FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVIN LEROY CROWDER,

Defendant-Appellant.

No. 13-30033

D.C. No.

2:09-cr-00025-DWM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVIN LEROY CROWDER,

Defendant-Appellant.

No. 13-30034

D.C. No.

2:09-cr-00031-DWM-1

OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Submitted December 5, 2013*

Seattle, Washington

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. CROWDER

Filed December 24, 2013

Before: M. Margaret McKeown and Richard C. Tallman,

Circuit Judges, and Stephen Joseph Murphy, III, District

Judge.**

Opinion by Judge McKeown

SUMMARY***

Criminal Law

The panel affirmed a sentence imposed upon revocation

of supervised release.

The panel held that upon revocation of an initial term of

supervised release, 18 U.S.C. § 3583(h) does not bar the

imposition of a subsequent lifetime term of supervised

release, even when accompanied by a term of imprisonment.

** The Honorable Stephen Joseph Murphy, III, District Judge for the

U.S. District Court for the Eastern District of Michigan, sitting by

designation.

 

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. CROWDER 3

COUNSEL

Michael Donahoe, Assistant Federal PublicDefender, Federal

Defenders of Montana, Helena, Montana, for DefendantAppellant.

Danna Rae Jackson and Leif Johnson, Assistant United States

Attorneys, United States Attorneys’ Office,Helena, Montana,

for Plaintiff-Appellee.

OPINION

McKEOWN, Circuit Judge:

Kevin Leroy Crowder appeals from a sentence of 14

months’ imprisonment and lifetime supervised release. The

issue we consider is whether 18 U.S.C. § 3583(h), which

authorizes an additional term of supervised release following

revocation of supervised release, permits imposition of a

lifetime term of supervised release. We join our sister

circuits in holding that it does. See United States v. Cassesse,

685 F.3d 186, 191 (2d Cir. 2012); see also United States v.

Rausch, 638 F.3d 1296, 1302–03 (10th Cir. 2011).

BACKGROUND

Crowder is subject to the Sex Offender Registration and

Notification Act (“SORNA”), 18 U.S.C. § 2250(a), as a result

of a Washington State conviction for child molestation. In

2009, Crowder was convicted in the District of Montana for

failing to register and/or update a registration, in violation of

SORNA. In a separate federal proceeding, Crowder pleaded
4 UNITED STATES V. CROWDER

guilty to knowing possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g)(1).

At a consolidated sentencing hearing in 2010, the district

court sentenced Crowder to 33 months’ imprisonment on

each count to run concurrently. The court also imposed a

term of lifetime supervised release in connection with the

SORNA violation and a term of three years’ supervised

release in connection with the firearm conviction. Conditions

of supervision included, among other things, a requirement to

“report to the probation office . . . within 72 hours of release

from the custody of the Bureau of Prisons [(“BOP”)].” This

initial term of lifetime supervised release is not at issue on

appeal.

After serving his sentence, Crowder was released and

began serving his terms of supervised release. Within days

of his release, the United States Probation Office filed a

“Petition for Warrant for Offender Under Supervision.” An

amended petition filed some months later alleged that

Crowder had failed to report to the probation office within 72

hours of his release from custody. That petition also alleged

that Crowder had committed a state crime in violation of the

standard conditions of supervised release. Crowder admitted

both alleged violations, and the district court determined that

Crowder had violated his conditions of supervised release.

The district court had determined to revoke Crowder’s

supervised release; at the revocation hearing, it concluded

that, in accordance with the factors delineated in 18 U.S.C.

§ 3553(a), “lifetime supervised release is appropriate . . .

because of the inability and unwillingness of Mr. Crowder to

comply with the conditions that have been set in the federal

sentencing.” Over defense counsel’s objection, the district
UNITED STATES V. CROWDER 5

court sentenced Crowder to two terms of 14 months’

imprisonment to run concurrently and to a lifetime term of

supervised release in connection with the supervised release

revocation on the conviction for failure to register under

SORNA.

ANALYSIS

Crowder challenges the lifetime term of supervised

release imposed at the revocation hearing as unauthorized

under § 3583(h). Crowder admits that 18 U.S.C.

§ 2250(a)—the statute under which he was initially convicted

for failing to register under SORNA—authorizes a lifetime

term of supervised release. See 18 U.S.C. § 3583(k) (2006). 

Indeed, the district court initially imposed a lifetime term of

supervised release pursuant to that statute. Crowder argues,

however, that § 3583(h) does not authorize a lifetime term of

supervised release following revocation because it is not

possible to subtract a term of imprisonment from a lifetime

term of supervised release as the statute requires. We review

de novo this issue of statutory construction. United States v.

Havelock, 664 F.3d 1284, 1289 (9th Cir. 2012).

Section 3583(h) provides as follows:

When a term of supervised release is revoked

and the defendant is required to serve a term

of imprisonment, 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
6 UNITED STATES V. CROWDER

release, less any term of imprisonment that

was imposed upon revocation of supervised

release.

18 U.S.C. § 3583(h) (2006). Both the Second and the Tenth

Circuits have considered the challenge Crowder raises, and

both circuits declined to interpret § 3583(h) to bar

reimposition of lifetime supervised release. See Cassesse,

685 F.3d at 191; see also Rausch, 638 F.3d at 1302–03

(reviewing for plain error and finding no prejudice in

imposition of lifetime supervised release rather than “life less

two years” because “it is impossible to predict the precise

length of any individual’s life, [therefore] a sentence of ‘life

less two years’ has only conceptual—not practical—

meaning.”).

Read literally, under the statute, the term of imprisonment

imposed following revocation should be subtracted from the

supervised release term. See 18 U.S.C. § 3583(h). As the

Second Circuit pointed out, this is an “almost metaphysical

issue” and it is “highly unlikely” that Congress intended to

bar lifetime supervised release under the statute. Cassesse,

685 F.3d at 187, 191. Section 3583(h) presents “one of those

rare situations where Congress did not expect the literal terms

of its handiwork to be applied to a lifetime term of supervised

release. . . .” Id. at 191. A natural and practical reading of

the statute does not impose the constraint that Crowder

advocates. We also agree with the Second Circuit that

interpreting § 3583(h) to bar lifetime supervised release

would be without consequence because a sentencing court

could easily fulfill the subtraction requirement by sentencing

the defendant to an absurdly long term of years of supervised

release. Id.
UNITED STATES V. CROWDER 7

Crowder’s strained interpretation of § 3583(h) is without

support. He offers no authority for his proposed statutory

construction except a California Court of Appeals case that

does not discuss this provision. See In re Chaudhary,

172 Cal. App. 4th 32 (2009). We hold that upon revocation

of an initial term of supervised release, § 3583(h) does not bar

the imposition of a subsequent lifetime term of supervised

release, even when accompanied by a term of imprisonment.

AFFIRMED.