Federal Judiciary

Defendant Douglas Knight had a similar experience -- except his loop was supervised release and jail. United States v. Knight, __ F.3d __, No. 08-30372, 2009 WL 276189 (9th Cir. Sept. 2, 2009), decision available here.

Players: Decision by Judge Pregerson, joined by Judges Rymer and Tashima.

Facts: Douglas Knight was sentenced to 18 months custody for possession of stolen guns, and three years of supervised release. Id. at *1. Knight was revoked, then revoked, and revoked yet again, earning a total of forty-two months custody on revocations and tallying fifty-seven months of supervised release. Id. (The statutory maximum term of supervised release for this offense is three years, and the maximum custodial sentence for a revocation is two years). Id. at *1 & n.3.

Knight appealed, arguing that the district court improperly calculated the maximum terms of imprisonment and supervised release. Id. at *2.

Issue(s): Imprisonment: ?1. Whether under the amended version § 3583(e)(3) the district court must reduce the maximum term of imprisonment to be imposed upon revocation of a defendant?s supervised release by the aggregate length of any and all terms of imprisonment imposed upon revocation of supervised release??

Supervised Release Term: ?2. Whether under the amended version of § 3583(h) the district court must reduce the maximum term of supervised release to be imposed upon revocation of a defendant?s term of supervised release by the aggregate length of any and all terms of imprisonment imposed upon revocation of supervised release.? Id. at *1 (emphases in original).

Held: Imprisonment: 1. ?[U]nder the amended version of § 3583(e)(3), it is clear that defendants are not to be credited for prior terms of imprisonment imposed upon revocation of their supervised release.? Id. at *3.

Supervised Release: We ?hold that the maximum term of supervised release to be imposed following multiple revocations of supervised release must be reduced by the aggregate length of any and all terms of imprisonment that have been imposed upon revocation of supervised release.? Id. at *6 (emphasis in original).

Of Note: In 2004, Knight?s original sentence was a year and a half with a three-year term of supervised release to follow. In 2009, he?ll have served nearly four years in custody on the supervised release violations alone. In Knight, the Ninth is forced to wrestle with the inanity that produces this result: the PROTECT Act of 2003.

The PROTECT Act, a Republican masterpiece of legislation, featured such components as the Feeney Amendment -- the sentencing straw that broke the Supreme?s back and that helped spark the Booker revolution. After the PROTECT Act was passed, Florida Representative Tom Feeney (right) went on to be named one of the most corrupt members of the House by the Citizens for Responsibility and Ethics in Washington ("CREW") and has been the subject of an FBI investigation relating to convicted lobbyist Jack Abramhoff. See CREW article here.

?Congress is presumed to know existing law,? observes Judge Pregerson in Knight. Id. at *5. Congressmen, however, may be a different matter.

How to Use: As Knight illustrates, our clients can ? and do ? get more custody time on supervised release violations in the aggregate than they received for the original substantive offense of conviction. These longer jail terms are imposed without a jury finding, and with minimal due process protections (multiple hearsay is admissible at revocation hearings, and the proof standard is only a preponderance). For our clients who may not be ?amenable to supervision,? these realities of supervised release might change the cost-benefit analysis of a decision to go to trial.

For Further Reading: Dallas AFPD Douglas Morris has written a series of superb articles on supervised release. For his insightful discussion on the PROTECT Act's impact, see his piece in the Federal Sentencing Reporter, FYI: Supervised Release and How the PROTECT Act Changed Supervised Release, at 2006 WL 1895181, 18 Fed. Sent. R. 182 (Vol. 18, No. 3, Feb. 1, 2006).

Image of Representative Tom Feeney from http://projects.washingtonpost.com/congress/members/f000447/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Full post as published by Ninth Circuit Blog on September 05, 2009 (boomark / email).