REVISED January 31, 2011 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10035

UNITED STATES OF AMERICA, Plaintiff - Appellee v. STEPHANIE HAMPTON, Defendant - Appellant

Appeal from the United States District Court for the Northern District of Texas
Before KING, STEWART, and OWEN, Circuit Judges. KING, Circuit Judge: Defendant-Appellant Stephanie Hampton was sentenced to 24 months’ imprisonment when her supervised release was revoked. On appeal, Hampton argues that her revocation sentence was illegal because, when aggregated with her prior revocation sentence, the amount of imprisonment exceeded the maximum amount of supervised release authorized for her original offense, in violation of 18 U.S.C. § 3583(e)(3). We hold that § 3583(e)(3) does not require aggregation ofimprisonment imposed upon revocation ofsupervised release and AFFIRM the district court’s revocation sentence. United States Court of Appeals Fifth Circuit 

### F I L E D January 6, 2011 Lyle W. Cayce ClerkNo. 10-10035

2 I. FACTUAL & PROCEDURAL BACKGROUND On October 3, 2007, Hampton pleaded guilty to one count ofconspiracy to possess stolen mail, a Class D felony. See 18 U.S.C. §§ 371, 3559(a)(4) (2006). Hampton was sentenced tosix months’ imprisonment and twoyears’ supervised release. Hampton violated the conditions of her first supervised release, and it was revoked by the district court. The district court then sentenced Hampton to 24 months’ imprisonment and 12 months’ supervised release. Hampton violated the conditionsofher second supervised release, and the district court again revoked her release. At her revocation hearing, Hampton argued that the statute governing supervised release revocation sentencing, 18 U.S.C. § 3583(e)(3) (2006), caps the aggregate amount o f revocation imprisonment that a defendant can serve at the amount of supervised release authorized for the origi nal offense by 18 U.S.C. § 3583(b). According to Hampton, § 3583(b) authorized a maximum ofthreeyears’ supervised release for her Class D felony and, thus, she could not receive more than one year’s imprisonment as a second revocation sentence because she had already served two years’ imprisonment on her prior revocation sentence. The district court rejected this argument and sentenced Hampton to 24 months’ imprisonment with no additional supervised release. Hampton timely appealed. II. STANDARD OF REVIEW We review de novo whether Hampton received a revocation sentence in
excess of the statutory maximum. See United States v. Vera, 542 F.3d 457, 459 (5th Cir. 2008) (quoting United Statesv. Sais, 227 F.3d 244, 246 (5th Cir. 2000)).No. 10-10035

3 III. ANALYSIS A. Plain Meaning of § 3583 When interpreting a statute, this court first looks to the language of the statute itself. United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004). We are bound to“followthe plain and unambiguous meaning ofthestatutory language.” Id. (c itation and internal quotation marks omitted). Terms not defined in the statute itself should be given their “ordinary and natural meaning” and should be interpreted according to the “overall policies and objectives of the statute.” Id. (citation and internal quotation marks omitted). Under § 3583, a sentencing court may impose a term ofsupervised release following the defendant’s imprisonment as part of the sentence. 18 U.S.C. § 3583(a). The amount of supervised release the sentencing court may impose depends on the severity of the defendant’s offense. The authorized terms of supervised release are: (1) for a Class A or Class B felony, not more than five years; (2) for a Class C or Class D felony, not more than threeyears; and (3) for a Class E felony, or for a misdemeanor (other than a petty offense), not more than one year. § 3583(b). If the district court imposes a term of supervised release, that court then
sets conditions that must be followed by the defendant while on supervised release. § 3583(d). If a court finds by a preponderance of the evidence that a defendant has violated a condition of supervised release, that court may revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised rel ease authorized by statute for the offense that resulted in such term of supervised release w ithout credit for time previously served onNo. 10-10035

