Opinion
Case No. 1:10-cr-20672-KMM-6
2022-08-04
UNITED STATES of America v. Wilfredo Gonzalez ARCE, Defendant.
Jared Edward Dwyer, Greenberg Traurig, P.A., Miami, FL, Joseph Egozi, Karen E. Gilbert, Karen E. Moore, Lynn M. Kirkpatrick, Michael R. Sherwin, United States Attorney's Office, Miami, FL, for United States of America.
Jared Edward Dwyer, Greenberg Traurig, P.A., Miami, FL, Joseph Egozi, Karen E. Gilbert, Karen E. Moore, Lynn M. Kirkpatrick, Michael R. Sherwin, United States Attorney's Office, Miami, FL, for United States of America. ORDER K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant Wilfredo Gonzalez Arce's ("Defendant") Unopposed Motion to Correct Sentence. ("Mot.") (ECF No. 479). Therein, pursuant to Federal Rule of Criminal Procedure 35(a), Defendant requests that the Court correct the sentence imposed in the Judgment for Revocation, (ECF No. 478), by reducing the term of supervised release imposed from thirty-four months to twenty-four months, in light of United States v. Mazarky, 499 F.3d 1246 (11th Cir. 2007). See Mot. at 2. The United States Attorney's Office (the "Government") does not oppose the Motion. Id. The Motion is now ripe for review.
I. BACKGROUND
On September 27, 2011, a federal grand jury sitting in the Southern District of Florida returned a Superseding Indictment charging Defendant with conspiracy to possess with intent to distribute marijuana and 100 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), (b)(1)(C) ("Count 1"). See generally (ECF No. 161).
On November 16, 2011, Defendant pled guilty to Count 1 of the Superseding Indictment pursuant to a plea agreement. (ECF Nos. 189, 190). At the Change of Plea Hearing, the Court advised Defendant that Count 1 of the Superseding Indictment carried a statutory minimum of five years and potential maximum of forty years of imprisonment. (ECF No. 189). Defendant was further advised that he would face a statutory minimum of four years of supervised release, up to a potential maximum of life. Id. Defendant confirmed on the record that he understood the penalties he could face as a result of his guilty plea. (ECF No. 189). These statutory minimum and potential maximum penalties were also contained in Defendant's Plea Agreement. See (ECF No. 190).
Defendant was also advised of the maximum possible fine he could face.
The United States Probation Office ("Probation") prepared a Presentence Investigation Report. Probation calculated Defendant's guideline imprisonment range as forty-one to fifty-one months, based on a Criminal History of Category I and a Total Offense Level of 22. Presentence Investigation Report ("PSR") ¶¶ 27-36, 39, 61. Probation determined that Defendant met the criteria set forth in 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2, thus the Presentence Investigation Report noted that the Court was required to impose a sentence pursuant to the U.S. Sentencing Commission's applicable sentencing guidelines without regard to any statutory minimum. See PSR ¶ 60. Thus, because Defendant met the criteria set forth in 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2, Probation determined that Defendant's guideline supervised release range was two-to-five years under U.S.S.G.§ 5D1.2(a)(1) for Class B felonies. See PSR ¶ 62; Addendum to PSR.
Probation determined that Defendant had no criminal history points, thus his Criminal History was a Category I. PSR ¶ 39. Because the offense of conviction involved conspiracy to possess with intent to distribute at least 60 kilograms, but less than 80 kilograms of marijuana, the base offense level was 22. PSR ¶ 27. The base offense level was increased by 2 levels because a dangerous weapon was possessed, pursuant to U.S.S.G. § 2D1.1(b)(1). The base offense level was further decreased by 2 levels because Defendant met the criteria set forth in U.S.S.G. § 2D1.1(b)(16), which provides a 2-level reduction where U.S.S.G. § 5C1.2(a) applies. No adjustments or enhancements were applied, and Defendant was not awarded credit for acceptance of responsibility. PSR ¶¶ 30-35. Thus, Probation calculated a Total Offense Level of 22. Id. ¶ 36.
Defendant filed objections to the Presentence Investigation Report and a motion for a downward variance. (ECF No. 310). As relevant to computation of the guideline ranges, Defendant objected to the Presentence Investigation Report's failure to afford him a 3-level decrease for acceptance of responsibility. Id. at 2. The Government filed a response concurring that the objection should be sustained. (ECF No. 311) at 1.
