Opinion
Docket No. 13–4835.
2014-11-14
UNITED STATES of America, Appellee, v. Edward N. ORTIZ, Defendant–Appellant.
Richard S. Cramer, Hartford, Ct., for Defendant–Appellant Edward N. Ortiz. Amy Christine Brown, Assistant United States Attorney (Deirdre M. Daly, United States Attorney for the District of Connecticut; Sandra S. Glover, Robert M. Spector, Assistant United States Attorneys, on the brief), for Appellee the United States of America.
Decided: Feb. 26, 2015.
Affirmed.
Richard S. Cramer, Hartford, Ct., for Defendant–Appellant Edward N. Ortiz. Amy Christine Brown, Assistant United States Attorney (Deirdre M. Daly, United States Attorney for the District of Connecticut; Sandra S. Glover, Robert M. Spector, Assistant United States Attorneys, on the brief), for Appellee the United States of America.
Edward N. Ortiz appeals from the December 18, 2013 judgment of the United States District Court for the District of Connecticut (Thompson, J.) revoking his term of supervised release and sentencing him to five years' imprisonment. On appeal, Ortiz argues that the district court erred in his post-revocation sentencing in determining that the statutory maximum term of imprisonment the court could impose, upon revocation of his supervised release, was five years. Instead, he urges us to find that our decision in United States v. Savage, 542 F.3d 959 (2d Cir.2008), decided after his original sentencing, should retroactively apply to his original offense—changing the classification of the original offense and thereby lowering the statutory maximum term of imprisonment in post-revocation sentencing.
We affirm, holding that in determining the statutory maximum sentence that may be imposed as part of a post-revocation sentence, the post-revocation sentence is determined by reference to the law in effect at the time of the defendant's underlying offense.
In an appeal from a sentence, we review de novo a district court's legal determinations. See United States v. Leon, 663 F.3d 552, 554 (2d Cir.2011) (citing United States v. Kinney, 211 F.3d 13, 19 (2d Cir.2000)).
“A supervised release revocation proceeding is not the proper forum for a collateral attack on the conviction or sentence that resulted in the term of supervised release.” United States v. Warren, 335 F.3d 76, 77 (2d Cir.2003). The validity of the underlying offense “may be challenged only on direct appeal or through a habeas corpus proceeding.” Id. at 78.
In Warren, defendant's supervised release was revoked after he pleaded guilty to violation of the conditions of his supervised release. His underlying conviction in 1989 was a Class B felony, and at the revocation hearing in 2001 the district court imposed the maximum term of imprisonment for revocation of supervised release based on an underlying conviction that is Class B. Defendant relied on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), decided after he pleaded guilty, to argue that his underlying offense would have been a Class C felony and that the post-revocation sentence should account for the change in law.
Affirming the district court's post-revocation sentence, we emphasized in Warren that our holding “further[ed] the important interest of promoting the finality of judgments.” Warren, 335 F.3d at 78. The Supreme Court has emphasized the interest in not undermining the “normal force and effect [of the prior judgment] in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t].” Custis v. United States, 511 U.S. 485, 497, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (quoting Parke v. Raley, 506 U.S. 20, 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992)) (holding that in a federal sentencing proceeding, defendant may not collaterally attack a prior state conviction, with the exception of a conviction obtained in violation of the right to counsel).
Additionally, we stated that the Warren holding promoted the orderly and efficient administration of justice by limiting defendants to the proper avenues of relief from error in an underlying conviction or sentence. Warren, 335 F.3d at 79. Given the seriousness of a violation of supervised release, its prosecution “should not be impeded by the threat of consuming judicial and prosecutorial resources” in order to address unrelated issues. Id. Finally, the rule preserved fairness: “it would be unfair to those defendants who do not violate the terms of their supervised release to grant those who do a special opportunity to collaterally attack their underlying convictions in supervised release revocation proceedings.” Id.
