filed: March 7, 1994; As Corrected April 11, 1994.
On Appeal From the United States District Court for the Western District of Pennsylvania. (D.C. Criminal No. 91-00008-01).
Before: Becker, Hutchinson, and Cowen, Circuit Judges.
On June 18, 1991, appellant Joseph R. Malesic, having been convicted of mail fraud, was sentenced to a term of imprisonment of 18 months to be followed by a three year term of supervised release ("SR"). On direct appeal we affirmed the conviction. After appellant's release from prison, and following an initial hearing on appellant's subsequent violation of the conditions of his SR, the district court augmented the SR to include nine months home confinement with electronic monitoring. At a subsequent hearing regarding a separate violation of his SR, the district court again determined that appellant had violated his SR and this time revoked it. The court thereupon not only sentenced appellant to a term of imprisonment for a period of nine months, but also ordered appellant thereafter "to recommence supervised release so as to complete a total supervised release period of three years." This appeal followed.
The appeal presents the question, over which the courts of appeals are divided, whether the supervised release revocation provision of the Sentencing Reform Act ("SRA"), 18 U.S.C. § 3583(e)(3) (1988 & Supp. IV), permits a sentencing court to impose on a person who has violated the conditions of his or her SR both a prison sentence and a new SR term to follow the period of incarceration. Eight courts of appeals, all acknowledging that it would be better policy to permit sentencing courts to do this, have nonetheless read the statute to foreclose the reimposition of a SR term following revocation and reimprisonment, concluding that to hold to the contrary would require them to "rewrite" the statute. See United States v. Truss, 4 F.3d 437, 439 (6th Cir. 1993); United States v. Tatum, 998 F.2d 893, 895-96 (11th Cir. 1993); United States v. Rockwell, 984 F.2d 1112, 1116-17 (10th Cir.), cert. denied, 124 L. Ed. 2d 693, 113 S. Ct. 2945 (1993); United States v. McGee, 981 F.2d 271, 274-76 (7th Cir. 1992); United States v. Koehler, 973 F.2d 132, 134-36 (2d Cir. 1992); United States v. Cooper, 962 F.2d 339, 341-42 (4th Cir. 1992); United States v. Holmes, 954 F.2d 270, 272-73 (5th Cir. 1992); United States v. Behnezhad, 907 F.2d 896, 898-99 (9th Cir. 1990).*fn1 Two courts of appeals have held to the contrary, i.e., that the statute permits a sentencing court to impose a new SR term after its revocation of SR and imposition of a sentence of incarceration. See United States v. O'Neil, 11 F.3d 292, 1993 WL 505825 (1st Cir. Dec. 15, 1993); United States v. Schrader, 973 F.2d 623, 625 (8th Cir. 1992); cf. United States v. Williams, 2 F.3d 363, 364-65 (11th Cir. 1993) (following Tatum but expressing unanimous disagreement with its holding); United States v. Boling, 947 F.2d 1461, 1464 (10th Cir. 1991) (adopting the minority position; later reversed by Rockwell, supra).
The opinions in these cases have elucidated all the arguments pro and con on the issue, so that we would add nothing to the jurisprudence by a further exegesis. Moreover, the conflict will doubtless be settled not by the courts but by the Congress: the Sentencing Commission has urged the Congress to amend the SRA so as clearly to grant sentencing Judges the power the majority courts wish they had and the minority courts have found them to have already.*fn2 For the reasons briefly set forth herein, we cast our lot with the majority and, as the district court followed the minority rule, we will vacate the judgment of sentence it entered.
Congress enacted the provision authorizing SRs as part of the Sentencing Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1987 (1984) (codified as amended at 18 U.S.C. §§ 3551-86 (1988 & Supp. IV) and 28 U.S.C. §§ 991-98 (1988 & Supp. IV)). That provision, codified at 18 U.S.C. § 3583, authorizes a court to alter SR terms in a variety of ways. In particular, a court may:
(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release . . . ;
(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release . . . ;
(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision, if it finds by a preponderance of the evidence that ...