 PM
Posted to Ind. (7th Cir.) Decisions