4 postrelease supervision

. . . 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 . . . . § 3583(e)(3). In addition to revoking the defendant’s supervised release and imprisoning the defendant, the district court may include a requirement that the defendant be placed on a term ofsupervised release after imprisonment. The length of such a term ofsupervised release shall not exceed the term ofsupervised release authorized by statute for the offense that resulted in the original sentence, less any term of imprisonment that was imposed upon revocation of supervised release. § 3583(h). Hampton argues that § 3583(e)(3) imposes two separate limits on the
amount of imprisonment a defendant can receive when the court revokes her supervised release: an aggregate limit and a per-revocation limit. First, she argues that the language at the beginning of § 3583(e)(3) allowing the district court to “revoke a term ofsupervised 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” is an aggregate limit. According to Hampton, this portion of § 3583(e)(3) ensures that a defendant’s aggregate amount of revocation imprisonment does not exceed the amount ofsupervised release authorized for the underlying offense in § 3583(b). Second, she argues that the language at the end of § 3583(e)(3) limiting the revocation sentence “on any such revocation” to a number ofyears based on the severity of the underlying offense is a per-revocation limit.No. 10-10035

1 We addressed whether the language that the PROTECT Act added to § 3583(e)(3) imposed only a per-revoc ation cap on imprisonment in U nited States v. Shabazz, which is a case we have decided today. No. 10-10553 (5th Cir. Jan. 6, 2011). In Shabazz, we held that the phrase “may not be required toserve on any such revocation” at the end of§ 3583(e)(3) acts as a per-revocation cap on imprisonment. Id. , slip op. at 3. We note that several other circuits have also interpreted the phrase “may not be required to serve on any such revocation” in § 3583(e)(3) as a per-revocation cap on imprisonment. See United States v. Epstein, 620 F.3d 76, 80 (2d Cir. 2010) (per curiam); United Statesv. Knight, 580 F.3d 933, 937–38 (9th Cir. 2009); United Statesv. Lewis, 519 F.3d 822, 825 (8th Cir. 2008); U nited States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005) (per curiam); United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir. 2004). None of those courts, however, addressed the precise issue Hampton has presented: whether the phrase “term of supervised release authorized by statute for the offense” at the beginning of § 3583(e)(3) acts as a separate, aggregate cap on revocation imprisonment. 5 We note that Hampton’s argument presents an issue of first impression. Our last opinion to address whether § 3583(e)(3) required aggregation of prior revocation imprisonment was United States v. Jackson, 329 F.3d 406 (5th Cir. 2003) (per curiam). In Jackson, we accepted the government’s concession that the pre-2003 version of § 3583( e)(3) imposed an aggregate cap on revocation imprisonment. I d. at 407–408. That reading of § 3583(e)(3) was derived from language in the subsection stating that a defendant “whose term of supervised release is revoked under this paragraph may not be required toserve more than”
a specified term of imprisonment based on the offense class. 18 U.S.C. § 3583(e)(3) (2000). Congress amended § 3583(e)(3) in 2003 to state that a defendant “may not be required to serve on any such revocation more than” a specified amount ofimprisonment. PROTECT Act, Pub. L. No. 108-21, § 101(1), 117 Stat. 650, 651 (2003) (amendment italicized). Hampton has conceded that the portion of § 3583(e)(3) interpreted in J ackson, and amended by the PROTECT Act, does not require aggregation. 1 Thus, we need only determine whether the phrase “term of supervised release authorized by statute” at theNo. 10-10035

