PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 12-2653

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UNITED STATES OF AMERICA

v.

PERCY DILLON,

Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-93-cr-00084-002)

District Judge: Honorable Alan N. Bloch

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Argued May 15, 2013

Before: SMITH, FISHER and CHAGARES, Circuit Judges.

(Filed: August 5, 2013)

Renee Pietropaolo, Esq. (ARGUED)

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center
2

Pittsburgh, PA 15222

Counsel for Appellant

Rebecca R. Haywood, Esq.

Michael L. Ivory, Esq. (ARGUED)

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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FISHER, Circuit Judge.

Percy Dillon appeals from the sentence imposed by the 

District Court following a violation of the conditions of his 

supervised release. In 1993, Dillon was convicted of three 

drug-related felony counts and was sentenced to 322 months 

in prison along with “a term” of five years of supervised 

release. Dillon argues that by using this language, the District 

Court sentenced him to a single term of supervised release, 

rather than to three concurrent terms, and that it was therefore 

plain error for the District Court to impose three consecutive 

terms of reimprisonment and three concurrent terms of 

supervised release when it revoked Dillon’s supervised 

release in 2012. We will vacate Dillon’s sentence and 

remand to the District Court for resentencing.
3

I.

On September 17, 1993, a jury convicted Dillon and 

his co-conspirator Jerron Lollis of (1) conspiracy to distribute 

more than 50 grams of crack and 500 grams of cocaine, in 

violation of 21 U.S.C. § 846 (“Count One”); (2) use of a 

firearm during and in relation to a drug trafficking crime, in 

violation of 18 U.S.C. § 924(c)(1) (“Count Two”); and 

(3) possession with intent to distribute 500 grams or more of 

cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Count Four”). 

At a sentencing hearing on November 19, 1993, the District 

Court announced its sentence:

“Pursuant to the Sentencing Reform Act of 

1984 it is the judgment of the Court that the 

defendant, Percy Dillon, is hereby committed to 

the custody of the Bureau of Prisons to be 

imprisoned for a term of 322 months. This term 

consists of a term of 262 months as to Counts 1 

and 4 and a term of 60 months as to Count 2 to 

be served consecutively with the term imposed 

at Counts 1 and 2 [sic; should be “Counts 1 and 

4”].

“Upon release from imprisonment the defendant 

shall be placed on supervised release for a term 

of five years.”

App. at 39. Three days later, the District Court filed its 

written judgment of sentence:
4

“The defendant is hereby committed to the 

custody of the United States Bureau of Prisons 

to be imprisoned for a term of three-hundred 

and twenty-two (322) months. This term 

consists of a term of two hundred and sixty-two 

(262) months as to Counts 1 and 4 and a term of 

sixty (60) months as to Count 2, to be served 

consecutively with the term imposed at Counts 

1 and 4.

“Upon release from imprisonment, the 

defendant shall be on supervised release for a 

term of five (5) years.”

App. at 30-31. This was the minimum possible sentence 

under the then-mandatory Sentencing Guidelines. In 2008 

and again in 2011, after the crack guidelines were amended 

by the Sentencing Commission, Dillon’s sentence was 

reduced, first to 270 months, and then to time served.

1

 1 On the effective date of the second set of retroactive 

amendments to the crack guidelines, Dillon had only 14 

months left on his sentence. Because Dillon’s new guideline 

range amounted to a 42-month reduction from his previous 

sentence, Dillon ended up serving approximately 28 months

more than what was called for by his amended guideline 

sentence.

 On 

November 10, 2011, Dillon was released in the Northern 

District of Texas and began his supervised release.
5

On the evening of December 5, 2011, after spending 

the day at a local shopping mall applying for jobs, Dillon 

called his cousin (and former co-conspirator) Jerron Lollis

and asked him for a ride home. When Lollis arrived 45 

minutes later, Dillon entered the car and immediately smelled 

marijuana, confirmed with Lollis that there was marijuana in 

the car, but remained in the vehicle, telling Lollis to “take me 

out of here; just take me home, man.” On their way out of the 

mall’s parking lot, the car was spotted and pulled over by 

Officer Fred Kemp, who called for backup. When Officer 

Kemp tapped on the window and Lollis rolled it down, the 

officer was “immediately hit by a really strong smell of 

unburned or fresh marijuana.”

