Wednesday, August 29, 2018

            Sixth Circuit construes 18 U.S.C. §3583(h) in a case of first impression

             In United States v. Price, Andre Price pleaded guilty to bank robbery and was sentenced to 60 months imprisonment followed by 36 months of supervised release. Shortly after his release from prison he twice tested positive for cocaine. No action was taken regarding those violations. Within two weeks of those violations, Mr. Price twice tested positive for cocaine. At the revocation hearing Mr. Price proposed inpatient substance abuse treatment rather than imprisonment. The district court considered the sentencing options and imposed a below-Guidelines sentence of 2 months of imprisonment followed by 34 months of supervised release.

Two weeks after Mr. Price was released from imprisonment, he violated the terms of his supervised release by possessing and using crack cocaine and being absent from his halfway house without permission. At the revocation hearing, Mr. Price again sought treatment instead of incarceration. The district court considered that option inappropriate and sentenced him to 24 months imprisonment and a 12 month term of supervised release. The conditions of supervised release included 6 months in a halfway house. Inpatient treatment could possibly be substituted for time in the halfway house “on a month-for-month basis.” (Op. at 3).

On appeal, Mr. Price argued that his term of supervised release was procedurally unreasonable because it exceeded the maximum authorized by 18 U.S.C. §3583(h). That claim was reviewed for plain error since there was no objection in the district court to the length of the term of supervised release.

Section 3583(h) provides that the length of a term of supervised release “shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” The statute’s last clause not only requires the district court to subtract “the length of any newly-imposed period of incarceration from a term of supervised release” but it also requires the court to “subtract the length of any term of imprisonment imposed upon a prior revocation of supervised release related to the same underlying offense.” (Op. at 5).

Applying §3583(h) in Mr. Price’s case, the district court correctly noted that the maximum term of supervised release on the bank robbery conviction was 36 months. The court then subtracted the most recent 24 month term of imprisonment and determined that the maximum for any new term of supervised release was 12 months. The district court, however, erred by failing to reduce the term of supervised release by the 2 month term of imprisonment that was imposed when Mr. Price was initially revoked. The panel majority determined that plain error occurred and had to be corrected on remand.

Mr. Price also argued that his 24 month sentence was substantively unreasonable because he was not granted inpatient treatment rather than incarceration. The Sixth Circuit found no abuse of discretion because the district court “explicitly considered” the treatment option under 18 U.S.C. §3583(d) and determined it was inappropriate under the circumstances. Thus, Mr. Price failed to rebut the presumption that his within-Guidelines sentence was reasonable.

Accordingly, Mr. Price’s 24 month term of imprisonment was affirmed but the panel majority vacated the 12 month term of supervised release and remanded the case for the imposition of a new term of supervised release that did not exceed the maximum allowed by §3583(h).

In a separate opinion, Judge Batchelder agreed with the majority that Mr. Price’s 24 month sentence was not substantively unreasonable. She would have joined the majority’s ruling on Mr. Price’s procedural reasonableness challenge if the issue were reviewed de novo but she dissented because in her view the error was not “plain” or “obvious or clear.” Judge Batchelder noted that the interpretation of §3583(h) is a matter first impression in the Sixth Circuit and the Supreme Court has not addressed the issue. Under Sixth Circuit plain error precedent Judge Batchelder viewed that as “fatal” to Mr. Price’s procedural reasonableness challenge. (Concurring-Dissenting Op. at 9).   

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