United States v. Perez

22 F.4th 430

UNITED STATES of America, Plaintiff – Appellee,

v.Carlos Fabian PEREZ, Defendant – Appellant.

No. 21-4026

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2021

Decided: January 6, 2022

ARGUED: Todd Allen Smith, SMITH GILES PLLC, Graham, North Carolina, for Appellant. Randall Stuart Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Sandra J. Hairston, Acting United States Attorney, Michael F. Joseph, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Before HARRIS, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Quattlebaum and Judge Rushing joined.

PAMELA HARRIS, Circuit Judge

After Carlos Fabian Perez violated the conditions of an initial supervised release sentence, the district court revoked that release, imposed a six-month term of imprisonment, and – at issue here – sentenced him to an additional 36 months of supervised release. Before the district court, Perez argued that this new supervised release sentence would exceed the maximum term set by 18 U.S.C. § 3583, a provision generally authorizing courts to include supervised release as part of a sentence. The district court disagreed, holding that Perez's supervised release sentence was governed instead by 21 U.S.C. § 841(b)(1)(D), the controlled-substance statute under which he originally was convicted, which imposes no maximum on terms of supervised release.

We affirm the judgment of the district court. As 11 courts of appeals have concluded, § 3583(b) does not limit the length of supervised release sentences authorized by § 841(b)(1). Rather, the provisions of § 841(b)(1) itself, which expressly apply "[n]otwithstanding section 3583 of title 18," alone set the bounds on supervised release in § 841(b)(1) cases. And because § 841(b)(1)(D) establishes a 24-month minimum but no maximum term of supervised release, the district court's 36-month sentence falls squarely within the statutory range.

I.

A.

We begin with an overview of the statutory regime that governs the supervised release sentence in this case. The statutory context here is complex and has changed over time, so we set out in some detail the relevant provisions, the statutory history, and our court's prior encounters with this issue.

This much is undisputed: Under 18 U.S.C. § 3583(h), a supervised release term like Perez's, imposed after supervised release has been revoked, is limited to the maximum period "authorized by statute for the offense that resulted in the original term of supervised release," less any term of imprisonment also imposed upon revocation. 18 U.S.C. § 3583(h). So we begin with the statute under which the district court initially sentenced Perez to supervised release: 21 U.S.C. § 841.

Section 841(a) prohibits a range of conduct related to controlled substances. Section 841(b)(1) then "lists additional facts that, if proved, trigger [specified] penalties," depending on the nature and quantity of the controlled substance.

Terry v. United States , ––– U.S. ––––, 141 S. Ct. 1858, 1862, 210 L.Ed.2d 108 (2021). Four graduated subdivisions follow, with the most serious conduct and correspondingly severe penalties described in § 841(b)(1)(A) and the least serious conduct and least severe penalties in § 841(b)(1)(D). Perez was convicted under § 841(b)(1)(D), for possessing with intent to distribute less than 50 kilograms of marijuana. Critically, § 841(b)(1)(D), like all subsections of § 841(b)(1), provides for a minimum term of supervised release – under subsection (D), a term of "at least 2 years" – but is silent as to any maximum. See 21 U.S.C. § 841(b)(1)(A)–(D) (each establishing different minimum supervised release terms and no maximums).

There is a different statute, however, that does provide for maximum terms of supervised release: 18 U.S.C. § 3583. That provision gives courts the general authority to include a term of supervised release in any sentence for a felony or misdemeanor that includes a term of imprisonment. See 18 U.S.C. § 3583(a). It then sets out the "authorized terms of supervised release": for Class A or Class B felonies, "not more than five years"; for Class C or Class D felonies – like Perez's § 841(b)(1)(D) offense – "not more than three years"; and for Class E felonies or misdemeanors, "not more than one year." Id. § 3583(b) (1)–(3).¹ Those "authorized" maximum terms will apply, the statute specifies, "[e]xcept as otherwise provided." Id. § 3583(b).

Faced with this pair of statutes, most courts concluded that § 3583 does not limit the length of supervised release terms in § 841(b)(1) cases. Section 3583, they reasoned, is a gap-filling statute, with an "except as otherwise provided" clause making plain that it has no effect where another statute, like § 841(b)(1), provides its own terms of supervised release. See, e.g., United States v. Sanchez-Gonzalez , 294 F.3d 563, 566 (3d Cir. 2002) (collecting cases); United States v. Cortes-Claudio , 312 F.3d 17, 21–22 (1st Cir. 2002) (same). And because § 841(b)(1) establishes minimum supervised release sentences of "at least" a specified number of years but no maximums, they held, it allows for supervised release terms that "run from the mandatory minimum up to the life of the defendant." Cortes-Claudio , 312 F.3d at 22.

