United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3188

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Joseph Robert Zoran, *

*

Appellant. *

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Submitted: May 15, 2012

 Filed: July 2, 2012

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Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.

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BEAM, Circuit Judge.

Zoran appeals the district court's imposition of an eighteen-month term of

supervised release, in addition to twenty-four months' imprisonment, following the

most recent revocation of his supervised release. Because the eighteen-month term

ofsupervised release exceeded the statutorymaximumunder 18 U.S.C.§ 3583(h), we

remand to the district court with instructions that it reduce the term of supervised

release to seventeen months.
I. BACKGROUND

On November 12, 2004, Zoran pled guilty in the United States District Court

for the District of Minnesota to one count of possessing child pornography, in

violation of 18 U.S.C. § 2252A(a)(5)(B). Zoran then fled Minnesota and failed to

appear at his sentencing hearing on February 23, 2005. After Zoran was

apprehended, he pled guilty to failure to appear (FTA), in violation of 18 U.S.C. §

3146(a)(1). The district court sentenced Zoran to a total of thirty-seven months'

imprisonment–twenty-four months on the child pornography count and thirteen

months on the FTA count, to be served consecutively–and imposed two concurrent

three-year terms of supervised release.

On June 27, 2008, Zoran began serving his term of supervised release, which

the district court revoked on February 2, 2009. Following the revocation, the district

court sentenced Zoran to nineteen months' imprisonment–eighteen months on the

child pornography count and one month on the FTA count, to be served

consecutively. The court also ordered a total of thirty-five months' supervised

release–thirty-five months on the FTA count and eighteen months on the child

pornography count, to be served concurrently.

On June 12, 2010, Zoran began serving his second term of supervised release,

which the district court revoked on September 30, 2011. Following the second

revocation, the district court sentenced Zoran to twenty-four months'

imprisonment–six months on the child pornography count and eighteen months on

the FTA count, to be served consecutively. The court also imposed an eighteenmonth term of supervised release solely on the FTA count. Zoran appeals, arguing

that(1) the eighteen-month termofsupervised release exceeds the statutorymaximum

under 18 U.S.C. § 3583, and (2) the district court abused its discretion when it

imposed the maximum term of supervised release in addition to a term of

imprisonment.

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II. DISCUSSION

A. Maximum Term of Supervised Release

Zoran argues that, under 18 U.S.C. § 3583, the district court was barred from

imposing any termofsupervised release or, in the alternative, that the eighteen-month

term of supervised release imposed on the FTA count exceeds the statutory

maximum. We review de novo the legality of a revocation sentence. United States

v. Lewis, 519 F.3d 822, 824 (8th Cir. 2008).

Before addressing Zoran's specific challenges, it is helpful to review the

framework of 18 U.S.C. § 3583, which governs the imposition of original terms of

supervised release, revocation of supervised release, and postrevocation sentencing. 

Under § 3583(b)(2), district courts may impose an initial term of supervised release

of "not more than three years" if the underlying conviction is a Class D felony. If a

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district court revokes supervised release, it may impose a term of imprisonment "on

any such revocation" not to exceed "2 years . . . if [the underlying] offense is a class

. . . D felony." 18 U.S.C. § 3583(e)(3). In addition, the court may impose a

postrevocation term of supervised release that does "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." Id. § 3583(h). With this framework in mind, we

turn to Zoran's specific arguments.

First, Zoran argues that, because the district court sentenced him to a total of

two years' imprisonment following the second revocation, § 3583(h) barred the court

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Zoran's child pornography and FTA convictions are both Class D felonies.

1

As discussed above, following the second revocation, the district court

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sentenced Zoran to six months' imprisonment on the child pornography count and

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from imposing any additional term of supervised release. To support this argument,

he emphasizes that, "[u]nder § 3583(h), if the court revokes supervised release and

sentencesthe defendant to the maximumauthorized prison term[under § 3583(e)(3)],

it may not impose an additional term of supervised release." United States v. Brings

Plenty, 188 F.3d 1051, 1053 (8th Cir. 1999) (per curiam) (applying pre-2003 version

of § 3583(h)). Zoran's argument on this point is easily dismissed because he relies

on an outdated version of § 3583(h) and, thus, obsolete precedent. Effective April 30,

2003, Congress amended § 3583(h) and "removed the pre-2003 qualification that a

new term of supervised release could be imposed only if the post-revocation prison

sentence imposed waslessthan the maximumtermofimprisonment authorized under

§ 3583(e)(3)." United States v. Vera, 542 F.3d 457, 461 (5th Cir. 2008). Because the

amended version of § 3583(h) applies to the term of supervised release imposed in

this case, Zoran's argument on this point is without merit. 3

Zoran's next two arguments are based on the district court's interpretation and

application of the second sentence in § 3583(h), which provides that a term of

supervised release imposed following revocation shall not exceed (1) "the term of

supervised release authorized by statute for the offense that resulted in the original

term of supervised release"; (2) "less any term of imprisonment that was imposed

eighteen months on the FTA count, to be served consecutively. Zoran's contention

that these consecutive terms must be aggregated for the purposes of § 3583(e)(3)'s

cap is based on 18 U.S.C. § 3584(c). Section 3584(c) provides, "Multiple terms of

imprisonment ordered to run consecutively or concurrently shall be treated for

administrative purposes as a single, aggregate term of imprisonment." (emphasis

added). As we have previously held, § 3584(c) merely instructs the Bureau of Prisons

in administering sentences, United States v. Gamble, 572 F.3d 472, 474 (8th Cir.

