FILED

United States Court of Appeals

Tenth Circuit

August 23, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

BRICE HERNANDEZ,

Defendant-Appellant.

No. 10-8086

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. 2:04-CR-00027-WFD-2)

Eric J. Palen, Palen Law Offices, LLP, Glendo, Wyoming, for DefendantAppellant.

David A. Kubichek, Assistant United States Attorney (Christopher A. Crofts,

United States Attorney, with him on the brief), District of Wyoming, Casper,

Wyoming, for Plaintiff-Appellee.

Before GORSUCH, HOLLOWAY, and MATHESON, Circuit Judges.

GORSUCH, Circuit Judge.

Brice Hernandez claims that he is stuck in a vicious cycle. Originally

convicted of possessing an unregistered firearm seven years ago, he served his

time and won supervised release. But when he violated the conditions imposed
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on his release he found himself back in prison. Over the years this process has

now repeated itself no fewer than four times. In this appeal, Mr. Hernandez asks

us to undo his latest prison sentence, arguing that the district court’s view of the

statutory revocation authority granted it by 18 U.S.C. § 3583(e)(3) means

defendants like him can be trapped in endless cycles of imprisonment and release. 

We don’t, however, read the statute either to forbid the district court’s latest

sentence — or to authorize the dire result Mr. Hernandez foresees.

The origins of the current dispute take us back to 2004 when Mr.

Hernandez was convicted of possessing an unregistered firearm. See 26 U.S.C.

§§ 5861(d) & 5871. For this crime, the district court sentenced him to forty-six

months in prison followed by three years of supervised release. While there’s no

evidence Mr. Hernandez had any trouble as a prisoner, there’s no question he had

difficulty with supervised release. Soon after he finished his assigned prison

term, Mr. Hernandez violated the terms imposed on his supervised release. 

Invoking the authority granted to it by 18 U.S.C. § 3583(e)(3), the district court

responded by revoking Mr. Hernandez’s supervised release and requiring him to

serve six more months in prison followed by a new term of supervised release.

But rather than marking the end of it all, this turned out to be just the

beginning. When Mr. Hernandez violated the terms of his new supervised release

order, the district court sentenced him to three more months in prison and another

term of supervised release. Mr. Hernandez then proceeded to violate the terms of
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that supervised release, and the district court responded with another twelvemonth prison sentence and another (now fourth) term of supervised release. After

Mr. Hernandez violated the terms of this latest supervised release order, too, the

court ordered him to serve a longer term in prison — eighteen months, this time

— but no more supervised release. 

In this appeal, Mr. Hernandez seeks to undo the district court’s final,

eighteen-month prison sentence. He argues that the sentence exceeds the

authority granted to the district court by 18 U.S.C. § 3583(e)(3), pointing us in

particular to the italicized “except that” clause:

(e) The court may . . . (3) 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 without credit for time previously served on postrelease

supervision, if the court, pursuant to the Federal Rules of Criminal

Procedure applicable to revocation of probation or supervised release, finds

by a preponderance of the evidence that the defendant violated a condition

of release, except that a defendant whose term is revoked under this

paragraph may not be required to serve on any such revocation more than

5 years in prison if the offense that resulted in the term of supervised

release is a class A felony, more than 3 years in prison if such offense is a

class B felony, more than 2 years in prison if such offense is a class C or D

felony, or more than one year in any other case.

18 U.S.C. § 3583(e)(3) (italics added). Of course, Mr. Hernandez admits, his

current term of incarceration is only eighteen months, and so itself within the

“except that” clause’s apparent two year maximum for class C felons like himself. 

But, Mr. Hernandez adds, he’s entitled to credit — credit for all the prior prison

terms he’s served for violating supervised release orders. Aggregating those
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terms (six months for his first violation; three months for his second; and twelve

for his third), he has already served twenty-one months in prison for violating the

district court’s supervised release orders. Because of this, he says, the district

court could not lawfully sentence him to more than three additional months in

prison on his latest revocation. And it is for this reason, he submits, we must

vacate the district court’s current eighteen-month prison sentence.

We cannot agree. The “except that” clause Mr. Hernandez focuses on

surely limits the length of prison time a district court may authorize for

supervised release violations. But just as surely it says a court may not require a

class C felon like Mr. Hernandez to serve more than two years “on any such

revocation.” Id. (emphasis added). And the ordinary and natural meaning of the

word “any” is straightforward enough — suggesting “every,” “all,” or “one or

another” taken at random. Webster’s Third New International Dictionary 97

(2002). So for every, all, or one or another of Mr. Hernandez’s revocations, the

clause’s plain language creates a new and independent two-year incarceration

limit. To hold otherwise — to arrive at the competing interpretation Mr.

