14-1063-cr 

United States v. Johnson   

1 In the 

2 United States Court of Appeals 

3 For the Second Circuit 

4 

5 

6 August Term, 2014

7 No. 14‐1063‐cr

8 

9 UNITED STATES OF AMERICA,

10 Appellee,

11 

12 v.

13 

14 JOHN JOHNSON, AKA DUKE, AKA DUKE HARDCORE, AKA JOHNNIE

15 JOHNSON,

16 Defendant‐Appellant.

17 

18 

19 Appeal from the United States District Court

20 for the District of Connecticut.

21 No. 3:05‐cr‐179‐1 ― Janet Bond Arterton, Judge.

22 

23 

24 ARGUED: MARCH 17, 2015

25 DECIDED: MAY 20, 2015

26 

27 

28 Before: STRAUB, SACK, and DRONEY, Circuit Judges.

29 

30 
2

1 Appeal from a judgment of the United States District Court

2 for the District of Connecticut (Arterton, J.), imposing a thirty‐six‐

3 month term of incarceration after Defendant violated a condition of

4 his supervised release.    Defendant argues that the district court

5 erred in determining the maximum term of incarceration for his

6 supervised release violation by reference to the felony classification

7 of his underlying offense at the time of its commission.  He argues

8 that, because his offense conduct would have been classified

9 differently after the enactment of the Fair Sentencing Act, the district

10 court should have determined the maximum term of incarceration

11 by reference to the classification at the time of his supervised release

12 revocation proceedings.  We AFFIRM.

13 

14    

15 CHARLES F. WILLSON, Nevins Law

16 Group LLC, East Hartford, CT, for

17 Defendant‐Appellant.

18 

19 AVI M. PERRY, Assistant United

20 States Attorney (Sandra S. Glover,

21 Assistant United States Attorney, of

22 counsel; David E. Novick, Assistant

23 United States Attorney, on the brief),

24 for Deirdre M. Daly, United States

25 Attorney for the District of

26 Connecticut, New Haven, CT, for

27 Appellee.

28 

29    
3

1 DRONEY, Circuit Judge:

2 Defendant‐Appellant John Johnson appeals from a judgment

3 of the United States District Court for the District of Connecticut

4 (Arterton, J.), imposing a thirty‐six‐month term of incarceration after

5 Johnson violated a condition of his supervised release.  On appeal,

6 Johnson argues that the district court erred in determining the

7 maximum term of incarceration by reference to the classification of

8 his original offense at the time of its commission.   Johnson argues

9 that, because the Fair Sentencing Act of 2010, Pub. L. No. 111‐220,

10 124 Stat. 2372 (“FSA”), had since amended the statute under which

11 he had been convicted, the district court should have determined the

12 maximum term of incarceration by reference to the post‐FSA

classification of his offense conduct.1 13 

14 Johnson’s challenge is all but foreclosed by our recent decision

15 in United States v. Ortiz, 779 F.3d 176 (2d Cir. 2015) (per curiam), in

 

1   The effective date of the FSA was August 3, 2010.
4

1 which we held that the penalties applicable when a defendant

2 violates the conditions of supervised release are “determined by

3 reference to the law in effect at the time of the defendant’s

4 underlying offense.”  Id. at 177‐78.  In light of Ortiz, the sole issue left

5 for us to resolve is whether the Supreme Court’s decision in Dorsey

6 v. United States, 132 S. Ct. 2321 (2012), compels a different outcome

7 when the underlying sentence was imposed pre‐FSA but revocation

8 proceedings are held subsequent to the FSA’s effective date.    We

9 hold that it does not.

10 Therefore, for the reasons set forth below, we AFFIRM the

11 judgment of the district court.

12 BACKGROUND

13 In 2006, Johnson pled guilty to a single‐count indictment

14 charging him with possession with intent to distribute five or more

15 grams of a mixture or substance containing cocaine base, in violation

16 of 21 U.S.C. § 841(a)(1) and (b)(1)(B).  The offense carried a forty‐year
5

1 maximum term of imprisonment at the time and was thus a Class B

2 felony.    See 18 U.S.C. § 3559(a)(2).    The district court sentenced

3 Johnson to 156 months’ imprisonment and four years of supervised

4 release.   On appeal, we vacated and remanded for resentencing in

5 light of the Supreme Court’s intervening decisions in Kimbrough v.

6 United States, 552 U.S. 85 (2007), and Gall v. United States, 552 U.S. 38

7 (2007).  See United States v. Johnson, 259 F. App’x 360 (2d Cir. 2008)

8 (summary order).  On remand, the district court sentenced Johnson

9 on September 4, 2008, to sixty‐one months’ imprisonment and five

years of supervised release.2 10   His supervised release term began in

11 August 2009.

12 In February 2014, while still on supervised release, Johnson

13 was convicted of first‐degree assault in Connecticut state court and

14 received an eighteen‐year sentence.    See Conn. Gen. Stat. § 53a‐59.

