1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-18-1997

United States v. Dozier

Precedential or Non-Precedential:

Docket 96-5785

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Recommended Citation

"United States v. Dozier" (1997). 1997 Decisions. Paper 162.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/162
Filed 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 Appellee 
Patrick 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 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. § 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. 

I. 

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. § 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 maximum 

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 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 

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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. 

§ 3583(h), which expressly permits the imposition of a new 

term of supervised release upon revocation of an earlier 

term of supervised release. However, § 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 § 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).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 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 

_________________________________________________________________ 

1. The district court had jurisdiction over this federal criminal case 

pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely 

appeal from the imposition of a sentence pursuant to 28 U.S.C. § 1291 

and 18 U.S.C. § 3742(a). 

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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 violations of supervised release at 

time they commit these violations, such penalties are for 

those violations and not for underlying criminal offense). 

Therefore, to sentence Dozier under § 3583(h) is to

retrospectively apply a law passed in 1994 to criminal 

conduct that occurred in 1992. 

The issue we will focus our attention on is whether the 

concededly retrospective application of § 3583(h) increases 

the penalty to which Dozier is subject for revocation of his 

supervised release. We must compare the penalty Dozier 

could have received prior to passage of § 3583(h) with the 

penalty he could have received after its passage. If under 

§ 3583(h) Dozier may potentially be given a sentence 

constituting an increased penalty over the maximum he 

could have received prior to § 3583(h), then application of 

that statute to him constituted an ex post facto violation. 

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 have 

received lesser sentence under old statute); Lindsey v.

Washington, 301 U.S. 397, 401 (1937) ("[A]n increase in the 

possible penalty is ex post facto, regardless of the length of 

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the sentence actually imposed, [when] the measure of 

punishment prescribed by the later statute is more severe 

than that of the earlier . . . .") (citations omitted). 

When Dozier committed his offense of conviction in 1992, 

the sentencing court's sentencing options upon revocation 

of a term of supervised release were limited to those 

specified in 18 U.S.C. § 3583(e). Section § 3583(e)(3) 

provided, in relevant part, that the court could "require the 

person to serve in prison all or part of the term of 

supervised release without credit for the time previously 

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 concluded that 

§ 3583(e) did not permit imposition of a new term of 

supervised release as part of a sentence imposed upon 

revocation of the initial term of supervised release. 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 including 

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 the 

defendant is required to serve a term of imprisonment 

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. The 

length of such a term of supervised release shall not 

exceed the term of supervised release authorized by

statute for the offense that resulted in the original term 

of supervised release, less any term of imprisonment 

that was imposed upon revocation of supervised 

release. 

18 U.S.C. § 3583(h). 

Under § 3583(h), the sentencing court has far greater 

sentencing flexibility than it had under § 3583(e) alone. As 

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before, 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 provided 

under § 3583(e). In addition, if the court sentences such a 

defendant to less than 24 months imprisonment, then the 

court may also impose a new term of supervised release to 

follow that imprisonment. Together, the length of the 

imprisonment and the new supervised release can extend to 

a total of 36 months, i.e. the maximum term of supervised 

release authorized under § 3583(b)(2) for a class D felony. 

Sentencing Dozier pursuant to § 3583(h) and not just 

pursuant to § 3583(e) affected the sentence to which he was 

subject in at least two important respects. First, it allowed 

imposition of a new term of supervised release, whereas 

prior to § 3583(h) Dozier would have been free of all 

supervision following any incarceration the court might 

impose. Second, it allowed the court to impose a "total 

package" of penalties stretching to 36 months--the 

maximum period of supervised release authorized under 

§ 3583(b)(2)--rather than only 24 months--the maximum 

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 supervised 

release for a total package of 30 months, while without 

§ 3583(h) it could have only penalized Dozier for 24 months.2 

These effects of § 3583(h) "increase the penalty" to which 

Dozier is subject. Supervised release is punishment; it is a 

deprivation of some portion of one's liberty imposed as a 

punitive measure for a bad act. A defendant on supervised 

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 

_________________________________________________________________ 

2. Dozier argues that § 3583(h) increases the punishment 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 revocation of supervised release, 

for which Dozier could again be sentenced to some combination of 

imprisonment and yet another term of supervised release. Because we 

conclude that the second term of supervised release and the potential for 

a lengthier "total package" are alone enough to increase the penalty to 

which Dozier was exposed, we need not pass judgment on this additional 

contention. 

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subsequent punishment may again include more 

imprisonment and more supervised release. The length of 

the "total package," therefore, is the length of time the 

defendant suffers either a total or substantial deprivation of 

his liberty. It is the measure of the period to which 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 upon 

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 most 

important effect of § 3583(h), and that effect alone 

demonstrates that § 3583(h) will frequently not hurt 

defendants in Dozier's position. 

