United States v. Keith Dozier, Also Known as Pete, Also Known as Keith Bashir. Keith Dozier
Docket: 96-5785
Court: Court of Appeals for the Third Circuit; July 18, 1997; Federal Appellate Court
The court addressed whether the application of 18 U.S.C. § 3583(h), which allows for a new term of supervised release following revocation, violates the Ex Post Facto Clause of the U.S. Constitution. The court determined that retroactively applying this statute increased the potential punishment for violations of supervised release, thereby infringing upon the Ex Post Facto prohibition. Consequently, the court vacated Keith Dozier's sentence and remanded the case for resentencing.
Dozier, convicted in 1992 for conspiracy to transport stolen vehicles, was initially sentenced to 34 months in prison followed by 36 months of supervised release. After completing his prison term, he began his supervised release in October 1994. In September 1996, he pleaded guilty to violating his release conditions, leading to a revocation in November 1996. The district court imposed a new sentence of six months in prison and an additional 24 months of supervised release, totaling 30 months.
The court noted that § 3583(h) was enacted after Dozier's original offense and that he did not raise the ex post facto argument at the district court level but did so on appeal. To vacate a sentence for plain error, the court explained that two conditions must be met: the law must be retrospective and must alter criminal conduct definitions or increase penalties. The court cited relevant precedents to support its analysis, confirming that the application of the statute in Dozier's case met these criteria.
The government acknowledges that the retrospective application of the law is appropriate in this case, and the court concurs. A sentence imposed for revoking supervised release is considered a consequence of the original conviction, as established by several circuit court decisions. Violations of supervised release, although not necessarily criminal, can be punished, and the standard for proving such violations is the preponderance of evidence. The focus is on whether applying § 3583(h) retrospectively increases Dozier's penalties upon revocation of supervised release. The court must compare the potential penalties before and after the enactment of § 3583(h). If § 3583(h) allows for a greater penalty than previously permissible, its application would violate the ex post facto clause. Prior to § 3583(h), the sentencing options upon revocation were limited to the provisions of 18 U.S.C. § 3583(e), which capped prison time at two years for class C or D felonies and did not allow for a new term of supervised release. Therefore, under the earlier statute, Dozier could only be sentenced to prison for up to 24 months without a new supervised release term.
Section 3583(h), enacted in September 1994, allows courts to impose a term of supervised release following a revocation of supervised release if the defendant is sentenced to a term of imprisonment shorter than the maximum authorized under subsection (e)(3). The new supervised release term cannot exceed the original term authorized by statute for the underlying offense, minus any imprisonment imposed upon revocation. This provision grants courts increased flexibility compared to § 3583(e) alone.
For class D felonies, a defendant can be sentenced to up to 24 months of imprisonment under § 3583(e). However, with § 3583(h), if the imprisonment is less than 24 months, the court can add a term of supervised release, creating a combined penalty of up to 36 months—matching the maximum supervised release term for class D felonies under § 3583(b)(2). In Dozier's case, the district court sentenced him to six months of imprisonment followed by 24 months of supervised release, totaling 30 months, whereas without § 3583(h), the maximum penalty would have been only 24 months.
The implementation of § 3583(h) effectively increases the total penalty and the duration of liberty deprivation for defendants like Dozier, as supervised release entails various conditions that limit freedom and can lead to additional punishment for violations. The overall period of government supervision increases from a maximum of 24 months to 36 months, raising the penalties associated with revocation of supervised release.
The government argues that the need to impose a shorter term of imprisonment to enable the addition of supervised release balances the increased penalties. It contends that since incarceration is generally considered a harsher punishment than supervised release, the potential for a reduced imprisonment term under § 3583(h) mitigates the impact on defendants.
Retrospective application of § 3583(h) to Dozier is not justified, as it does not reduce his maximum prison term, which remains 24 months. Such application violates the ex post facto clause if it could result in a harsher sentence than previously authorized. Even if post-§ 3583(h) sentences are often less severe, the potential for a harsher sentence is sufficient for a violation. The court can impose a sentence of 23 months and 29 days in prison followed by 12 months and a day of supervised release, which is a greater penalty than a straight 24-month prison sentence.
The government's argument citing the Brady decision does not preclude a finding of ex post facto violation. In Brady, the analysis pertained to class A felonies, where the caps for supervised release and imprisonment are the same (five years), allowing for no increase in overall punishment under § 3583(h). However, for class B, C, and D felonies, the structure differs: § 3583(b)(1) allows up to five years of supervised release for class B felonies, while § 3583(e)(3) caps imprisonment at three years upon revocation. Similarly, for class C and D felonies, supervised release can be up to three years, while imprisonment upon revocation is capped at two years. Thus, § 3583(h) results in longer sentences (up to five years for class B and three years for class C and D) than previously allowed, constituting an impermissible increase in punishment. The Brady decision does not prevent the acknowledgment of this discrepancy.
The government acknowledges that remanding for resentencing could result in Dozier receiving up to 24 months of imprisonment, and while Dozier may be unhappy with a longer sentence, he has chosen to pursue his appeal. His counsel confirms that Dozier is aware of this possibility. The court references the Seventh Circuit's position that concern for the defendant cannot expand judicial power. On remand, the district court must resentence Dozier based on the authority available at the time of his offense.
Dozier did not raise an ex post facto objection during the initial proceedings, but the court notes it can vacate his sentence if the ex post facto violation constitutes plain error under Federal Rule of Criminal Procedure 52(b). The court outlines a four-step analysis to identify correctable errors on appeal: (1) identifying an error, (2) confirming it is plain, (3) determining it affects substantial rights, and (4) deciding if discretion should be exercised due to potential miscarriage of justice. All four criteria are met: the retrospective application of § 3583(h), which allowed for a total sentence exceeding the previous maximum, was a clear error that infringes upon Dozier's liberty.
The court emphasizes that imposing a sentence greater than what was authorized at the time of the offense constitutes a miscarriage of justice. Thus, the retrospective application of § 3583(h) violates the constitutional prohibition against ex post facto laws. Consequently, the court vacates Dozier's sentence and remands it to the district court for resentencing in line with this ruling. Additionally, Dozier's argument regarding the risk of a second revocation of supervised release, which could lead to further penalties, is acknowledged but not necessary for the decision, as the existing increase due to the new term of supervised release suffices for the court’s conclusion.
Four circuit courts have determined that the retrospective application of § 3583(h) does not violate the ex post facto clause concerning any class of felony. Specifically, these circuits are the Eighth, Sixth, Tenth, and First Circuits, as seen in cases such as United States v. St. John, United States v. Johnson, United States v. Wash, and United States v. Sandoval. Prior to the enactment of § 3583(h), three of these circuits had interpreted § 3583(e) as allowing for both imprisonment and supervised release, as established in cases like United States v. O'Neil, United States v. Schrader, and United States v. Boling. Thus, for these circuits, the introduction of § 3583(h) did not change the potential penalties. The Sixth Circuit, in its decision in United States v. Reese, concluded that the sentence resulting from a revocation of supervised release is viewed as separate from the original criminal act, allowing for the application of new statutes enacted after the original offense without violating ex post facto protections.