15 The district court determined that the state assault conviction

 

2   The five‐year term of supervised release is the statutory maximum for a

Class B felony.  See 18 U.S.C. § 3583(b)(1).
6

1 violated the condition of Johnson’s supervised release that he “shall

2 not commit another federal, state or local offense.”   Judgment in a

3 Criminal Case After Remand at 3, United States v. Johnson, No. 3:05‐

4 cr‐179 (D. Conn. Sept. 9, 2008), ECF No. 79.  The district court then

5 revoked Johnson’s supervised release and sentenced him to the

6 three‐year statutory maximum term of imprisonment applicable in

7 revocation proceedings when the underlying offense is a Class B

felony.    See 18 U.S.C. § 3583(e)(3).3 8     The district court entered

9 judgment on April 7, 2014.  This appeal followed.

10 DISCUSSION

11 I. Standard of Review

12 “The standard of review on the appeal of a sentence for

13 violation of supervised release is . . . the same standard as for

14 sentencing generally: whether the sentence imposed is reasonable.”  

15 United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005).  In making

 

3   The sentence was to be served half concurrent with, and half consecutive

to, the state court sentence.
7

1 this determination, issues of law are reviewed de novo.    See United

2 States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005).

3 II. Statutory Maximum Penalties and the FSA

4 Under 18 U.S.C. § 3559(a), an offense that is not otherwise

5 assigned a specific letter classification by statute is classified as a

6 Class B felony if it carries a maximum prison term of twenty‐five or

7 more years, and as a Class C felony if the maximum term is ten

8 years or more (but fewer than twenty‐five).  18 U.S.C. § 3559(a)(2)‐

(3).4 9   Among the consequences of an offense’s grade classification is

10 the maximum term of imprisonment that may be imposed when a

11 defendant violates the conditions of his supervised release: three

12 years for Class B felonies, and two years for Class C felonies.  See id.

13 § 3583(e)(3).

 

4   If a statute defining a substantive offense designates a letter classification

for the offense, then 18 U.S.C. § 3581 prescribes the applicable maximum term of

imprisonment.  See 18 U.S.C. § 3581(b); see also United States v. Gonzalez, 922 F.2d

1044, 1050 (2d Cir. 1991) (explaining the distinction between §§ 3559 and 3581).  

The statute under which Johnson was convicted, 21 U.S.C. § 841, does not assign

a classification.    Thus, 18 U.S.C. § 3581(b) is inapplicable, and the offense

classification is determined pursuant to 18 U.S.C. § 3559(a).
8

1 Prior to the enactment of the FSA, 21 U.S.C. § 841(b)(1)(B)(iii)

2 provided that a violation of § 841(a) carried a forty‐year statutory

3 maximum—making it a Class B felony—if it involved five or more

4 grams of a substance containing cocaine base.    The FSA amended

5 § 841 so that the same offense now requires at least twenty‐eight

6 grams to constitute a violation of that subsection and thus to trigger

7 the forty‐year maximum term of imprisonment.   See FSA § 2(a)(2),

8 124 Stat. at 2372 (effecting the change from five to twenty‐eight

9 grams).    An offense involving a lesser amount now carries a

10 maximum of twenty years’ imprisonment and thus constitutes a

11 Class C felony.  See 21 U.S.C. § 841(b)(1)(C).  There is no dispute that,

12 had Johnson committed his underlying drug offense following the

13 enactment of the FSA, he could only have been convicted of a Class

C felony based on the quantity of cocaine involved in the offense.5 14 

 

5   Johnson’s offense involved six grams of cocaine base.
9

1 III. Application of the FSA to Revocation Proceedings

2 Johnson argues that, in light of the enactment of the FSA, the

3 district court should have regarded his underlying conviction as a

4 violation of 21 U.S.C. § 841(b)(1)(C) and applied the two‐year

5 statutory maximum that applies in revocation proceedings for a

6 Class C felony.

7 As noted above, we recently held that 18 U.S.C. § 3583(e)(3),

8 which sets forth the penalties for supervised release violations,

9 requires that the district court apply those penalties based on the

10 law as it existed at the time of the underlying offense and not at the

11 time of the supervised release violation.  United States v. Ortiz, 779

F.3d 176, 182 (2d Cir. 2015) (per curiam).6 12   Ortiz, however, dealt with

13 a development in the law affecting whether a defendant can be

 

6   18 U.S.C. § 3583(e)(3) provides that, if the district court finds that a

defendant violated the terms of his supervised release, the district court may

“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,” up to the applicable

maximum term of incarceration.
10

1 sentenced as an armed career criminal and thus did not consider

2 whether the FSA alters this general backward‐looking approach in

3 cases where the FSA has changed the drug quantities that trigger the

4 statutory penalties of 21 U.S.C. § 841(b).  We now hold that it does

5 not.

