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The Honorable Dean Whipple, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-2476

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

Joseph H. Brown, * [UNPUBLISHED]

*

Appellant. *

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Submitted: May 9, 2011

Filed: June 30, 2011

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Before MELLOY, BOWMAN, and BENTON, Circuit Judges.

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PER CURIAM.

Joseph H. Brown appeals from the judgment of the District Court1

 revoking his

supervised release, specifically, the revocation sentence imposed. We affirm.

A jury convicted Brown of cocaine-distribution charges in November 1991. In

1992, he was sentenced to concurrent terms of 262, 240, and 240 months of

imprisonment and to concurrent mandatory minimum supervised-release terms of

sixty, thirty-six, and thirty-six months. In July 2009, Brown was released from prison,
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and in March 2010, he was charged with violating his supervised release. The District

Court found two violations and revoked Brown's supervised release. Without

objection, the court sentenced Brown to ninety days' incarceration (with credit for

sixty days' time served), to be followed by the original concurrent terms of supervised

release—sixty months, thirty-six months, and thirty-six months—with the first four

months of release served on home detention. The court also imposed modified special

conditions on Brown's supervised release.

On appeal, Brown first argues that because he was originally sentenced in 1992,

before the 1994 enactment of amendments to the statute governing terms of

supervised release, his revocation sentence together with the new term of supervised

release cannot exceed the original term of supervised release. Brown's revocation

sentence exceeds that term by ninety days. Because Brown did not raise this

procedural error at the revocation hearing, we review for plain error. See United

States v. Molnar, 590 F.3d 912, 914 (8th Cir. 2010); see also United States v. Miller,

557 F.3d 919, 922 (8th Cir. 2009) ("We review a district court's revocation sentencing

decisions using the same standards that we apply to initial sentencing decisions."). To

be entitled to relief, Brown must show that the error is plain and prejudicial, that is,

he must establish "a reasonable probability that he would have received a lighter

sentence but for the error." Molnar, 590 F.3d at 915. 

Since 1994, a court upon revocation may impose a new term of supervised

release if that term does not exceed the statutory maximum for the original supervised

release, less any additional prison time imposed. See 18 U.S.C. § 3583(h) (2006).

But § 3583(h) is not retroactive, so for someone like Brown, who was sentenced

before 1994, the former 18 U.S.C. § 3583(e)(3) "limits the possible prison term [upon

revocation] to the duration of the term of supervised release originally imposed,"

regardless of the statutory maximum. Johnson v. United States, 529 U.S. 694, 712

(2000). That is, in Brown's case, the term of incarceration plus the new term of

supervised release should not have exceeded the originally imposed supervised-release
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Counsel also contends, in an argument made pursuant to Anders v. California,

386 U.S. 738 (1967), that the District Court did not have authority to impose any term

of supervised release following revocation of the term being served. This contention

is without merit. See United States v. Johnson, 529 U.S. 694, 712–13 (2000).

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term of sixty months. The District Court appears to have plainly erred in sentencing

Brown to ninety days' incarceration plus a full sixty months of supervised release. But

Brown still must show a reasonable probability that he would have received a more

favorable sentence before we can grant him relief.

Under § 3583(e)(2), the sentencing court could before 1994 (and still may)

extend a defendant's term of supervised release if less than the maximum term—which

was life, in Brown's case—was originally imposed. The Court in Johnson made this

observation regarding pre-1994 revocations: "If less than the maximum [term of

supervised release] has been imposed, a court presumably may, before revoking the

term, extend it pursuant to § 3583(e)(2); this would allow the term of imprisonment

to equal the term of supervised release authorized for the initial offense." Id. The

transcript in this case does not indicate that the court followed this workaround when

sentencing Brown to more than sixty months upon revocation. In other words, the

court did not extend Brown's supervised release by at least ninety days and then

revoke his supervised release, before imposing the revocation sentence. But Brown

did not object, so the court had no opportunity to correct its error by following the

Supreme Court's dicta in Johnson. Brown points to nothing in the record indicating

that the court would have imposed a revocation sentence of ninety days in prison and

fifty-seven months (sixty months less ninety days) of supervised release, when it

otherwise could have followed the dicta in Johnson to impose the sentence it did,

including a full sixty months of supervised release following the incarceration.

Where, as here, we would have to speculate as to the effect of the error on Brown's

revocation sentence, he has not met his burden to show that he was prejudiced. See

United States v. Pirani, 406 F.3d 543, 553 (8th Cir.) (en banc), cert. denied, 546 U.S.

909 (2005).2
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Finally, Brown argues that the modified special conditions of supervised release

constitute error. Although he challenged some of the special conditions in general

terms in his opening brief, he made his specific legal arguments only in his reply brief.

As to the special condition imposing a curfew on Brown for the duration of his

supervised release, he contends that he "believed that the curfew was to be imposed

for the term of the home confinement period and not then [sic] entire period of

supervision," and only when he saw the written judgment did he realize the curfew

was imposed for sixty months. Reply Br. of Appellant at 5. But the hearing transcript

is clear, and the language used by the court is nearly identical to that found in the

judgment. The court said, "[Y]ou will remain at your residence from the hours of

10:00 PM to 6:00 AM for your term of supervision . . . ." Tr. of Revocation Hr'g at

13 (emphasis added). The judgment read, "Defendant shall be at his place of

residence between the hours of 10:00 p.m. and 6:00 a.m. (Curfew) for the term of

supervision . . . ." Judgment at 4 (emphasis added). Assuming that Brown means to

challenge the substantive reasonableness of this special condition, we see no abuse of

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007) (standard of review).

The statute in effect when Brown was originally sentenced clearly provided for

modifying conditions of supervised release upon revocation and specifically allowed

for this particular condition. See 18 U.S.C. § 3583(e)(3), (4) (Supp. IV 1992). 

As to the "special conditions" generally, Brown argues that the District Court

failed to consider the relevant 18 U.S.C. § 3553(a) sentencing factors. Reply Br. of

Appellant at 7. Brown did not raise this allegation of procedural error at the

revocation hearing, so again, we review only for plain error. The court clearly stated

that it imposed the sentence, which would include the special conditions, "considering

the factors under 18 U.S.C. 3553." Tr. of Revocation Hr'g at 14. Brown has given us

no reason to believe that the revoking court, which was also the original sentencing

court, did not do so, notwithstanding the court's failure to enumerate the factors at the

hearing. See United States v. Perkins, 526 F.3d 1107, 1110–11 (8th Cir. 2008). There

was no error, much less plain error.
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The judgment of the District Court is affirmed.

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