The Clerk of Court is directed to amend the official caption to conform to the listing of the *

parties stated above.

1

09-4025-cr

USA v. Epstein

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2010

(Submitted: Friday, August 27, 2010 Decided: Friday, September 3, 2010) 

 

Docket No. 09-4025-cr

UNITED STATES OF AMERICA,

Appellee,

v.

MITCHELL R. EPSTEIN,

Defendant-Appellant,

MANDIE JO WILLIS, DIANA L. WILLIS,

Defendants.

*

Before: MINER, CABRANES, and STRAUB, Circuit Judges:

Appeal from a judgment entered September 17, 2009, by the United States District Court for

the Northern District of New York (David N. Hurd, Judge). Defendant argues that the District

Court erred in failing to credit time served in prison under a prior revocation of supervised release

toward the statutory maximum term of imprisonment authorized for a subsequent revocation under

18 U.S.C. § 3583(e)(3). We hold that prior terms of imprisonment for violations of supervised

release do not limit the maximum sentence a district court may impose under § 3583(e)(3), as
 Section 3583 provides, in relevant part: 1

The court may, after considering [certain] factors . . . 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 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 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) (2006).

2

amended by the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today

Act of 2003 (“PROTECT Act”), Pub. L. 108-21, § 101, 117 Stat. 650, 651 (2003).

Affirmed.

Melissa A. Tuohey, Assistant Federal Public Defender

(Alexander Bunin, Federal Public Defender, and

James P. Egan, on the brief), Syracuse, NY, for defendantappellant.

Elizabeth S. Riker, Assistant United States Attorney (Richard

S. Hartunian, United States Attorney, on the brief, and

Richard R. Southwick, Assistant United States

Attorney, of counsel), United States Attorney’s Office

for the Northern District of New York, Syracuse,

NY, for appellee.

PER CURIAM:

The question presented is whether our holding in United States v. Merced, 263 F.3d 34 (2d Cir.

2001)—establishing that prior terms of imprisonment for violations of supervised release count

toward, and therefore limit, the maximum sentence a district court may impose for a subsequent

violation of supervised release under 18 U.S.C. § 3583(e)(3) —applies to a defendant whose 1
3

underlying offense was committed after the enactment of the Prosecutorial Remedies and Other

Tools to end the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub. L. 108-21, §

101, 117 Stat. 650, 651 (2003). 

Defendant-appellant Mitchell R. Epstein (“defendant” or “Epstein”) appeals from a

September 17, 2009 judgment of the United States District Court for the Northern District of New

York (David N. Hurd, Judge) sentencing him principally to 24 months’ imprisonment for violating

the conditions of his supervised release. Epstein argues that the District Court erred in failing to

count his prior 12-month prison term for a violation of supervised release toward his sentence for

the subsequent violation. Because 18 U.S.C. § 3583 permits a court to impose a maximum sentence

of two years for violations of conditions of supervised release for which the underlying offense was

a Class C or D felony, Epstein contends that the 24-month sentence he received after the second

revocation of his supervised release exceeds the legal maximum sentence by 12 months. 

We hold that prior sentences for violations of the conditions of supervised release are not

credited toward, and therefore do not limit, the statutory maximum a district court may impose for a

subsequent violation of supervised release pursuant to § 3583(e)(3), as amended by the PROTECT

Act. That is, each violation is subject to the maximum sentence notwithstanding time served

pursuant to prior revocations. Our holding to the contrary in Merced does not control when a

defendant’s underlying offense occurred after the enactment of the PROTECT Act.

BACKGROUND

On January 19, 2007, Epstein pleaded guilty to two counts of a six-count indictment

charging him and two others with (1) conspiracy to make false statements in the acquisition of

firearms (18 U.S.C. § 371), a Class D felony, and (2) possession of a firearm by a convicted felon (18

U.S.C. §§ 922(g)(1), 924(a)(2)), a Class C felony. He was sentenced by Judge Hurd on October 15,
4

2007 principally to 27 months’ imprisonment and three years of supervised release. On January 15,

2008, Epstein was released from prison and began his first term of supervised release. On July 9,

2008, after Epstein tested positive for marijuana and opiates, the District Court revoked Epstein’s

supervised release and sentenced him principally to a 12-month term of imprisonment followed by

two more years of supervised release.

