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United States v. Brown

United States District Court, W.D. Virginia, Charlottesville Division

April 24, 2015

UNITED STATES OF AMERICA,
v.
DAVID LLOYD BROWN,

MEMORANDUM OPINION AND ORDER

NORMAN K. MOON, District Judge.

This matter came before me on consideration of Defendant's motion to dismiss the petition for a warrant for an offender under supervision. Defendant argued that I lacked "jurisdiction to revoke [his] second term of supervised release, which has not yet commenced, based on newly discovered violations of the conditions of his previously revoked first term of supervised release." However, as I stated on the record at the revocation hearing, and as further explained herein, I did not revoke his second term of supervised release; rather, in keeping with precedent in this circuit, I held a second violation hearing and imposed additional prison time for violations committed prior to the preceding revocation hearing.

I.

The facts and procedural history of this case are not in dispute.

In 2002, Defendant pleaded guilty to various charges, including conspiracy, bank fraud, and possessing counterfeit securities. On January 24, 2003, I sentenced him to a term of 100 months' imprisonment followed by a five-year term of supervised release.

Defendant's term of supervised release, which began on October 7, 2009, included, inter alia, the condition that he not commit another federal, state, or local crime. On October 23, 2013, the United States Probation Office ("Probation") filed a supervised release violation report, petitioning to revoke the Defendant's term of supervised release based on the following technical violations: that he tested positive for cocaine on August 20, 2013, and tested positive for cocaine and opiates on October 22, 2013; that he failed to follow his probation officer's instructions, including failing to appear for an appointment on October 18, 2013; that he knowingly associated with a felon; and that he failed to enroll in a substance abuse treatment program. At a revocation hearing on November 21, 2013, I revoked his term of supervised release and sentenced him to seven months' imprisonment followed by a 12-month term of supervised release.

Three weeks later, a grand jury sitting in the Circuit Court for the City of Charlottesville, Virginia, indicted Defendant on four counts of distribution of a controlled substance, in violation of Virginia Code § 18.2-248, for conduct that occurred on September 12, September 25, October 12, and October 16, 2013, i.e., conduct that occurred during his first term of supervised release, and before the revocation hearing on November 21, 2013. As a result of the indictment, on August 27, 2014, Defendant entered into a plea agreement for one count of distribution of a controlled substance, and on November 10, 2014, the state court sentenced him to 20 years of imprisonment with 16.5 years suspended, followed by a five-year term of probation.

Defendant's 12-month term of federal supervised release has yet to commence. Defendant served the seven months to which I sentenced him on November 1, 2013, and on June 5, 2014, the Federal Bureau of Prisons released him, but he remained jailed on a state detainer. After he was sentenced in state court on November 10, 2014, Probation filed a second supervised release violation report, seeking additional incarceration for Defendant's distribution of a controlled substance.

Although Defendant moved to dismiss the petition, there is no dispute that he committed the conduct that constitutes the violations.

II.

Under 18 U.S.C. § 3583(e)(3), a court may, upon finding by a preponderance of the evidence and after considering the appropriate factors, revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision...." Applying the reasoning of Johnson v. United States, 529 U.S. 694, 706-07 (2000), the United States Court of Appeals for the Fourth Circuit has "held that a district court's revocation of a term of supervised release and imposition of a prison sentence [does] not deprive the court of its jurisdiction to hold a second violation hearing and impose additional prison time for violations committed prior to the revocation of the release." United States v. Winfield, 665 F.3d 107, 111 (4th Cir. 2012) (citing also United States v. Johnson, 243 Fed.Appx. 666, 668 (3d Cir. 2007)). A revocation of supervised release under § 3583(e)(3) differs from a termination under § 3583(e)(1); "unlike a "terminated" order of supervised release, one that is "revoked" continues to have some effect. '" Id. (quoting Johnson, 529 U.S. at 705-06). In short, a district court retains jurisdiction, post-revocation, and thus has the power to impose additional prison time. Id. at 113.

In Winfield, the district court revoked a defendant's supervised release for technical violations and then subsequently revoked the term of supervised release a second time and imposed an additional sentence after the defendant was convicted of state drug offense that the defendant had committed before the first revocation hearing. Id. at 109. The Fourth Circuit upheld the subsequent revocation and additional sentence, rejecting the defendant's argument that the first revocation had terminated his term of supervised release and therefore the district court no longer had jurisdiction. Id. at 110-12. The Fourth Circuit specifically held, id. at 112,

that the district court's revocation of the term of supervised release at the [first] hearing did not end the court's jurisdiction over Winfield's release. As defined by the Supreme Court in Johnson, 529 U.S. at 706, a revocation of a term of supervised release is not equivalent to a ...

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