Hernandez urges — would require us to mangle the “except that” clause’s express

terms. We would need either to ignore the term “any such revocation” or to adorn

it with new language such as: “provided, however, the district court should

subtract from the two-year period any time already served.” None of this,

however, is what the statute says. 
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Mr. Hernandez replies that this court and others used to read the “except

that” clause just as he does. See, e.g., United States v. Swenson, 289 F.3d 676,

677 (10th Cir. 2002); United States v. Jackson, 329 F.3d 406, 407-08 (5th Cir.

2003) (collecting cases). But he also acknowledges (as he must) that this was

before Congress added the words “on any such revocation” to the statute in 2003. 

Without those words, it was undoubtedly reasonable to read the “except that”

clause as requiring a district court to aggregate and take account of all prior

prison terms — to impose no more than a total of two years in prison for revoked

class C felons like Mr. Hernandez. But those words, once added to the statute,

cannot be elided, passed over, ignored. Congress was presumably aware of

judicial decisions allowing aggregation when it adopted its 2003 amendment —

and its decision to change § 3583 to impose a two-year prison term for class C

felons on any such revocation was just as presumably designed to do something. 

And something the amendment did, by its plain terms upending existing case law

and bringing to an end the aggregation Mr. Hernandez seeks and promotes. 

Indeed, every circuit to have addressed the “except that” clause’s meaning after

Congress’s adoption of the 2003 amendment has adopted this very understanding,

acknowledging in the process (as we must with respect to Swenson) that the

amendment has superseded earlier controlling circuit case law. See, e.g., United

States v. Hampton, 633 F.3d 334, 338 & n.1 (5th Cir. 2011); United States v.

Epstein, 620 F.3d 76, 80 (2d Cir. 2010); United States v. Knight, 580 F.3d 933,
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938-40 (9th Cir. 2009); United States v. Lewis, 519 F.3d 822, 825 (8th Cir. 2008);

United States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005) (in dicta); United

States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir. 2004) (in dicta).

Having said this much about the statute’s plain language, it’s important to

emphasize what we’re not saying about it. For example, we offer no view on how

the language in § 3583(e)(3) preceding the “except that” clause operates. That

language allows a district court to 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.” One might try to suggest that this

language requires a district court to aggregate all prison terms served on

revocation and limit total prison time to the period of supervised release

authorized by statute for the underlying offense (a three-year period for class C

felonies like the one Mr. Hernandez committed, see § 3583(b)(2)). At least one

circuit has addressed — and rejected — this argument. See Hampton, 633 F.3d at

338. But it isn’t one we are asked to resolve today.

Another possible complication arises within the “except that” clause. 

There, the length of time a district court may authorize in prison for each

revocation depends on the nature of the “offense that resulted in the term of

supervised release.” (Emphasis added.) Mr. Hernandez presses this appeal on the

express understanding that the term offense as used in § 3583(e) refers to his

underlying criminal conviction, and that very well may be exactly right. See
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Tapia-Escalera, 356 F.3d at 185; Johnson v. United States, 529 U.S. 694, 701

(2000). Indeed, we have previously assumed it is, just as we do today. See

United States v. Kelley, 359 F.3d 1302, 1303 n.1 (10th Cir. 2005); Swenson, 289

F.3d at 677. But if the “offense that resulted in the term of supervised release”

refers instead to a prior violation of supervised release, one might try to argue

that the statutory limit on jail time for second and successive violations is just one

year. See § 3583(e)(3) (when the “offense that resulted in the term of supervised

release” is not a Class A, Class B, Class C, or Class D felony, “a defendant whose

term is revoked . . . may not be required to serve on any such revocation . . . more

than one year”). We highlight this complication not to answer it, but only and

again to spell out the boundaries of today’s battle. 

Mr. Hernandez does, however, pursue another line of argument we must

still address in this appeal. Given our attention to the plain language of the 2003

amendment, he contends, we should also look to the circumstances surrounding

its adoption. As it turns out, the amendment was adopted as part of the

PROTECT Act — a piece of legislation aimed primarily at deterring child sexual

abuse — and the specific portion of the legislation encompassing the amendment

was entitled “Supervised Release Terms for Sex Offenders.” Pub. L. No. 108-21,

§ 101, 117 Stat. 650, 650 (2003). Informed by this background, Mr. Hernandez

argues, we should infer an intent by Congress to do away with aggregation in the

“except that” clause only when it comes to sex offenders. Perhaps sex offenders
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no longer get the benefit of aggregation, he says, but other types of offenders

(such as himself) should continue to do so.

Selectively enforcing a statute’s plain terms is not something courts

generally do, and something we cannot do in this case. The plain language of the

2003 amendment clearly and expressly applies to all offenders on any revocation. 