On June 26, 2009, Epstein was released from prison and began his second term of

supervised release. On August 14, 2009, he was discovered at an unauthorized location and in

possession of an unauthorized cell phone in violation of the conditions of his supervised release. 

On September 17, 2009, after Epstein admitted to these violations, the District Court again revoked

his supervised release and sentenced him principally to 24 months’ imprisonment with no term of

supervised release. Epstein filed a timely appeal. 

DISCUSSION 

Revocation of a defendant’s supervised release is governed by 18 U.S.C. § 3583, which, inter

alia, permits a court to impose a maximum sentence of two years for violations of conditions of

supervised release for which the underlying offense was a Class C or Class D felony. Epstein argues

that, having already served 12 months for his first violation of supervised release, the District Court

could sentence him to no more than 12 months for his second violation. That is, he argues that the

12-month term of imprisonment he served for his first violation must be counted toward the twoyear maximum term authorized in 18 U.S.C. § 3583(e)(3). 

A.

We review de novo the district court’s legal determinations in a sentencing decision. United

States v. Johnson, 221 F.3d 83, 94 (2d Cir. 2000). 

B.
Senator Thurmond provided a detailed example of what the language in § 3583(e)(3) would 2

require: 

5

Section 3583(e)(3) provides that “a defendant whose term [of supervised release] is revoked 

. . . may not be required to serve on any such revocation more than . . . 2 years in prison if the offense

[that resulted in the term of supervised release] is a class C or D felony . . . .” 18 U.S.C. § 3583(e)(3)

(2006) (emphasis added). This language reflects a 2003 amendment included in the PROTECT Act,

in which Congress added the phrase “on any such revocation” after the phrase “required to serve.” 

Pub. L. 108-21, § 101(1), 117 Stat. 650 (codified as amended at 18 U.S.C. § 3583(e)(3) (2006)). This

was the only change made to § 3583(e)(3) by the PROTECT Act.

Prior to the amendment, our Court, along with every other Court of Appeals to address the

question, interpreted § 3583(e)(3) to allow defendants to “accumulate” prison time served for

multiple revocations of supervised release based on the same underlying offense, and to credit this

time toward the maximum term of imprisonment authorized by the statute. See Merced, 263 F.3d at

37; accord United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir. 2004); United States v. Jackson, 329

F.3d 406, 407–08 (5th Cir. 2003); United States v. Swenson, 289 F.3d 676, 677 (10th Cir. 2002); United

States v. Brings Plenty, 188 F.3d 1051, 1053–54 (8th Cir. 1999); United States v. Beals, 87 F.3d 854,

857–58 (7th Cir. 1996), overruled on other grounds by United States v. Withers, 128 F.3d 1167, 1172 (7th

Cir. 1997). This interpretation was based not only on the language of the statute, but also on its

legislative history, which revealed that the sponsor of an earlier bill containing nearly identical

provisions understood the statutory limits to authorize “the imposition of an additional term of

supervised release following the revocation of supervised release and re-imprisonment . . . only if the

defendant had served less time in prison for previous supervised release violations than the

maximum authorized period of re-imprisonment.” Merced, 263 F.3d at 37–38 (citing 137 Cong. Rec.

S7769-72 (daily ed. June 13, 1991) (statement of Sen. Thurmond)). 

2
For example, in the case of a Class C felony for which the maximum

supervised release term is three years, a defendant who is revoked and

re-imprisoned for 18 months could be ordered to serve as much as 18

additional months on supervised release (36-month maximum term of

supervised release-18 months imprisonment = 18 months possible re-release

supervision). If the same defendant was again revoked, he could be re-imprisoned for not

exceeding six months (24-month cap-18 months previously-served imprisonment = 6

months allowable imprisonment) and if so imprisoned, could not thereafter be

placed on supervision (because the two-year imprisonment cap would have

been reached). Thus, under [the amendments], a defendant would always be

credited for incarceration time against both the cap on re-imprisonment and

the maximum authorized period of supervised release.

