United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2012 Decided June 21, 2013

No. 11-3017

UNITED STATES OF AMERICA,

APPELLEE

v.

EMMETT SPENCER,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cr-00046-1)

Beverly G. Dyer, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A.J. Kramer,

Federal Public Defender. Neil H. Jaffee and Mary Manning

Petras, Assistant Federal Public Defenders, entered

appearances.

Peter S. Smith, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Ronald C. Machen Jr.,

U.S. Attorney, and Roy W. McLeese III, Elizabeth H. Danello,

and Jean W. Sexton, Assistant U.S. Attorneys. Elizabeth

Trosman, Assistant U.S. Attorney, entered an appearance.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and

SENTELLE, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Emmett Spencer appeals

his sentence of 24 months imprisonment imposed after the

second revocation of his supervised release. He contends that

pursuant to the statute providing for supervised release after

imprisonment, 18 U.S.C. § 3583, the district court was required

to aggregate his terms of imprisonment following revocation of

supervised release, thus limiting imprisonment after his second

revocation of supervised release to 10 months or, in the

alternative, 22 months. We disagree, and affirm the decision of

the district court.

Background

In 2006 appellant Emmett Spencer pled guilty to unlawful

possession of a firearm and ammunition by a convicted felon, a

class C felony. He was sentenced to 37 months imprisonment

and 3 years of supervised release. After being released from

prison and while serving on supervised release, Spencer violated

the terms of his supervised release. Consequently, his

supervised release was revoked, and he was sentenced to 14

months imprisonment and 22 months of supervised release. 

After being released from this second imprisonment and while

on supervised release, Spencer again violated the terms and

supervised release was revoked. He was sentenced to 24 months

imprisonment with no supervised release to follow. Spencer

now appeals his 24 month prison sentence.

Discussion

On each occasion, Spencer’s supervised release was

revoked pursuant to 18 U.S.C. § 3583(e)(3). Since 2003 the

relevant part of § 3583(e)(3) has read as follows:
3

The court may . . . revoke a term of supervised release,

and require the defendant to serve in prison all or part

of the term of supervised release authorized by statute

for the offense that resulted in such term of supervised

release . . . except that a defendant whose term is

revoked under this paragraph may not be required to

serve on any such revocation . . . more than 2 years in

prison if such offense is a Class C or D felony . . . .

18 U.S.C. § 3583(e)(3). Spencer argues that under § 3583(e)(3)

his revocation sentences should be “aggregated,” i.e., all postrevocation prison terms should be cumulative, and the total

should not exceed a statutory maximum. He asserts two

possible maxima. First, Spencer points to what he refers to as

the “except” clause at the end of § 3583(e)(3), which states

“except that a defendant whose term is revoked under this

paragraph may not be required to serve on any such revocation

. . . more than 2 years in prison if such offense is a class C or D

felony.” As he did in the district court, Spencer argues that his

maximum post-revocation aggregate prison time for his class C

felony is the stated two years. As he already served 14 months

after his first revocation, Spencer contends that the district court

was limited to sentencing him to 10 months on his second

revocation. 

Alternatively, Spencer points to what he refers to as the “all

or part” clause at the beginning of § 3583(e)(3), which states

that upon revocation the defendant will be required “to serve in

prison all or part of the term of supervised release authorized by

statute for the offense that resulted in such term of supervised

release.” Since under 18 U.S.C. § 3583(b) “the term of

supervised release authorized by statute for” a class C felony is

not more than three years, Spencer argues that his postrevocation maximum aggregate prison time is three years. 

Because he served 14 months in prison after his first supervised
4

release revocation, Spencer argues that after his second

supervised release revocation the court was limited to sentencing

him to 22 months in prison.

To more fully understand Spencer’s arguments, we will

give a brief review of § 3583(e)(3). Prior to 1994, § 3583(e)(3)

read, in pertinent part, that a court may

revoke a term of supervised release, and require the

person to serve in prison all or part of the term of

supervised release . . . except that a person whose term

is revoked under this paragraph may not be required to

serve . . . more than 2 years in prison if the offense was

a Class C or D felony.

