## 1997 D e c i sion s O p inion s of the U nit e d
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. e du/thir dc ir c uit_1997/162Filed July 18, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-5785

UNITED STATES OF AMERICA

v.

KEITH DOZIER, also known as Pete,
also known as Keith Bashir

Keith Dozier Appellant

On Appeal From the United States District Court For the District of New Jersey (D.C. Crim. Action No. 92-cr-00054-01)

Argued: June 17, 1997

BEFORE: STAPLETON, LEWIS and ALDISERT, Circuit Judges

(Opinion Filed July 18, 1997)

Faith S. Hochberg United States Attorney Kevin McNulty Allan Tananbaum (Argued) Assistant U.S. Attorneys
970 Broad Street
Room 502 Newark, NJ 07102 Attorneys for AppelleePatrick A. Mullin (Argued)

Court Plaza North 25 Main Street, Suite 200 Hackensack, NJ 07601 Attorney for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge :

In this case we must determine whether the Ex Post
Facto Clause of the United States Constitution is v iolated when, upon revocation of supervised release, a defe ndant 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. § 3583(h), which authorizes imposition of supervised release f ollowing revocation of a prior term of supervised release, i ncreases the potential punishment for violations of supervis ed release and, therefore, violates the constitutional prohibition on ex post facto legislation. We will v acate the
defendant's sentence and remand to the district cou rt for resentencing.

I.

Appellant Keith Dozier was convicted in 1992 of the class D felony of conspiracy to transport stolen motor ve hicles
across state lines. See 18 U.S.C. § 371; id. at § 2313. In June 1992, he was sentenced to 34 months in prison to be followed by 36 months of supervised release--the ma ximum term of supervised release that could be imposed on a defendant convicted of a class C or D felony. 18 U. S.C. § 3583(b)(2). Dozier completed his period of impris onment 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 His supervised release was revoked in November 1996 and he was sentenced again.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 histor y

2category of IV, and the fact that his supervised re lease

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 foll owed by a new, 24-month term of supervised release. Togethe r, 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. § 3583(h), which expressly permits the imposition o f a new term of supervised release upon revocation of an ea rlier term of supervised release. However, § 3583(h) was not enacted until September 13, 1994, more than two yea rs after Dozier committed his original offense of conv iction. Although Dozier did not argue before the district c ourt that application of § 3583(h) violated the Ex Post Facto Clause, he brought this timely appeal to press that argumen t 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).1

II.

The Ex Post Facto Clause of the Constitution states that "no ex post facto Law shall be passed." Art. I, § 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 ap ply to events occurring before its enactment.' Second, the change in the law must `alter[ ] the definition of crimina l conduct or increase[ ] the penalty by which a crime is punisha ble.' " 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

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1. The district court had jurisdiction over this fe deral criminal case pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal from the imposition of a sentence pursuant t o 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

3requirement is met here, and we see no reason to re ject this concession. A sentence imposed upon revocation of supervised release is most properly viewed as a consequence of the original criminal conviction. Se e 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 fo r original crime because conduct violating supervised release need not itself be criminal to be punished, and bec ause these violations need only be proven by preponderan ce 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 s upervised
release as "breach of trust" in connection with ori ginal 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 violations of supervised re lease at time they commit these violations, such penalties a re for those violations and not for underlying criminal of fense). Therefore, to sentence Dozier under § 3583(h) is to retrospectively apply a law passed in 1994 to crimi nal
conduct that occurred in 1992.

The issue we will focus our attention on is whether the concededly retrospective application of § 3583(h) i ncreases the penalty to which Dozier is subject for revocati on of his supervised release. We must compare the penalty Doz ier could have received prior to passage of § 3583(h) w ith the penalty he could have received after its passage. I f under § 3583(h) Dozier may potentially be given a sentenc e constituting an increased penalty over the maximum he could have received prior to § 3583(h), then applic ation of that statute to him constituted an ex post facto vi olation.
See Miller v. Florida , 482 U.S. 423, 432 (1987) (rejecting contention that there is no ex post facto violation when defendant cannot definitively show that he would ha ve received lesser sentence under old statute); Lindse y v. Washington , 301 U.S. 397, 401 (1937) ("[A]n increase in the possible penalty is ex post facto, regardless of th e length of

4the sentence actually imposed, [when] the measure o f

punishment prescribed by the later statute is more severe than that of the earlier . . . .") (citations omitt ed).

