IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10984

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JAY OSWALT,

Defendant–Appellant.

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, HIGGINBOTHAM, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Jay Oswalt was convicted of three offenses. He was sentenced to three 

concurrent terms of imprisonment and three concurrent terms of supervised 

release. After revoking each term of supervised release, the district court 

sentenced Oswalt to three consecutive six-month terms of imprisonment and 

three concurrent 24-month terms of additional supervised release. Oswalt 

argues that the terms of his supervised release exceed the statutory maximum 

under 18 U.S.C. § 3583(h). He asserts that the district court erred by failing 

to reduce the maximum term of supervised release for each count by all terms 

of imprisonment imposed upon revocation even though two of the terms of 

imprisonment were imposed for different counts. We affirm.

United States Court of Appeals

Fifth Circuit

FILED

November 7, 2014

Lyle W. Cayce

Clerk

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No. 13-10984

I

Oswalt was convicted of two counts of bank robbery and one count of 

attempted bank robbery under 18 U.S.C. § 2113(a). He received three 

concurrent terms of imprisonment of 63 months to be followed by three 

concurrent terms of supervised release of 36 months. After serving his time in 

prison, Oswalt began his supervised release. 

The district court later revoked Oswalt’s supervised release because it 

determined that he had used and possessed certain controlled substances and 

had failed to attend drug counseling. The court sentenced Oswalt to prison for 

six months on each of his three counts, to run consecutively, for a total of 18 

months of imprisonment. The court also sentenced Oswalt to 24 months of 

supervised release on each count, to run concurrently.

Oswalt did not object to the term of his supervised release in the district 

court. However, he now contends that the supervised release exceeds the 

maximum term allowed. He argues that the district court should have 

subtracted the sum of his three terms of imprisonment—18 months total—

from the statutory maximum term of supervised release for each of his 

counts—36 months per count. Oswalt’s equation limits his supervised release 

to 18 months per count, rather than the 24 months the district court imposed. 

II

When a defendant argues that his sentence exceeds the statutory 

maximum, we review the issue de novo, regardless of whether the defendant 

properly preserved the objection to his sentence.1 Accordingly, whether Oswalt 

preserved error regarding the term of his supervised release is irrelevant.

1 United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008) (citing United States v. Sias, 

227 F.3d 244, 246 (5th Cir. 2000)).

2

 

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III

When a court revokes a term of supervised release and requires the 

defendant to serve a term of imprisonment, the court may also impose another

term of supervised release following the defendant’s imprisonment, with 

certain limitations.2 The maximum term of supervised release following 

revocation is limited by 18 U.S.C. § 3583(h): 

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.3

This provision requires a two-step calculation.4

The first step requires the district court to “identify the term of 

supervised release authorized for the defendant's original offense.”5 The 

parties do not dispute this portion of the calculation. Oswalt was convicted of 

two counts of bank robbery and one count of attempted bank robbery under 18 

U.S.C. § 2113(a). The three offenses each carried a maximum sentence of 

twenty years,6 making each offense a Class C felony.7 For a Class C felony, a 

court may impose a maximum term of three years of supervised release.8 

Accordingly, Oswalt’s three offenses originally carried a maximum of 36 

months of supervised release, per count.

2 18 U.S.C. § 3583(h).

3 Id.

4 Vera, 542 F.3d at 459.

5 Id.

6 18 U.S.C. § 2113(a).

7 18 U.S.C. § 3559(a).

8 18 U.S.C. § 3583(b)(2).

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The next step requires the district court to “subtract from the originally 

authorized supervised release term ‘any term of imprisonment that was 

imposed upon revocation of supervised release.’”9 The parties disagree as to 

how to apply this directive.

Oswalt contends that the phrase “less any term of imprisonment that 

was imposed upon revocation of supervised release” requires the district court 

to combine the prison terms imposed for each individual count and subtract 

that total term of imprisonment from each of the 36-month maximums of 

supervised release for the respective counts. Oswalt’s calculation is as follows:

Count Maximum Term of 

Initial Supervised 

Release

Term of Imprisonment 

After Revocation

(Served Consecutively) 

Calculation

(maximum term –

total imprisonment 

after revocation)

Maximum 

Term of New 

Supervised 

Release

1 36 mos. 6 mos. 36 – 18 18 mos.

2 36 mos. 6 mos. 36 – 18 18 mos.

3 36 mos. 6 mos. 36 – 18 18 mos.

Oswalt argues that his supervised release of 24 months per count exceeds the 

authorized maximum by six months.

The Government agrees with the district court’s interpretation of 

§ 3583(h). The Government reads “less any term of imprisonment that was 

imposed upon revocation of supervised release” to authorize the district court 

to subtract only the term of imprisonment imposed on a particular count, 

rather than the combined terms imposed on all counts revoked. The 

Government’s calculation is set forth below:

9 Vera, 542 F.3d at 459-60 (quoting 18 U.S.C. § 3583(h)).

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Count Maximum Term of 

Initial Supervised 

Release

Term of Imprisonment 

After Revocation

(Served Consecutively) 

Calculation

(maximum term –

term of 

imprisonment on 

that count)

Maximum 

Term of New 

Supervised 

Release

1 36 mos. 6 mos. 36 – 6 30 mos.

2 36 mos. 6 mos. 36 – 6 30 mos.

3 36 mos. 6 mos. 36 – 6 30 mos.