On May 24, 2012, Defendant appeared for the Sentencing Hearing. (ECF No. 315). The Parties confirmed on the record that the correct calculation of Defendant's guideline imprisonment range, after application of a 3-level decrease for acceptance of responsibility, resulted in a Total Offense Level of 19. With a Criminal History of Category I, Defendant's guideline imprisonment range was thirty-two to thirty-seven months. See (ECF No. 315). To that end, the Parties recommended a sentence at the low-end of the applicable guideline range. The Court found that Defendant met the criteria set forth in U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f)(1)-(5) and that, therefore, the Court was required to impose a sentence in accordance with the advisory guidelines without regard to any statutory minimum sentence. Thus, Defendant's guideline supervised release range was two-to-five years, pursuant to U.S.S.G. § 5D1.2(a)(1). Accordingly, the Court sentenced Defendant to thirty months of imprisonment, to be followed by three years of supervised release. (ECF No. 316).
After release from imprisonment, Defendant's term of supervised release was first revoked on October 13, 2016. (ECF Nos. 421, 424). The Court sentenced Defendant to ten months of imprisonment, to be followed by fifty months of supervised release, (ECF No. 424); supervision commenced on June 12, 2017, see ("Superseding Pet.") (ECF No. 453) at 1.
On November 6, 2020, Probation filed a Petition for Revocation of Supervised Release, alleging that Defendant had committed four violations of the conditions of his release. (ECF No. 428). On October 8, 2021, Probation filed the Superseding Petition, alleging that Defendant had committed fourteen violations of the conditions of his release. See generally Superseding Pet. The matter was referred to the Honorable Lauren F. Louis, United States Magistrate Judge, who held an evidentiary hearing and issued a Report and Recommendation recommending that the Court adopt the finding that Defendant committed Violation Nos. 1 to 4 and 12 to 14, as alleged in the Superseding Petition. (ECF Nos. 463, 469). Defendant filed Objections. (ECF No. 472). The Government filed a response. (ECF No. 473).
On March 3, 2022, the Court adopted the Report and Recommendation in part, overruling Defendant's objections, except as to Violation No. 4 of the Superseding Petition which was sustained in part. (ECF No. 474). On March 24, 2022, the Court held a Final Hearing regarding Revocation of Supervised Release ("Final Revocation Hearing"). (ECF No. 477). Probation's Report and Recommendation for the Final Revocation Hearing ("Final Memorandum") calculated that Defendant faced a statutory maximum term of imprisonment upon revocation of not more than three years, pursuant to 18 U.S.C. § 3583(e)(3). Probation further calculated that Defendant faced a statutory maximum of up to life supervised release upon revocation, pursuant to § 3583(h), given the penalties provided in 21 U.S.C. § 841(b)(1)(B)(vii). Based upon a Criminal History of Category I and the finding of a Grade B violation, Defendant was subject to imprisonment in the instant revocation proceedings. See U.S.S.G. § 7B1.3(a)(1). As a result, Defendant's revocation guideline imprisonment range was calculated as four to ten months, pursuant to U.S.S.G. § 7B1.4.
The Final Memorandum also determined that, pursuant to U.S.S.G. § 7B1.3(g)(2), the provisions set forth in U.S.S.G. §§ 5D1.1-5D1.3 apply for purposes of imposing a term of supervised release. However, this provision applies to revocation of probation, not revocation of supervised release.
At the Final Revocation Hearing, the Court revoked Defendant's supervised release and sentenced him to twenty-six months of imprisonment, to be served consecutive to any term of imprisonment imposed in his related state court case. (ECF No. 478). This term of imprisonment is to be followed by thirty-four months of supervised release. Id.
Now, Defendant requests that the Court correct his sentence by reducing the term of supervised release imposed from thirty-four months to twenty-four months, in light of 18 U.S.C. § 3583(h) and United States v. Mazarky, 499 F.3d 1246 (11th Cir. 2007). See generally Mot.
II. DISCUSSION
Defendant's Motion is timely, and the Court has jurisdiction. Accordingly, the Court proceeds to the merits of the Motion.