When Dozier committed his offense of conviction in 1992, the sentencing court's sentencing options upon revo cation of a term of supervised release were limited to tho se specified in 18 U.S.C. § 3583(e). Section § 3583(e) (3) provided, in relevant part, that the court could "r equire the person to serve in prison all or part of the term o f supervised release without credit for the time prev iously served on postrelease supervision . . . except that a person whose term is revoked under this paragraph may not be required to serve . . . more than 2 years in prison if the offense was a class C or D felony." We have conclud ed that § 3583(e) did not permit imposition of a new term o f supervised release as part of a sentence imposed up on revocation of the initial term of supervised releas e. See
United States v. Malesic , 18 F.3d 205 (3d Cir. 1994). Hence, had Dozier's supervised release been revoked prior to the passage of § 3583(h), the district court could only have sentenced him to prison, for any period up to and i ncluding 24 months. No new term of supervised release could have been imposed.

Section 3583(h) was enacted in September 1994. It provides:

When a term of supervised release is revoked and th e defendant is required to serve a term of imprisonme nt that is less than the maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. Th e length of such a term of supervised release shall n ot exceed the term of supervised release authorized by statute for the offense that resulted in the origin al term of supervised release, less any term of imprisonmen t that was imposed upon revocation of supervised
release.

18 U.S.C. § 3583(h).

Under § 3583(h), the sentencing court has far great er sentencing flexibility than it had under § 3583(e) alone. As

5before, the court may still sentence someone whose

criminal offense was a class D felony to any period of imprisonment up to and including 24 months, as prov ided under § 3583(e). In addition, if the court sentence s such a defendant to less than 24 months imprisonment, then the court may also impose a new term of supervised rele ase to follow that imprisonment. Together, the length of t he imprisonment and the new supervised release can ext end to a total of 36 months, i.e. the maximum term of supe rvised release authorized under § 3583(b)(2) for a class D felony.

Sentencing Dozier pursuant to § 3583(h) and not jus t pursuant to § 3583(e) affected the sentence to whic h he was subject in at least two important respects. First, it allowed imposition of a new term of supervised release, whe reas prior to § 3583(h) Dozier would have been free of a ll supervision following any incarceration the court m ight impose. Second, it allowed the court to impose a "t otal package" of penalties stretching to 36 months--the maximum period of supervised release authorized und er § 3583(b)(2)--rather than only 24 months--the maxim um period of incarceration authorized under § 3583(e)( 3). Here, for example, the district court sentenced Dozier to six months in prison followed by 24 months of supervise d release for a total package of 30 months, while wit hout § 3583(h) it could have only penalized Dozier for 2 4 months.2

These effects of § 3583(h) "increase the penalty" t o which Dozier is subject. Supervised release is punishment ; it is a deprivation of some portion of one's liberty impose d as a punitive measure for a bad act. A defendant on supe rvised release is subject to various terms and conditions which
restrict his freedom and which make him vulnerable to further punishment should he violate them. Such

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2. Dozier argues that § 3583(h) increases the punis hment to which he is subject in a third respect as well: the new term of supervised release gives rise to the possibility of a second revocatio n of supervised release, for which Dozier could again be sentenced to some c ombination of imprisonment and yet another term of supervised rel ease. Because we conclude that the second term of supervised release and the potential for a lengthier "total package" are alone enough to inc rease the penalty to which Dozier was exposed, we need not pass judgment on this additional
contention.

6subsequent punishment may again include more

imprisonment and more supervised release. The lengt h of the "total package," therefore, is the length of ti me the defendant suffers either a total or substantial dep rivation of his liberty. It is the measure of the period to whi ch he is subject to government supervision. Increasing that length
from a maximum of 24 months to a maximum of 36 months clearly increases the penalty authorized upo n revocation of supervised release.