2009), and is inapplicable to the issues before us. 

The eighteen-month term of supervised release at issue was imposed on 3

Zoran's underlying FTA offense, which was committed in February 2005–well after

the 2003 amendments went into effect.

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upon revocation of supervised release." 18 U.S.C. § 3583(h). Under § 3583(b)(2),

the maximumoriginal termofsupervised release authorized for Zoran's FTA offense,

a Class D felony, is three years. Therefore, § 3583(h) barred the district court from

imposing a term of supervised release exceeding "[three years] less any term of

imprisonment that was imposed upon revocation of supervised release." 18 U.S.C.

§ 3583(h) (emphasis added). Zoran advances two definitions of "any term of

imprisonment," which we address in turn.4

First, Zoran argues that "any term of imprisonment," as contemplated in §

3583(h), requires aggregation of all postrevocation terms of imprisonment imposed

on the same underlying offense. This interpretation is correct. See Brings Plenty, 5

For ease ofreference, we include the following table of Zoran's postrevocation

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terms of imprisonment:

Underlying Offense FTA Possession of Child

Pornography

Total

Term of Imprisonment:

First Revocation

1 month 18 months 19 months

Term of Imprisonment:

Second Revocaton

18 months 6 months 24 months

Total 19 months 24 months 43 months

The government argues that Brings Plenty is no longer controlling on this 5

point because Congress amended § 3583(h) in 2003. We disagree. While Congress

altered the first sentence of § 3583(h) in 2003, it "left untouched" the phrase "any

term of imprisonment" in the second sentence of § 3583(h). Vera, 542 F.3d at 461

(rejecting government's argument that the 2003 amendments altered the definition of

"any term of imprisonment" espoused in Brings Plenty). Therefore, Brings Plenty's

interpretation of "any term of imprisonment" controls.

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188 F.3d at 1053 (holding, with respect to a single underlying offense, that "'any term

of imprisonment' includesthe prison term in the current revocation sentence together

with all prison time served under any prior revocation sentence(s)"); United States v.

Maxwell, 285 F.3d 336, 342 (4th Cir. 2002) (concluding that "any term of

imprisonment" includes "all postrevocation terms of imprisonment imposed with

respect to the same underlying offense."). Thus, in this case, "any term of

imprisonment" equals nineteen months–one month imprisonment imposed on the

FTA count following the firstrevocation plus eighteen months imprisonment imposed

on the FTA count following the second revocation. Accordingly, the maximum term

of supervised release that may be imposed in this case is "[three years] less [nineteen

months]," or seventeen months. 18 U.S.C. § 3583(h). Therefore, the district court

erred when it sentenced Zoran to eighteen months' supervised release on the FTA

count.

Our analysis is not complete, however, because Zoran advances an alternative

definition of "any term of imprisonment" that would even further reduce the

maximum term of supervised release in this case. Specifically, he contends that §

3583(h) requires aggregation of all terms of imprisonment imposed on all underlying

offenses following the latest revocation. If this interpretation applies, Zoran's 6

maximum term of supervised release would be twelve months–three years minus six

months on the pornography count and eighteen months on the FTA count. 

We conclude that this interpretation of "any term of imprisonment" reaches

beyond the textual limits of § 3583(h). Indeed, the plain text of § 3583(h) provides

that a term of postrevocation supervised release "shall not exceed the term of

Our decision in Brings Plenty does not specifically address whether multiple

6

underlying offenses must be analyzed separately under § 3583(h) because the

defendant in that case was convicted of only one underlying offense. See Brings

Plenty, 188 F.3d at 1052. 

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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." (emphasis added). 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." Maxwell, 285 F.3d at 342

(emphasis added); cf. Johnson v. United States, 529 U.S. 694, 701 (2000) (holding,

while analyzing an ex post facto challenge, that "[w]e . . . attribute postrevocation

penalties [under § 3583(h)] to the original conviction"). Therefore, the district court

did not err when it analyzed the FTA and child pornography offenses separately under

§ 3583(h). 

B. Imposition of Maximum Term of Supervised Release

Zoran contendsthat the district court unreasonably imposed themaximumterm

ofsupervised release in addition to twenty-four months' imprisonment. We disagree. 

The record reveals that the district court considered the parties' arguments and

contemplated the 18 U.S.C. § 3553(a) sentencing factors. See 18 U.S.C. § 3583(c) 

(directing district courts to consider § 3553(a) factors to determine "whether to

include a term of supervised release" and "in determining the length of the term"). 

After doing so, the court decided that imposing the maximum term of supervised

release was necessary to promote deterrence and to protect the public, see 18 U.S.C.

§ 3553(a)(2)(B)-(C), emphasizing Zoran's repeated failure to comply with the

conditions of his supervised release. Under these circumstances, we conclude that

the district court acted well within its discretion when it imposed the maximum term

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of supervised release in this case. See United States v. Merrival, 521 F.3d 889, 890

7

(8th Cir. 2008) (standard of review). 

III. CONCLUSION

We vacate the supervised release portion of Zoran's revocation sentence and

remand with instructions to the district court that it impose upon Zoran a term of

supervised release of seventeen months.

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The district court's only error was its determination that the statutory

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maximum term of supervised release was eighteen months as opposed to seventeen

months. Therefore, we remand for the limited purpose of reducing Zoran's term of

supervised release to seventeen months. See United States v. Hergott, 562 F.3d 968,

970-71 (8th Cir. 2009) (finding postrevocation sentence substantively reasonable but

remanding for the district court to reduce the sentence to the statutory maximum).

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