1 Circuit Judge of the Ninth Circuit, sitting by designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50203

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMMY NARANJO,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

July 23, 2001

Before GARWOOD, HALL, 1 and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For deciding the sole issue presented — the district court’s

jurisdiction vel non to revoke Sammy Naranjo’s supervised release

subsequent to the expiration of that term

— we must decide whether

18 U.S.C. § 3583(i) (under certain conditions, supervised release

may be revoked subsequent to completion of supervised-release-term)

permits post-term revocation if it is based upon a violation of a

supervised-release-condition that differs from the violation

alleg ed prior to term-completion as the basis for initiating the

revocation procedure. AFFIRMED

.2 I.

In 1988, Naranjo was convicted of conspiracy to possess with

intent to distribute, and distribution of, cocaine. He was

sentence d, inter alia , to concurrent terms of 46 months’

imprisonment and five years’ supervised release.

On 20 May 1997, four days before the expiration of his

supervised-release-term, Naranjo’s probation officer filed a

petition alleging Naranjo violated the cond itions of his

supervision by conduct occurring in 1996: on 15 June, he drove

while intoxicated and under the influence of a controlled

substance; and, on 3 April, he and a convicted felon were arrested

for possession of cocaine. The petition stated that Naranjo had

been indicted in state court for intoxication assault on 4 May

1997; and that the possession charge had been dismissed. The

petition requested issuance of a warrant for Naranjo’s arrest but

also requested that the warrant be held in abeyance pending final

disposition of the state case. The warrant was issued that same

day — 20 May 1997.

Almost three years later, on 24 January 2000, long after the

supervised-release-term had expired, Naranjo’s probation officer

filed a second petition, modifying the first to allege Naranjo had

violated his supervised-release-conditions by pleading guilty on 27

October 1999 to 35 counts of a 54-count federal indictment,

concerning offenses committed during the supervised-release-term

.3

The next day, the Government moved to revoke Naranjo’s supervised

release because of that 27 October guilty plea. The motion did n ot

reference the 1996 conduct that had been the basis for the

original, pre-term-expiration revocation petition.

A revocation hearing was held on 2 March 2000. Naranjo

objected, claiming the court lacked jurisdiction to revoke his

supervised release. His objection was overruled, and Naranjo

pleaded “not true” to the Government’s allegations.

At the hearing, Na ranjo’s probation officer testified that,

when he submitted the first petition in 1997, he was aware of the

pending federal indictment against Naranjo; and that, prior to any

action being taken on the first petition, he filed the second,

based on the federal conviction. He stated it was his

understanding that the 20 May 1997 arrest warrant tolled Naranjo’s

supervised-release-term. On cross-examination, he agreed: the

basis for the second petition was different from that for the

first; and the Government’s revocation motion was not based on the

allegations in that first petition. He explained that, as of that

day, 2 March 2000, the state case (concerning the 1996 offenses

referenced in the first petition) was still pending.

The district court re voked Naranjo’s term of supervised

release. He was sentenced to 12 months’ imprisonment, to run

consecutively to the 216 months’ imprisonment imposed pursuant to

his October 1999 guilty plea.2 United States v. Schimmel

, 950 F.2d 432 (7th Cir . 1991),

cert. denied

, 503 U.S. 965 (1992), cited by the dissent, was

decided before § 3583 was amended to include subsection (i).

4 II.

As noted, the sole issue raised by Naranjo is one of statutory

interpretation: whether the post-term revocation is permitted by

§ 3583(i). That question is reviewed d e novo

. E .g., United States

v. Jimenez-Martinez

, 179 F.3d 980, 981 (5th Cir. 1999). Our

research h as n ot found any case in this, or any other, circuit

addressing this narrow statutory issu e, other than the recently

decided United States v. Downs

, No. 97-MISC.CR.-80E., 2000 WL

1568598 (W.D.N.Y. 19 Oct. 2000), discussed infra

. 2

The statute at issue provides:

The power of the court to revoke a term of

supervised release for violation of a

condition of supervised release, and to order

the defendant to serve a term of imprisonment

... extends beyond the expiration of the term

of supervised release for any period

reasonably necessary for the adjudication of

matters arising before its expiration if,

before its expiration, a warrant or summons

has been issued on the basis of an allegation

of such a violation

.

