Appeal from the United States District Court for the Western District of Wisconsin.
No. 94 CR 31 -- John C. Shabaz, Chief Judge.
Before Ripple, Manion, and Kanne, Circuit Judges.
After being charged by an information, Ronald Colt pleaded guilty to the misdemeanor offense of submitting false unemployment claims with the United States Railroad Retirement Board, in violation of 45 U.S.C. sec. 359(a). Colt was sentenced to seven months in prison and one year of supervised release. Colt served his time in prison, but he subsequently committed five violations of his supervised release conditions, including motor vehicle offenses and drug use. A magistrate judge therefore revoked the supervised release and sentenced Colt to another nine months in prison.
On appeal, Colt raises two arguments -- one statutory and one constitutional. The statutory argument merits only brief consideration. Under 45 U.S.C. sec. 359(a), anyone convicted of making a false claim "shall be punished by a fine of not more than $10,000 or by imprisonment not exceeding one year, or both." Colt argues this statute allows no more than one year of incarceration for his offense. Colt, however, will have served a total of 16 months in prison after the nine-month sentence imposed for violating his supervised release. This additional sentence, Colt argues, violates the one-year limit expressed in sec. 359(a).
What Colt's argument ignores is that his supervised release was authorized by a separate statute, 18 U.S.C. sec. 3583. Section 3583(a) provides in relevant part:
The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment . . . .
The term of supervised release that a court may impose depends on the underlying offense. Because the maximum term of imprisonment for Colt's offense was one year, it is classified as a Class A misdemeanor. See 18 U.S.C. sec. 3559(a). And under sec. 3583(b)(3), a court may order one year or less of supervised release for misdemeanors. If, however, a defendant violates a condition of supervised release, sec. 3583(e)(3) authorizes the court to revoke the release and order the defendant to serve in prison all or part of the term of supervised release authorized by statute "without credit for time previously served on postrelease supervision."
Colt's supervised release, therefore, was authorized by a statute separate from the substantive statute under which Colt was convicted. Colt would have us read the substantive statute as a ceiling on the combined punishment he may receive under all statutes, but we think it more natural to read sec. 3583 as authorizing punishment in addition to the punishment authorized under substantive statutes. It is quite reasonable that Congress would enact a general, all-purpose supervised release statute to supplement the specific punishments authorized by the numerous criminal statutes.
Colt, however, highlights the language of sec. 3583(a) stating that supervised release may be ordered "as part of the sentence." Colt argues that this language permits supervised release as a component of the sentence authorized by the underlying statute, so long as the defendant is incarcerated no longer than the underlying statute's maximum term. Based on the legislative history and purpose of sec. 3583, however, our sister circuits have persuasively rejected both this argument and the closely-related argument that supervised release alone (regardless of revocation and subsequent imprisonment) may not be imposed in addition to a maximum sentence. See, e.g., United States v. Robinson, 62 F.3d 1282, 1284-86 (10th Cir. 1995); United States v. Purvis, 940 F.2d 1276, 1278-79 (9th Cir. 1991); United States v. Jamison, 934 F.2d 371, 372-75 (D.C. Cir. 1991); United States v. Montenegro-Rojo, 908 F.2d 425, 431-34 (9th Cir. 1990); cf. United States v. Granderson, ___ U.S. ___, 114 S. Ct. 1259, 1266 (1994) ("Supervised release, in contrast to probation, is not a punishment in lieu of incarceration."). Colt's interpretation of the statute, for example, would create the odd result that criminals sentenced at or near the maximum sentences for their offenses would be ineligible for a term of supervised release, even though they are the people perhaps most in need of controlled reintroduction to society. See Montenegro-Rojo, 908 F.2d at 433. Colt's interpretation would also result in the anomaly that courts could never impose the one year of incarceration that sec. 3583 authorizes for misdemeanants whose supervised release is revoked. Section 3583(a) authorizes the year of supervised release "after imprisonment," and sec. 3583(e) allows "all or part" of that term to be served in prison upon revocation of the supervised release. But if Colt is correct that the underlying statute creates an absolute limit on the time of incarceration, no court could ever impose one year of incarceration after revocation because such a punishment would, when combined with the earlier imprisonment, always cause a total incarceration greater than the one year allowed for misdemeanors. Colt's interpretation of sec. 3583 would therefore imply that Congress authorized a punishment that could never be imposed. See Jamison, 934 F.2d at 374-75. This logical contradiction, combined with the convincing analyses of our sister circuits, leads us to reject Colt's statutory argument. Cf. Czerkies v. U.S. Dep't of Labor, 73 F.3d 1435, 1438 (7th Cir. 1996) (en banc) ("We ought not go out of our way to create intercircuit conflicts.").
Our rejection of Colt's statutory argument, however, leads us right into his more novel constitutional argument. Colt argues that if sec. 3583 does allow him to be imprisoned for longer than one year, then he should have been indicted by a grand jury rather than charged by an information. Colt constructs a simple syllogism based on the Grand Jury Clause of the Fifth Amendment. That clause, according to Colt, requires that offenses punishable by imprisonment for more than one year be prosecuted by indictment. Our interpretation of sec. 3583 makes Colt subject to imprisonment for more than one year. Thus, Colt concludes, his prosecution by information violated the Grand Jury Clause. Furthermore, says Colt, we cannot escape this syllogism by arguing that the imprisonment after revocation was a separate sentence (i.e., based on additional wrongdoing and after a separate sentencing proceeding). Traditional constitutional protections ordinarily do not apply to revocations of supervised release, according to Colt, because a revocation is considered a modification of the original sentencing where the constitutional protections did apply. See, e.g., United States v. Wyatt, 102 F.3d 241, 245 (7th Cir. 1996), cert. denied, 117 S. Ct. 1325 (1997). If we now want to treat revocation as separate and distinct for purposes of the Grand Jury Clause, by logic we should also treat it as separate and distinct for purposes of the Petit Jury Clause of the Sixth Amendment (which requires a jury trial for offenses than can result in a prison term of greater than six months, see Baldwin v. New York, 399 U.S. 66 (1970)). We are thus confronted with the choice, according to Colt, of holding either that an indictment was necessary for his original prosecution or that a jury trial was required for the revocation of his supervised release.
Our options are not so few, however, because of a basic flaw in the major premise of Colt's syllogism. Colt cites Federal Rule of Criminal Procedure 7(a) as the codification of the Grand Jury Clause's requirements. According to Rule 7(a), "An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment . . . ." Although the Advisory Committee Note states that Rule 7(a) "gives effect to" the Grand Jury ...