F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v.

KE V I N L E R O Y C R O W D E R , D efendant-Appellant

. No. 13-30033

D.C. No. 2 :09-cr-00025-DW M-1

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v.

KE V I N L E R O Y C R O W D E R , D efendant-Appellant

. No. 13-30034

D.C. No. 2 :09-cr-00031-DW M-1

OPI NI ON

Appeal from the United States District Court for the District of Montana Donald W . Molloy , District J udg e, Presiding

Submitted December 5, 2013 * Seattle, W a shing ton

* T h e p an el un a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n

w ith o ut o ral arg u

m en t. S ee Fed . R. App . P . 3 4 (a)(2 ).U N I T E D S T A T E S V

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F iled December 24, 2013

B efore: M. Marg aret McKeown and Richard C. Tallman, Circuit J udg es, and Stephen J oseph Murphy , I I I , District

J udg e. * *

Opinion by

J udg e McKeown

SUMMARY * * *

Crim inal Law

The p anel affirmed a sentence imposed upon r evocation of supervised release.

The panel held that upon revocation of an initial term o f

s up er vised release, 18 U.S.C. § 3 583(h) does not bar t h e imposition of a s u bsequent lifetime term of supervised release, even when accompanied by a term of imprisonment.

** T h e Ho n o rab le Step h en J o sep h Murp h y , III, Dis t r ict Ju dg e f

o r th e U.S. D istrict Co urt f

o r th e Eastern District o f Mich ig an , sittin g b y d esig n atio n

.

*** T h is su

m m ary co n stitu

tes n o p art o f

th e o p in io n

o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co nv en i en ce o f

th e read er.U N I T E D S T A T E S V

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COUNSEL

Michael Donahoe, Assistant F ede r a l P u b l i c D e f e n d er, F ederal Defenders of Montana, Hel ena, Montana, for D efendantAppellant.

Danna Rae J ackson and L eif J ohnson, Assistant United States Attorney s, United States Attorney s’ Office
, H e l e n a, Montana, for Plaintiff-Appellee.

OP INION

McKEOW

N, Circuit J udg e:

Kevin L er oy Crowder appeals from a sentence of 14 months’ imprisonment and lifetime supervised r elease. The issue we consider is w hether 18 U.S.C. § 358 3 (h), which authoriz es an a dditional term of supervised release following revocation of supervised release, permits impo s i t ion of a l i fetime term of supervised release. W e join our si s t e r circuits in holding that it does. See United States v. Cassesse
, 685 F .3d 186, 191 (2d Cir. 2012); see a l s o United States v

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

B A C K G RO UN D

Crowder is subject to the Sex Offender Reg istration a nd Notification Act (“SORNA”), 1 8 U.S.C. § 2250(a), as a result of a Washing ton State conviction for child molestation. In 2009, Crowder was convicted in the District of Montana for failing to reg ister and/or update a reg istration, in violation o f SORNA. In a separate federal proceeding
, Crowder pleadedU N I T E D S T A T E S V

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g uilty to k n owing 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 3 3 mont h s ’ imprisonment on each c ount to run concurr e n t l y

. The court also imposed a term of lifetime supervised release in connection with the SORNA vi olation and a term of three y ears’ supervised release in connection w ith the firearm conviction. Conditions of supervision included, among other thing s, a requirement to “report to the probation office

. . . within 72 hours of release from the custody of the B ureau of Prisons [ (“B OP”)] .” This i n itial term of lifetime supervised release is not at i s s u e o n appeal.

After serving his sentence, Cr owder w as released a nd beg an serving his terms of supervised release. W ithin day s of his release, the United States Probation O ffice f iled a “Petition for W arrant f

or Offender Under Supervision.” An amended pe t i t ion filed some months later alleg ed that Crowder had failed to report to the probation office within 72 hours of his release from custody

. That petition also alleg ed that Crowder had c ommitted a state crime in v iolation of the standard conditions of supervised release. Crowder admitted both alleg ed violations, and the district court determined that Crowder had violated his conditions of supervised release.