This reasoning, however, cannot justify retrospective 

application of § 3583(h) to Dozier. Contrary to the

government's suggestion, there has been no reduction in 

the maximum prison term to which Dozier is exposed. He 

could be sentenced to 24 months imprisonment following 

passage of § 3583(h), just as he could have been prior to its 

passage. Retrospective application of § 3583(h) violates the 

ex post facto prohibition if there is the potential that such 

application may even once result in a harsher sentence 

than previously authorized. The possibility that post3583(h) sentences may frequently be less onerous than 

otherwise is insufficient to redeem the statute. It is true, as 

the government emphasizes, that if the sentencing court 

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 court can 

impose up to 12 additional months (plus one day) of

supervised release. We have no doubt that a sentence of 23 

months and 29 days in prison followed by 12 months and 

a day of supervised release is a greater penalty than 24 

months in prison. 

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We also reject the government's contention that we are 

precluded from finding an ex post facto violation here by 

virtue of our decision in Brady, 88 F.3d at 225. Although 

Brady upheld § 3583(h) against an ex post facto challenge, 

that case only considered a situation where the underlying 

criminal conduct was a class A felony. The same analysis 

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 supervised 

release of up to five years. Upon revocation of supervised 

release, § 3583(e)(3) authorizes imposition of a period 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 package 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 the five 

years of imprisonment to which he was subject prior to 

§ 3583(h). 

The statutory structure is quite different for class 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 amount of 

supervised release authorized and the amount of 

incarceration that can be imposed. For class B felonies, 

§ 3583(b)(1) authorizes up to five years of supervised 

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 years of 

prison upon revocation. Since § 3583(h) ties the length of 

the total package to the length of supervised release 

permitted under § 3583(b), and since this length exceeds 

_________________________________________________________________ 

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. 

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

application of § 3583(h) allows imposition of a sentence 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 lengthier 

periods of restricted liberty authorized under § 3583(h) 

mean that application of this provision impermissibly 

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 impose up to 

24 months of imprisonment and speculates that Dozier 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 appeal, as 

is his right. As the Seventh Circuit stated in a similar 

context, even if Dozier's appellate court triumph is but a 

"pyrrhic victory" which may "come[ ] at a price" to him, 

"[c]oncern for [Dozier] cannot expand a. . . court's power 

_________________________________________________________________ 

4. We are aware that four circuits have found no ex post facto violation 

in retrospective application of § 3583(h) with regard 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 § 3583(h), construed 

§ 3583(e) to permit imprisonment and supervised release. See United

States v. O'Neil, 11 F.3d 292 (1st Cir. 1993); United States v. Schrader, 

973 F.2d 623 (8th Cir. 1992); United States v. Boling, 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, therefore, enactment of 

§ 3583(h) did not alter the potential punishment in these three circuits. 

The final circuit to find no ex post facto violation treats the sentence 

imposed upon revocation of supervised release as having an existence 

entirely independent of the original criminal conduct, and therefore holds 

that application of a statute passed after the original criminal conduct 

but before the revocation of supervised release does not implicate the ex 

post facto prohibition. See United States v. Reese, 71 F.3d 582 (6th Cir. 

1995). 

 9 
under 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 authority 

it possessed at the time Dozier committed his underlying 

criminal offense. 

III. 

Since Dozier did not raise an ex post facto objection to 

his sentence in the district court, we can only vacate his 

sentence if the ex post facto violation we have found 

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 whether 

an error can be corrected on appeal despite not having 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 action because 

the error creates a miscarriage of justice or seriously affects 

the fairness, integrity, or public reputation of judicial 

proceedings. See United States v. Retos, 25 F.3d 1220, 

1228-32 (3d Cir. 1994) (deriving four steps from United

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 application of 

§ 3583(h) to sentence Dozier to a new term of supervised 

release was error. This error was plain because it is clear 

that imposing a total sentence of 30 months is a greater 

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, since it extends 

by at least six months the period during which his liberty 

is restricted and he is subject to governmental supervision. 

Imposing on the defendant a sentence that the law did not 

authorize at the time he committed his crime is a 

miscarriage of justice and seriously affects the fairness and 

integrity of judicial proceedings. Therefore, we will exercise 

our discretion and vacate the sentence as plain error. 

 10 
IV. 

Retrospective application of § 3583(h) to those who

committed class B, C, or D felonies prior to September 14, 

1994 increases the punishment that can be imposed on 

such defendants and is, thus, contrary to the constitutional 

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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