After backup arrived in the person of Officer Richard 

Hernandez, the situation escalated: Officer Kemp ordered 

Lollis and Dillon out of the car, Lollis then revved the engine 

and pulled away (with Officer Hernandez dangling from the 

window), and Officer Kemp discharged his weapon in an 

attempt to stop the vehicle. Once the car stopped, the officers 

arrested Lollis and Dillon and recovered over 65 pounds of 

marijuana from the vehicle. Lollis claimed sole responsibility 

for the drugs.

Following this incident, both Dillon and Lollis were 

charged with supervised-release violations. The Probation 

Office alleged that Dillon violated three conditions: (1) that 

he not commit another federal, state, or local crime; (2) that 

he not illegally possess a controlled substance; and (3) that he 

not associate with any persons involved in criminal activity or 

with any persons convicted of a felony unless granted 

permission to do so. After a hearing, the District Court found 
6

that Dillon had not violated the first two conditions, but had 

violated the third, which constituted a Grade C violation. See 

U.S.S.G. § 7B1.1(a)(3).

The District Court then stated that under 18 U.S.C. 

§ 3583(e)(3), “the Court may sentence [Dillon] to serve up to 

five years’ imprisonment at Count 1, two years’ 

imprisonment at Count 2, and three years’ imprisonment at 

Count 4.” App. at 180. The court also noted that under 

§ 3584(a), it could impose these terms concurrently or 

consecutively. It further noted that under U.S.S.G. 

§ 7B1.4(a), the guidelines-recommended sentence for 

Dillon’s Grade C violation, given Dillon’s criminal history 

category of II, was four to ten months.

Notwithstanding the guidelines recommendation, 

however, the District Court found that “a term of 

imprisonment within this range is insufficient to comply with 

the factors set forth in Title 18 of the United States Code, 

Section 3553(a).” App. at 181. Because Dillon violated the 

terms of his supervised release so soon after being released 

from prison; because he associated with his former coconspirator, Jerron Lollis; because he did not try to exit 

Lollis’s car after smelling marijuana; and because he did all 

this after spending 19 years in prison, which showed that 

Dillon had “learned little from [his] lengthy term,” the 

District Court revoked Dillon’s supervised release and 

sentenced him to reimprisonment:

“Pursuant to the Sentencing Reform Act of 

1984 it is the judgment of the Court that the 

Defendant Percy Dillon is hereby committed to 
7

the custody of the Bureau of Prisons to be 

imprisoned for a term of 24 months, consisting 

of a term of one month at Count 1, a term of 11 

months at Count 2, and a term of 12 months at 

Count 4, all such terms to be served consecutive 

to each other.

“Upon release from imprisonment, the 

Defendant shall be placed on supervised release 

for a term of 59 months at Count 1, 25 months 

at Count 3, and 48 months at Count 4, to be 

served concurrently.”

App. at 182-83. Such a lengthy term of supervised release 

was necessary, in the District Court’s view, due to Dillon’s 

“poor compliance with [his] conditions of release.” Id. at 

182.

Dillon’s timely notice of appeal to this Court followed.

II.

The District Court had jurisdiction at Dillon’s 

supervised-release revocation hearing under 18 U.S.C. 

§§ 3231 and 3583(e). We have jurisdiction under 28 U.S.C. 

§ 1291 and 18 U.S.C. § 3742(a).

Because Dillon never objected before the District 

Court on the grounds asserted here, we review for plain error.

See Fed. R. Crim. P. 52(b) (“A plain error that affects 

substantial rights may be considered even though it was not 

brought to the court’s attention.”). We may reverse a district 
8

court’s decision on plain error review only if we conclude 

that (1) there was an error; (2) the error was “plain,” that is, 

“clear” or “obvious”; (3) the error “affect[s] substantial 

rights,” which “in most cases” means that the error must have 

been prejudicial; and (4) the error “seriously affect[s] the 

fairness, integrity or public reputation of judicial 

proceedings.” United States v. Olano, 507 U.S. 725, 732-36 

(1993) (internal citations omitted).