6 beginning of§ 3583(e)(3) caps the aggregate amount ofrevocation imprisonment at the amount of supervised release authorized by § 3583(b). We disagree w

ith Hampton’s interpretation and conclude that the language at the beginning of § 3583(e)(3) allowing the district court to “revoke
a term ofsupervised release, and require the defendant to serve in prison all or part of the term ofsupervised release authorized by statute for the offense that resulted in such term ofsupervised release” does not require that court to credit the defendant for prior terms of revocation imprisonment. Section 3583(e)(3) allows a court to “revoke a term of supervised release,” and therefore, refers to one particular revocation. I d. (emphasis added). Section 3583(e)(3) does not explici tly require the sentencing court to consider any previous revocation imprisonment, and the only reference to a previous term of supervised release isan instructi on not to credit “time previously served on postrelease supervision” against the term of revocation imprisonment. Therefore, the language at the beginning of § 3583(e)(3) does not require aggregation of revocation imprisonment. Our reading of § 3583(e)(3) is harmonious with § 3583(h). Cf. United States v. Caldera-Herrera, 930 F.2d 409, 412 (5th Cir. 1991) (per curiam) (“Where possible, statutes must be read in harmony with one another so as to give meaning to each provision.”). That subsection provides that a district court may impose additional supervised release as part of a defendant’s revocation sentence. The amount of supervised release the district court may impose “shall not exceed the term of supervised release authorized by statute for the offense that resulted in the origi nal term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” 18No. 10-10035

7 U.S.C. § 3583(h). This provision requires the revoking court to aggregate all revocation imprisonment and credit that amount against any post-revocation supervised release. Vera, 542 F.3d at 462. Section 3583(h), therefore, acts as a cap on the aggregate amount of post-revocation supervised release a defendant may receive. This, in turn, imposes an indirect limit on the aggregate amount of revocation imprisonment. Once a defendant has received as much revocation imprisonment as § 3583(b) authorizes for supervised release, the defendant is
no longer eligible for post-revocation supervised release. Because the defendant will no longer be eligible for supervised release, she cannot be at risk for “an endlesscycle ofconsecutive termsofimprisonment and supervised release based on a single underlying offense.” Jackson, 329 F.3d at 408 n.7. Nevertheless, Hampton raisesseveral argumentschallenging our reading of § 3583(e)(3). First, she argues that our reading renders the phrase “term of supervised release authorized by statute for the offense” at the beginning of § 3583(e)(3) surplusage. Hampton reasons that the felony class revocation limits at the end of§ 3583(e)(3) are shorter than, or equal to, the amount ofsupervised release authorized by § 3583(b) for the same offense class, and, therefore, will always be triggered instead of the limit at the beginning of § 3583(e)(3). In Hampton’s case, for instance, § 3583(b) authorizes three years of supervised release but § 3583(e)(3) imposes a two-year per-revocation cap on revocation imprisonment. Although the phrase “term of supervised release authorized by statute” does not control Hampton’s revocation sentence under our reading, it is not superfluous language. This phrase grants the revoking court the authority to impose a revocation sentence in excess of the amount of supervised release authorized by the original sentencing court, provided it does not exceed the termNo. 10-10035

8 ofsupervised release authorized by § 3583(b), thereby “removing the otherwise arguable limitation that a prison term imposed could never be longer than the term of the revoked supervised release.” Jackson, 329 F.3d at 407 n.4; see also Johnson v. United States, 529 U.S. 694, 705 (2000). If, instead of a two-year term of supervised release, Hampton had been sentenc ed to one year of supervised release initially, the revoking court was authorized to impose revocation imprisonment without reference to the amount ofsupervised release imposed by the original sentencing court, provided it did not exceed three years, the amount allowed by § 3583(b). The language imposing a per-revocation cap
on revoc ation imprisonment at the end of § 3583(e)(3) would then limit the maximum allowable revocation sentence to two years’ imprisonment. Second, Hampton points out that § 3583(e)(3) allows the revoking court to sentence the defendant to prison for “all or part ofthe term ofsupervised release authorized by statute

. . . without credit for time previously served on postrelease supervision” but does not explicitly allowthe district court to ignore prior revocation imprisonment. Hampton argues that, under the statutory
canon of inclusio unius est exclusio alterius, the inclusion ofone is the exclusion of another, the reference to postrelease supervision without a reference to postrel ease incarceration implies that Congress intended § 3583(e)(3) to limit aggregate revocation imprisonment by requiri ng the court to consider time served on prior revocation imprisonment. However, the fact that § 3583(h) indirectly imposes an aggregate limit on revocation imprisonment means that
w e need not read a similar provision into § 3583(e)(3) where none is expressly granted. Furthermore, the fact that § 3583(h) explicitly provides for aggregation of revocation imprisonment in connection with the phrase “term of supervisedNo. 10-10035