Federal Rule of Criminal Procedure 35(a) provides that "[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Fed. R. Crim. P. 35(a). The Court revoked Defendant's supervised release and pronounced the sentence at issue on March 24, 2022, and Defendant filed the instant Motion on March 28, 2022. See generally Mot. Thus, Defendant's Motion is timely filed. Further, Defendant's Notice of Appeal does not divest this Court of jurisdiction. On April 4, 2022, Defendant appealed the Judgment for Revocation. (ECF No. 480). Although it is well-established that "the filing of a notice of appeal divests the district court of jurisdiction over those aspects of the case that are the subject of the appeal," Doe, 1-13 ex rel. Doe Sr. 1-13 v. Bush, 261 F.3d 1037, 1064 (11th Cir. 2001); see also United States v. Brown, 438 F. App'x 871, 872 (11th Cir. 2011) ("More specifically, it is settled that during the pendency of an appeal the trial court is without authority to modify a sentence meted out after final judgment."), Defendant's Motion is filed pursuant to Federal Rule of Criminal Procedure 35(a). Thus, the Court has jurisdiction. See Fed. R. App. P. 4(b)(5) ("The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion.").
Defendant argues that, because he was originally convicted of a Class B felony, he was subject to a maximum term of imprisonment of three years upon revocation, followed by a maximum five-year term of supervised release during the instant revocation proceedings. Mot. at 2. Given that, in the aggregate, Defendant has been sentenced to thirty-six months of imprisonment across his two supervised release revocation proceedings—ten months in the first proceeding and twenty-six months in the instant proceeding—he argues that § 3583(h) requires that the maximum five-year term of supervised release be reduced by thirty-six months. Thus, he contends that the maximum allowed term of supervised release that can follow the twenty-six-month term of imprisonment imposed in the instant revocation proceedings is twenty-four months of supervised release (i.e., sixty minus thirty-six), not the thirty-four months of supervised release that was imposed. Id. at 2-3.
A. Maximum Term of Supervised Release Authorized by Statute.
At the time of the offense conduct charged in the Superseding Indictment, 18 U.S.C. § 3583(h) read as follows:
(h) Supervised release following revocation.--When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.18 U.S.C. § 3583(h) (2011) (emphasis added). The provision is no different today. See 18 U.S.C. § 3583(h) (2020). The starting point of the Court's analysis is the maximum "term of supervised release authorized by statute for the offense that resulted in the original term of supervised release." § 3583(h) (2011).
Count 1 of the Superseding Indictment charged Defendant with conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846. See generally Superseding Indict. The grand jury charged that the offense involved 100 or more marijuana plants, in violation of 21 U.S.C. § 841(b)(1)(B)(vii). Id. at 1-2. The charged period of the conspiracy began in or around February 2010 and continued through September 10, 2010. Id. at 1.
At the Final Revocation Hearing on March 24, 2022, Probation asserted that 21 U.S.C. § 841(b)(1)(B)(vii) authorizes a life term of supervised release. Defendant and the Government argued that the maximum term of supervised release authorized by statute for Defendant's original offense of conviction is five years based on § 3583(b)(1), which states that "Except as otherwise provided, the authorized terms of supervised release are--(1) for a Class A or Class B felony, not more than five years[.]" 18 U.S.C. § 3583(b)(1)
Section 841(b)(1)(B)(vii) pertains to the penalties for drug offenses under § 841(a) involving "100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight," which was the substantive offense supporting Defendant's conspiracy conviction under 21 U.S.C. § 846. See (ECF No. 335). The text of § 841(b)(1)(B), as it read at the time the grand jury returned the Superseding Indictment, provides in full as follows:
such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $5,000,000 if the defendant is an individual or $25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18, or $8,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of Title 18, any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.21 U.S.C. § 841(b)(1)(B) (emphasis added).
