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United States v. Harris

United States District Court, E.D. Virginia, Richmond Division

July 20, 2016

UNITED STATES OF AMERICA
v.
MARCUS L. HARRIS, Defendant.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         This 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.

         PROCEDURAL HISTORY

         In 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 guns-and-drugs allegations.
(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. 100).
(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.

         Before Harris was sentenced in 3:15CR170, Harris filed this motion.

         Harris 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, 5) .

         II. FOURTH CIRCUIT PRECEDENT TEACHES THAT THIS COURT HAS JURISDICTION

         A. Winfield Teaches that "Revocation" does not Actually Terminate Supervised Release

         In 2000, the Supreme Court concluded that revoking a term of supervised release does not terminate that term of supervised release.[1] 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.

         B. Brown Teaches that A Violation Sentence is Part of the Term of Supervised Release for which ...


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