The government insists that we must balance against
these detriments to Dozier the fact that the court must sentence Dozier to less than the maximum period of incarceration if it wishes to impose a new term of supervised release. Because incarceration is a more severe punishment than supervised release, the government continues, the greater likelihood of receiving less than the maximum authorized period of imprisonment is the mo st important effect of § 3583(h), and that effect alon e demonstrates that § 3583(h) will frequently not hur t defendants in Dozier's position.

This reasoning, however, cannot justify retrospecti ve application of § 3583(h) to Dozier. Contrary to the government's suggestion, there has been no reductio n in the maximum prison term to which Dozier is exposed. He could be sentenced to 24 months imprisonment follow ing passage of § 3583(h), just as he could have been pr ior to its passage. Retrospective application of § 3583(h) vio lates the ex post facto prohibition if there is the potential that such application may even once result in a harsher sente nce than previously authorized. The possibility that po st3583(h) sentences may frequently be less onerous th an otherwise is insufficient to redeem the statute. It is true, as the government emphasizes, that if the sentencing c ourt wants to impose a new term of supervised release it must impose less than the 24-month maximum term of imprisonment. But in exchange for sentencing Dozier to just one day less than 24 months of prison the cour t can impose up to 12 additional months (plus one day) of supervised release. We have no doubt that a sentenc e of 23 months and 29 days in prison followed by 12 months and a day of supervised release is a greater penalty th an 24 months in prison.

7We also reject the government's contention that we are

precluded from finding an ex post facto violation h ere by virtue of our decision in Brady , 88 F.3d at 225. Although Brady upheld § 3583(h) against an ex post facto challeng e, that case only considered a situation where the und erlying criminal conduct was a class A felony. The same ana lysis we employed in Brady

compels the conclusion that there is an ex post facto violation here.

For a class A felony, as was involved in Brady

, § 3583(b)(1) authorizes imposition of a term of sup ervised release of up to five years. Upon revocation of sup ervised release, § 3583(e)(3) authorizes imposition of a pe riod of imprisonment of up to five years. Thus, for a class A felony, the (b)(1) cap on supervised release is no greater than the (e)(3) cap on imprisonment. Since both caps arefive years, § 3583(h)'s predicating the length of the total pac kage of revocation sentence on the (b)(1) cap on supervised release rather than on the (e)(3) cap on imprisonment makes no practical difference.3 Application of § 3583(h) to Brady meant that he could be sentenced to any combination of prison and supervised release up to a total package of five years, but this was no more severe a penalty than t he five years of imprisonment to which he was subject prior to § 3583(h).

The statutory structure is quite different for clas s B, C, and D felonies, and so our conclusion with respect to these
classes of felonies must differ as well. For class B, C, and D felonies, there is a discrepancy between the amou nt of supervised release authorized and the amount of incarceration that can be imposed. For class B felo nies, § 3583(b)(1) authorizes up to five years of supervi sed release, but § 3583(e)(3) allows only a maximum of three years of prison to follow revocation. Section 3583( b)(2) authorizes up to three years of supervised release for class C and D felonies but § 3583(e)(3) allows only two y ears of prison upon revocation. Since § 3583(h) ties the le ngth of the total package to the length of supervised relea se permitted under § 3583(b), and since this length ex ceeds

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3. The same is true for class E felonies, where (b) (1) authorizes a year of supervised release and (e)(3) authorizes a year of imprisonment.

8the length of imprisonment authorized under § 3583( e),

application of § 3583(h) allows imposition of a sen tence two years longer than before for class B felonies (five years rather than three) and one year longer for class C and D felonies (three years as opposed to two).4 These l engthier periods of restricted liberty authorized under § 35 83(h) mean that application of this provision impermissib ly increases the punishment for those who commit class B, C, or D felonies. Brady

in no way bars us from recognizing
this fact.