III.

Dillon argues that his original 1993 sentence included

a single term of supervised release, not three concurrent 

terms, and that the District Court therefore committed plain 

error when it revoked his supervised release in 2012 and

imposed three (consecutive) terms of imprisonment and three 

(concurrent) terms of supervised release. We agree.

A.

In the Sentencing Reform Act of 1984, Congress 

eliminated most forms of parole in favor of supervised 

release, a form of post-confinement monitoring that is 

overseen by the sentencing court, rather than the Parole 

Commission. See Johnson v. United States, 529 U.S. 694, 

696-97 (2000). The law authorizes a district court, when 

sentencing a defendant to a prison term for a felony or 

misdemeanor offense, to include a term of supervised release 
9

as a part of the sentence. 18 U.S.C. § 3583(a) (1993).2

 

Section 3583(b) outlines the maximum allowable terms of 

supervised release: five years for a Class A or Class B felony; 

three years for a Class C or Class D felony; and one year for a 

Class E felony or a misdemeanor.3

Upon a finding by a preponderance of the evidence 

that a defendant has violated the conditions of his supervised 

release, a district 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 without credit for time 

previously served on postrelease supervision, . . . except that 

a person whose term is revoked under this paragraph may not 

be required to serve more than 3 years in prison if the offense 

for which the person was convicted was a Class B felony, or 

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

felony.” 18 U.S.C. § 3583(e)(3) (1993). The statute also 

 Id. § 3583(b).

 2 Because post-revocation penalties are considered part 

of the punishment for the original offense, Johnson v. United 

States, 529 U.S. 694, 700-01 (2000), we apply 18 U.S.C 

§§ 3583 and 3553 as they read in March 1993, when Dillon 

committed his original offense.

3 Count One was a Class B felony because it carried a 

maximum term of 40 years. See 21 U.S.C. § 841(b)(1)(A)(iii)

(1993). Count Two was a Class D felony because it carried a 

maximum term of 5 years. See 18 U.S.C. § 924(c)(1) (1993). 

Count Four was a Class B felony because it carried a 

maximum term of 40 years. See 21 U.S.C. § 841(a)(1)

(1993).
10

permits a district court to add an additional term of supervised 

release following a prison term imposed under § 3583(e)(3), 

so long as the sum of the two terms does not exceed the 

originally-imposed term of supervised release.4

At Dillon’s November 1993 sentencing hearing, the 

District Court announced: “Upon release from imprisonment 

the defendant shall be placed on supervised release for a term 

of five years.” App. at 39. The court’s judgment, released a 

few days later, contained almost identical language: “Upon 

release from imprisonment, the defendant shall be on 

supervised release for a term of five (5) years.” App. at 31. 

Dillon argues that this language (specifically, “a term”) 

“plainly refers to only one term of supervised release” and 

that the District Court was without authority to impose three 

consecutive terms of reimprisonment and three concurrent 

terms of supervised release in 2012. Appellant’s Br. at 29-30.

For support, Dillon relies on United States v. Eskridge, 

445 F.3d 930 (7th Cir. 2006), in which the Seventh Circuit 

considered a 22-month sentence imposed following the 

defendant’s third supervised-release violation. Although 

Eskridge had initially been sentenced to two concurrent terms 

 4 In 1994, Congress added § 3583(h), which explicitly 

confers this power upon district courts. In Johnson v. United 

States, the Supreme Court held that § 3583(h) could not be 

applied retroactively to defendants (like Dillon) who 

committed their offenses prior to 1994, but also held that the 

pre-1994 statute could nevertheless be read to provide for the 

power. See 529 U.S. at 705-06.
11

of supervised release, after his first violation in 2002, the 

district judge sentenced him to 26 more months of supervised 

release but “did not indicate in the judgment order whether 

these were two (concurrent) terms or one term.” Id. at 934. 