In United States v. Sanchez, the Eleventh Circuit found that § 841(b)(1)(C)'s language with respect to minimum supervised release terms required under that subsection overrides the maximum authorized terms of supervised release provided in § 3583(b). See 269 F.3d 1250, 1286-88 (11th Cir. 2001). There, noting that § 3583(b) begins with "[e]xcept as otherwise provided," the Eleventh Circuit rejected the defendants' argument that § 841(b)(1)(C)'s three-year minimum required term of supervised release was bounded by § 3583(b)(2)'s three-year maximum. Thus, the Eleventh Circuit observed that, "[i]n light of its language and history, § 841(b)(1)(C) cannot be understood to provide for a term of supervised release not greater than three years, as the Sanchezes contend. Relying on these principles of statutory interpretation, six other circuits have held that § 3583(b) does not limit the term of supervised release authorized in § 841(b)(1)(C) and that a term of supervised release over the minimum set forth in § 841(b)(1)(C) may be imposed notwithstanding the provisions of § 3583(b)." Sanchez, 269 F.3d at 1287 (collecting cases). This reasoning has been ratified in recent years, including a decision rendered after Defendant filed the instant Motion. See United States v. Franklin, No. 21-11049, 2022 WL 1114365, at *2 (11th Cir. Apr. 14, 2022) ("Thus, § 3583(b)(2)'s upper limit is not the proper starting point for determining Franklin's term of supervised release under § 3583(h), and any term of supervised release at or above the statutorily required 36 months would have been legally valid."); Posa v. United States, No. 16-16447-B, 2017 WL 8800980, at *6 (11th Cir. Oct. 12, 2017) (recognizing that § 841(b)(1)(C) "does not limit the term of supervised release to three years").
It follows that the same reasoning applies in this case for § 841(b)(1)(B) which likewise states, "[n]otwithstanding section 3583 of title 18," the underlying offense of Defendant's conviction "shall . . . include a term of supervised release of at least 4 years." § 841(b)(1)(B). In fact, the Eleventh Circuit has recognized as much. See United States v. Milner, 688 F. App'x 854, 855 (11th Cir. 2017) (Mem.) ("In this case, the maximum term authorized by statute is life, which Milner concedes." (citing 21 U.S.C. § 846; 21 U.S.C. § 841(b)(1)(B)(viii))). Although, the Court recognizes there is conflicting caselaw on this point. See United States v. Sosebee, 454 F. App'x 754, 757 (11th Cir. 2011) (identifying conviction under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii) as a Class B felony subject to a five-year maximum term of supervised release under 18 U.S.C. § 3583(b)(1)). In any event, the position expressed in Milner finds support in reported cases from outside the Eleventh Circuit. See United States v. Brooks, 889 F.3d 95, 99 (2d Cir. 2018) ("We have interpreted the presence of a mandatory minimum term in 18 U.S.C. § 841(b), without a maximum, to allow the district court to impose up to lifetime supervised release notwithstanding the limits of section 3583(b)."); United States v. Webster, 628 F.3d 343, 346 (7th Cir. 2010) ("And since all violations of § 841(a)(1) carry the potential for a life term of supervised release . . . ." (emphasis in original)). And this position also finds support in the progression of this case: Defendant's plea agreement states that the maximum term of supervised release authorized is up to life. Plea Agreement (ECF No. 190) ¶ 3; see also PSR ¶ 62.
Thus, the Court concludes that, in the instant revocation proceedings, the maximum term of supervised release authorized by statute for the offense that resulted in Defendant's original term of supervised release is life.
Five years is the maximum term of supervised release under the advisory guideline range for Defendant's offense of conviction after application of 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2, not the maximum authorized term of supervised release authorized by statute.
B. § 3583(h).
Next, the Court must determine how to apply § 3583(h) in this case to determine if the term of supervised release imposed exceeded the statutory maximum. Here, the maximum term of supervised release that could have been imposed in the instant revocation proceedings is life minus "any term of imprisonment that was imposed upon revocation of supervised release." § 3583(h). As the Eleventh Circuit explained in United States v. Mazarky, "the maximum allowable supervised release following multiple revocations must be reduced by the aggregate length of any terms of imprisonment that have been imposed upon revocation." 499 F.3d 1246, 1250 (11th Cir. 2007).