Our court, however, took a different view. In one early case, United States v. Good , we held that § 3583(b)(1)'s generic maximum does apply to supervised release sentences under subsection (B) of § 841(b)(1). 25 F.3d 218, 221 (4th Cir. 1994). Because § 841(b)(1)(B) sets a minimum term of "at least 4 years" and § 3583(b)(1) a maximum of five years for a Class B felony, we concluded, the range for a supervised release sentence under § 841(b)(1)(B) starts at four years and ends at five, rather than life. Id. But the same rule, we later held in United States v. Pratt , does not apply to subsection (C) of § 841(b)(1), which carries a minimum supervised release term of "at least 3 years" and corresponds to a maximum term of three years under § 3583(b)(2). 239 F.3d 640, 647–48 (4th Cir. 2001) (quoting 21 U.S.C. § 841(b)(1)(C) ). If § 3583(b)(2) applied in those circumstances, we reasoned, then the only permissible term of supervised release would be precisely three years – rendering "superfluous" § 841(b)(1)(C)'s "use of the words ‘at least three years.’ " Id. at 648 (quoting 21 U.S.C. § 841(b)(1)(C) ).

That holding left us, we recognized, with a "somewhat anomalous result." Id. at 647 n.4. Defendants like Good, convicted under subsection (B) of § 841(b)(1), would have their supervised release sentences capped at five years, while defendants like Pratt, convicted of a less serious subsection (C) offense, could be sentenced to lifetime terms of supervised release. Id. For that reason, we "wonder[ed]" in Pratt "if the rule announced in Good should be limited to the facts of that case, or perhaps even partially overruled." Id.

But before that issue came before us, Congress intervened. In 2002 – the year after Pratt was decided – Congress amended § 841(b)(1) : At the start of the provisions regarding supervised release in subsections (A) through (D), Congress inserted the clause "[n]otwithstanding section 3583 of title 18." See 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 3005(a), 116 Stat. 1758, 1805 (2002). So now, for instance, subsection (D), under which Perez was convicted, reads, "[n]otwithstanding section 3583 of title 18 , any sentence imposing a term of imprisonment under this paragraph shall ... impose a term of supervised release of at least 2 years[.]" 18 U.S.C. § 841(b)(1)(D) (emphasis added). Congress announced its purpose in the title of this amendment: "Clarification of Length of Supervised Release Terms in Controlled Substance Cases." 21st Century Department of Justice Appropriations Authorization Act § 3005, 116 Stat. at 1805. And the accompanying committee report further explained that the new "notwithstanding" clause would "make clear that the longer terms" prescribed in § 841(b)(1) – "which may include lifetime supervised release" – "control over the general provision in section 3583." H.R. Rep. No. 107-685, at 188–89 (2002) (identifying Good as a decision reaching "the opposite result").

Since Congress's 2002 amendment, the circuits have come nearly into alignment. The only court of appeals other than our own to have held, prior to 2002, that § 3583(b) caps supervised release terms in § 841(b)(1) cases has reversed course, finding that its earlier decisions were "abrogated by statute." United States v. Jackson , 559 F.3d 368, 370 (5th Cir. 2009) ; see also United States v. Johnson , 331 F.3d 962, 967 n.4 (D.C. Cir. 2003) (recognizing that Congress had "resolved the circuit conflict by adding the words ‘Notwithstanding section 3583 of title 18 ’ to" § 841(b)(1) ). The result is that, except for our circuit, every circuit with jurisdiction over criminal appeals has held that the maximum term of supervised release for § 841(b)(1) offenses is life, and that the shorter default maximums of § 3583(b) do not apply.² We, however, have yet to confront the implications of Congress's 2002 amendment.³

B.

We turn now to the facts underlying the revocation proceeding that gave rise to this appeal. In 2014, Perez pleaded guilty to offenses including possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). The district court sentenced him on that count to a 21-month term of imprisonment, followed by a five-year term of supervised release.

After Perez served his prison sentence, his probation officer twice reported that he had violated the conditions of his supervised release, first in 2017 and then in 2019. In 2017, the district court found that Perez indeed had violated his release conditions, but instead of...