This mattered, explained Judge Posner, because “consecutive 

terms of imprisonment may be imposed upon revocation of 

concurrent terms of supervised release,” and so “if in 2002 

the district judge [had] actually imposed two terms of 

supervised release, he had two terms that he could revoke,” 

which meant he could order Eskridge to serve consecutive 

prison terms without violating the 2-year maximum. Id. The 

court continued:

“To resolve the issue of clerical error versus 

judicial error, we sent for the transcript of the 

sentencing hearing. There we discover that in 

imposing supervised release in the first 

revocation the judge stated: ‘Because of the 

short term imposed in this matter the court is 

going to also continue you on supervised 

release for a term of 26 months.’ A term. This 

was the sentence and it was accurately reflected 

in the written judgment . . . .”

445 F.3d at 935 (internal citation omitted). The court 

therefore vacated Eskridge’s sentence and remanded the case 

for resentencing.

In United States v. Snyder, 635 F.3d 956 (7th Cir. 

2011), the Seventh Circuit returned to this issue in a case 

involving a sex offender who had violated the terms of his 

supervised release. As in Eskridge, the judge at Snyder’s 
12

original sentencing hearing had announced that Snyder would 

serve “a term” of six years of supervised release following his 

168 months in prison. Id. at 958. After Snyder violated the 

terms of his supervised release almost immediately, the 

district court revoked supervised release and sent Snyder back 

to prison for what it believed to be the statutory maximum: 

two years on each of his four convictions, to run 

consecutively. Id. at 959.

Because the district court announced this sentence 

without any mention of the applicable guidelines range, the 

Seventh Circuit vacated Snyder’s sentence and remanded. 

But in doing so, the court also noted that based on the 

language used by the district judge in the sentencing order 

and transcript, Snyder had actually been sentenced only to a 

single term of supervised release, id. at 958 n.1, and the 

maximum term of reimprisonment to which he could be

sentenced was only 24 months, id. at 960 n.4.

Here, the government argues that despite what it said, 

the District Court in 1993 actually meant to sentence Dillon 

to three concurrent terms of supervised release. Moreover, 

because it claims that the District Court was “obligated by 

law” to impose supervised release on both Counts One and 
13

Four,5

This argument is flawed in two respects. First, the 

government never objected in 1993 to the District Court’s 

imposition of “a term” of supervised release, nor did it crossappeal and assert any error. As Judge Posner recognized in 

Eskridge, if a district court’s order “accurately reflects the 

judge’s decision, however mistaken, to impose just a single 

term [of supervised release], it cannot be corrected because 

none of the statutory provisions authorizing the sentencing 

judge to modify a sentence that he has imposed is applicable 

to such a case.” 445 F.3d at 934 (emphasis added); see also 

Fed. R. Crim. P. 36 (“After giving any notice it considers 

appropriate, the court may at any time correct a clerical error 

in a judgment, order, or other part of the record, or correct an 

error in the record arising from oversight or omission.”);

Eskridge, 445 F.3d at 934 (“If the failure of the judgment 

the government asks us to hold that “by operation of 

law,” the District Court’s 1993 sentence “actually involved 

two terms of supervised release: a five-year term at Count 

One and a concurrent four-year term at Count Four.” Gov’t 

Br. at 25-26.

 5 See 21 U.S.C. § 841(b)(1)(A) (1993) [Count One] 

(“Any sentence under this subparagraph shall, in the absence 

of [a prior conviction for a felony drug offense], impose a 

term of supervised release of at least 5 years in addition to 

such term of imprisonment . . . .”); id. § 841(b)(1)(B) [Count 

Four] (“Any sentence imposed under this subparagraph shall, 

in the absence of [a prior conviction for a felony drug 

offense], include a term of supervised release of at least 4 

years in addition to such term of imprisonment . . . .”).
14

order to state that the judge was imposing two (concurrent) 

terms of supervised release . . . was merely a clerical error—

that is, if the court announced two terms but the clerk who 

typed the 2002 judgment included just one—then Rule 36 

will allow correction even now.”).

