By: Dan Menken

Today, in United States v. Ward, the Fourth Circuit affirmed the conviction of George A. Ward for violating the conditions of his supervised release. He was sentenced to 20 months imprisonment, which is the mandatory minimum under 18 U.S.C. § 3583(g), which Congress amended in 1994 to eliminate the statute’s minimum sentencing provision. In this case, the statute was amended after Ward committed the underlying offense, but after he engaged in the conduct that led to the revocation of his supervised release.

Ward Violated Parole Agreement by Testing Positive for Controlled Substances

In December 1994, Ward plead guilty to three counts of being a felon in possession of a firearm, two counts of distribution of crack cocaine, and one court of use of a firearm in furtherance of a drug trafficking crime. He ultimately received a sentence of 200 months, followed by a five-year period of supervised release. The supervised release prohibited Ward from illegally possessing a controlled substance.

In April 2013, the government filed a petition in the district court seeking to revoke Ward’s supervised release. The government alleged that Ward had tested positive for cocaine or marijuana on multiple occasions. At a hearing on the government’s petition, Ward admitted that he had possessed cocaine and marijuana on numerous occasions during his supervised release. The district court revoked Ward’s supervised release and sentenced him to 20 months in prison. In calculating Ward’s sentence, the court followed the version of 18 U.S.C. § 3583(g) that was in effect at the time he was sentenced for his underlying crimes. These guidelines specified that the defendant must serve a mandatory minimum sentence of one-third of his supervised release term.

Congress amended 18 U.S.C. § 3583(g) in September 1994, eliminating the mandatory minimum sentencing provision.

Did the District Court Err in Applying Former Version of 18 U.S.C. § 3583(g)?

Ward argued that the former version of the statute was not applicable because the statute was amended before he was originally sentenced and before he committed the acts in violation of his supervised release. In coming to their decision, the Fourth Circuit relied on Johnson v. United States, which held that a defendant was subject to the sentencing provisions of the statute in effect when the initial offense was committed. That court specifically held that “postconviction penalties relate to the original offense.” Thus, any violation of a supervised release would relate back to the time when the underlying offense was committed. The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial because the court must look back to the initial offense.

Moreover, under the federal Savings Statute, 1 U.S.C. § 109, absent a clear indication from Congress of retroactive application, a defendant is not entitled to “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Thus, the Savings Statute preserved the mandatory minimum punishment provision of § 3583(g).

The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial. Therefore, the district court correctly applied the former version of § 3583(g), which was the statute in effect when Ward committed the underlying crimes.

Did Mandatory Minimum Provision Violate Defendant’s Sixth Amendment Rights?

Ward further agues that the mandatory minimum provision in § 3583(g) violated his Sixth Amendment rights, because the factual findings required to impose that sentence were not made by a jury applying the standard of beyond a reasonable doubt. The Fourth Circuit once again turned to Johnson, which stated that a violation of the conditions of a supervised release “need only be found by a judge under a preponderance of the evidence standard.” However, they also noted that in Alleyne v. United States, the Supreme Court required a jury determination under the standard of beyond a reasonable doubt for any factual finding in a criminal trial that requires imposition of a statutory mandatory minimum sentence. In this case, the Fourth Circuit determined that Ward was facing a supervised release revocation, which stands in contrast to a criminal trial. According to Morrissey v. Brewer, “the full panoply of rights due a defendant in [a criminal prosecution] does not apply to parole revocations.” Additionally, those individuals on supervised release enjoy only “conditional liberty” because they already have been convicted of the criminal offense.

Thus, the Fourth Circuit concluded that Ward was not entitled to have the alleged supervised release violation proven to a jury beyond a reasonable doubt.

District Court’s Judgment Affirmed

The Fourth Circuit held that the district court did not err in applying the former version of 18 U.S.C. § 3583(g) in Ward’s supervised release revocation proceeding. The Court further held that Ward’s Sixth Amendment rights were not violated. Accordingly, the Court affirmed the district court’s judgment.

By Taylor Ey

Did the District Court Impose an Appropriate Sentence After Appellant’s Supervised Release Was Revoked?