18 U.S.C. § 3583(e)(3) (Supp. V 1993). Under this version of

§ 3583(e)(3), “the revoking court could not impose a revocation

sentence that exceeded the supervised release sentence imposed

by the original sentencing court.” United States v. Hampton,

633 F.3d 334, 341 (5th Cir. 2011). In 1994 the statute was

amended, to read in pertinent part that a court may

revoke a term of supervised release, and require the

defendant to serve in prison all or part of the term of

supervised release authorized by statute for the offense

that resulted in such term of supervised release . . .

except that a defendant whose term is revoked under

this paragraph may not be required to serve . . . more

than 2 years in prison if such offense is a Class C or D

felony.

Violent Crime Control and Law Enforcement Act of 1994, Pub.

L. No. 103-322 § 110505(2)(B), 108 Stat. 1796, 2016-17 (1994)

(amendment italicized). One result of the added language was

that sentencing courts were now authorized “to impose a term of
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revocation imprisonment without being limited by the amount

of supervised release the original sentencing court imposed.”

Hampton, 633 F.3d at 341. The amendments instead extended

imprisonment upon revocation up to the terms authorized by

§ 3583(b), i.e., those terms “authorized by statute for the offense

that resulted in such term of supervised release.” Id. 

Another result of the 1994 amendment was that courts

began to interpret the new language “as requiring courts to credit

a defendant’s prior revocation sentences when imposing a new

one.” United States v. Hunt, 673 F.3d 1289, 1291-92 (10th Cir.

2012). Further, many courts held that the felony class

revocation limits at the end of § 3583(e)(3) were cumulative

limits that applied to all prison terms imposed for violations of

supervised release in the same case. See United States v. TapiaEscalera, 356 F.3d 181, 187 n.7 (1st Cir. 2004) (collecting

cases); United States v. Swenson, 289 F.3d 676, 677 (10th Cir.

2002) (same); United States v. Merced, 263 F.3d 34, 37 (2d Cir.

2001) (same). In Spencer’s terminology, then, courts were now

considering the “except” clause limits as aggregate limits upon

supervised release revocation. So, if Spencer had been

sentenced for revocation of his second supervised release during

this time period, then the aggregate limit for his class C felony

pursuant to § 3583(e)(3) would have been two years, and since

he had already served 14 months after his first revocation, the

most imprisonment he could receive after his second revocation

would have been 10 months.

In 2003, § 3583(e)(3) was again amended, this time to read,

in pertinent part, that a court may

revoke a term of supervised release, and require the

defendant to serve in prison all or part of the term of

supervised release authorized by statute for the offense

that resulted in such term of supervised release . . .
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except that a defendant whose term is revoked under

this paragraph may not be required to serve on any

such revocation . . . more than 2 years in prison if such

offense is a class C or D felony.

Prosecutorial Remedies and Other Tools to end the Exploitation

of Children Today (“PROTECT”) Act, Pub L. 108-21, § 101,

117 Stat. 650, 651 (Apr. 30, 2003) (amendment italicized). As

discussed more fully below, pursuant to this amendment courts

no longer consider the class limits at the end of § 3583(e)(3) to

be aggregate limits on imprisonment for multiple revocations of

supervised release. Instead, now that a defendant “may not be

required to serve on any such revocation . . . more than” a

certain number of years based on the class of felony originally

committed, courts have held that the limit applies to each

revocation, but no aggregate limit.

A.

