*The Honorable Richard J. Sullivan, of the United States District Court for the Southern District of New York, sitting by designation. 10-4090 United States v. Leon **UNITED STATES COURT OF APPEALS** 1 2 **FOR THE SECOND CIRCUIT** 3 4 August Term, 2011 5 6 7 (Submitted: October 21, 2011 Decided: November 23, 2011) 8 9 Docket No. 10-4090 10 11 - - - - - - - - - - - - - - - - - - - -x 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , 16 17 - v.- 18 19 JAMES LEON, 20 21 Defendant-Appellant

. 22 23 - - - - - - - - - - - - - - - - - - - -x 24 25 Before: JACOBS, Chief Judge , WESLEY, Circuit 26 Judge , and SULLIVAN, District Judge

. * 27 28 Defendant appeals from a judgment of the United States 29 District Court for the Southern District of New York 30 following his plea of guilty to a violation of the 31 conditions of his supervised release. Defendant argues that 322 the district court exceeded its authority by imposing a 1 post-revocation term of supervised release that extended 2 beyond the end-date of the originally imposed term of 3 supervision. In the alternative, he argues that the term of 4 supervised release was a substantively unreasonable 5
sentence. 6 STEVEN M. STATSINGER, 7 Federal Defenders of New York, 8 Inc., New York, NY, for 9 Appellant

. 10 11 BRIAN R. BLAIS, JUSTIN S. 12 WEDDLE, forPREET BHARARA, 13 United States Attorney, 14 Southern District of New York, 15 New York, NY, for Appellee

. 16 17 18 PER CURIAM: 19 20 James Leon appeals from a judgment entered in the 21 United States District Court for the Southern District of 22 New York (Kaplan, J. ), following his plea of guilty to a 23 violation of the conditions of his supervised release. The 24 initial sentence of supervised release was 60 months; on 25 revocation, he was sentenced to a new 60-month term: one 26 month of the time served in prison pre-sentence, plus 59 27 months of supervised release. Leon argues that the district 28 court exceeded its authority by imposing a post-revocation 293 term of supervised release that extended beyond the end-date 1 of the originally imposed term of supervision. In the 2 alternative, he argues that the 59-month term of supervised 3 release was a substantively unreasonable sentence. 4 Affirmed. 5
**BACKGROUND** 6
7 In 1994, James Leon pled guilty in the District of 8 Minnesota to aiding and abetting the possession of cocaine 9 with the intent to distribute and was sentenced to 192 10 months imprisonment to be followed by 60 months of 11 supervised release. After release from prison in May 2008, 12 Leon’s supervision was transferred to the Southern District 13 of New York. The term of supervision was scheduled to 14 expire on May 1, 2013. 15 In early 2010, officers from the New York Police 16 Department went to Leon’s apartment to arrest him for 17 possession of stolen goods. Leon fled, and was never 18 ultimately charged by state authorities. Following this 19 incident, however, Leon failed to report for a scheduled 20 office visit with his probation officer on February 16, 21 2010. After several unsuccessful attempts to contact him, 224 Leon was charged with failing to report to the Probation 1 Office as directed, in violation of the conditions of his 2 supervised release, and was arrested on August 24, 2010. He 3 pled guilty to violating the conditions of his supervised 4 release. 5 At Leon’s sentencing, he sought leniency as the sole 6 caregiver for an aged mother suffering from various ailments 7 and disabilities. The Government recommended a prison 8 sentence within the applicable Sentencing Guidelines range 9 of 8 to 14 months. After soliciting the parties’ views 10 regarding the permissible length of supervised release that 11 Leon could be ordered to serve following any imprisonment, 12 the district court revoked Leon’s 60-month term of 13 supervised release and sentenced him to time served 14 (approximately one month) to be followed by a term of 15 supervised release of 59 months, on the same terms and 16 conditions that governed his original term of supervised 17 release. Leon moved for a correction of his sentence, which 18 the district court denied. This appeal followed. 19 20 215 **DISCUSSION** 1
2 On appeal, Leon challenges the district court’s 3 imposition of a 59-month term of supervised release on two 4 grounds: [1] that the court was not authorized to impose an 5 additional term of supervised release that exceeded what 6 remained of his original 60-month term of supervised release 7 at the conclusion of his post-revocation imprisonment, and 8 [2] that the term of supervised release imposed was 9 substantively unreasonable. 10

