United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
matter is before the Court on Defendant Marcus L.
Harris's MOTION TO DISMISS SUPERVISED RELEASE VIOLATION
PETITION FOR LACK OF JURISDICTION (ECF No. 119). For the
reasons set forth below, Defendant Marcus L. Harris's
MOTION TO DISMISS SUPERVISED RELEASE VIOLATION PETITION FOR
LACK OF JURISDICTION (ECF No. 119) will be denied.
2010, Marcus L. Harris ("Harris") was sentenced to
96 months incarceration and four years of supervised release
for possession with intent to distribute crack cocaine. (ECF
No. 28) . That sentence was subsequently reduced. (Order, ECF
No. 45) Thereafter, Harris was released from incarceration
and began supervised release in 2014. The timeline of
relevant events begins in September 2015:
(1) In September 2015, Harris was arrested on a cluster of
offenses: possession of a firearm by a convicted felon and
possession with intent to distribute crack cocaine ("the
September 2015 guns-and-drugs allegations").
(2) Later in September 2015, Harris failed to inform his
probation officer that he had follow-up contact with state
law enforcement in connection with the September 2015
(3) On October 6, the Court revoked Harris's supervised
release based on the failure-to-inform, and sentenced him to
incarceration from October 6, 2015 to November 5, 2015. (ECF
Nos. 77, 91).
(4) On October 23, 2015, the probation officer filed an
addendum to the petition on supervised release based on the
mandatory condition not to commit a further crime. (ECF No.
(5) In April 2015, Harris was tried on the September 2015
guns-and-drugs allegations, and was convicted on a single
count of being a felon in possession of a firearm. (Case No.
3:15CR170). Harris was sentenced to 120 months on that count
on June 23, 2016.
Harris was sentenced in 3:15CR170, Harris filed this motion.
begins the motion by acknowledging that United States v.
Winfield, 665 F.3d 107 (4th Cir. 2012) "governs
this Court's analysis of this motion." (Def.'s
Mtn. to Dismiss Supervised Release Violation Petition for
Lack of Jurisdiction, ECF No. 119, 3) ("Def.'s
Mtn."). Winfield held that a prior revocation
on minor or technical violations does not prevent a second
revocation on more significant or substantive violations.
Id. at 109-10. Harris argues that Winfield
was "incorrectly decided" and must be overturned on
the basis of a Ninth Circuit decision, United States v.
Wing, 682 F.3d 861 (9th Cir. 2012). (Def.'s Mtn. 3,
FOURTH CIRCUIT PRECEDENT TEACHES THAT THIS COURT HAS
Winfield Teaches that "Revocation" does
not Actually Terminate Supervised
2000, the Supreme Court concluded that revoking a term of
supervised release does not terminate that term of supervised
release. Johnson v. United States, 529
U.S. 694, 706-07 (2000) ("If *the term of supervised
release' is being served, in whole or part, in prison,
then something about the term of supervised release survives
the preceding order of revocation."). Relying on
Johnson, the Fourth Circuit concluded that "a
revocation of a term of supervised release is not equivalent
to a termination of the release, and thus the revoked term
remains in effect." Winfield, 665 F.3d at 112.
Brown Teaches that A Violation Sentence is Part of
the Term of Supervised Release for which ...