Spencer’s first argument is that pursuant to the felony class

imprisonment term limits at the end of § 3583(e)(3), the

aggregate limit for his two supervised release revocations is 2

years, and since he was sentenced to 14 months after his first

revocation, the court was limited to sentencing him to 10 months

after his second revocation. Spencer acknowledges that the

weight of authority is against him. He rightly admits that all

circuits that have considered the question “have concluded that,

when Congress amended § 3583(e)(3) to add the phrase ‘on any

such revocation’ to that provision,” hold that Congress

“intended to preclude the aggregation of more than one term of

imprisonment following supervised release, in calculating the

maximum allowable term under the ‘except’ clause.” 

Appellant’s Br. at pp. 6–7. Appellant’s concession is well taken. 

See, e.g., United States v. Hernandez, 655 F.3d 1193, 1195 (10th

Cir. 2011); United States v. Epstein, 620 F.3d 76, 80 (2d Cir.
7

2010); United States v. Knight, 580 F.3d 933, 937–38 (9th Cir.

2009); United States v. Lewis, 519 F.3d 822, 825 (8th Cir. 2008).

Spencer argues that the unanimous weight of authority is

wrong. He contends that the 2003 amendment is inapplicable to

cases like his own. He bases this argument on the fact that the

amendment was enacted as part of the PROTECT Act. Because

the full title of that Act is “Prosecutorial Remedies and Other

Tools to end the Exploitation of Children Today” (emphasis

added), and because of its legislative history, the obvious

purpose of the Act was to prosecute, deter, and punish sex

offenders. Therefore, Spencer argues, because his original

violation was a firearms charge and not a sex offense, the

amendment does not apply so that the imprisonment term of two

years for his class C original felony should still be interpreted as

an aggregate limit unaffected by the 2003 amendment.

Spencer’s argument ignores what one of our colleagues has

referred to as “the wise rule that the title of a statute and the

heading of a section cannot limit the plain meaning of the text. 

For interpretative purposes, they are of use only when they shed

light on some ambiguous word or phrase.” Tataranowicz v.

Sullivan, 959 F.2d 268, 282 (D.C. Cir. 1992) (Buckley, J.,

dissenting on other grounds) (citing Brotherhood of R.R.

Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528–29

(1947)); see also NRDC v. EPA, 915 F.2d 1314, 1321 (9th Cir.

1990). The wisdom of the rule is evident here. Nowhere in the

language Congress actually enacted is there any indication that

Congress intended language concerning sentencing to be limited

to the category of crimes that attracted its original attention. 

Had Congress meant to so limit the effect of its amendment, it

could have said so.

We reject Spencer’s limitation on the effect of the

amendment and instead agree with the government’s contention
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that with the addition of the phrase “on any such revocation” in

2003, Congress eliminated any aggregation requirement. As the

government argues, we must give effect to § 3583(e)(3)’s plain

meaning without considering the PROTECT Act’s purpose, title,

or legislative history. Because § 3583(e)(3) is unambiguous the

“judicial inquiry is complete.” See Connecticut Nat’l Bank v.

Germain, 503 U.S. 249, 254 (1992) (internal quotation marks

omitted). 

The PROTECT Act’s addition of the phrase “on any such

revocation” is not limited to only those convicted of sex

offenses. Several of our sister circuits agree, interpreting the

phrase “on any such revocation” in § 3583(e)(3) as a perrevocation cap on imprisonment; in none of the cases were the

defendants originally sentenced for sex offenses. See Epstein,

620 F.3d at 80 (defendant originally sentenced for firearms

violations); Knight, 580 F.3d at 937–38 (same); Lewis, 519 F.3d

at 825 (defendant originally sentenced for interstate

transportation of a stolen vehicle); United States v. Williams,

425 F.3d 987, 989 (11th Cir. 2005) (defendant originally

sentenced for bank robbery); United States v. Tapia-Escalera,

356 F.3d 181, 188 (1st Cir. 2004) (defendant originally

sentenced for illegal drug possession). We conclude that the

2003 amendment to § 3583(e)(3), adding the phrase “on any

such revocation,” results in the felony class imprisonment terms

at the end of § 3583(e)(3) being per-revocation limits, and not

aggregate limits.