That calculation is impracticable where there is no maximum term of supervised release authorized by statute for Defendant's original offense of conviction. The Second Circuit has addressed how to apply § 3583(h) in situations where a district court actually does impose an unadjusted life term of supervised release upon revocation:
First, it is highly unlikely that Congress expected the subtraction concept to be applied to a lifetime term of supervised
release. Second, even if a sentencing judge were to feel obliged to make a subtraction in some fashion, the judge could easily circumvent such a requirement by selecting a supervised release term of many years, 99 for example, and then imposing a term of "only" 98 years. Third, use of the defendant's life expectancy would introduce a variable bearing little, if any, relation to penological purposes for defendants who outlive their life expectancy and would introduce reverse age discrimination. We conclude that the unadjusted lifetime term of supervised release was not unlawful. See United States v. Rausch, 638 F.3d 1296, 1303 (10th Cir. 2011) ("Because it is impossible to predict the precise length of any individual's life, a [supervised release] sentence of 'life less two years' imprisonment' has only conceptual—not practical—meaning."). But see United States v. Shorty, 159 F.3d 312, 316 (7th Cir. 1998) ("[T]he maximum amount of supervised release possible would have been life minus the amount of imprisonment imposed during the sentencing for revocation"; no method of subtraction suggested).United States v. Cassesse, 685 F.3d 186, 191 (2d Cir. 2012) (alteration incorporated). This reasoning was adopted in Milner, where an unadjusted life term was also imposed:
Milner violated his term of supervised release, so the district court was authorized to revoke his supervised release and impose a prison term, and to impose a subsequent additional term of supervised release. See 18 U.S.C. § 3583(e)(3), (h). However, a new supervised release term cannot be longer than "the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." 18 U.S.C. § 3583(h). In this case, the maximum term authorized by statute is life, which Milner concedes. See 21 U .S.C. § 846; 21 U .S.C. § 841(b)(1)(B)(viii). Milner contends the district court sentenced him to eight months' imprisonment but failed to subtract that term from his term of supervised release as required by the plain language of the statute.688 F. App'x 854, 855 (11th Cir. 2017) (Mem.) (emphasis added).
We find, however, that the district court did not plainly err. Milner's lifespan is indefinite, so subtracting his eight-month prison sentence is a practical impossibility. Our sister Circuits agree. "[I]t is highly unlikely that Congress expected the subtraction concept to be applied to a lifetime term of supervised release." United States v. Cassesse, 685 F.3d 186, 191 (2d Cir. 2012). And "[b]ecause it is impossible to predict the precise length of any individual's life, a sentence of 'life less two years' has only conceptual—not practical—meaning." United States v. Rausch, 638 F.3d 1296, 1303 (10th Cir. 2011) overruled on other grounds by United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017); see also United States v. Crowder, 738 F.3d 1103, 1104 (9th Cir. 2013). Milner's proposed literal reading of § 3583(h) is untenable on these facts, and he marshals no authority to support it.
The Eleventh Circuit noted that the Government raised a similar argument in Mazarky, where a life term of supervised release was not imposed. See Mazarky, 499 F.3d at 1251 & n.7 ("The government argues that 'the concept of credit [therefore] makes no sense, because there is no maximum term of supervised release against which the credit may apply.' " (alteration in original)). However, the issue was not addressed because it was not timely raised. Id. at 1251. Moreover, the factual development of Mazarky required the court to consider the maximum allowable term of supervised release as three years, because the parties had treated the maximum term as three years "[a]t all stages of the proceeding," including in the plea agreement, at the plea hearing, in the initial sentencing, and at both revocation proceedings. Id. at 1251-52.
In the instant Motion to Correct Sentence, Defendant appears to assert that his underlying offense of conviction is a Class B felony under § 3559(a) subject to a five-year maximum allowed term of supervised release under § 3583(b). Here, however, Defendant's plea agreement identifies the maximum authorized term of supervised release as life. Plea Agreement ¶ 3. As noted above, Defendant was informed of this maximum potential term of supervised release at the Change of Plea Hearing. Further, Defendant's Presentence Investigation Report states that no minimum term of supervised release is required by statute. PSR ¶ 62. Thus, the Court will not treat the maximum allowed term of supervised release as five years in this case.
Based on the foregoing, the Court finds that the thirty-four-month term of supervised release imposed in the instant proceedings does not exceed the statutory maximum after application of § 3583(h) because the term of supervised release does not exceed life. Accordingly, the Motion will be denied.
The Court observes that the thirty-four-month term of supervised release imposed in the instant, second revocation proceeding is within the guideline supervised release range of two to five years, as calculated in Defendant's Presentence Investigation Report.
III. CONCLUSION
UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJDUGED that Defendant Wilfredo Gonzalez Arce's Unopposed Motion to Correct Sentence (ECF No. 479) is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 4th day of August, 2022.