Second, even if Dillon’s 1993 sentence could 

somehow be transmogrified “by operation of law,” this would

still fail to explain why the District Court in 2012 thought it 

could revoke three concurrent terms of supervised release 

instead of two. As the government admits, only Counts One 

and Four of the 1993 Superseding Indictment carried 

mandatory terms of supervised release. The government 

acknowledges that the 1993 oral and written judgments made 

no reference to Count Two, but claims that “the District 

Court’s treatment of [Count Two] during the revocation 

hearing reflects that it originally intended to impose three 

separate and concurrent terms of supervised release.” Gov’t 

Br. at 26-27. But even if the District Court’s actions in 2012 

could give us any insight into what it had “intended” to do 

almost two decades earlier, the government never explains 

why we should consider those intentions relevant. See 

Snyder, 635 F.3d at 960 n.4 (“[E]ven if the court meant to 

sentence Snyder differently, it no longer has the authority to 

modify the original sentence to correct the error.”).

“A defendant cannot be reimprisoned for violating the 

conditions of non-existent terms of supervised release.” 

Snyder, 635 F.3d at 960 n.4. In 1993, when the District Court 

sentenced Dillon to “a term” of supervised release, it capped 

the number of supervised release terms it could revoke at any 

future proceeding at one. This conclusion is supported by the 
15

plain text of § 3583(e)(3), which authorizes the court to 

“revoke a term of supervised release, and require the person 

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

release.” 18 U.S.C. § 3583(e)(3) (1993) (emphases added).

We join the Court of Appeals for the Seventh Circuit 

and hold that where, as here, a district court’s sentence 

includes “a term” of supervised release, the court may not 

sentence the defendant to multiple terms of reimprisonment 

and/or supervised release upon a subsequent revocation of 

supervised release. The District Court therefore erred when it 

sentenced Dillon to three consecutive terms of 

reimprisonment and three concurrent terms of supervised 

release.

B.

Although the District Court erred at Dillon’s 

revocation hearing by sentencing Dillon to three consecutive 

terms of reimprisonment and three concurrent terms of 

supervised release, Dillon never objected before the District 

Court, and so we must review for plain error. We may

reverse a district court’s decision on plain error review only if 

we conclude that (1) there was an error; (2) the error was 

“plain,” that is, “clear” or “obvious”; (3) the error “affect[s] 

substantial rights,” which “in most cases” means that the error 

must have been prejudicial; and (4) the error “seriously 

affect[s] the fairness, integrity or public reputation of judicial 

proceedings.” United States v. Olano, 507 U.S. 725, 732-36 

(1993).
16

We will exercise our discretion to correct the District 

Court’s erroneous imposition of multiple terms of 

reimprisonment and supervised release. The District Court’s 

error was “plain” because the language of the 1993 sentence –

“a term of five years” – was unambiguous. See, e.g., United 

States v. Moore, 375 F.3d 259, 265 (3d Cir. 2004) (finding 

plain error where district court admitted irrelevant and 

prejudicial evidence despite “clear and unambiguous” 

command of Fed. R. Evid. 404(b)); United States v. 

Knobloch, 131 F.3d 366, 373 (3d Cir. 1997) (finding plain 

error where district court ignored “unambiguous directive” of 

guidelines application note); United States v. Leonard, 157 

F.3d 343, 346 (5th Cir. 1998) (finding plain error where 

district court failed to apply “clear and unambiguous”

sentencing guideline language).

The District Court’s erroneous multiple-terms sentence

was prejudicial to Dillon due to its implications for a 

hypothetical second revocation of his supervised release: a 

judge at such a hearing may see that Dillon was sentenced to 

multiple terms at his first revocation and presume that he may 

also impose multiple terms. Because the type of error made 

by the District Court is one that “may result in arbitrary 

differences in sentencing similarly situated defendants,” we 

will grant Dillon relief “in order to maintain the fairness, 

integrity, and public reputation of judicial proceedings.” 

United States v. Vazquez-Lebron, 582 F.3d 443, 447 (3d Cir. 

2009).
17

IV.

For the reasons set forth above, we will vacate Dillon’s 

sentence and remand to the District Court for resentencing.6

 6 In the alternative, Dillon claims that the District 

Court’s sentence was procedurally unreasonable because it 

failed to consider his approximately 28 months of overincarceration due to his inability to obtain the full benefit of 

the retroactive crack amendments. Although we need not 

decide this question today, the District Court should consider 

Dillon’s over-incarceration upon resentencing.