2 Hampton argues that this same principle ofstatutory construction requires us to read the phrase “term of supervised release authorized by statute” in § 3583(e)(3) as an aggregate limit on revocation imprisonment because it lacks the words “on any such revocation,” which create a per-revocation cap on revocation imprisonment in the same subsection. This argument is based on a misreading of § 3583(e)(3). 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). See 18 U.S.C. § 3583(e)(3). 9 release authorized by statute,” whereas § 3583(e)(3) do es not for the identical phrase, is strong evidence of congressional intent not to require aggregation in § 3583(e)(3). SeeQuarlesv. St. Clair, 711 F.2d 691, 701 n.31 (5th Cir. 1983) (“[It is] a well settled rule ofstatutory construction that where different language is used in the same connection in different parts ofthe statute it is presumed that the Legislature intended a different meaning and effect.” (internal citation and quotation marks omitted)). 2 The amendment history of§ 3583(e)(3) further supports our reading ofthe statute. The current version of § 3583(e)(3) is, for purposes of our analysis, the product of two amendments. Prior to 1994, § 3583(e)(3) authorized the district court to revoke a term ofsupervised release, and require the person to serve in prison all or part ofthe term ofsupervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance ofthe evidence that the person violated a condition ofsupervised release

. . . except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison ifthe offense for which the person was convicted was a Class B felony, or 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). In 1994 Congress amended § 3583(e)(3), and Hampton argues that the added language requires us to aggregate revocation imprisonment. After theNo. 10-10035

10 1994 amendment, § 3583(e)(3) authorized the district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part ofthe 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.” 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). Thisamendment produced tworesults. First, it allowed the revoking court to impose a term of revocati on imprisonment without being limited by the amount of supervised release the original sentencing court imposed. J ohnson, 529 U.S. at 705. Prior to this amendment, the revoking court could not impose
a revocation sentence that exceeded the supervised release sentence imposed by the original sentencing court. I d. ; seealso United Statesv. Stewart, 7 F.3d 1350, 1352 & n.1 (8th Cir. 1993) (collecting cases). Second, sentencing courts began to interpret the felony class revocation li mits at the end of § 3583(e)(3) as aggregate limits on revocation imprisonment. See Tapia-Escalera, 356 F.3d at 187 & nn.6–7 (citing 137 CONG

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. S7772 (daily ed. June 13, 1991) and collecting cases). Congressamended § 3583(e)(3) once again in the 2003 PROTECT Act. The PROTECT Act added the phrase “on any such revocati on” to the felony class revocation limits, so that a defendant “may not be required to serve on any such revocation more than” a certain number ofyears based on the felony class. Pub. L. No. 108-21 § 101(1), 117 Stat. at 651 (amendment italicized). As Hampton has conceded, this language nowoperatesasa per-revocation limit on revocation imprisonment. See, e.g., Epstein, 620 F.3d at 80.No. 10-10035

