In an Issue of First Impression in this Circuit, the Court of Appeals held the Amended Version of § 3583(E)(3) Eliminated the Credit for terms of Imprisonment Resulting from Prior Revocation in Second or Subsequent Revocations

United States v. Perry, No. 13-2182. Perry was serving his term of supervised release after his conviction for possession of child pornography. At the revocation hearing, he admitted possessing images of child pornography. The probation officer stated in the report that Perry was subject to the statutory minimum sentence of five years under 18 U.S.C. § 3583(k). Perry appealed the sentence he received upon violation of his term of supervised release for the second time. The district court imposed a five year term of imprisonment followed by a 10 year term of supervised release. The court also imposed four new conditions of supervised release that were not mentioned at the revocation hearing. Perry argued he should not have been subjected to the five year mandatory minimum sentence in new version § 3583(k) because the version in effect at the time of his original offense only authorized a maximum sentence of two years. The Court of Appeals agreed, vacated the sentence, and remanded with instructions to the district court to sentence him to no more than two years. The Court also considered whether prior terms of imprisonment count towards the maximum sentence a district court can impose for subsequent violations of supervised release. Perry argued his sentence on the second revocation was limited to 21 months, rather than two years, because he had served three months in prison on a previous revocation. In an issue of first impression in this circuit, the Court of Appeals held that the 2003 amendments to § 3583(e)(3) eliminated the credit for terms of imprisonment resulting from prior revocation. In doing so, the Court agreed with all of the other circuits who have decided the issue. The Court also remanded the conditions of supervised release that were included in the judgment but not mentioned at the revocation hearing and allowed the district court to impose any conditions it sees fit.