Today, the Fourth Circuit issued a per curiam opinion, affirming the judgment of the United States District Court for the Eastern District of North Carolina in U.S. v. Greene.  In this case, Appellant Greene appealed his twenty-four month sentence imposed after his supervised release was revoked.  The Fourth Circuit reviewed the district court’s decision to determine whether the sentence was “plainly unreasonable.”

The Sentence Is Inappropriate if It Is “Plainly Unreasonable”

First, the Fourth Circuit looked to whether the sentence was procedurally reasonable.  A sentence is procedurally reasonable if the district court considered Chapter Seven of the Sentencing Guidelines and 18 U.S.C. § 3553(a) (2012).  The district court must also explain its issued sentence.  However, the sentence after supervised release “need not be as detailed or specific” as the original sentence explantation.  Secondly, the sentence is substantively reasonable if the district court stated a proper basis for its conclusion.

The Sentence Was Procedurally and Substantively Reasonable

The Fourth Circuit concluded that the sentence was procedurally reasonable because the sentence was within the two-year statutory maximum, and the district court considered the § 3553 factors.

The sentence was substantively reasonable because the district court appropriately exercised its discretion in issuing the maximum sentence because of appellant’s repeated drug use.   The appellant could not or would not abide by the terms of his supervised release because he frequently smoked marijuana.  The probation office repeatedly attempted to help appellant conquer his drug addiction. However, appellant was unable to change his behavior, and thus the altered term of incarceration was appropriate.

 Appellant’s Sentence Was Affirmed

The Fourth Circuit concluded that, although the district court originally gave appellant a lenient sentence, the court did not abuse its discretion when it issued the longer sentence after appellant breached the trust and leniency it afforded him.  Thus, the Fourth Circuit affirmed the judgment.

 By Kim Sokolich

This week, the 4th Circuit determined if a  person physically in a prison for civil detention is “imprisoned” for purposes of criminal time served and supervised release.

This case, U.S. v. Neuhauser, began over ten years ago when Jeffrey Neuhauser pled guilty to one count of interstate travel with intent to engage in sex with a minor and one count of distribution of child pornography. Neuhauser was sentenced and schedule to be released from federal prison in June 2007. Two weeks before his release, the Government certified Neuhauser as a “sexually dangerous person” under the Adam Walsh Act. Under the Adam Walsh Act, sexually dangerous persons are to receive court ordered mental health treatment. The certification triggered a stay of Neuhauser’s prison release until a federal district court could determine if Neuhauser was mentally-ill under the Adam Walsh Act. Neuhauser remained in the same federal prison during this time, but was moved to a different housing area. Nearly five years later, the district court found that there was no reason to justify Neuhauser to civil commitment, thus he was finally released.

Five months after his release, Neuhauser moved to terminate his term of supervised release (a requirement of his release as a sex offender). The supervised release period is meant to improve the odds of a successful transition into the community. According to the court it is a “unique method of post confine meant supervision that fulfills rehabilitative ends distinct from those served by incarceration.” This period begins once the prisoner is released from a period of imprisonment.  Neuahuser contents that his term of supervise release expired as it should have begun on the date his criminal conviction prison sentence ended in 2007. He noted that after that, he was no longer serving time in prison based on criminal confinement, but rather due to the operation of a criminal statute. Thus, Neuhauser argued that civil detention, unlike criminal confinement, does not constitute imprisonment. The government on the other hand, believed that the Neuhauser’s period of supervised release did not begin until he was physically released from the federal prison.

Here, the 4th Circuit sided with the government. Looking at the basic dictionary definition, “imprison,” is simply to put a person in a prison. According to take the narrow view of Neuhauser, that imprisonment requires some sort of criminal conviction attached, is to go far beyond the plain meaning of the term imprisonment. Additionally, the 4th Circuit noted that to define imprisonment under Neuhauser’s view, would directly offend the purpose of supervised release. The court noted that it “is hard to imagine the way which supervision would aid in a person’s transition if he could serve his entire term of supervised release before leaving prison. Thus, for the purposes of supervised release time, imprisoned simply means “released from confinement.” There is no difference in spending time in prison for a criminal conviction or civil detention. Therefore the 4th Circuit rejected Neuhauser’s motion and affirmed the district court’s decision.