USA v. Matthew Jensen

Filing

FILED OPINION (J. CLIFFORD WALLACE, SUSAN P. GRABER and MARSHA S. BERZON) AFFIRMED, Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [8471945]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-10472

v.

D.C. No.
2:11-cr-00034RLH-RJJ-1

MATTHEW STEVEN JENSEN ,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted
September 13, 2012—San Francisco, California
Filed January 14, 2013
Before: J. Clifford Wallace, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Graber

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UNITED STATES V . JENSEN
SUMMARY*

Criminal Law
Affirming a sentence, the panel held that the maximum
prison term for failure to appear for service of sentence
following revocation of supervised release, in violation of
18 U.S.C. § 3146, is determined by looking to the underlying
criminal offense, rather than to the intervening violation of
supervised release.

COUNSEL
Brenda Weksler, Assistant Federal Public Defender, Las
Vegas, Nevada, for Defendant-Appellant.
Peter S. Levitt, Assistant United States Attorney, Las Vegas,
Nevada, for Plaintiff-Appellee.

OPINION
GRABER, Circuit Judge:
Defendant Matthew Steven Jensen appeals his sentence of
27 months’ imprisonment, following a conviction for failing
to appear in violation of 18 U.S.C. § 3146. The parties
dispute which subsection of 18 U.S.C. § 3146(b)(1)(A)

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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establishes the appropriate maximum prison term in this
circumstance: subsection (ii), which carries a five-year
maximum, or subsection (iii), which carries a two-year
maximum. Reviewing de novo this question of statutory
interpretation, United States v. Youssef, 547 F.3d 1090, 1093
(9th Cir. 2008) (per curiam), we join the First, Sixth, and
Seventh Circuits in holding that we determine the applicable
maximum by looking to the underlying criminal offense,
rather than to an intervening violation of supervised release.
Here, because the underlying offense was punishable by a
prison term of five years or more, the five-year maximum
prison term found in subsection (ii) applies. Accordingly, we
affirm.
In 2009, Defendant pleaded guilty to one count of
unlawful possession of a mail key in violation of 18 U.S.C.
§ 1704. That offense carried a maximum prison term of ten
years. Id. The district court sentenced Defendant to 12
months’ imprisonment, followed by 36 months of supervised
release.
Soon after his release from prison, Defendant violated the
terms of his supervised release. That violation carried a
maximum sentence of two years. See 18 U.S.C. § 3583(e)(3)
(providing a maximum of two years’ imprisonment when the
underlying offense is a class C felony); id. § 3559(a)(3)
(providing that a crime with a statutory maximum of ten
years’ imprisonment (such as 18 U.S.C. § 1704) is a class C
felony). After a hearing, the district court revoked supervised
release and remanded Defendant to the custody of the United
States Marshal for a term of 14 months’ imprisonment. The
court ordered Defendant to surrender himself to the custody
of the Marshal by noon the next day, but he failed to
surrender.

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UNITED STATES V . JENSEN

After his capture, Defendant pleaded guilty to one count
of failure to appear for service of sentence in violation of
18 U.S.C. § 3146. The district court then imposed a sentence
of 27 months in prison, which is at issue here.
Title 18 U.S.C. § 3146(a) provides that whoever violates
the statute “shall be punished as provided in subsection (b).”1
Subsection 3146(b) does not contain a fixed maximum term
of imprisonment. Instead, to find the maximum, one consults
a graduated table that is keyed to the statutory maximum
attached to the underlying offense:
(1) The punishment for an offense under
this section is—
(A) if the person was released in
connection with a charge of, or while awaiting
sentence, surrender for service of sentence, or
appeal or certiorari after conviction for—
(i) an offense punishable by death, life
imprisonment, or imprisonment for a
term of 15 years or more, a fine under
this title or imprisonment for not more
than ten years, or both;

1

The only issue before us— and the only legal issue raised before the
district court— is whether the 27-month sentence exceeds the statutory
maximum. Defendant has not contested that he violated 18 U.S.C. § 3146.
W e therefore need not and do not decide whether the element of § 3146
requiring that the defendant be “released under” chapter 207 of 18 U.S.C.
is satisfied when a person is released pending execution of sentence for a
violation of supervised release.