**I** 11
12 Leon’s new 59-month term of supervised release exceeded 13 the end-date of his original 60-month term of supervised 14 release. He argues that the sentence was therefore 15 impermissible under Johnson v. United States , 529 U.S. 694 16 (2000). 17 In an appeal from a sentence, we review a district 18 court’s legal determinations de novo . SeeUnited States v. 19 Kinney, 211 F.3d 13, 19 (2d Cir. 2000). Apost-revocation 20 sentence is governed by the law prevailing at the time of 21 the defendant’s original offense. Johnson , 529 U.S. at 700- 221 Under 18 U.S.C. § 3583(h), “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 release, less any term of imprisonment that was imposed upon revocation of supervised release.” Thus, the statute in its current form clearly permits district courts to impose a combination of post-revocation imprisonment and additional supervised release that is equal in duration to the authorized term of supervised release for the original offense. 6 01. On September 13, 1994 (after Leon committed the 1 underlying offense for which he initially received 2 supervised release), Congress amended the supervised release 3 statute to expressly permit courts to impose an additional 4 term of supervised release following the revocation of an 5 original term of supervised release. See18 U.S.C. 6 § 3583(h). 1 Johnsonheld that § 3583(h) did not apply 7 retroactively, but that, even prior to its enactment, 8 district courts had the authority to impose an additional 9 term of supervised release to follow any post-revocation 10 imprisonment by virtue of § 3583(e). Johnson , 529 U.S. at 11 713. That section permits a district court to “revoke a 12 term of supervised release, and require the person to serve 13 in prison all or part of the term of supervised release 14 without credit for the time previously served on postrelease 15 supervision, if it finds by a preponderance of the evidence 167 that the person violated a condition of supervised release.” 1 Id.at 704 (quoting 18 U.S.C. § 3583(e)(3)). 2 Leon contends that this provision bears only upon the 3 prison component of a post-revocation sentence, allowing the 4 court to deny credit for time already served on supervised 5 release in deciding the length of post-revocation 6 imprisonment . Leon’s argument on appeal is that any new 7 post-revocation term of supervised release should have 8 reflected a credit for the supervised release time he served 9 under the initial sentence. However, the statute allows a 10 court to sentence a defendant to serve only part of the 11 original term of supervised release in prison and the rest 12 (potentially the greater part of the term) through 13 additional supervised release. The clear import of the 14 statute is to deny credit with respect to the entire term of 15 supervised release regardless of how the court allocates 16 that term between imprisonment and additional supervised 17 release. 18 Leon’s approach seems to run counter to one of the 19 purposes of release on supervision. Johnsonreferenced a 20 Congressional intent “to use the district courts’ 21 discretionary judgment to allocate supervision to those 228 releasees who needed it most.” Id.at 709. It reasoned 1 that “forbidding the reimposition of supervised release 2 after revocation and reimprisonment would be fundamentally 3 contrary to that scheme” because a defendant’s violation of 4 the terms of his supervised release “tends to confirm the 5 judgment that help was necessary, and if any prisoner might 6 profit from the decompression stage of supervised release, 7 no prisoner needs it more than one who has already tried 8 liberty and failed.” Id.In view of Johnson’sexpansive 9 interpretation of district courts’ statutory authority to 10 impose additional supervised release following revocation in 11 order to ease reintegration into society for those prisoners 12 that violate the conditions of their release, we fail to see 13 how the decision can be read to impose the limitation which 14 the defendant seeks. 15 We join a number of other Circuits in rejecting the 16 approach urged by Leon. See, e.g. , United States v. 17 Gresham, 325 F.3d 1262, 1268 (11th Cir. 2003) (holding that, 18 under § 3583(e)(3), “a defendant is not entitled to credit 19 for pre-revocation time served on supervised release”); 20 United States v. Russell , 340 F.3d 450, 454 (7th Cir. 2003) 21 (interpreting Johnsonto mean that “a district court may, 229 upon revoking a term of supervised release under 1 § 3583(e)(3), sentence a defendant to serve a combined term 2 of reimprisonment and additional supervised release, so long 3 as that sentence does not exceed the original term of 4 supervised release”). 5

**II** 6
7 Leon also argues that even if the district 8 court possessed the legal authority to impose it, a 59-month 9 period of supervised release was substantively unreasonable. 10 We review a district court’s sentence for substantive 11 reasonableness under an abuse of discretion standard. Gall 12 v. United States , 552 U.S. 38, 51 (2007). “[W]hen 13 conducting substantive review, we take into account the 14 totality of the circumstances, giving due deference to the 15 sentencing judge’s exercise of discretion, and bearing in 16 mind the institutional advantages of district courts.” 17 United States v. Cavera , 550 F.3d 180, 190 (2d Cir. 2008) 18 (in banc ). We will “set aside a district court’s 19 substantivedetermination only in exceptional cases where 20 the trial court’s decision cannot be located within the 21 range of permissible decisions.” Id.at 189 (internal 2210 quotation marks omitted). Thus, the substantive 1 unreasonableness standard “provide[s] a backstop for those 2 few cases that, although procedurally correct, would 3 nonetheless damage the administration of justice because the 4 sentence imposed was shockingly high, shockingly low, or 5 otherwise unsupportable as a matter of law.” United States 6 v. Rigas , 583 F.3d 108, 123 (2d Cir. 2009). 7 According to Leon, the sentence was substantively 8 unreasonable because the district court’s record findings do 9 not support the need for a long period of supervised 10 release, and instead operate to justify the imposition of a 11 below-Guidelines term of imprisonment (time served of one 12 month versus the 8-14 month Guidelines recommendation). In 13 explaining its sentence, the court primarily focused on 14 sympathetic factors that counseled in favor of a below15 Guidelines term of imprisonment, including the defendant’s 16 role as a caregiver for his elderly mother. But the court 17 also signaled distrust of Leon’s use of liberty, citing his 18 “idiocy” in severing all contact with the Probation Office 19 after fleeing the NYPD. District courts are permitted thus 20 to “hedge against [a] relatively lenient term of 21 imprisonment” by imposing a longer term of supervised 2211 release. SeeUnited States v. Rivera , 192 F.3d 81, 87-88 1 (2d Cir. 1999). Leon had only recently begun the process of 2 reintegrating into society after a lengthy prison sentence 3 and had thus far proven incapable of complying with the 4 terms of his supervised release. The district court could 5 therefore reasonably conclude that a relatively long term of 6 supervised release was necessary to prevent recidivism in 7 view of the lenient prison sentence it imposed. The 8 district court’s decision to offset a short prison sentence 9 with a long period of supervised release “is a matter of 10 fine-tuning rather than inconsistency.” Id.at 88. Because 11 this is not an “exceptional case[] where the trial court’s 12 decision cannot be located within the range of permissible 13 decisions,” we find the district court did not abuse its 14 discretion in imposing a 59-month term of supervised 15 release. SeeCavera , 550 F.3d at 189 (internal quotation 16 marks omitted). 17
**CONCLUSION** 18 19 For the foregoing reasons, the judgment of the district 20 court is **AFFIRMED**
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