18 U.S.C. § 3583(i) (emphasis added). Subsection (i) was added to

§ 3583 in 1994. But, this court held, under the pre-1994 version

of § 3583, that a district court had jurisdiction to revoke a term

of supervised release when, although an arrest warrant was issued

during the term, the revocation hearing was not held until after3 The dissent posits that § 3583(i) does n ot apply because it

was enacted after Naranj o’s sentence and supervised release were

imposed. Naranjo does n ot complain about a possible ex post facto

application of that subsection; quite to the contrary, he relies on

its plain language in support of his contention that the district

court lacked jurisdiction to revoke his supervised release.

5 the term expired. J imenez-Martinez

, 179 F.3d at 981. Accordingly,

subsection (i) is in part a codification of exist ing law in this

circuit. U

nited States v. Schmidt

, 99 F.3d 315, 318 n.1 (9th Cir.

1996); see also United States v. Morales

, 45 F.3d 693, 701 (2d Cir.

1995) (“[W]e believe that the most likely purpose of the amendment

was to make absolutely clear Congress’ earlier intention that

sentencing courts have the authority to hold hearings to revoke or

extend supervised release after expiration of the original term if

they issue a summons or warrant during the release period”.

(emphasis added)). 3

Naranjo contends § 3583(i) authorizes such post-term

revocation only when the warrant or summons is issued before termexpiration on the specific basis of the alleged violation upon

which revocation is ultimate ly based . Therefore, according to

Naranjo, b ecause, for revocation, the Government did n ot rely on

the 1996 conduct upon which his arrest warrant was issued, but

instead on his 1999 convictions that occurred more than two years

after term-expiration, the district court did not have

jurisdiction. The Government responds that, if, as in this case,

a warrant or summons has been issued before term-expiration, the6

district court has jurisdiction over violations committed, but not

charged, during that term.

It goes without saying that, for inte rpreting § 3583(i), we

look first to its plain language. E.g., United States v. ZavalaSustaita , 214 F.3d 601, 604 (5th Cir.), c ert. denied

, 121 S. C t

.

434 (2000). Unless there is sufficient indication otherwise, we

assume Congress intends the words used to carry their ordinary

meaning. I d. And, if these words are unambiguous, our inquiry

ends. Id.

Under subsection (i), a district court can “revoke a term of

supervised release for violation of a condition of supervised

release

... if, before its expiration, a warrant or summons has

been issued on the basis of an allegation of such a violation ”. 18

U.S.C. § 3583(i) (emphasis added). The statute does n ot require

the pre-term-expiration-w arrant to be based on an allegation

concerning the specific violation for which revocation may be

later, or ultimately, sought, however, because it uses the phrase

“such a violation” (emphasis added), not “such violation”.

If “such violation” had been used, it would refer back to the

phrase “violation of a condition of sup ervised release” employed

earlier in subsection (i) and concerning th e actual post-termexpiration revocation basis. The employed-phrase, “such a

violation” (emphasis added), however, includes more than just the

earlier employed “violation of a condition” permitting post-term-4 We do not

, as the dissent suggests, consider the phrase “such

a violation” in isolation. Again, we emphasize that, when read in

conjunction with § 3583(i) as a whole, the phrase does not relate

back to the “violation of a condition of supervised release” on

which revocation is based, but refers instead to any violation

committed during the supervised release term, not just the one on

which revocation is based. Moreover, subpart (i) allows for a

“period reasonably necessary for the adjudication of m atters

arising before its expiration

... if a warrant or summons has been

issued on the basis of an allegation of such a violation ”.

(Emphasis added.) Plainly, revocation is n ot

, as the dissent

concludes, linked to the particular “matter” or “matters” for which

a warrant or summons was issued.

7 expiration revocation. “Such a violation” (emphasis added), which

pertains to the basis for the requisite issuance of a pre-termexpiration warrant, refers t o, or references, a ny violation of a

condition of supervised release during the term, not just the one

on which revocation is ultimately based. 4

To read the statute otherwise would render superfluous the use

of the article “a”. S ee United States v. Nordic Village, Inc.

, 503

U.S. 30, 36 (1992) (“a statute must, if possible, be construed in

such fashion that every word has some operative effect”). Instead,

as discussed, the statute’s plain language permits revocation based

on any violation of a condi tion of supervised release occurring

during the supervision term, even if not contained in a petition

for revocation filed during th at term, s o long as a warrant or

summons was issued during that term on the basis of a n alleged

violation

. And, as the Government correctly notes, once the

court’s post-term jurisdiction is preserved b y the issuance of a8

warrant or summons during the term, there is no bar to amending the

petition, post-term, to include additional grounds for revocation,

so long as the defendant is given appropriate notice. S ee F ED

. R.