Finally, the government notes that if we remand for resentencing the district court will be free to imp ose up to 24 months of imprisonment and speculates that Dozie r will be displeased with a lengthier prison sentence even though he will avoid the 24 months of supervised release. However,
Dozier's counsel assures us that Dozier is aware of this possibility and that he has chosen to press this ap peal, as is his right. As the Seventh Circuit stated in a si milar context, even if Dozier's appellate court triumph i s but a "pyrrhic victory" which may "come[ ] at a price" to him, "[c]oncern for [Dozier] cannot expand a. . . court' s power

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4. We are aware that four circuits have found no ex post facto violation in retrospective application of § 3583(h) with rega rd to any class of felony. See United States v. St. John , 92 F.3d 761 (8th Cir. 1996); see
also United States v. Johnson , 114 F.3d 1189 (Table), 1997 WL 327316 (6th Cir. 1997); United States v. Wash , 97 F.3d 1465 (Table), 1996 WL 536563 (10th Cir. 1996); United States v. Sandoval , 69 F.3d 531 (Table), 1995 WL 656488 (1st Cir. 1995), cert. denied , 117 S. Ct. 77 (1996). However, three of these circuits had, prior to § 35 83(h), construed § 3583(e) to permit imprisonment and supervised rel ease. See United
States v. O'Neil , 11 F.3d 292 (1st Cir. 1993); United States v. Sch rader

, 973 F.2d 623 (8th Cir. 1992); United States v. Boli ng , 947 F.2d 1461, 1463 (10th Cir. 1991), overruled by United States v . Rockwell , 984 F.2d 1112 (10th Cir. 1993). Unlike in our circuit, there fore, enactment of § 3583(h) did not alter the potential punishment in these three circuits. The final circuit to find no ex post facto violatio n treats the sentence imposed upon revocation of supervised release as ha ving an existence entirely independent of the original criminal condu ct, and therefore holds that application of a statute passed after the orig inal criminal conduct but before the revocation of supervised release doe s not implicate the ex post facto prohibition. See United States v. Reese , 71 F.3d 582 (6th Cir. 1995).

9under the law." United States v. McGee , 981 F.2d 271, 276

(7th Cir. 1992). On remand, the district court must resentence Dozier consistent with the sentencing au thority it possessed at the time Dozier committed his under lying
criminal offense.

III.

Since Dozier did not raise an ex post facto objecti on to his sentence in the district court, we can only vac ate his sentence if the ex post facto violation we have fou nd constitutes plain error. See Fed. R. Crim. P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). We conclude that it does.

We engage in a four-step analysis to determine whet her an error can be corrected on appeal despite not hav ing been raised in the trial court. We ask (1) whether there was an error, (2) that was plain, i.e. "clear" or"obvious, " (3) that affected substantial rights, and (4) that calls for the
exercise of our discretion to take corrective actio n because the error creates a miscarriage of justice or serio usly affects the fairness, integrity, or public reputation of ju dicial proceedings. See United States v. Retos , 25 F.3d 1220, 1228-32 (3d Cir. 1994) (deriving four steps from Un ited
States v. Olano , 507 U.S. 725, 732-37 (1993)).

All four conditions are satisfied here. As we have explained, the district court's retrospective appli cation of § 3583(h) to sentence Dozier to a new term of super vised release was error. This error was plain because it is clear that imposing a total sentence of 30 months is a gr eater penalty than the 24-month maximum authorized prior to enactment of § 3583(h). There is no doubt that this error affects Dozier's substantial right of liberty, sinc e it extends by at least six months the period during which his liberty is restricted and he is subject to governmental sup ervision. Imposing on the defendant a sentence that the law d id not
authorize at the time he committed his crime is a miscarriage of justice and seriously affects the fa irness and integrity of judicial proceedings. Therefore, we wi ll exercise our discretion and vacate the sentence as plain err or.

10IV.

Retrospective application of § 3583(h) to those who committed class B, C, or D felonies prior to Septem ber 14, 1994 increases the punishment that can be imposed o n such defendants and is, thus, contrary to the const itutional prohibition on ex post facto legislation. Therefore , we will
vacate Dozier's sentence and remand to the district court for resentencing consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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