The district c ourt had determ i n e d to revoke Crowder’s supervised r e l e a s e; at the revocation hearing
, it concluded that, in accordance w ith the factors delineated in 1 8 U .S.C. § 3553(a), “lifetime supervised r elease is appr opriate

. . . because of the inability and unwilling ness of Mr. Crowder to comply with the conditions that have b e en set in the federal sentencing .” Over d e f

ense c ouns e l ’ s objection, the districtU N I T E D S T A T E S V

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court sentenced C r o w der to two terms of 14 months’ imprisonment to run concurrently and to a lifetime term o f supervised release in connection with the supervised release revocation on the conviction for failure to reg ister u n d e r SORNA.

A NAL Y S I S

Crowder challeng es the lifetime term o f supervised release imposed at the revocation h earing as unauthoriz ed under § 3583(h). C r o w der admits that 18 U .S.C. § 2250(a)—the statute under which he was initially convicted for failing to reg ister under SO R N A

— a uthoriz es 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 a rgu es, however, that § 3583(h) does not authoriz e a lifetime term o f supervised release following revocation because it is not possible to subtract a term of imprisonmen t f rom a lifetime
term of supervised release as the statute requires. W e r eview 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:

W h en a term of supervised r elease is revoked and the d efendant is required to serve a term of imprisonment, the c o urt may include a requirement that the defendant be placed on a term of supervised rel e a s e a f ter imprisonment. The leng th of such a term of supervised release shall not ex ceed the term of supervised release authoriz ed by s t atute for the offense that resulted in the orig inal term of supervisedU N I T E D S T A T E S V

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release, les s any term of imprisonment that

was imposed upon revocation of supervised release.

18 U.S.C. § 3583(h) (2006). B oth the Second and the T e nth Circuits have considered the challeng e Crowder raise s , and both circuits declined to interpret § 3583(h) to bar reimposition of l i fetime supervised release. See Cassesse
, 685 F .3d at 191; s e e also Rausch
, 638 F .3d at 1302–03 (reviewing for plain error and finding n o p r ejudice in imposition o f lifetime supervised release rather than “ life less
two y ears” because “it is impossible to predict the precise leng th of any individual’s life, [ therefore] a sentence of ‘life less two y e a r s ’ has only conceptual—not practical— meaning .”).

Read literally
, under the statute, the term of imprisonment imposed following revocation should b e subtracted from the supervised release term. S ee 18 U.S.C. § 3 583(h). As the Second Circuit pointed o ut, this is an “ almost metaphy sical issue” and it is “hig hly unlikely ” th a t Cong ress intended to bar lifetime supervised r elease u n d e r the statute. Cassesse
, 685 F .3d at 187, 191. Section 3583(h) presents “one of those

rare situations where Cong ress did n ot ex pect the literal terms of its h andiwork to be applied to a lifetime term of supervised release.

. . .” Id. at 191. A natural and practical readin g o f the statute does not impose the c onstraint that Crowder ad v o c a tes. W e a lso ag ree w ith the Second Circuit that interpreting § 3583(h) to b ar lifetime supervised release would be w ithout consequence because a sen t e n c i ng court could easily fulfill the subtraction r equirement by sentencing the defendant to an absurdly long term of y ears o f supervised release. Id.U N I T E D S T A T E S V

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Crowder’s strained interpretation of § 3583(h) is without support. H e offers no authority f o r h i s proposed statutory construction e x cept a Californi a C o urt of Appeals case that d oes not discuss this provision. See In re Chaudh a r y , 172 Cal. App. 4th 32 ( 2009). We hold that upon r evocation of an initial term of supervised release, § 3583(h) does not bar the imposition of a subsequent lifetime term of sup e rvised release, even when accompanied by a term of imprisonment.

AF F IRMED.