C RIM

. P. 32.1(a)(2).

Naranjo ana l ogizes the amended petition to a superseding

indictment, which can relate back to the original indictment and be

considered timely only if it d oes n ot broaden the charges. S ee

Downs

, 2000 WL 1568598, at *2 (holding § 3583(i) extends

jurisdiction to revoke supervised release on ly when a warrant or

summons is issued before the term’s scheduled expi ration on the

spe cific basis of the alleged violation upon which revocation is

ultimately sought). Subsection (i), however, expressly provides

that the timely-issued warrant extends the district court’s

jurisdiction to revoke supervised release. 18 U.S.C. § 3583(i)

(“The power of the court to revoke a term of supervised release

...

extends beyond the expiration of the term of supervised

release....” (emphasis added)). Compare U nited States v. Schmick

,

904 F.2d 936, 940 (5th Cir. 1990) (“The return of a timel y

indictment tolls the statute of limit ations as to the charges

alleged therein.”), cert. denied

, 498 U.S. 1067 (1991), with United

St ates v. Morales-Alejo , 193 F.3d 1102, 1104 (9th Cir. 1999)

(holding, because supervised-release-term not tolled under 18

U.S.C. § 3624(e), warrant iss ued more than two weeks after5 Although the dissent views the revo cation as being “clearly

well beyond any period reasonably necessar y to dispose of the

unrelated charge pending” at term-expiration, Naran jo does n ot

claim the revocation hearing was not held within a reasonable time.

In fact, he concedes “the jurisdictional question based on the

length of the delay, and its reasonableness, is not before the

Court”. (Emphasis added.)

9 expiration o f supervised release term did n ot preserve district

court’s jurisdiction).

In sum, and as Naranjo concedes, 1 8 U.S.C. § 3583(i) is n ot

ambiguous. And, because a warrant was issued during the term,

pending resolution of the state case against Naranjo, which state

case was still pending at the time of the revocation hearing , the

warrant preserved the court’s jurisdiction, after the term expired,

to proceed with revocation on the basis of the second amended

petition, conc erning Naranjo’s 1999 guilty plea for o ffenses

committed duri ng his supervised-release-term

. S ee 18 U.S.C. §

3583(i). 5

III.

For the foregoing reasons, the judgment is

AFFIRMED.10

GARWOOD, Circuit Judge, dissenting.

I respectfully dissent.

In my vie w, the majority’s virtually total reliance on the

article “a”, which appears as the next to the last word of section

3583(i), ignores the principle that “[i]n determining the meaning

of the statute, we look not only to the particular statutory

language, but to the design of the statute as a whole and to its

object and policy.” Crowder v. U.S. , 110 S.Ct. 997, 1001 (1990).

Similarly, the Supreme Court has “[o]n numerous occasions

. . .

noted that ‘[i]n expounding a statute we must not be guided by a

single

. . . member of a sentence, but [m]ust look to the

provisions of the whole law, and to its object and policy.’” Pilot

Life Ins. Co. v. Dedeaux , 107 S.Ct. 1549, 1555 (1987) (additional

internal quotation marks and citatio ns omitted). S ee also

Henrikson v. Guzik

, 249 F.3d 395, 398 (5th Cir. 2001) (“It is

important to ‘look to the structure and language of the statute as

a whole’”).6 18 U.S.C. § 3583(i) provides:

“ (i) Delayed revocation .–The power of the court to revoke

a term of supervised release for violation of a condition

of supervised release, and to order the defendant to

serve a term of imprisonment and, subject to the

limitations in subsection (h), a further term of

supervised release, extends beyond the expiration of the

t erm of supervised release for any period reasonably

necessary for the adjudication of matters arising before

its expiration if, before its expiration, a warrant or

summons has been issued on the basis of an allegation of

such a violation.”

11 Considering section 3583(i) as a whole, 6 it does essentially

three things: (1) it recognizes the general rule that the power of

the court to revoke supervised release “for a violation of a

condition of supervised release” terminates at the expiration of

the supervised release term; (2) it provides a single exception to

this general rule for instances in which “before” the “expiration”

of the supervised release term “a warrant or summons has been

issued on the basis of an allegation of such a violation;” and it

provides that in such a case the court’s power “extends beyond the

expiration of the term of supervised release for any period

reasonably necessary for the adjudication of matters arising before

its expiration.”

