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imprisonment when her supervised release was revoked.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 of imprisonmentimposed upon revocation of supervised 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

Clerk
No. 10-10035

2

I. FACTUAL & PROCEDURAL BACKGROUND

On October 3, 2007, Hampton pleaded guilty to one count of conspiracy to

possess stolen mail, a Class D felony. See 18 U.S.C. §§ 371, 3559(a)(4) (2006).

Hampton was sentenced to six months’ imprisonment and two years’ 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was revoked by the district court.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 conditions of her 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 of revocation

imprisonment that a defendant can serve at the amount of supervised release

authorized for the original offense by 18 U.S.C. § 3583(b). According to

Hampton, § 3583(b) authorized a maximum ofthree years’ 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 States v. 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 “follow the plain and unambiguous meaning ofthe statutory language.”

Id. (citation 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 of supervised 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 three years; 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 release

authorized by statute for the offense that resulted in such term of

supervised release without credit for time previously served on
No. 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

of supervised release after imprisonment. 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

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 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” 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 of supervised 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 of years 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-revocation cap on imprisonment in United 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 to serve 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 States v. Knight, 580 F.3d 933, 937–38 (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) (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. Id. 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 to serve 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 of imprisonment. 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 Jackson, 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 the
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beginning of § 3583(e)(3) caps the aggregate amount of revocation imprisonment

at the amount of supervised release authorized by § 3583(b).

We disagree with Hampton’s interpretation and conclude that the

language at the beginning of § 3583(e)(3) allowing the district court to “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” 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. Id. (emphasis added). Section 3583(e)(3) does not

explicitly require the sentencing court to consider any previous revocation

imprisonment, and the only reference to a previous term of supervised release

is an instruction 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 original term of supervised release, less any term of

imprisonment that was imposed upon revocation of supervised release.” 18
No. 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

endless cycle of consecutive terms of imprisonment and supervised release based

on a single underlying offense.” Jackson, 329 F.3d at 408 n.7.

Nevertheless, Hampton raises several arguments challenging 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 of supervised

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 term
No. 10-10035

8

of supervised 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 sentenced to one year of

supervised release initially, the revoking court was authorized to impose

revocation imprisonment without reference to the amount of supervised 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 revocation 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 of supervised release

authorized by statute . . . without credit for time previously served on

postrelease supervision” but does not explicitly allow the district court to ignore

prior revocation imprisonment. Hampton argues that, under the statutory

canon of inclusio unius est exclusio alterius, the inclusion of one is the exclusion

of another, the reference to postrelease supervision without a reference to

postrelease incarceration implies that Congress intended § 3583(e)(3) to limit

aggregate revocation imprisonment by requiring 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

we 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 supervised
No. 10-10035

2 Hampton argues that this same principle of statutory 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) does not for the identical

phrase, is strong evidence of congressional intent not to require aggregation in

§ 3583(e)(3). See Quarles v. St. Clair, 711 F.2d 691, 701 n.31 (5th Cir. 1983) (“[It

is] a well settled rule of statutory construction that where different language is

used in the same connection in different parts of the 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 of the

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 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, if it finds by

a preponderance ofthe evidence thatthe person violated a condition

of supervised release . . . 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 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 the
No. 10-10035

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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).

This amendment produced two results. First, it allowed the revoking court

to impose a term of revocation imprisonment without being limited by the

amount of supervised release the original sentencing court imposed. Johnson,

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. Id.; see also United States v. Stewart, 7 F.3d 1350,

1352 & n.1 (8th Cir. 1993) (collecting cases). Second, sentencing courts began

to interpret the felony class revocation limits 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. REC. S7772 (daily ed. June 13, 1991) and

collecting cases).

Congress amended § 3583(e)(3) once again in the 2003PROTECT Act. The

PROTECT Act added the phrase “on any such revocation” 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 of years based on the felony class. Pub.

L. No. 108-21 § 101(1), 117 Stat. at 651 (amendment italicized). As Hampton

has conceded,this language now operates as a per-revocation limit on revocation

imprisonment. See, e.g., Epstein, 620 F.3d at 80.
No. 10-10035

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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 revocation

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 imposing 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 of revocation imprisonmentin one part of § 3583(e)(3) and implicitly

requiring it in another.

Hampton argues that, by allowing revocation imprisonment to exceed the

amount of supervised release authorized by § 3583(b), our reading of § 3583(e)(3)

creates the possibility that a defendant could receive a greater punishmentthan

that authorized for the original offense without the benefit of a trial in violation

of a defendant’s constitutional rights. However, it has always been the case that

the defendant could be punished for the underlying offense with revocation

imprisonmentif she violates the conditions of supervised release even ifthe total

amount of time that the defendant thereby spends in prison exceeds the

statutory maximum for the underlying offense. United States v. Hinson, 429
No. 10-10035

3 Hampton also makes a 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 of supervised release” prior to accepting a guilty plea.

FED.R.CRIM.PROC.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

givenby the district courtwas sufficient because [defendant’s] subsequent revocation sentences

were collateral 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 of supervised

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.” Reno 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 rule
No. 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

district 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 violating the

conditions of supervised release for such a felony.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court revoking

Hampton’s supervised release and sentencing Hampton to 24 months’

imprisonment is AFFIRMED.