137 Cong. Rec. S7772 (daily ed. June 13, 1991) (emphasis added).

6

C.

Since the 2003 amendment in the PROTECT Act, every Court of Appeals to have

considered the issue has interpreted the amendment to § 3853(e)(3) to eliminate the credit for terms

of imprisonment resulting from prior revocations. See United States v. Knight, 580 F.3d 933, 937–38

(9th Cir. 2009), United States v. Lewis, 519 F.3d 822, 824–25 (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). We join our sister circuits in holding that the statutory maximum sentences in

§ 3583(e)(3) apply to each discrete revocation of a defendant’s supervised release, irrespective of any

time served for previous violations. 

We look first to the plain meaning of the statutory text. See, e.g., In re World Trade Ctr. Disaster

Site Litig., 521 F.3d 169, 187-88 (2d Cir. 2008). The amended language of § 3583(e)(3), like the

previous version of the statute, provides that a court may revoke a term of supervised release, but

the amended version limits the maximum term of imprisonment (in Epstein’s case, 2 years) “on any

such revocation.” The consequence of adding these words is that the statutory maximum now

refers to each successive revocation separately. 
7

Furthermore, the very act of inserting the phrase “on any such revocation” suggests that,

prior to 2003, Congress understood the statutory maximum to apply to the total amount of time

served for multiple violations, or at least that Congress was aware that the courts had interpreted the

statute in this way. 

Epstein argues that such an interpretation of the statute would contradict the purpose of the

PROTECT Act. He relies upon the title of Section 101, “SUPERVISED RELEASE TERM FOR

SEX OFFENDERS,” and the Act’s stated purpose “[t]o prevent child abduction and the sexual

exploitation of children, and for other purposes,” Pub. L. No. 108-21, 117 Stat. 650, 650 (2003), for

the proposition that Congress intended to revise sentencing for violations of supervised release only

with respect to sex offenders. 

Epstein’s arguments are unavailing. It is well established that “the title of a statute cannot

limit the plain meaning of its text.” See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (internal

quotation marks and alterations omitted); see also Drax v. Reno, 338 F.3d 98, 110 (2d Cir. 2003). We

acknowledge that, notwithstanding certain miscellaneous provisions, see Pub. L. No. 108-21, § 608,

117 Stat. 650, 691 (modifying the Controlled Substances Act), the PROTECT Act applies primarily

to child sex offenders. This arguably creates some uncertainty as to whether Congress intended the

amendment to § 3583(e)(3) to apply to all criminal defendants, or to sex offenders alone. The

statutory text, however, is unambiguous, and we will not stretch to contradict the text where, as

here, the plain meaning produces a result that is neither “absurd” nor “plainly at variance” with the

policy of the legislation. See E.E.O.C. v. Commercial Office Prods. Co., 486 U.S. 107, 120 (1988)

(internal quotations marks omitted); accord Yerdon v. Henry, 91 F.3d 370, 376 (2d Cir. 1996).

Finally, Epstein argues that our interpretation is undesirable as a matter of public policy. We

admit, as we noted in Merced, that applying the maximum sentence under § 3583(e)(3) to each
8

successive revocation “permit[s] an endless cycle of consecutive terms of imprisonment and

supervised release based on a single underlying offense . . . .” Merced, 263 F.3d at 37. But our policy

views regarding this possible outcome do not change our responsibility to abide by the clear

language of the amended statute. Accordingly, our holding in Merced no longer applies to a

defendant whose underlying offense was committed after the enactment of the PROTECT Act. See

Johnson v. United States, 529 U.S. 694, 701–02 (2000) (holding that absent clear congressional intent to

the contrary, statutes changing post-revocation penalties apply only to defendants whose underlying

offenses are committed after the effective date of the statute). 

CONCLUSION 

In sum, the District Court did not err when it sentenced Epstein to two-years’ imprisonment

for a violation of the conditions of his supervised release—the maximum sentence permitted under

§ 3583(e)(3) for a Class C or D felony—after Epstein had already served a 12-month term as a result

of a prior revocation.

We have considered all of the defendant’s other arguments and find them to be without

merit. The judgment of the District Court is therefore AFFIRMED.