Plainly, it is contemplated that the duration of the extension

is geared to the subject matter o f any warrant or summons issued

before the supervised release term expires. In other words, the

power to revoke supervised release is extended only for so long as

reasonably necessary to dispose of that particular matter which was

pending when the term expired. That the statute presupposes a7 And, obviously § 3583(i)’s reference to “matters arising

before its [the term’s] expiration,” though literally broad enough

to include, for example, a Title VII suit filed by the defendant

during, and pending before the sentencing court at the expiration

of, the term, cannot reasonably be read to include such a matter;

rather the phrase must be read to embrace only alleged violations

of the terms and conditions of supervised release.

12 nexus between the duration of the extension and the subject matter

of the warrant or summons issued before the expiration of the term

is evident from the fact that the stated condition that “a warrant

or summons has been issued” must be understood to embrace only

those warrants or summonses which are pending and undisposed of at

the end of the term–though its literal language is not so

restricted–else a charge based on warrant or summons issued and

d isposed of by the court in a ruling favorable to the defe ndant

during the term would extend the power to revoke until after

expiration of the term on an unrelated charge for which a warrant

or summons was first issued after expiration of the term, a result

obviously inconsistent with the purpose and design (though not the

literal wording) of section 3583(i). 7

Given, then, that the extension of the court’s power to revoke

supervised release is tied to the time reasonably necessary to

dispose o nly of the subject matter or matters of any one or mo r e

then pending warrants or su mmonses alleging a violation or

violations of conditions, it would be illogical to hold that a

violation alleged for the first time in a warrant or summons issued

after the expiration of t he terms could form the basis for a8 Section 3565(c) provides:

“ (c) Delayed revocation .–The power of the court to revoke

a sentence of probation for violation of a condition of

probation, and to impose another sentence, extends beyond

the expiration of the term of probation for any period

reasonably necessary for the adjudication of matters

arising before its expiration if, prior to its

expiration, a warrant or summons has been issued on the

basis of an allegation of such a violation.”

13revocation: the time reasonably necessary to dispose of the postexpiration of term warrant might well–indeed probably would–extend

beyond the time necessary to dispose of the pre-expiration of term

warrant.

Had Congress not intended to limit revocation after expiration

of the term to conduct charged before the expiration of the term it

would not have required that a warrant or summons have issued

before the expiration of the term, but would instead merely have

allowed some post-expiration of term period– say six months or a

year–during which revocation could be ordered (on the basis of preexpiration of term conduct).

The obvious p urpose of section 3583(i)–to allow supervised

release to be revoked on the basis of a pre-expiration of term

warrant or summons which cannot reasonably be disposed of by the

court before expi ration of the term–is confirmed by its history.

The courts of appeal have uniformly held that section 3583(i), and

its probation counterpart, 18 U.S.C. § 3565(c), 8 merely codified

the prior practice, which held that the court could, after the9 In the case of probation, § 3565(c) also restricted the

availability of revocation by requiring that the warrant or summons

issue prior to the expiration of the defendant’s actual term of

probation in contrast to the prior statute (former 18 U.S.C. §

3653) which merely required that the warrant or summons have issued

prior to the end of the maximum probation term which coul d have

been imposed (five years). S ee United States v. Neville

, 985 F.3d

992, 998 n.13 (9th Cir. 1993); United State s v. Barton , 26 F.3d

490, 492 n.4 (4th Cir. 1994).

14 expiration of the term of supervised release or probation, 9 revoke

the supervised release or probation on the basis of a violation

charged in a warrant or summons issued prior to the expiration of

the term. See, e.g., United States v. Neville , 985 F.3d 992, 998

( 9th Cir. 1993); U nited States v. Barton

, 26 F.3d 490 (4th Cir.

1994); United States v. Morales

, 45 F.3d 693, 700-01 (2d Cir.

1995). As we said in United States v. Jimenez-Martinez , 179 F.2d

980, 981 (5th Cir. 1999), the language of Fed. R. Crim. P.

32.1(a)(2) which “provides for a hearing ‘within a reasonable time’

when a court is c onsidering revocation” means that “the district

court could exercise jurisdiction to revoke a term of super vised

release and sentence an individual to prison when an arrest warrant

was issued during the term but the revocation hearing was not held

until after the term expired,” citing Neville, Barton, and Morales

.