B.

Spencer next argues that even if we reject his interpretation

of the “except clause,” we should nonetheless hold that the

district court should have aggregated his two supervised release

revocation terms under what he refers to as the “all or part”

clause at the beginning of § 3583(e)(3). Upon revocation of
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supervised release, that clause provides for “requir[ing] the

defendant to serve in prison all or part of the term of supervised

release authorized by statute for the offense that resulted in such

term of supervised release . . . .” Since the maximum term of

supervised release authorized by § 3583(b) for a class C felony

is 3 years, Spencer claims that as he served 14 months after his

first revocation, the district court was limited to sentencing him

to 22 months upon his second revocation. This is a case of first

impression in this circuit, although several of our sister circuits

have addressed this exact question. For example, the question

before the Fifth Circuit in Hampton was to “determine whether

the phrase ‘term of supervised release authorized by statute’ at

the beginning of § 3583(e)(3) caps the aggregate amount of

revocation imprisonment at the amount of supervised release

authorized by § 3583(b).” 633 F.3d at 338. Likewise, the

question before the Tenth Circuit in Hunt was whether “the

district court failed to apply 18 U.S.C. § 3583(e)(3) to give

[Hunt] credit for prison time served on two prior sentences for

revocation of his supervised release.” 673 F.3d at 1290.

As an initial matter, the government and Spencer argue for

different standards of review of this second argument by

Spencer. The government contends that in the district court

Spencer never argued for a 22 month sentence and therefore his

claim is subject to review only for plain error. Spencer, in reply,

states that plain error review is not appropriate because his

counsel objected to his aggregate imprisonment of 38 months,

i.e., beyond the 36 month term of supervised release authorized

by § 3583(b). We need not resolve this dispute, however,

because we conclude that there was no error, let alone clear

error, on the part of the district court.

Spencer cites United States v. Williams, 675 F.3d 275, 280

(3rd Cir. 2012), for the proposition that the “all or part” clause

is “independent” of the “except” clause. He claims that prior to
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the PROTECT Act, nothing suggests that Congress did not

intend to authorize aggregation under both clauses. So although

the “except” clause may no longer call for aggregation pursuant

to the PROTECT Act, Spencer argues, the “all or part”clause

has always provided for, and still provides for, aggregation. 

Additionally, Spencer argues that consistent with common

practice under parole statutes and regulations, there is a

reasonable expectation of a defendant that the total time spent in

prison as a result of violating supervised release will not exceed

the maximum authorized term of release, in his case 36 months. 

He asserts that any incarceration time longer that the maximum

3 years pursuant to § 3583(b) is counterintuitive and overly

punitive, and that it also violates fair notice. Furthermore,

according to Spencer, there is no clear indication that Congress

intended a defendant to serve more cumulative time in prison

than specified by the maximum terms of supervised release, and

that in fact the legislative history of the PROTECT Act supports

a contrary conclusion, i.e., that the legislative history shows that

Congress intended to reduce the maximum by any previously

served revocation.

We do not agree that the phrase at the beginning of

§ 3583(e)(3) “requir[ing] the defendant to serve in prison all or

part of the term of supervised release authorized by statute for

the offense that resulted in such term of supervised release”

limits Spencer’s aggregate prison terms after revocation of

supervised release to 3 years. Spencer draws our attention to

three recent cases of our sister circuits that address this same

issue. See Hampton, Hunt, Williams. As Spencer himself

admits, none of these cases support his claims. In Hampton, the

court “conclude[d] that the language at the beginning of 

§ 3583(e)(3) allowing the district court to ‘revoke a term of

supervised release, and require the defendant to serve in prison

all or part of the term of supervised release authorized by statute

for the offense that resulted in such term of supervised release’
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does not require that court to credit the defendant for prior

terms of revocation imprisonment.” 633 F.3d at 338 (emphasis

added). 

