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January 12, 1996

ANTHONY GAINES, et al., Defendants.

The opinion of the court was delivered by: SHADUR

 Anthony Gaines ("Gaines") has been serving a term of supervised release after the completion of his prison sentence, which was originally imposed after his guilty plea to a conspiracy charge involving a substantial number of sales of LSD. Despite the multiple favorable breaks that Gaines has received in connection with that underlying charge, *fn1" Gaines has obviously not learned that "crime does not pay": During the early portion of his post-custodial period of supervised release (which was originally set at, and has not been changed from, a five-year term) he has committed a number of violations of its conditions, which are sufficiently serious to require the imposition of another period in prison in response to the government's current motion to revoke Gaines' supervised release.

 That situation has brought Gaines before this Court once again, triggering an evidentiary hearing as to his violations of the terms of supervised release. After the early phases of that hearing had disclosed some truly troublesome conduct on Gaines' part, he and his counsel have elected--instead of proceeding to the conclusion of the evidentiary hearing--to arrive at stipulations with AUSA Guentert that, if accepted, would call for the imposition of a custodial period of some 12 months. This Court is being asked to consider the appropriate ruling on the government's motion to revoke supervised release today.

 This situation poses a dilemma that has been familiar to both the federal courts and the Congress: If a violation of the conditions of supervised release that could call for the revocation of that status cannot legally be coupled with the reinstitution of a supervised release condition, the criminal justice system may face a Hobson's choice--either give the offender a pass for those violations, thus permitting a scofflaw to go entirely unpunished for such violative conduct, or give up the remaining hold that the system has over the offender (in this instance, Gaines' present period of supervised release is for a term ending February 3, 2000), thus in a sense rewarding the offender for his or her violations and (even more importantly in the societal sense) placing the citizenry at greater risk from a demonstrated law violator during the cancelled remainder of what had been the term of supervised release.

 As initially enacted, 18 U.S.C. § 3583(e)(3) *fn2" --which first addressed the subject of revocation of supervised release--did not speak in so many words to the possible reinstitution of a supervised release term in conjunction with such revocation. That led to a divergence of views among the Circuits, the majority of them answering that question in the negative.

 As this opinion will reflect, (1) the view of the Sentencing Commission from the beginning was that the minority view and not that of the majority accurately reflected Congress' original intent in having enacted Section 3583(c)(3) and (2) in response to a request that had originated with the Sentencing Commission, Congress has so provided by enacting Section 3583(h)--a provision that took effect September 13, 1994. This opinion addresses, as a matter of first impression in terms of any extensive exposition so far as this Court is aware, the potential constitutional problem that is posed by seeking to apply Section 3583(h) to a criminal defendant whose underlying criminal conduct had predated that September 1994 enactment date but whose supervised-release-violative conduct had occurred after that date.

 There is no doubt that if Section 3583(h) may constitutionally be applied in his case, it expressly authorizes this Court to reimpose on Gaines a term of supervised release in addition to the new period of incarceration. Here is the statutory language:

When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised released.

 Where the parties part company is on the question whether invoking Section 3583(h) against Gaines, whose underlying LSD offense (and indeed his conviction and sentence for that offense) had antedated the statute's enactment, runs afoul of the Ex Post Facto Clause. As already indicated, before Section 3583(h) was adopted the view that had been embraced by the majority of the Courts of Appeals (including our own, United States v. McGee, 981 F.2d 271, 273-76 (7th Cir. 1992)) was that Section 3583(e)(3) did not allow a district court that revoked a defendant's supervised release to reimpose a term of supervised release in addition to a period of incarceration. *fn3" In a nutshell, Gaines contends that the Ex Post Facto Clause compels this Court to apply the law that was in place at the time of his original criminal violation, without taking account of later-enacted modifications.

 In support of his position Gaines leans heavily on two judicial rulings that have dealt with similar constitutional challenges to a statute addressing another aspect of supervised release, Section 3583(g): *fn4"

If the defendant is found by the court to be in the possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.

 In that respect three cases that have reached the federal appellate level have considered defendants whose original underlying offenses had preceded the enactment of Section 3583(g) but who were later (after that enactment) found to be in possession of drugs in violation of Section 3583(g), and who claimed that such assertedly "retroactive" application of that statute violated the Ex Post Facto Clause. Two cases have bought that argument ( United States v. Paskow, 11 F.3d 873 (9th Cir. 1993) and United States v. Meeks, 25 F.3d 1117 (2d Cir. 1994)), on the theory that the application of Section 3583(g) to such defendants would adversely affect the defendants' ultimate release dates well after their commission of the offenses that originally put them in prison. United States v. Reese, 71 F.3d 582, 1995 WL 736619 (6th Cir. 1995) has reached a contrary result, holding that what triggers the ex post facto analysis instead is the conduct that violates the terms of the supervised release--conduct that the Reese defendant (like the Paskow and Meeks defendants) had engaged in well after he was presumed to have known that Section 3583(g) was already in place and had spelled out the custodial consequences of such a violation.

 Both the Paskow-Meeks pairing and the Reese opinion advance strong legal arguments for the conflicting conclusions that they reach. But this Court need not choose between them for present purposes, because Section 3583(h) differs from Section 3583(g) in a critical way: While Section 3583(g) plainly marked a substantive change in the law, thus forcing a decision as to whether it was the original underlying criminal conduct or the later supervised-release-violative conduct that should control for ex post facto purposes, the enactment of Section 3583(h) was very different indeed--it was really nothing more than a declaration by Congress of the always-intended meaning of the statute (Section 3583(e)(3)) that was in place well before any conduct by Gaines that could have relevance here, either his underlying LSD offense or his recent supervised release violations or both.

 That merely declaratory nature of Section 3583(h) is clear from its legislative history. Language that was in all material respects identical to Section 3583(h) was first proposed in the Senate in 1990 (S. 3180, 101st Cong., 2d Sess. § 3 (1990)). *fn5" Senator Thurmond's introductory remarks made clear that the Sentencing Commission had asked for the amendment to Section 3583 to clarify what was viewed as an unintended judicial misreading of the statute, thus ...

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