Plainly, this is speaking of revocation for the conduct for which

the warrant was issued, for the hearing within a reasonable time

provisions of Rule 32.1(a)(2) obviously do not apply to violations

that the authorities are unaware of. As N eville observed, the rule

that the hearing and action of the court on revocation can take10 S ee also id. at 998, stating that “courts uniformly

interpreted” the probation statute “to mean ‘that as long as formal

revocation proceedings are commenced (by arrest warrant or

otherwise) within the five-year period, probation can be revoked,

even if the revocation hearing starts and the actual revocation

takes place af ter the end of the five-year period.’” (inside

quotation marks supplied; quoting United St ates v. Bazzano , 712

F.2d 826, 835 (3d Cir. 1983) (en banc).

15 place after the end of the term where revocation proceedings are

begun by warrant or summons (or other means) within the term, make

sense because otherwise “the only way to sanction a violator of

supervised release toward the end of the term would require

immediate revocation of supervised release upon being informed of

the violation. Yet, due process concerns prevent a court from

immediately revoking supervised release without a hearing.” I d

. at

996-97. 10 Again, it is plain that this is speaking of revocation

on the basis of conduct charged in a warrant or summons issued or

motion filed before the end of the term, as the court would never

be faced with the question of “immedi ately revoking supervised

release without a hearing” for uncharged conduct.

The appropriate construction of the probation and supervised

release revoc ation statutes in the present respect was directly

addressed approximately a decade ago in United States v. Schimmel

,

950 F.2d 432 (7th Cir. 1991). There a petition to revoke probation

was filed with the five year period allowed by former section 3653

(see note 4, supra ), b ut after the five year period expired a

second petition to revoke was filed and it was the second petition16

that the district court acted on in revoking probation. In

determining whether the d istrict court could properly revoke

probation o n this basis, the Seventh Circuit applied the

“superseding indictment” ru le, under which if an indictment is

filed within the limitations period, and a superseding indictment

is filed after limitations has run, then “‘[t]o the extent that the

new language [in the superseding indictment] broadens the timely

original charges, the superseding charges are barred by the statute

of limitations.’” Id

. at 436. The test is “‘whether a superseding

indictment substantially changes the original charges.’” Id . The

Seventh Circuit upheld the revocation in Schimmel because the

second petition charged the same conduct as did the first, its

“change in language from the first petition is of no substance” and

“[n]o broader charge is contemplated by the second petition.” I d

.

at 436-37.

Similarly, in United States v. Downs , 2000 WL 1568598

(W.D.N.Y. Oct . 19, 2000), the district court applied the

superseding indictment rule in a case under section 3583(i) in

which a petition to revoke and a warrant charging two violations

were issued before the expiration of the term and a third violation

was included for the first time in an amended petition to revoke

filed after the expiration of the term. The court held that only

the originally charged two violations, and not the third added

after expiration of the term, could be considered.11 Or within the five year period specified in former § 3653

(see note 4 supra ).

17 I woul d follow the rule of S chimmel and Downs

. It is

noteworthy that despite the many decades of litigation concerning

the timeliness of revocat ion of probation or supervised release,

thi s is apparently the first decision which has ever held that a

timely initiation of proceedings to revoke su pervised release or

probation on a parti cular ground or grounds extends the

juris diction of the district court to revoke on completely

unrelat ed grounds as to which no revocation proceedings were

initiated or summons or warrant issued within the sup ervised

release or probationary term. 11

Finally, I note that the majority’s almost total reliance on

the article “a” which constitutes the next to last word of section

3583(i) is misplaced for yet another reason. The present case is

not governed by section 3583(i) because Na ranjo’s sentence and

supervised release were imposed in 1988 and section 3583(i) was not

enacted until 1994. S ee Morales

, 45 F.3d at 696 n.1. The majority

looks to section 3583(i) only because it considers it declaratory

of previously existing law. But n othing in previously existing law

supports the majority’s holding. The rationale of the earlier

decisions is entirely to the contrary–namely that when revocation

proceedings were instituted (by issuance of warrant, summons or12 Or, in cases governed by former § 3653, within the specified

five year period. See note 4 supra.

18 otherwise) within the supervised release or probation term, 12 then

the jurisdict ion of the district court to revoke probation or

supervised release on the substance of those charges would extend

for a reasonable time after the expiration of the term because it

was contemplated that there would be a hearing on those charges.

Obviously, that rationale does not apply to unrelated charges filed

for the first time after the expiration of the term. Schimmel

.

Finally, here revocation was ordered solely on the basis of

conduct first charged over two and a half years after the term of

supervised release expired, clearly well beyond any period

reasonably necessary to dispose of the unrelated charge pending

when the supervised release term expired.

Accordingly, I respectfully dissent from the affirmance of the

revocation of supervised release.