These rationales inform our holding here. Ortiz did not attack his 2003 conviction or sentence on direct appeal or through a habeas petition, and he did not object to his armed career criminal status or the classification of his offense as a Class A felony. Instead, at the revocation hearing, Ortiz relied on Savage to argue that his 2003 offense should no longer be considered a Class A felony. This amounts to a collateral attack on the validity of his original sentence, for which he was sentenced as an armed career criminal and for which his original conviction was considered a Class A felony. Even assuming arguendo that, had Savage been decided in 2003, it would have affected Ortiz's original sentencing, the proper avenues for Ortiz to collaterally attack his 2003 conviction or sentence had long since passed by the time of his revocation hearing in 2013.
Furthermore, Savage cannot be applied retroactively to Ortiz's 2003 offense. Under 18 U.S.C. § 3583(e)(3), a district court may “revoke a term of supervised release” and resentence a 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.” In Johnson v. United States, the Supreme Court stated that “[w]e ... attribute postrevocation penalties to the original conviction.” 529 U.S. 694, 698, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (treating post-revocation sentences as “part of the penalty for the initial offense”). We have held that “[a] post-revocation sentence is governed by the law prevailing at the time of the defendant's original offense.” Leon, 663 F.3d at 554 (citing Johnson ); United States v. Turlington, 696 F.3d 425, 427 (3d Cir.2012) (“The length of a new term of imprisonment for violating supervised release ... ‘can only be answered by reference to the law under which the defendant was convicted.’ ” (citing McNeill v. United States, ––– U.S. ––––, 131 S.Ct. 2218, 2222, 180 L.Ed.2d 35 (2011))); see also United States v. McNeil, 415 F.3d 273, 277 (2d Cir.2005) (stating that the consequences of violating supervised release are “authorized by the original conviction”).
The Third Circuit, in United States v. Turlington, considered an argument structurally identical to the argument that Ortiz makes. Turlington involved a defendant whose term of supervised release was revoked. His original sentence in 2004 was a Class A felony, and at his revocation hearing in 2011 he received the maximum term of imprisonment for revocation of supervised release based on an underlying offense that is Class A. On appeal, defendant argued that under the 2010 Fair Sentencing Act, his underlying offense would have been a Class B felony, and that his post-revocation sentence should have accounted for the change in law.
Affirming the district court's post-revocation sentence, the Third Circuit stated that the Supreme Court had “made clear that imposition of a new sentence for violating the terms of one's supervised release is part and parcel of the first offense for which the defendant was convicted.” Turlington, 696 F.3d at 427 (citing Johnson, 529 U.S. at 701, 120 S.Ct. 1795) (emphasis added). Specifically with respect to the statute governing revocation of supervised release, the Third Circuit stated, “Section 3583(e)(3) is ... backward-looking; it focuses on the previous, underlying conviction.” Id. at 428 (emphasis added).
We join the Third Circuit in rejecting a retroactive-effect approach. Ortiz argues that if Savage had been in effect in 2003, applying Savage to the 2003 offense would have affected his status as an armed career criminal, changing the classification of his 2003 offense from a Class A felony to a Class C felony. That change, in turn, would have reduced the statutory maximum sentence that a court could subsequently impose upon revocation of supervised release. Ortiz's armed career criminal status was triggered by three predicate felonies, including a 1992 state conviction for the sale of narcotics. Pre- Savage, this conviction categorically qualified as a “serious drug offense” within the meaning of Section 924(e)(2)(A)(iii), so the parties did not seek to obtain the plea transcript. But, in 2013, post- Savage, the state drug conviction no longer categorically qualified as a serious drug offense, and the government would have needed to show in some other way that the conviction counted as a predicate felony for the armed career criminal sentencing enhancement. See Savage, 542 F.3d at 964. Without the plea transcript, Ortiz contends, the government could not meet its burden of proving the third qualifying predicate felony, thus his original sentence as an armed career criminal cannot inform his sentence for violation of supervised release.
We reject that argument. Section 3583(e)(3) is a backward-looking statute, which focuses on the underlying offense, and the governing law for the post-revocation sentence is the law in effect at the time of the underlying offense. Under this reasoning, the district court correctly determined the maximum statutory term of imprisonment in imposing Ortiz's post-revocation sentence.
For the reasons given above, we affirm the judgment of the district court.