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(ii) an offense punishable by
imprisonment for a term of five years
or more, a fine under this title or
imprisonment for not more than five
years, or both;
(iii) any other felony, a fine under this
title or imprisonment for not more
than two years, or both; or
(iv) a misdemeanor, a fine under this
title or imprisonment for not more
than one year, or both; and
(B) if the person was released for
appearance as a material witness, a fine under
this chapter or imprisonment for not more
than one year, or both.
Id. § 3146(b).
The dispute in this case is which “offense” is relevant:
Defendant’s criminal offense or his violation of supervised
release. If the mail-key offense is the measuring stick for
purposes of § 3146(b)(1)(A), then subsection (ii) applies, and
the statutory maximum for failure to appear is five years. By
contrast, if his violation of supervised release is the relevant
underlying offense for purposes of § 3146(b)(1)(A), then
subsection (iii) applies, and the statutory maximum for failure
to appear is two years.
“Statutory interpretation begins with the text.” United
States v. O’Donnell, 608 F.3d 546, 549 (9th Cir. 2010), cert.
denied, 131 S. Ct. 1837 (2011). As relevant here, the statute

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applies to “an offense punishable by imprisonment for a term
of five years or more” or “any other felony.” 18 U.S.C.
§ 3146(b)(1)(A)(ii)–(iii) (emphases added). The statute
defines the emphasized terms:
As used in sections 3141–3150 of this
chapter—
....
(2) the term “offense” means any criminal
offense, other than an offense triable by
court-martial, military commission, provost
court, or other military tribunal, which is in
violation of an Act of Congress and is triable
in any court established by Act of Congress;
(3) the term “felony” means an offense
punishable by a maximum term of
imprisonment of more than one year[.]
Id. § 3156(a) (emphases added). In sum, the statute defines
an “offense” or “felony” as an offense that is (1) criminal; (2)
in violation of an Act of Congress; and (3) triable in federal
court.
As the First, Sixth, and Seventh Circuits have held in
cases addressing this identical issue, a violation of supervised
release meets none of those three requirements. United States
v. Phillips, 640 F.3d 154 (6th Cir. 2011); United States v.
Smith, 500 F.3d 27 (1st Cir. 2007); see also United States v.
McIntosh, No. 11-3535, 2012 WL 6172571, at *6 (7th Cir.
Dec. 12, 2012) (looking to underlying crime and text of
§ 3146(b)); United States v. Woodard, 675 F.3d 1147,

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1151–52 (8th Cir. 2012) (agreeing with the analysis in
Phillips and Smith in a different context). First, a violation of
supervised release is not necessarily criminal. Woodard,
675 F.3d at 1152; Phillips, 640 F.3d at 157; Smith, 500 F.3d
at 31; see United States v. Marvin, 135 F.3d 1129, 1138 n.14
(7th Cir. 1998) (“An individual’s violation of the conditions
of his supervised release is not a crime . . . .”). Second, a
violation of supervised release contravenes a court order, not
an Act of Congress. Woodard, 675 F.3d at 1152; Phillips,
640 F.3d at 157–58; Smith, 500 F.3d at 32. Finally, a
violation of supervised release results in a “hearing,” not a
“trial,” and the ordinary rules governing criminal trials, such
as the burden of proof and the rules of evidence, do not apply.
Woodard, 675 F.3d at 1152; Phillips, 640 F.3d at 158; Smith,
500 F.3d at 31; see generally Fed. R. Crim. P. 32.1.
Accordingly, a violation of supervised release does not meet
the statutory definition of “offense” or “felony.” By contrast,
the underlying criminal offense—here, unlawful possession
of a mail key—plainly meets the statutory definition: It is a
criminal offense, violating an Act of Congress, that is triable
in federal court.
Defendant does not dispute any of that analysis. Instead,
he points to the introductory part of § 3146(b)(1)(A): “if the
person was released in connection with a charge of, or while
awaiting sentence, surrender for service of sentence, or appeal
or certiorari after conviction for . . . an offense.” In
Defendant’s view, he absconded while awaiting surrender for
service of sentence for his violation of supervised release, not
for his original criminal offense. He argues that we should
adopt that view because, he asserts, none of the predicate
situations listed in the statutory text applies if one interprets
the relevant “offense” as his original criminal offense. We
disagree for three independent reasons.

