Opinion
Case No. 2:00-CV-00405-B, related to 2:99-CR-00003-S
October 30, 2003
ORDER
Before the Court is Dennis Lee Franks' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Having considered the parties' briefs, the record, and the relevant law, the Court issues the following Order.
On July 26, 1993, Petitioner pled guilty to conspiracy to manufacture methamphetamine, attempt to manufacture methamphetamine and possession of a listed chemical with intent to manufacture methamphetamine. (Resp., p. 1-2). He was sentenced to sixty (60) months imprisonment with the Bureau of Prisons followed by sixty (60) months of supervised release. ( Id. at 2). Petitioner violated the terms of his supervised release and on September 30, 1999, admitted the violations. As a result, the Court revoked Petitioner's supervised release and incarcerated him for one year and one day to be followed by thirty-six (36) months of supervised release. ( Id.). Petitioner did not appeal the legality of his plea or sentence.
Petitioner committed the underlying offenses on May 4, 1992. (Memo ISO Pet., p.
Petitioner filed the instant motion to vacate, correct or set aside his sentence on May 18, 2000. ( Id.). Petitioner relies on United States v. Behnezhad, 907 F.2d 896 (9th Cir. 1990), as his basis for relief pursuant to § 2255, alleging that the Court did not have authority to impose thirty-six (36) months of supervised release in addition to the one year and one day sentence because the underlying conduct for his initial conviction occurred prior to September 13, 1994. (Pet., p. 5), Petitioner's argument raises two separate issues: (1) what effect the date of Petitioner's underlying criminal conduct has on the Court's authority to impose the disputed sentence, and (2) whether the Court had authority to impose an additional term of supervised release after it revoked Petitioner's sentence and incarcerated him,
In addition, Plaintiff appears to allege a sentencing error because " 18 U.S.C. § 3583(e)(3) limits the prison term upon revocation of supervised release not to exceed more than three (3) years for a Class B felony." (Memo ISO Pet., p. 2). However, the Court notes that Petitioner was sentenced to a prison term of one year and one day, clearly less than the three years authorized by the statute. Therefore, the Court finds this apparent claim without merit.
Petitioner's argument suggests that neither 18 U.S.C. § 3583(h) nor 18 U.S.C. § 3583(e)(3) provide authority for the Court to revoke Petitioner's supervised release, reincarcerate Petitioner and impose an additional term of supervised release.
Section 3583(h) of Title 18 authorizes a court to "include a requirement that the defendant be placed on a term of supervised release after imprisonment" "when a term of supervised release is revoked and the defendant is required to serve a term of imprisonment." 18 U.S.C. § 3583(h). However, the United States Supreme Court recently held that 18 U.S.C. § 3583(h) only authorizes a court to reimpose supervised release if the underlying conduct for the initial offense occurred after September 13, 1994. Johnson v. United States, 529 U.S. 694, 702 (2000).
In the instant case, the underlying conduct for the initial offense occurred on May 4, 1992, Therefore, 28 U.S.C. § 3583(h) does not authorize the Court to impose the sentence of which Petitioner complains.
As indicated above, however, 28 U.S.C. § 3583(h) is not the only potential source of statutory authority on which a court may rely. Another potential basis of authority for a court to impose supervised release after revoking the initial supervised release and ordering a term of imprisonment is § 3583(e)(3).
Petitioner relies on Behnezhad for the proposition that § 3583(e)(3) does not provide the Court with authority to impose his current sentence. In Behnezhad, the Ninth Circuit Court of Appeals held that "a district court is not permitted to revoke a person's supervised release, order a term of incarceration and then order another term of supervised release. 907 F.2d at 898. However, in Johnson, the United States Supreme Court recently abrogated the holding in Behnezhad. 529 U.S. at 704-06, Johnson held that courts do have authority pursuant to § 3583(e)(3) to "order terms of supervised release following reimprisonment" when the initial offense occurred before September 13, 1994. Id at 713 (2000) (emphasis added). See also, United States v. Begay, No. 98-4195, 2000 WL 691079 *1 (10th Cir. May 25, 2000) (holding that the district court had authority pursuant to § 3583(e)(3) to resentence defendant for violation of his supervised release to imprisonment and further supervised release) (emphasis added); United States v. Durfee, No. 99-1328, 2000 WL 639476 *2 (10th Cir. May 18, 2000) (holding that, under Johnson, the district court did not "err in imposing a prison sentence followed by a period of supervised release upon the revocation of [defendant's] supervised release.") (emphasis added). The Court finds the rationale and holding of Johnson not only persuasive but mandatory. The Court clearly had authority pursuant to § 3583(e)(3) to impose the further term of supervised release of which Petitioner now complains.
For the foregoing reasons, the Court DENIES Petitioner's § 2255 motion to vacate, set aside or reduce his sentence.