Thursday, July 21, 2005

An Interesting Decision Concerning Supervised Release

United States v. Germaine Robinson, Docket No. 04-6664 (2d Cir. July 20, 2005) (Jacobs, Pooler, and Hurd, D.J.) (Op. by Jacobs): This opinion contains some interesting discussion about several issues arising in the context of revocation of supervised release. First, it discusses the type of notice that a defendant (a "supervised releas-ee"?) must be provided with before revocation. Second, it quickly rejects a Booker challenge to the revocation scheme, but then adds some curious dicta that has piqued the interest of the blogosphere (see, e.g., Professor Berman's site). Finally, it discusses the difference between simple possession of drugs and possession of drugs with intent to distribute (or simply distribution) as it affects the advisory range upon revocation.

The essential facts are simple. Robinson was convicted in 1999 of possession of cocaine base with intent to distribute. His Guidelines range was 33 to 41 months, and he was sentenced to 33 months. He was also sentenced to 5 years' supervised release.

In 2004, Robinson was charged by the Probation Office with violating the terms and conditions of his supervised release. Specifically, Probation charged him with violating supervised release by committing a new crime -- i.e., "the crime of Possession of Cocaine Base." The petition did not specifically indicate, however, the particular statute -- i.e., which statutory section of either the U.S. Code or the N.Y. Penal Law -- that Robinson's conduct violated.

The violation petition noted that Robinson was in the front passenger seat of a car in which the police found several baggies of cocaine, and that upon his arrest by state authorities, Robinson admitted to the police that "he had been purchasing drugs on a weekly basis." Op. at 4.

After a hearing, the judge ruled that the Government had proved by a preponderance of the evidence that Robinson violated supervised release by possessing cocaine base, in violation of either 21 U.S.C. § 844(a) or N.Y. Penal L. § 220.03. It treated this conduct as a "Grade A" violation (rather than a Grade B one, as defendant urged) carrying a range of 12 to 18 months. (A Grade B violation would have carried only a 4 to 10 months range). It then imposed a sentence of 15 months.

Notice: Robinson complained on appeal that his Due Process right (as well his right under Fed. R. Crim. P. 32.1(b)(2)(A)) to have written notice of the alleged violation was violated because the petition failed to cite, line-and-verse, the particular statute he allegedly violated. Without such notice, Robinson argued, a defendant would not know "the elements of the crime against which he must defend."

The Court rejected this argument, concluding that the phrase used in the violation petition -- "possession of cocaine base" -- "gave adequate notice of the elements of the offense charged." Op. at 6-7. Although the Court acknowledged (and perhaps even approved of) the Ninth Circuit rule that "the Government should generally . . . provide a defendant with notice of the specific statute violated," it declined to adopt such a requirement in this particular case. This was so because "the petition [here] identified the offense ('crime of Possession of Cocaine Base') in terms sufficient to reflect its elements," and thus that any error in failing to provide the precise statutory section "was harmless." Op. at 7.

Booker Challenge: Robinson also argued that a jury under the reasonable doubt standard, rather than a judge under the preponderance standard, should have determined whether he violated supervised release. This was allegedly required because (1) the top of the original Guidelines range for the underlying offense was 41 months; (2) he originally received a sentence of 33 months; and (3) imposition of the 15-month sentence upon revocation resulted in a total sentence exceeding the top of the original Guidelines range. Op. at 7-8. He contended that "under Booker no [revocation] sentence . . . could exceed eight months." Op. at 8.

Judge Jacobs quickly rejected this argument, citing United States v. Fleming, 397 F.3d 95 (2d Cir. 2005), as dispositive on this point. Fleming, decided the same day as Crosby, ruled that supervised release "remains unaffected by Booker." Op. at 8.

Nonetheless, Judge Jacobs went on to acknowledge in 2 pages of tantalizing dicta that "the supervised release scheme is in some tension with the rationale of Blakely and Booker." Op. at 8. Among other things, the current law on supervised release allows the imposition of a sentence upon revocation that, when added to the original sentence, results in a total sentence that exceeds the true statutory maximum (literally, the maximum set forth in the statute) for the underlying offense. See, e.g., United States v. Wirth, 250 F.3d 165, 170 n.3 (2d Cir. 2001). But if such a sentence could be imposed based solely on judge-made findings under a preponderance standard, the rule of Apprendi comes into play: Any fact that increases the statutory maximum must be found by a jury beyond a reasonable doubt.

Robinson's sentence is actually not a good example, since no true statutory maximum is implicated given Booker's remedy of treating the Guidelines range as merely advisory. Given Breyer's remedial legerdemain, the fact that the total sentence of 48 months (33 for the underlying offense plus 15 upon revocation) exceeds the top of the original range (41 months) encounters no Apprendi difficulty. But a different example could make the desired point.

Assume that a defendant is convicted of felon-in-possession of a firearm, which carries a 10-year statutory maximum. Assume further that he is sentenced to 9 years' imprisonment, along with 3 years of supervised release. Assume finally that following his release from prison, the judge finds on a preponderance standard that he violated supervised release by possessing drugs, and then sentences him to 2 years in prison upon revocation.

The total sentence of 11 years (9 for the underlying offense and 2 upon revocation) exceeds the 10-year statutory maximum. In such a situation, the Apprendi rule appears implicated: Surely the judge cannot, on his own findings on a preponderance standard, impose a sentence greater than the statutory maximum.

But, alas, that case is not this one. Nonetheless, Judge Jacobs's opinion is potent ammunition for defense counsel handling that next case.

Simple Possession vs. Possession with Intent to Distribute: The final issue concerns the applicable "Grade" when the violation conduct is simple possession of drugs, rather than possession with intent to distribute (or distribution of any kind). Though Robinson was only charged with simple possession, and though the judge only found that he possessed drugs, the judge sentenced him as if he had committed a "Grade A" violation (carrying a range of 12 to 18 months). This was error. Simple possession is only a Grade B violation, with a 4-10 months range.

This error -- which this reader has previously encountered -- likely arose from Chapter 7's poor drafting. A Grade A violation is described there as "a controlled substance offense . . . punishable by a term of imprisonment exceeding one year." One may think that, based on that definition, Robinson's offense qualified: After all, under § 844(a), even simple possession of crack, following a prior drug conviction, carries a maximum of greater than one year.

However, the Application Notes specifically point to § 4B1.2 for the definition of "controlled substance offense," and that Section defines such offenses to include only those that involve distribution. Therefore, simple possession is not a Grade A violation.


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