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First, the specific statutory text governing releases while
awaiting “surrender for service of sentence” applies here.
Defendant had been “released . . . while awaiting . . .
surrender for service of sentence . . . after conviction for . . .
an offense.” That provision applies most naturally to releases
while awaiting surrender for service of the original criminal
sentence. But it is not limited to those situations. Title
18 U.S.C. § 3583(e)(3) authorizes a district court to “revoke
a term of supervised release, and require the defendant to
serve in prison all or part of the term of supervised release.”
In other words, when a district court revokes supervised
release, it alters the original criminal sentence by requiring
the defendant to serve his or her term of supervised release in
prison. Although we may commonly think of this additional
punishment as a new sentence, it is better understood as a
modification of the original criminal sentence because its
terms relate to the original crime and sentence. For example,
the length of the original term of supervised release
constrains the length of the term of imprisonment. Id. When
a defendant surrenders for service of further imprisonment
after violating supervised release, he or she has surrendered
for service of sentence after conviction for the original
criminal offense.
Second, even if the specific statutory text governing
releases while awaiting “surrender for service of sentence”
did not apply, we read the statute as providing a more general
catchall: “if the person was released in connection with a
charge of . . . an offense [or] . . . any other felony.” 18 U.S.C.
§ 3146(b)(1)(A)(ii)–(iii). Here, Defendant was “released in
connection with a charge of” his original criminal offense.
That text may apply most often to releases directly related to
the original criminal charge. But we do not read the quoted
phrase—governing all releases “in connection with” a charge

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of an offense—as covering only those situations. Id.
(emphasis added). The government’s petition for revocation
of supervised release and all other documents were filed
under the same criminal case number as the original criminal
offense. We have no trouble concluding that Defendant’s
release was “in connection with” the original criminal charge.
Finally, and more generally, Defendant’s argument loses
sight of the definition of “offense,” which clearly excludes a
violation of supervised release.
We agree with the First, Sixth, and Seventh Circuits that
the text clearly answers the interpretive question presented.
We may ignore the plain meaning of a statute only if “the
literal application of a statute will produce a result
demonstrably at odds with the intentions of its drafters.”
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571
(1982). Nothing in the text of § 3146 or elsewhere suggests
that Congress clearly intended that a violation of supervised
release constitutes an “offense” for purposes of § 3146;
indeed, Congress used words that foreclose that possibility.
Moreover, the operation of the statute remains perfectly
logical. “Congress might easily have determined that a
defendant whose supervised release stems from a more
serious underlying offense should be subject to a more severe
penalty when he fails to appear at a hearing regarding the
revocation of that supervised release.” Smith, 500 F.3d at
32–33. In other words, the literal interpretation of the statute
leads to results that are neither absurd nor odd. “Even if one
thought that the result here was odd (and we do not), it is not
our role to revise the plain language of the statute simply
because we think that an alternative construction is more
sensible.” Id. at 33. “[I]f a result is ‘odd, but it is not absurd,’
‘it is up to Congress rather than the courts to fix it.’” Id. at 34

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(quoting Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 565 (2005)).
AFFIRMED.

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