FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50307

Plaintiff-Appellee, D.C. No.

v.  3:08-CR-07026-

IEG-1 DAVID XINIDAKIS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

Submitted March 2, 2010*

Pasadena, California

Filed March 25, 2010

Before: Pamela Ann Rymer and Kim McLane Wardlaw,

Circuit Judges, and Matthew F. Kennelly,** District Judge.

Opinion by Judge Rymer

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Matthew F. Kennelly, United States District Judge for

the Northern District of Illinois, sitting by designation. 

4845
COUNSEL

Jodi D. Thorp, Law Offices of Jodi Thorp, San Diego, California, for the defendant-appellant.

Nicole A. Jones, Assistant United States Attorney, San Diego,

California, for the plaintiff-appellee.

OPINION

RYMER, Circuit Judge:

We must decide whether 18 U.S.C. § 3624(e) prohibits a

district court from imposing consecutive sentences of imprisonment where a defendant violates concurrent terms of supervised release. Although we answered this question negatively

in United States v. Jackson, 176 F.3d 1175 (9th Cir. 1999)

UNITED STATES v. XINIDAKIS 4847
(per curiam), David Xinidakis argues that Jackson has been

undermined by the United States Supreme Court’s decision in

Johnson v. United States, 529 U.S. 694 (2000). We disagree.

Jackson remains the law of this circuit, and controls. Multiple

revocations of concurrent terms of supervised release may

result in consecutive time; there is no legal requirement that

they must result in concurrent time. Accordingly, we affirm.

I

Xinidakis was convicted on May 6, 1999, in the Western

District of Texas of bank robbery, using and carrying a firearm during a crime of violence, and conspiracy to carry a firearm during a crime of violence. He was sentenced to a total

of 123 months imprisonment, and 5 years of supervised

release on each count to run concurrently. He was released

from custody and began his term of supervised release on

August 1, 2006.

In May 2008 a petition was filed in the Western District of

Texas alleging that Xinidakis violated the conditions of supervised release by, among other things, failing to notify his probation officer of an arrest in California for trespassing after he

ignored the terms of a restraining order. Jurisdiction was

transferred to the Southern District of California, where Xinidakis was living at the time. The court revoked supervised

release, sentenced Xinidakis to time served, and reimposed

supervised release on the condition that he live in a Residential Reentry Center for up to 120 days.

Two and half months later, another petition to revoke was

filed based on Xinidakis’s unsuccessful termination from the

Reentry Center. It was subsequently amended to allege that

Xinidakis violated California law by stalking, violating a

restraining order, and committing battery. The district court

found that Xinidakis violated the conditions of release,1 and

1Xinidakis challenges the sufficiency of the evidence to support revocation, but we affirm the district court’s determination in a memorandum

disposition filed simultaneously with this opinion. 

4848 UNITED STATES v. XINIDAKIS
sentenced him to 10 months imprisonment on Count 1 of the

underlying indictment and 10 months on Count 2, to run consecutively, and 10 months on Count 3, to run concurrently to

the sentence imposed on Counts 1 and 2, for a total of 20

months. 

Xinidakis appeals the legality of the sentence, which we

review de novo. United States v. Chang, 207 F.3d 1169, 1177

(9th Cir. 2000).

II

[1] This appeal turns on whether Jackson remains good

law. If so, it squarely controls. There, we considered application of § 3624(e) to revocation of multiple terms of supervised

release. Based on the language of § 3624(e),2 Jackson argued

that once concurrent sentences of supervised release had been

imposed, revocation of those sentences could only result in

the imposition of concurrent sentences of imprisonment. 176

F.3d at 1176-77. We joined other circuits that had rejected the

same argument, embracing their conclusion that § 3624(e)

governs just the initial imposition of supervised release, and

not the imposition of prison terms after revocation. Further,

we endorsed our colleagues’ opinion that § 3584(a),3 which

governs the imposition of multiple sentences of imprisonment

generally, applies to post-revocation sentences. 176 F.3d at

1177-78. As a result, a district court “ ‘retains discretion to

impose either concurrent or consecutive sentences after revo2Section 3624(e) provides in pertinent part: 

The term of supervised release commences on the day the person

is released from imprisonment and runs concurrently with any

Federal, State, or local term of probation or supervised release or

parole for another offense to which the person is subject or

becomes subject during the term of supervised release. 

3Section 3584(a) provides: “If multiple terms of imprisonment are

imposed on a defendant at the same time, . . . the terms may run concurrently or consecutively . . . .” 

UNITED STATES v. XINIDAKIS 4849
cation of a defendant’s supervised release.’ ” Id. at 1177

(quoting United States v. Cotroneo, 89 F.3d 510, 513 (8th Cir.

1996)).4

[2] Xinidakis nevertheless maintains that the district court

lacked authority to impose consecutive sentences as Johnson

overrules Jackson. Johnson argued that it was improper for

the district court to revoke his single term of supervised

release and impose a prison term followed by a further term

of supervised release. 529 U.S. at 698. The Court declined to

apply retroactively newly enacted § 3583(h), which would

plainly allow this, and therefore had to decide whether the

pre-1994 version of § 3583(e)(3) permitted imposition of

supervised release after revocation and reincarceration. See

529 U.S. at 701-03. The Court held that it did, reasoning that

so far as that statute’s text was concerned, authority to “revoke” a term of supervised release and “require the person to

serve in prison all or part of the term of supervised release

. . .” meant that it was not a “term of imprisonment” being

served upon revocation, but all or part of the “term of supervised release.” Johnson, 529 U.S. at 705. Thus, whatever was

left of the term of supervised release after reincarceration

could be served as supervised release. Id. at 705-06.

