Appeal from the United States District Court for the Central District of Illinois. No. 90 CR 10060--Michael M. Mihm, Chief Judge.
Before CUMMINGS, CUDAHY and COFFEY, Circuit Judges.
William McGee appeals the district court's decision to revoke his term of supervised release and impose a sentence of 24 months' imprisonment for violations including retail theft and cocaine possession. McGee argues that (1) his sentence violates the Ex Post Facto Clause; (2) he should have received credit for the time he was in state custody prior to his revocation hearing; and (3) the district court erred in sentencing at the high end of the applicable range found in the policy statements of Chapter Seven of the Sentencing Guidelines.
In 1990, McGee was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g). His criminal history category was calculated to be VI. He was sentenced to 43 months of imprisonment, to be followed by three years of supervised release. McGee was released in December 1993 to serve the term of supervised release. McGee violated several conditions of his supervised release and in May 1994 a warrant was issued for his arrest. The violations alleged in the warrant included retail theft, three instances of cocaine possession, failure to submit to urinalysis, and failure to report to U.S. Probation Officers.
On June 7, 1994, McGee was arrested on retail theft charges. A federal warrant was placed as a detainer. McGee pleaded guilty to the state charges and was sentenced to two years imprisonment in the Illinois Department of Corrections. The state court granted McGee 90 days credit for time served awaiting this sentence. On November 29, 1994, McGee was released from state prison and transferred to federal custody. A revocation hearing was scheduled and a U.S. Probation Officer prepared a presentence report (PSR), which was given to McGee before the hearing.
Under 18 U.S.C. sec. 3583(g) in effect from September 13, 1994, the PSR found that imprisonment was required for McGee's violations but that the maximum sentence was 24 months. Under Chapter Seven of the U.S. Sentencing Guidelines, the PSR calculated the range of imprisonment for McGee's violations to be 21 to 27 months. *fn1 Because of the statutory maximum, the PSR recommended a range of imprisonment of 21 to 24 months.
On January 13, 1995, the district court held a revocation hearing. McGee admitted the alleged violations of his conditions of supervised release. The district court asked McGee and his counsel if they had any objections to the PSR; they had none. Accordingly, the district court ordered revocation of McGee's supervised release and sentenced him to 24 months' imprisonment with credit for time in federal custody from November 29, 1994, the date he was released from state prison to the federal detainer. McGee now appeals.
As a threshold matter, because McGee did not object to his sentence in the district court, review is limited to plain error. United States v. Olano, 113 S. Ct. 1770, 1777-78 (1993).
McGee makes three arguments on appeal. First, he contends that the statute mandating imprisonment for his violation of supervised release terms, 18 U.S.C. sec. 3583, violated the Ex Post Facto Clause. Second, he argues that he should have received credit for time served from the date of his arrest on state charges, on June 7, 1994, and not merely from the date of his federal custody, November 29, 1994. Third, he argues that the district court erred in sentencing him at the high end of the range of revocation sentences. Each argument will be considered in turn.
A. Ex Post Facto Violation: 18 U.S.C. /8 3583(g)
Section 3583 of Chapter 18 of the United States Code governs the conditions of supervised release and the punishment for violating them. Subsection (g) of this statute, which mandates imprisonment for possession of controlled substances while on supervised release, was amended, effective September 13, 1994. McGee's violative conduct occurred in February through April, 1994, before the amendment, but he was sentenced in January 1995, under the amended statute. (For clarity, the pre-amendment version will be referred to as the 1994 statute and the post-amendment version as the 1995 statute.)
McGee's argument is summarized as follows: In 1994, sec. 3583(g) provided mandatory termination of supervised release for cocaine possession; with a one-year minimum sentence for McGee. In 1995, sec. 3583(g) provided mandatory revocation of supervised release; with a two-year maximum sentence for McGee. The guidelines, sec. 7B1.4 p.s., provide a 21-27 month imprisonment range upon revocation of supervised release. McGee argues that because the statute distinguishes termination from revocation, the guideline range for revocation was not applicable in 1994 when he committed the violations. McGee's argument is supported by subsection (e)(3) of sec. 3583, which does seem to distinguish revocation of supervised release from its termination.
Subsection (e) of sec. 3583 directs that a court may terminate a term of supervised release in the interest of justice; may extend a term of supervised release, upon appropriate conditions; or may revoke a term of supervised release and impose a prison term if the releasee violates a ...