On Appeal From the United States District Court For the District of New Jersey
(D.C. Crim. ActionNo. 92-cr-00054-01)
BEFORE: STAPLETON, LEWIS and ALDISERT, Circuit Judges
In this case we must determine whether the Ex Post Facto Clause of the United States Constitution is violated when, upon revocation of supervised release, a defendant is sentenced to a new term of supervised release, even though such a new term was not authorized at the time the defendant committed his underlying criminal offense. We conclude that retroactive application of 18 U.S.C. Section(s) 3583(h), which authorizes imposition of supervised release following revocation of a prior term of supervised release, increases the potential punishment for violations of supervised release and, therefore, violates the constitutional prohibition on ex post facto legislation. We will vacate the defendant's sentence and remand to the district court for resentencing.
Appellant Keith Dozier was convicted in 1992 of the class D felony of conspiracy to transport stolen motor vehicles across state lines. See 18 U.S.C. Section(s) 371; id. at Section(s) 2313. In June 1992, he was sentenced to 34 months in prison to be followed by 36 months of supervised release--the maximum term of supervised release that could be imposed on a defendant convicted of a class C or D felony. 18 U.S.C. Section(s) 3583(b)(2). Dozier completed his period of imprisonment in October 1994 and then began his 36 months of supervised release.
In September 1996, Dozier pled guilty to various violations of his conditions of supervised release. His supervised release was revoked in November 1996 and he was sentenced again. Given Dozier's criminal history category of IV, and the fact that his supervised release violations were grade C, the Sentencing Guidelines recommended a sentence of six to twelve months of imprisonment. See U.S.S.G. 7B1.4. The district court sentenced Dozier to six months of prison to be followed by a new, 24-month term of supervised release. Together, the total length of sentence imposed upon revocation of Dozier's supervised release was 30 months.
The district court sentenced Dozier pursuant to 18 U.S.C. Section(s) 3583(h), which expressly permits the imposition of a new term of supervised release upon revocation of an earlier term of supervised release. However, Section(s) 3583(h) was not enacted until September 13, 1994, more than two years after Dozier committed his original offense of conviction. Although Dozier did not argue before the district court that application of Section(s) 3583(h) violated the Ex Post Facto Clause, he brought this timely appeal to press that argument in this court. We may only vacate Dozier's sentence if we find that the district court committed plain error. See Fed. R. Crim. P. 52(b). *fn1
The Ex Post Facto Clause of the Constitution states that "no ex post facto Law shall be passed." Art. I, Section(s) 9, cl. 3. "Two conditions must be satisfied before a law can be deemed to transgress the ex post facto prohibition. First, the law `must be retrospective, that is, it must apply to events occurring before its enactment.' Second, the change in the law must `alter the definition of criminal conduct or increase the penalty by which a crime is punishable.' " United States v. Brady, 88 F.3d 225, 228 (3d Cir. 1996), cert. denied, 117 S. Ct. 773 (1997) (citations omitted); see also California Dept. of Corrections v. Morales, 115 S. Ct. 1597 (1995).
The government concedes that the retrospective requirement is met here, and we see no reason to reject this concession. A sentence imposed upon revocation of supervised release is most properly viewed as a consequence of the original criminal conviction. See United States v. Beals, 87 F.3d 854, 859-60 (7th Cir. 1996) (concluding that sentence imposed for violation of supervised release must be considered punishment for original crime because conduct violating supervised release need not itself be criminal to be punished, and because these violations need only be proven by preponderance of evidence); United States v. Woodrup, 86 F.3d 359, 361 (4th Cir.), cert. denied, 117 S. Ct. 332 (1996) (reaching same conclusion); United States v. Soto-Olivas, 44 F.3d 788, 791 (9th Cir. 1995) (same); United States v. Meeks, 25 F.3d 1117, 1123 (2d Cir. 1994) (same); Commentary, U.S.S.G. Ch. 7, Pt. A, para. 3(b) (describing violation of supervised release as "breach of trust" in connection with original sentence); but see United States v. Reese, 71 F.3d 582, 587-90 (6th Cir. 1995), cert. denied, 116 S. Ct. 2529 (1996) (concluding that because defendants have notice of potential penalties for ...