11 To reach Hampton’s reading of the phrase “authorized by statute” at the beginning of § 3583(e)(3), however, we would have to go one step further. We would have to read the PROTECT Act as transforming the phrase “authorized by statute” at the beginning of § 3583(e)(3) into an aggregate cap on revocation imprisonment. When this language was added in 1994, nothing suggested that it was meant to impose a cap on the aggregate amount of re vocation imprisonment. See Jackson, 329 F.3d at 408 nn.4, 7. Moreover, prior to the PROTECT Act this same language was not read as an aggregate cap on
revocation imprisonment because courts interpreted the shorter caps on revocation imprisonment at the end of § 3583(e)(3) as impo sing an aggregate limit on revocation imprisonment. The PROTECT Act added the phrase “on any such revocation” to the felony class revocation limits at the end of § 3583(e)(3) but left the phrase “authorized by statute” at the beginning of § 3583(e)(3)
unaltered. Therefore, we decline to read the PROTECT Act as prohibiting aggregation ofrevocation imprisonment in one part of§ 3583(e)(3) and implicitly requiring it in another. Hampton argues that, by allowing revocation imprisonment to exceed the amount ofsupervised release authorized by § 3583(b), our reading of§ 3583(e)(3) creates the possibility that a defendant could receive a greater punishment than that authorized for the original offense without the benefit ofa trial in violation ofa defendant’s constitutional rights. However, it has always been the case that the defendant could be punished for the underlying offense with revocation imprisonment ifsheviolates the conditionsofsupervised release even ifthe total amount of time that the defendant thereby spends in prison exceeds the statutory maximum for the underlying offense. U nited States v. Hinson, 429No. 10-10035

3 Hampton also makesa related Rule 11 argument. Federal Rule of Criminal Procedure 11 requires the sentencing court to inform the defendant of “any maximum possible penalty, including imprisonment, fine, and a term ofsupervised release” prior toaccepting a guilty plea. F ED

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. 11(b)(1)(H). Hampton argues that our reading of § 3583(e)(3) prevents the sentencing court from clearly expressing the maximum punishment a defendant can receive for a crime. We are not persuaded. See Lewis, 519 F.3d at 825 (“We conclude that the notice given by thedistrict courtwassufficient because [defendant’s] subsequent revocation sentences were col l ateral consequences of his original sentence rather than predictable eventualities about which the court was required to caution [defendant].”); cf. United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) (“The defendant need . . . not be made aware every consequence that, absent a plea of guilty, would not otherwise occur.”). 12 F.3d 114, 116 n.7 (5th Cir. 2005). As we have previously noted: The federal criminal statutory scheme envisions that there can be at least two components of a sentence: 1) a term of imprisonment up to the maximum prison term permitted in a statute delineating the penalty for a particular offense

. . . , and 2) a term ofsupervised release as delineated in section 3583 with the potential for additional prison time if the terms of supervised release are violated. Id

. at 116–17. Our reading of § 3583(e)(3) does not alter this framework, and we, therefore, reject Hampton’s constitutional argument. 3 Hampton finally argues that we should apply the rule of lenity to resolve any statutory ambiguity in her favor. The rule of lenity is based on the notion that it is “the legislature and not the courts that should define criminal activity, and

. . . that fair warning should be accorded as to what conduct is criminal.” United States v. Marek, 238 F.3d 310, 322 (5th Cir. 2001). The rule should be invoked only when, “after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” R eno v. Koray, 515 U.S. 50

, 65 (1995) (internal citations and quotation marks omitted). As noted above, we have concluded that § 3583(e)(3) is not ambiguous, so the ruleNo. 10-10035

4 Hampton argues, in the alternative, that we should read the language “term of supervised release authorized by statute for the offense” at the beginning of § 3583(e)(3) as a reference to the amount of supervised release authorized by § 3583(h) rather than § 3583(b). Hampton provides no support for her reading and it is merely a recapitulation of her aggregation argument, which we have addressed at length in this opinion. 13 of lenity is inapplicable. 4 B. Hampton’s Revocation Sentence Turning, at last, to Hampton’s revocation sentence, we conclude that the distri ct court’s revocation sentence of 24 months’ imprisonment was proper. Hampton committed a Class D felony. Section 3583(e)(3) authorizes the district court to impose up to two years’ revocation imprisonment for vi olating the conditions of supervised release for such a felony. IV. C ONCLUSION F or the foregoing reasons, the judgment of the district court revoking Hampton’s supervised release and sentencing Hampton to 24 months’ imprisonment is AFFIRMED.