The Government contends that the limit set by § 3583(h) is 30 months and 

therefore, that Oswalt’s 24 months of supervised release per count falls within 

that statutory limit.

This court agreed with the Government’s interpretation of § 3583(h) in 

United States v. Thomas, an unpublished opinion.10 Although that opinion 

does not bind this panel,11 we conclude that it correctly construed § 3583(h).

Oswalt argues that the plain meaning of the words “any term of 

imprisonment” unambiguously requires a district court to subtract all terms of 

imprisonment imposed upon the revocation of supervised release from the 

subsequent term of supervised release. In the alternative, he argues that even 

if § 3583(h)’s reference to “any term” is ambiguous, the rule of lenity requires 

us to construe the statute in favor of the defendant.

We previously addressed the meaning of “any term” in § 3583(h) in 

United States v. Vera.12 The district court in that case had twice revoked Vera’s 

supervised release, which had been imposed for a single count of transporting 

an illegal alien.13 Following the second revocation, the district court calculated 

Vera’s new term of supervised release by subtracting only the term of 

10 551 F. App’x 223, 224 (5th Cir. 2014) (per curiam).

11 See 5TH CIR. R. 47.5.4.

12 542 F.3d 457 (5th Cir. 2008).

13 Id. at 458-59.

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imprisonment that had been imposed because of the second revocation.14 Vera 

argued that the district court erred because it failed to also subtract the term 

of imprisonment he served after the first revocation of his supervised release.15

We agreed with Vera that the district court was required to reduce his 

supervised release by the “aggregate length of any terms of imprisonment that 

have been imposed upon revocation.”16 We found decisions from other circuits

persuasive.17 The Fourth Circuit applied a plain-meaning approach, as Oswalt 

does here: “When the word ‘any’ is properly read in its § 3583(h) statutory 

context, Webster’s Third New International Dictionary provides that the word 

‘any’ means ‘all.’”18 The Eighth and Eleventh Circuits, in addition to looking 

to the plain meaning of the text, also found support in the relevant legislative 

history.19 The sponsor of an earlier bill, which created a formula identical to 

the one found in § 3583(h), provided an example where a defendant, like Vera, 

was credited for his terms of incarceration following both his first and second 

revocations of supervised release.20 Accordingly, we held that the district court 

erred in not subtracting both of Vera’s postrevocation terms of imprisonment.21

However, Vera read § 3583(h)’s use of “any term of imprisonment” in the 

context of multiple revocations for a single count and did not address the 

14 Id. at 459.

15 Id.

16 Id. at 462 (quoting United States v. Mazarky, 499 F.3d 1246, 1250 (11th Cir. 2007)) 

(internal quotation marks omitted).

17 See id. at 460-62.

18 United States v. Maxwell, 285 F.3d 336, 341 (4th Cir. 2002).

19 See Vera, 542 F.3d at 460-61 (citing Mazarky, 499 F.3d at 1250 and United States 

v. Brings Plenty, 188 F.3d 1051, 1054 (8th Cir. 1999) (per curiam), superseded by statute on 

other grounds, Prosecutorial Remedies and Tools Against the Exploitation of Children Today 

Act of 2003 (PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650).

20 102 CONG. REC. S7,771 (daily ed. June 13, 1991) (statement of Sen. Thurmond).

21 Vera, 542 F.3d at 462.

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question Oswalt presents today: how to interpret the same language where a 

defendant’s supervised release has been revoked for the first time but on 

multiple counts. The Eighth Circuit has addressed this question, and it agreed 

with the Government.22

In United States v. Zoran, the Eighth Circuit rejected the argument

Oswalt makes here: 

[T]he plain text of § 3583(h) provides that a term of postrevocation 

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.” Given the 

statute's consistent use of “term” and “offense” in the singular 

form, we think the subsequent phrase “any term of imprisonment” 

plainly refers to “all postrevocation terms of imprisonment 

imposed with respect to the same underlying offense.”23

The Eighth Circuit’s construction of § 3583(h) is clearly correct. The formula 

in § 3583(h) is count specific and does not contemplate subtracting the 

postrevocation terms of imprisonment imposed on all counts.

Oswalt argues that the district court’s failure to aggregate across counts 

fails to serve the purposes of the supervised-release statute. He asserts that 

supervised release aims to rehabilitate rather than punish,24 pointing to the 

fact that a court may not consider what is “just punishment for the offense” 

when setting the terms and conditions of supervised release.25

22 United States v. Zoran, 682 F.3d 1060, 1064 (8th Cir. 2012).

23 Id. (quoting, in part, Maxwell, 188 F.3d at 342).

24 See United States v. Johnson, 529 U.S. 53, 59 (2000).

25 Compare 18 U.S.C. § 3553(a)(2)(A) (listing the provision of “just punishment for the 

offense” as a factor for the court to consider when imposing a sentence), with § 3583(c) (stating 

a court can only consider certain factors when deciding to impose a term of supervised release, 

and the provision of “just punishment for the offense” is not one of them).

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Oswalt’s argument about the purposes of supervised release is 

unavailing because it conflicts with the clear meaning of § 3583(h). In any 

event, the statute requires the sentencing judge to consider factors unrelated 

to rehabilitation. The district court must consider whether the term of 

supervised release would “afford adequate deterrence to criminal conduct” and 

“protect the public from further crimes of the defendant.”26 

* * *

For the foregoing reasons, the sentence of the district court is 

AFFIRMED.

26 18 U.S.C. §§ 3553(a)(2)(B)-(C), 3583(c).

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