It bears no exception or limitation. While the title of the legislation embodying

the amendment does suggest an underlying congressional concern with sex

offenders — and while the legislative titles may sometimes be helpful when

interpreting ambiguous statutory language — it is a cardinal rule of statutory

interpretation (and well known to Congress) that courts will not use legislative

captions and titles to “limit the plain meaning of [the statutory] text” Congress

adopts. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (internal

quotation omitted); Carter v. United States, 530 U.S. 255, 267 (2000) (“[T]he title

of a statute is of use only when it sheds light on some ambiguous word or phrase

in the statute itself.”). It is just as settled (and known to Congress) that courts

will not “restrict the unqualified language of the statute to [address only] the

particular evil that Congress was trying to remedy.” Brogan v. United States, 522

U.S. 398, 403 (1998); Epstein, 620 F.3d at 80. Where the statutory language is

plain — and plain here it is — that language controls as written, without regard to

titles or judicial perceptions (or possible inadvertent misperceptions) of

legislative purpose. The legislative art is, after all, one of compromise and
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“departing from a precise statutory text may do no more than disturb a carefully

wrought legislative compromise” rather than to preserve or effect it. HRI v. EPA,

608 F.3d 1131, 1158 (10th Cir. 2010) (en banc) (internal quotation marks

omitted).

Mr. Hernandez closes his appeal by raising the specter of a “never ending

cycle of [successive] revocations” flowing from the district court’s reading of

§ 3583(e)(3). Opening Br. at 7. Of course, this specter couldn’t fully materialize

in his case given that the district court’s latest challenged sentence does not

include any additional term of supervised release. But, Mr. Hernandez says,

there’s nothing to stop the problem from arising in other cases. Other defendants

like him face the real prospect of life in prison for revocation after revocation, all

for original convictions carrying relatively brief maximum prison terms. And

such a result, he suggests, is an “absurd” one that should compel us a different

(preferably his) reading of § 3583(e)(3). See generally United States v. Amer.

Trucking Ass’ns, 310 U.S. 534, 543-44 (1940); McNeill v. United States, 131 S.

Ct. 2218, 2223 (2011). 

But whatever other problems attend this line of argument, it suffers from a

faulty premise. Even assuming § 3583(e)(3) does nothing to foreclose the

possibility of endless cycles of prison and supervised release, a near neighboring

statutory subsection does — ensuring that, in cases like Mr. Hernandez’s, the
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specter of a “life of imprisonment” will and can remain no more than that.

Opening Br. at 12.

How? Under § 3583(h), the amount of supervised release a district court

can impose as part of any revocation sentence is limited to “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.” 18 U.S.C. § 3583(h) (emphasis

added). This language — left unamended in 2003 and thus quite unlike

§ 3583(e)(3) — does (expressly) require a district court to aggregate and credit all

prior prison terms when determining the maximum amount of supervised release

it can impose for any revocation. So as a defendant serves more and more time in

prison for each revocation, a district court can impose less and less time on

supervised release. Once a defendant serves in prison a total amount of time that

is more than the “term of supervised release authorized by statute” — at most

three years for a class C felon like Mr. Hernandez pursuant to § 3583(b)(2) — he

can no longer be placed on supervised release at all. And because he can’t be

placed on supervised release there’s no further chance he might violate supervised

release. 

Mr. Hernandez’s case itself illustrates the point. He’s now been ordered to

serve a total of thirty-nine months in prison for his successive supervised release

violations. Because thirty-nine months is, of course, greater than three years, the
*

 How subsection (h) might interact with subsections (j) and (k), where

Congress has authorized lifetime terms of supervised release for those convicted

of terrorism and certain sex offenses (offenses not at issue in this case) is a

question we leave for another day. One last question we do have to address,

however, concerns the procedural reasonableness of Mr. Hernandez’s sentence. 

He says the district court did not adequately explain its reasons for its eighteenmonth sentence. But Mr. Hernandez didn’t object at his sentencing to the

adequacy of the district court’s statement of reasons — and because of this he

must satisfy the taxing plain error standard of review. United States v. Begaye,

635 F.3d 456, 470 (10th Cir. 2011). Under this standard, Mr. Hernandez bears

the burden of showing (among other things) a reasonable probability that “but for

the claimed error, [his] sentence would be different.” Id. (internal quotation and

alterations omitted.) This, however, is a burden Mr. Hernandez cannot meet. He

is unable to offer us any reason to think that, had the district court been required

to say more, it would have given him a more forgiving sentence. If anything, the

contrary seems more likely. By the time of his fourth revocation, it is apparent

from the record that the district court felt the need to respond by authorizing

more, not less, prison time than it had tried before.

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district court could not have sentenced him to any more time on supervised

release under § 3583(h) after his latest revocation. The law simply doesn’t allow

it. There is no more supervised release available for the court to issue or Mr.

Hernandez to violate as a matter of law. So as endless as Mr. Hernandez’s cycle

of revocation and release may have once seemed, it, like all things, must and does

come to an end.*

The judgment of the district court is affirmed.