United States v. James Poe, III

Filing

PER CURIAM OPINION FILED - THE COURT: JAMES B. LOKEN, PASCO M. BOWMAN and STEVEN M. COLLOTON; (UNPUBLISHED). Attorney Mr. Kim Driggers' motion [3916959-2] to withdraw as counsel is granted. Appellant James Poe's motion for release is denied [3921973-2]. [3934420] [12-1884]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 12-1884
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United States of America,
Appellee,
v.
James Charles Poe, III,
Appellant.

*
*
* Appeal from the United States
* District Court for the Eastern
* District of Arkansas.
*
*
[UNPUBLISHED]
*
*
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Submitted: July 18, 2012
Filed: July 23, 2012
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Before LOKEN, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
While James Poe was serving a term of supervised release, he violated his
release conditions. After a revocation hearing, the district court1 revoked supervised
release and sentenced Poe to serve 12 months in prison with no further period of
supervised release. Poe appeals, and we affirm.
Poe argues that his sentence is illegal, because when the revocation sentence
is added to his original sentence of imprisonment, he will have served more time in
1

The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

Appellate Case: 12-1884

Page: 1

Date Filed: 07/23/2012 Entry ID: 3934420

prison than the statutory maximum term of imprisonment for the original offense.
This argument fails. See United States v. Hergott, 562 F.3d 968, 970 (8th Cir. 2009)
(de novo review). The statutory maximum revocation sentence was two years, see 18
U.S.C. § 3583(e)(3), and the instant revocation sentence, added to a prior 12-month
revocation sentence that Poe served, does not exceed that limit.2 Further, supervised
release may be imposed in addition to the statutory maximum for the offense of
conviction, see United States v. Postley, 449 F.3d 831, 833 (8th Cir. 2006), and
therefore a sentence resulting from revocation of supervised release may result in the
offender serving time in addition to the statutory maximum for the original offense
of conviction, see United States v. Wirth, 250 F.3d 165, 170 n.3 (2d Cir. 2001). Poe
also complains that the district court erred in making a finding as to when he entered
federal custody. Any error is harmless, however, given the availability of
administrative remedies within the Bureau of Prisons. See United States v. Pardue,
363 F.3d 695, 699 (8th Cir. 2004).
Accordingly, we affirm the judgment of the district court; we grant counsel’s
motion to withdraw; and we deny Poe’s motion for release, having concluded that the
arguments in support thereof are meritless.
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2

The underlying offense occurred before the April 30, 2003 effective date of
the Prosecutorial Remedies and Other Tools to End the Exploitation of Children
Today Act of 2003, Pub. L. 108-21, 117 Stat. 650 (2003), and therefore the district
court properly reduced the statutory maximum revocation sentence by the length of
the prior revocation sentence. See Hergott, 562 F.3d at 970.
- 2-

Appellate Case: 12-1884

Page: 2

Date Filed: 07/23/2012 Entry ID: 3934420