In Hunt, the court, “follow[ing] the plain language of

[§ 3583(e)(3)], . . . conclude[d] that prison time served for prior

revocations should not be considered when calculating a

sentence for a subsequent revocation of supervised release.” 

673 F.3d at 1291. And in Williams, the court concluded that

“Congress did not intend to set an aggregate cap on successive

revocation imprisonment in subsection (e)(3) when it added

language that authorized courts to impose a term of revocation

imprisonment that exceeded the supervised release term

originally imposed.” 675 F.3d at 281. As with his first

argument, Spencer contends that we should decline to follow the

other circuits. He argues that the cases were decided wrongly,

based in part on an incorrect analysis of the legislative history.

We reject Spencer’s contention that the other circuits erred. 

This case is controlled by the plain language of § 3583(e)(3) as

amended in 2003. That version of § 3583(e)(3) is unambiguous,

and since it is unambiguous, we must give effect to its plain

meaning. Germain, 503 U.S. at 254. No examination of the

legislative history is required. 

Section 3583(e)(3) must be read as a unitary whole,

considering the “language itself, the specific context in which

that language is used, and the broader context of the statute as a

whole.” See United States v. Barnes, 295 F.3d 1354, 1359 (D.C.

Cir. 2002) (internal quotation marks omitted). As noted above,

Spencer, relying on Williams, argues that the “all or part” clause

is “independent” of the “except” clause and that therefore

although aggregation is not required by the PROTECT Act

under the “except” clause, it is still required under the “all or

part” clause. It is true that the Third Circuit in Williams, as well
12

as the Tenth Circuit in Hunt and the Fifth Circuit in Hampton,

noted that the two clauses were independent. It is further true

that the Hampton court stated that the 1994 amendments to the

“all or part” clause authorized courts to “impose a term of

revocation imprisonment without being limited by the amount

of supervised release the original sentencing court imposed,”

633 F.3d at 341.1

 At the same time, the Fifth Circuit described

the 2003 amendment to § 3583(e)(3) as “operat[ing] as a perrevocation limit on revocation imprisonment.” Id. (noting that

the appellant conceded this operation of the amending

language). 

That all said, however, Williams does not stand for

Spencer’s proposition that although aggregation is not allowed

under the “except” clause, it can nevertheless be the case under

the “all or part” clause because those two clauses are

“independent.” Like the Fifth Circuit in Hampton, “we decline

to read the PROTECT Act as prohibiting aggregation of

revocation imprisonment in one part of § 3583(e)(3) and

implicitly requiring it in another.” 633 F.3d at 341. As the

Tenth Circuit stated in Hunt, “[h]ad Congress intended the first

half of § 3583(e)(3) to require aggregation, it would not have

amended the second half of the statute to preclude such an

interpretation.” 673 F.3d at 1293. 

We conclude that the 2003 amendment to § 3583(e)(3),

which added the words “on any such revocation” to the so-called

“except” clause, modifies the rest of § 3583(e)(3)’s text. Our

1

The Fifth Circuit in Hampton further opined, “Read properly,

the phrase ‘on any such revocation’ language already modifies the

phrase ‘term of supervised release authorized by statute’—it provides

the exception to the court’s ability to sentence the defendant to the full

term of supervised release authorized by § 3583(b).” United States v.

Hampton, 633 F.3d 334, 340 n.2 (5th Cir. 2011).
13

conclusion is in harmony with the Fifth Circuit’s decision in

Hampton, which stated that the “the phrase ‘on any such

revocation’ . . . modifies the phrase “term of supervised release

authorized by statute.” 633 F.3d 340 n.2. We hold that upon

each revocation of supervised release, a defendant may be

sentenced to the felony class imprisonment limits at the end of

§ 3583(e)(3), without regard to prison time previously served for

revocation of supervised release in the same case.

Conclusion

For the reasons stated above, we affirm the district court’s

sentence of 24 months imprisonment for Spencer after his

second revocation of supervised release.