In United States v. Moore, No. 20-11215 (Jan. 13, 2022) (Newsom, Branch, Lagoa), the Court affirmed in part and vacated in part Moore's contempt conviction and sentences.
Upon the third revocation of his supervised release, Moore was sentenced to 18 months' imprisonment and an additional 18 months' supervised release. During the revocation hearing, the court also found him in criminal contempt and sentenced him to a consecutive term of 6 months' imprisonment.
Moore was originally convicted of possession of several unregistered destructive devices, and sentenced to the statutory maximum for his offense--120 months' imprisonment followed by 36 months' supervised release. He completed his term of imprisonment, but then had his supervised release revoked three times. At his first revocation hearing, he was sentenced to 6 months' imprisonment and 24 months' supervised release. At his second revocation hearing, he was sentenced to 18 months' imprisonment and 18 months' supervised release. What occurred at his third revocation hearing forms the basis of this appeal.
On appeal, Moore first argued that the district court plainly erred in imposing an additional term of supervised release because it failed to account for the terms of imprisonment that were imposed upon the prior revocation of his supervised release. The government conceded the issue, and the Court agreed. The Court reasoned that Moore’s maximum term of supervised release upon his original conviction was 36 months. And he was sentenced to a total of 42 months’ imprisonment for his prior revocations. Thus, under § 3583(h), because he had already served a term of imprisonment for prior revocations in excess of the statutory maximum amount of supervised release, the district court was not authorized to impose any additional supervised release and it was error for the district court to do so. The Court found this error to be plain, citing to § 3583(h) and its prior precedent, United States v. Mazarky, 499 F.3d 1246 (11th Cir. 2007).
Moore next argued that 18 U.S.C. § 3583(e)—the statute under which he was sentenced upon revocation—was unconstitutional because it allowed the district court to extend Moore’s sentence beyond the authorized statutory maximum for his offense of conviction based solely on “judge-found facts” in violation of the Fifth and Sixth Amendments as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). More specifically, he argued that when his sentence is viewed in the aggregate, it totals 13.5 years, which exceeds the authorized statutory maximum of 13 years (based on combining the statutory maximum term of imprisonment and the statutory maximum term of supervised release). Alternatively, he argued that the constitutional concerns could be avoided if the Court interpreted § 3583(e)(3) as imposing an aggregate limitation on revocation sentences that caps the total sentence a defendant may serve at the statutory maximum for the underlying offense. The Court disagreed. Reviewing for plain error, the Court held that there was no error, let alone one that was plain. The Court reasoned that nothing in the text of § 3583(e) "provides that the full panoply of rights provided for in the Fifth or Sixth Amendments apply to § 3583(e) revocation proceedings, nor does the text provide that the total time a defendant may serve for his original conviction and revocation cannot exceed the combined statutory maximum terms of imprisonment and supervised release for the original offense of conviction. Nor did the Court find a Supreme Court or 11th Circuit case directly on point. The Court found itself bound by its prior opinion in United States v. R. Scott Cunningham, 607 F.3d 1264 (11th Cir. 2010), and found the Supreme Court's plurality opinion in United States v. Haymond, 139 S. Ct. 2369 (2019), not directly on point because it addressed a different provision of § 3583. The Court found the lack of controlling authority to be fatal to Moore's claim, which was raised on plain error.
Third, Moore argued that his revocation sentence was substantively unreasonable. The Court rejected this argument.
Fourth, Moore argued that the district court plainly erred in convicting him of criminal contempt without giving him an opportunity to allocute before sentencing him. The Court disagreed. Though norms suggest that a defendant be given an opportunity to be heard, no rule so requires. Therefore, Moore's argument failed.
Finally, Moore argued that the Court should exercise its "inherent supervisory authority" to modify the contempt sentence. The Court found no abuse of discretion by the district court, and therefore refused Moore's request to modify his sentence.
Judge Lagoa wrote separately to concur in part and in the result. She took issue with Part II.B. of the Court's opinion, namely, the district court's decision to sentence Moore to 18 months' imprisonment for the third revocation of his supervised release, resulting in a cumulative total of 162 months' imprisonment for both the underlying offense and the 3 revocations of supervised release. She noted that the standard of review in this case--plain error--made the difference in this case because she believed the issue to be one of first impression, without any controlling precedent from the Court.
Judge Newsom dissented in part. He noted that Moore was convicted of a federal crime that carried a statutory maximum penalty of 10 years in prison plus 3 years of supervised release. Because any supervised release time can (upon the occurrence of certain conditions) be converted into prison time, the defendant’s total statutory maximum penalty was 13 years in prison. Without convicting him of any new crimes, the district court sentenced the defendant to a total of 13 and a half years in prison. Because that sentence plainly violated the Fifth and Sixth Amendments inasmuch as it exceeded the statutory maximum of 13 years, he dissented from Part II.B. of the Court’s opinion. His dissent relies upon Haymond, as well as on "foundational American law, embodied (most recently, but hardly exclusively) in Apprendi and its progeny." He also noted that the majority opinion erroneously found itself bound by Cunningham, which addressed a different question entirely.
