United States v. Hass

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY ALLEN HASS, Defendant - Appellant.

No. 13-4486

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: May 23, 2014

Decided: June 5, 2014

UNPUBLISHED

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:98-cr-00168-FDW-1)

Before WILKINSON, MOTZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA, Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, William M. Miller, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Johnny Allen Hass appeals the district court's judgment revoking his supervised release and sentencing him to eighteen months in prison followed by an additional thirty months of supervised release. On appeal, Hass contends that the district court erred in denying his motion to dismiss the petition on supervised release because it was filed beyond the expiration of the supervised release term. In a related argument, Hass argues that the district court, in fashioning its sentence, failed to credit him the time he spent in Bureau of Prisons ("BOP") custody awaiting civil commitment proceedings. We affirm.

In 1995, Hass pled guilty to interstate transportation of child pornography via computer. In 1998, he pled guilty to receiving child pornography shipped in interstate commerce via computer. He was sentenced to eighty-five months' imprisonment followed by five years of supervised release. He began his term of supervised release in December 2004. In August 2005, the district court modified the terms of his supervised release after a search revealed that he possessed pornographic materials in his home. Five months later, the probation officer petitioned for Hass's arrest based on a series of violations, including failure to comply with the terms of his home detention, failure to report to his probation officer,possession of pornographic images depicting minors, and using a computer to view pornography. The court revoked Hass's supervised release and sentenced him to twelve months followed by four years of supervised release.

One day prior to Haas's projected release, on January 10, 2007, the Government certified Hass as a sexually dangerous person under the Adam Walsh Child Protection And Safety Act of 2006 (the "Act"). In accordance with the Act, the petition for civil commitment stayed Hass's release pending the outcome of a hearing to determine whether Hass was sexually dangerous. In September 2007, Hass moved to dismiss the petition, challenging the constitutionality of the Act. The district court deferred a ruling and placed this case in abeyance for appellate consideration of the issue. On June 11, 2010, the district court lifted the stay after the Supreme Court held the Act was constitutional. See United States v. Comstock, 560 U.S. 126, 130 (2010); see also United States v. Timms, 664 F.3d 436, 449 (4th Cir. 2012) (upholding constitutionality of the Act under the Equal Protection Clause). After lifting the stay, the district court conducted an evidentiary hearing and, by order entered on February 15, 2012, it concluded Hass was not a sexually dangerous person. In light of this ruling, Hass was released and he began serving his four-year term of supervised release.

Within a year of release, Hass's probation officer petitioned for his arrest based on Hass's alleged possession of child pornography and viewing adult and child pornography. Prior to the revocation hearing, Hass moved to dismiss the probation officer's petition and to terminate supervised release. Hass argued his supervised release commenced on January 11, 2007, the date he was scheduled to be released from prison, and that his term of supervision expired while he was detained pending the civil commitment proceeding. The district court concluded that Hass's term of supervised release did not begin until he was actually released from custody in February 2012, at the conclusion of the civil commitment proceeding, and accordingly denied Hass's motion.

Hass subsequently admitted to both violations. The court calculated an advisory Guidelines range of eighteen to twenty-four months in prison, based on a Grade B violation and a criminal history category of V. Both parties recommend a low-end sentence of eighteen months in prison but disagreed over whether the sentenced should include a term of supervised release; Hass requested no additional supervision and the Government asked for thirty months. The district court revoked Hass's supervised release and sentenced him to eighteen months in prison followed by thirty months of supervised release.

On appeal, Hass first argues that the district court lacked jurisdiction to revoke his supervised release because his term of supervision expired while he was in custody awaiting the resolution of his civil commitment proceedings. The issue of when Hass's supervised release began is a question of law, which this court reviews de novo.¹ See United States v. Neuhauser, 745 F.3d 125, 127 (4th Cir. 2014); see also United States v. Winfield, 665 F.3d 107, 109 (4th Cir. 2012); United States v. Buchanan, 638 F.3d 448, 451 (4th Cir. 2011). Hass's argument is foreclosed by our recent decision in Neuhauser. In that case, we noted, "[o]rdinarily, the BOP releases a prisoner from confinement upon the expiration of his criminal sentence," Neuhauser, 745 F.3d at 127 (citing 18 U.S.C. § 3624(a) [(2012)]), "[b]ut under certain conditions, a defendant's release from confinement will be stayed for some time beyond that date." Id. In Neuhauser, there was no dispute that the defendant, like Hass, remained confined in civil detention by the BOP beyond the expiration of his prison sentence pending the resolution of his status under 18 U.S.C. § 4248. We held, however, that Neuhauser's supervised release did not begin untilhe was released from confinement four-and-a-half years later. See also United States v. Johnson, 529 U.S. 53, 57, 59 (2000) (noting its interpretation of 18 U.S.C. § 3624(e), that supervised release "does not run while an individual remains in the custody of the Bureau of Prisons," was consistent with Congressional intent, because "[t]he objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release"). Accordingly, we conclude Hass's supervised release term did not begin until he was released by the BOP in February 2012 and therefore the district court had jurisdiction to entertain the petition for revocation.

Alternatively, Hass argues that the district court, in fashioning its sentence, should have afforded him credit for the time he spent in prison while awaiting his civil commitment proceeding. "A district court has broad discretion when imposing a sentence upon revocation of supervised release." United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). Accordingly, in examining a sentence imposed upon revocation of...