6 In Dorsey v. United States, 132 S. Ct. 2321 (2012), the Supreme

7 Court held that the FSA’s revised penalties apply to defendants who

8 committed an offense prior to the FSA’s effective date but who were

9 not sentenced until after the FSA took effect.   Id. at 2326.   Prior to

10 Dorsey, our Court had held that the FSA does not apply retroactively

11 to defendants who were both convicted and sentenced prior to the

12 FSA’s enactment.  See United States v. Diaz, 627 F.3d 930, 931 (2d Cir.

13 2010) (per curiam).    Dorsey did not disturb Diaz’s holding.    See

14 Dorsey, 132 S. Ct. at 2335 (acknowledging that the Court’s holding

15 would create a disparity “between those pre‐Act offenders already
11

1 sentenced and those not yet sentenced as of [the FSA’s effective

2 date]”).

3 Thus, Johnson’s appeal can succeed only if Dorsey’s narrow

4 holding applies to him.    The question is whether Johnson can

5 properly be deemed a pre‐FSA offender who was sentenced

6 subsequent to the FSA’s enactment, although here not for the

7 underlying offense but for a supervised release violation.    He

8 cannot.    Both the Supreme Court and our Court have made clear

9 that a supervised release revocation sanction is not an additional

10 punishment for the underlying conviction, but rather part of the

11 original sentence.   See Johnson v. United States, 529 U.S. 694, 700‐01

12 (2000) (noting that double jeopardy is not implicated in revocation

13 proceedings, even if the defendant is separately prosecuted for the

14 conduct triggering the revocation, because “postrevocation

15 sanctions [are] part of the penalty for the initial offense”); United

16 States v. Pettus, 303 F.3d 480, 487 (2d Cir. 2002) (noting that, although
12

1 the initial period of incarceration and the supervised release term

2 are authorized by separate statutes, they constitute a “single

3 sentence for a single offense” such that “the revocation of

4 supervised release is not properly considered a new punishment”);

5 United States v. Amer, 110 F.3d 873, 884 (2d Cir. 1997) (“[T]he entire

6 sentence, including the period of supervised release, is the

7 punishment for the original crime, and it is the original sentence that

8 is executed when the defendant is returned to prison after a

9 violation of the terms of his release.” (citation and internal quotation

10 marks omitted)).

11 Johnson’s underlying sentence consisted of a sixty‐one‐month

12 prison term and a choice between (1) complying with the conditions

13 of his supervised release for five years and (2) facing up to an

14 additional three years in prison for violating those conditions.   As

15 Amer explains, the revocation proceedings merely execute the

16 previously imposed sentence.  See Amer, 110 F.3d at 884.  Dorsey is
13

1 therefore inapplicable; because the underlying sentence included a

2 Class B felony revocation penalty, Johnson continued to be subject to

3 that penalty until the completion of his entire sentence, including the

4 period of supervised release.

5 The Third Circuit addressed this same issue—and arrived at

6 the same result—in United States v. Turlington, 696 F.3d 425 (3d Cir.

7 2012).    There, a defendant sought to have his underlying Class A

8 felony treated as a Class B felony for purposes of his revocation

9 proceedings because of the drug quantity changes in the FSA.  See id.

10 at 427.    In rejecting the defendant’s argument, the court first

11 concluded that § 3583(e)(3) is backward‐looking.   Id. at 427‐28.   It

12 then determined that Dorsey did not affect the outcome because the

13 defendant had been convicted and sentenced prior to the FSA’s

14 enactment.    Id. at 428 (“The fact that [the defendant’s] supervised

15 release was revoked after passage of the FSA is of no moment.”).  

16 Ortiz endorsed Turlington’s approach to the § 3583(e)(3) question.  
14

1 See Ortiz, 779 F.3d at 181.   With our holding here, we endorse the

2 Third Circuit’s view of Dorsey.

3 Johnson’s five‐year term of supervised release was imposed

4 based on his conviction for a Class B felony, as were the potential

5 penalties for violations of the conditions of supervised release.  He

6 was still subject to those penalties, notwithstanding the changes

7 effected by the FSA.  Nothing in the FSA or in Dorsey’s interpretation

8 of it suggests that the penalties changed for purposes of addressing

9 non‐compliance with the conditions of supervised release.

10 Thus, the FSA had no effect on the supervised release portion

11 of Johnson’s pre‐FSA sentence.

12 CONCLUSION

13 For the foregoing reasons, we AFFIRM the judgment of the

14 district court.