06-5379-cr

USA v. McNaught 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 19th 4 day of October, two thousand and ten.

5

6 PRESENT: AMALYA L. KEARSE,

7 GUIDO CALABRESI,

8 RICHARD C. WESLEY,

9 Circuit Judges.

10

11 

12

13 UNITED STATES OF AMERICA, 

14

15 Appellee,

16

17 -v.- 06-5379-cr

18

19 ROBERT MCNAUGHT,

20

21 Defendant-Appellant.

22 

23

24
1 Because Appellant failed to raise his present

objection before the district court, we review his sentence

for “plain error.” United States v. Villafuerte, 502 F.3d

204, 207 (2d Cir. 2007). The “imposition of a sentence in

violation of law would be plain error.” United States v.

A-Abras Inc., 185 F.3d 26, 30 (2d Cir. 1999) (internal

quotation marks omitted). 

2

1 FOR APPELLANT: ROLAND R. ACEVEDO, New York, NY

2

3 FOR APPELLEE: PREET BHARARA, United States Attorney for

4 the Southern District of New York

5 (Christopher L. LaVigne, Katherine Polk

6 Failla, Assistant United States

7 Attorneys, of counsel) New York, NY. 

8

9 Appeal from the United States District Court for the

10 Southern District of New York (Koeltl, J.)

11

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13 AND DECREED that the judgment of the district court be

14 AFFIRMED. 

15 Defendant-Appellant, Robert McNaught (“Appellant”),

16 appeals from a judgment entered on November 1, 2006, in the

17 United States District Court for the Southern District of

18 New York (Koeltl, J.) revoking Appellant’s prior term of

19 supervised release and sentencing him to a term of 30

20 months’ imprisonment to be followed by a new term of five

21 years’ supervised release. We assume the parties’

22 familiarity with the underlying facts, the procedural

history, and the issues presented for review.1 23
3

1 Appellant’s sole claim on appeal is that the district

2 court erred in reimposing a term of supervised release of

3 five years after it revoked his initial term of supervised

4 release and sentenced him to a term of 30 months’

5 imprisonment. Appellant argues that the maximum term of

6 supervised release applicable is five years less his term of

7 30 months’ imprisonment. This argument is without merit.

8 Where a defendant violates the conditions of a term of

9 supervised release, 18 U.S.C. § 3583(h) authorizes a court,

10 subject to certain limitations, to revoke the original term

11 of supervised release and impose a term of imprisonment to

12 be followed by a new term of supervised release. “The length

13 of such a term of supervised release shall not exceed the

14 term of supervised release authorized by statute for the

15 offense that resulted in the original term of supervised

16 release, less any term of imprisonment that was imposed upon

17 revocation of supervised release.” Id.

18 In the present case, 21 U.S.C. § 841(b)(1)(A) provided

19 the original term of supervised release. We apply the

20 version of the statute in effect at the time Appellant

21 committed the offense. See United States v. Smith, 354 F.3d
2 According to the Indictment, Appellant’s known

narcotics related criminal activity occurred from about May

2001 through the time of his arrest on or about July 12,

2001. We therefore look to the version of 21 U.S.C. §

841(b)(1)(A) in effect from February 18, 2000 to November 1,

2002. 

4

171, 172—73 (2d Cir. 2003).2 1 At that time, 21 U.S.C. §

2 841(b)(1)(A) stated: “[a]ny sentence under this subparagraph

3 shall, in the absence of such a prior conviction, impose a

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

5 to such term of imprisonment . . . .” The lack of a stated

6 maximum term in § 841(b)(1)(A) authorizes a maximum term of

7 lifetime supervised release. “The rule in this circuit is

8 that in view of the ‘at least’ language, no maximum term of

9 supervised release is imposed by such a provision, and

10 therefore that the statutory maximum term of supervision

11 release is a life term." United States v. Gibbs, 58 F.3d

12 36, 37–38 (2d Cir. 1995) (construing 21 U.S.C. §

13 841(b)(1)(C), which contains the same "at least" language as

14 § 841(b)(1)(A)). 

15 Appellant argues that 18 U.S.C. § 3583(b) requires a

16 maximum five-year term of supervised release for Class A

17 felonies — which, by definition, includes a violation of 21

18 U.S.C. § 841(b)(1)(A). See 18 U.S.C. § 3559(a)(1). 

19 Appellant’s statement of the law is incomplete. 18 U.S.C. §
3 We note that on November 2, 2002, between the time

Appellant committed the underlying narcotics offense and the

time of his sentencing for that offense on December 20,

2002, § 841(b)(1)(A) was amended to read in relevant part,

“Notwithstanding section 3583 of Title 18, any sentence

under this subparagraph shall, in the absence of such a

prior conviction, impose a term of supervised release of at

least 5 years in addition to such term of imprisonment . . .

.” (emphasis added). This amendment made explicit what this

Court held in United States v. Eng, 14 F.3d 165, 173 (2d

Cir. 1994), namely that the provision in § 841(b)(1)(A) that

a term of supervised release must be “at least 5 years”

trumps the general provision in 18 U.S.C. § 3583(b) that

such a term must be “not more than five years.” Though it

made § 841(b)(1)(A) explicit on this issue, this amendment

does not change the fact that at the time Appellant

committed the narcotics offense, the law in this Circuit was

clear that the maximum lifetime term of supervised release

authorized by § 841(b)(1)(A) was controlling. 

5

1 3583(b) states: “[e]xcept as otherwise provided, the

2 authorized terms of supervised release are . . . for a Class

3 A . . . felony, not more than five years.” Based in part on

4 the language, “[e]xcept as otherwise provided,” this Court

5 has held that § 841(b)(1)(A)'s minimum term of five years’

6 supervised release supercedes § 3583(b)(1)'s maximum term. 

7 See United States v. Eng, 14 F.3d 165, 173 (2d Cir. 1994). 

8 Consequently, in Eng, where 21 U.S.C. § 841(b)(1)(A) (1988)

9 provided the applicable term of supervised release, we held

10 that the district court did not violate 18 U.S.C. § 3583(b)

11 when it sentenced the defendant to a lifetime term of

supervised release following his term of incarceration.3 12 
6

1 In the present case, 18 U.S.C. § 3583(h) required the

2 district court to subtract Appellant’s term of 30 months’

3 imprisonment from the maximum lifetime term of supervised

4 release authorized by 21 U.S.C. § 841(b)(1)(A). The five5 year term of supervised release the district court imposed

6 is well within that range. Therefore, the district court

7 did not err in imposing this term of supervised release. 

8 We have considered all of Appellant’s contentions on

9 this appeal and have found them to be without merit. For

10 the foregoing reasons, the judgment of the district court is

11 hereby AFFIRMED.

12

13 FOR THE COURT:

14 Catherine O’Hagan Wolfe, Clerk

15

16

17