Xinidakis posits that Johnson makes clear that § 3584(a)

does not apply to revocation proceedings because a district

court revoking supervised release does not sentence a defen4Every circuit court of appeals to consider the issue agrees that a district

court retains discretion under § 3584(a) to impose consecutive sentences

upon revoking concurrent terms of supervised release. See United States

v. Dees, 467 F.3d 847, 851-52 (3d Cir. 2006); United States v. Cordova,

461 F.3d 1184, 1189 (10th Cir. 2006); United States v. Deutsch, 403 F.3d

915, 916-18 (7th Cir. 2005) (per curiam); United States v. Gonzalez, 250

F.3d 923, 926-29 (5th Cir. 2001); United States v. Jackson, 176 F.3d 1175,

1176-79 (9th Cir. 1999) (per curiam); United States v. Johnson, 138 F.3d

115, 118-19 (4th Cir. 1998); United States v. Quinones, 136 F.3d 1293,

1294-95 (11th Cir. 1998) (per curiam); United States v. Cotroneo, 89 F.3d

510, 512-13 (8th Cir. 1996). 

4850 UNITED STATES v. XINIDAKIS
dant to “a term of imprisonment,” but instead determines he

is to serve all or part of “the term of supervised release” in

prison. See Johnson, 529 U.S. at 705-06. This, in his view,

undercuts Jackson’s fundamental premise, so Jackson can no

longer stand. In turn, Xinidakis would apply § 3624(e) to any

“terms of supervised release” that are to be served in custody

following the revocation of supervised release, thus requiring

the terms to run concurrently.

[3] We are bound by Jackson unless Johnson “undercut the

theory or reasoning underlying [Jackson] in such a way that

the cases are clearly irreconcilable.” Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc). We do not read Johnson as undermining Jackson. Johnson did not mention

§ 3624(e) or address whether a district court can order consecutive terms of imprisonment when revoking concurrent terms

of supervised release. It dealt with the entirely different issue

of whether the pre-1994 version of § 3583(e)(3) implicitly

permitted imposition of supervised release following a recommitment even though the statute did not do so explicitly.

From Johnson’s discussion of the “metaphysics” of the pre1994 version of § 3583(e)(3), 529 U.S. at 705, Xinidakis

infers that § 3584(a) — which allows multiple terms of

imprisonment to run concurrently or consecutively — does

not apply to revocation proceedings because a district court

revoking supervised release does not sentence a defendant to

a “term of imprisonment.” However, Johnson did not categorically determine the nature of a prison term that a defendant

serves as a result of a supervised release violation. Rather, the

Court was concerned only with a district court’s authority to

impose supervised release after reincarceration under an outdated statute. Id. at 702-03. The imposition of supervised

release after reincarceration was not at issue in Jackson and

it is not at issue here; the same goes for the pre-1994 version

of § 3583(e)(3).

UNITED STATES v. XINIDAKIS 4851
Nor did the Court suggest that its analysis would be the

same were it to consider the post-1994 version of

§ 3583(e)(3). Although Xinidakis imputes this result to Johnson by asserting that Congress has not changed the language

that informed Johnson’s interpretation of § 3583(e)(3), in fact

Congress has changed the language of § 3583(e)(3),5 something which the Court emphasized in contrasting the two versions. See 529 U.S. at 705.6

[4] In short, Jackson is alive and well. A district court has

discretion to impose concurrent or consecutive sentences after

revocation of multiple concurrent terms of supervised release.

Consequently, having revoked Xinidakis’s multiple terms of

supervised release, the district court could sentence him to

terms of imprisonment to run consecutively even though the

original terms of release ran concurrently. AFFIRMED.

5Compare 18 U.S.C. § 3583(e)(3) (1994) (authorizing courts to “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

serviced on postrelease supervision”), with 18 U.S.C. § 3583(e)(3) (1997)

(authorizing courts to “revoke a term of supervised release, and require the

defendant to serve in prison all or part of the term of supervised release

authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease

supervision”) (emphasis added). The latter version of § 3583(e)(3) applies

to Xinidakis because he was convicted in 1999. See Johnson, 529 U.S. at

701 (holding that “postrevocation penalties relate to the original offense”).

6The issue confronting Johnson, whether § 3583 allows a district court

to impose an additional term of supervised release after incarcerating a

defendant for violating a term of supervised release, was resolved when

Congress added § 3583(h). See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110505(3), 108 Stat. 1796,

2017. In contrast with Xinidakis’s theory, this subsection characterizes the

time served in custody after revocation of supervised release as a “term of

imprisonment.” See 18 U.S.C. § 3583(h); see also United States v. Johnson, 529 U.S. 53, 57-58 (2000) (analyzing § 3624(e) and noting that “the

ordinary, commonsense meaning of release is to be freed from confinement. To say respondent was released while still imprisoned diminishes

the concept the word intends to convey”). 

4852 UNITED STATES v. XINIDAKIS