Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 88 CR 428 Suzanne B. Conlon, Judge.
Before Coffey, Easterbrook, and Kanne, Circuit Judges.
This case requires us to resolve whether the Ex Post Facto Clause of the United States Constitution was violated by applying 18 U.S.C. sec. 3583(h) to impose a term of supervised release upon Alice Withers after the revocation of her original term of supervised release -- even though Withers committed her criminal conduct before the statute's enactment. It also provides us with the opportunity to reconsider our decision in United States v. Beals, 87 F.3d 854 (7th Cir. 1996), *fn1 where we determined that such an application of sec. 3583(h) was unconstitutional. We now reconsider Beals and affirm the district court's denial of Withers' motion to correct her sentence.
We assume familiarity with the facts of Withers' underlying conviction for possession with intent to distribute cocaine, which are set out in United States v. Withers, 972 F.2d 837 (7th Cir. 1992).
On September 8, 1989, Withers was sentenced to 80 months imprisonment and 5 years of supervised release. Withers completed her term of incarceration on March 17, 1995 and began serving her supervised release. The typical conditions of Withers' supervised release required her to remain within the boundaries of the Northern District of Illinois (unless her probation officer consented to a leave), not associate with known felons, submit truthful monthly reports, and not commit any new crimes. Withers violated these conditions by: visiting an acquaintance serving time in the federal correctional facility at Oxford, Wisconsin; failing to report these visits to her probation officer; and, falsifying information on a visitation slip at the Oxford prison.
In November 1995, the district court found Withers in violation of her supervised release, sentenced her to seven months imprisonment, and imposed a new term of supervised release following her incarceration pursuant to 18 U.S.C. sec. 3583(h). At that time, Withers requested that the district court terminate her new term of supervised release, which the court refused to do. Withers filed a subsequent motion to correct the sentence claiming that the district court could not have imposed the new term of supervised release under the controlling law at the time of her original sentencing. The district court denied this motion, which we now address.
In 1994, Congress enacted 18 U.S.C. sec. 3583(h), which expressly provided district courts with the power to impose a new term of supervised release following the revocation of an original term of supervised release and an additional term of imprisonment. *fn2 Before sec. 3583(h), the circuits were split on whether a court could impose an additional sentence of supervised release under the old version of 18 U.S.C. sec. 3583(e)(3), *fn3 and we had ruled that sec. 3583(e)(3) did not permit a court to levy an additional term of supervised release. See United States v. McGee, 981 F.2d 271, 274 (7th Cir. 1992). Compare, e.g., United States v. Malesic, 18 F.3d 205, 206-08 (3d Cir. 1994) (joining the majority of circuits in refusing to impose a new term of supervised release), and United States v. Tatum, 998 F.2d 893, 894-96 (11th Cir. 1993) (same), with United States v. O'Neil, 11 F.3d 292, 301 (1st Cir. 1993) (permitting the imposition of a new term of supervised release), and United States v. Schrader, 973 F.2d 623, 624-25 (8th Cir. 1992) (same).
Withers claims that the district court's retroactive application of sec. 3583(h) to impose her renewed term of supervised release violated the Ex Post Facto Clause. "Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed," violates the Ex Post Facto Clause of the United States Constitution. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.); see also U.S. Const. art. I, sec. 9, cl. 3; Miller v. Florida, 482 U.S. 423, 429 (1987). Two elements must be present for a law to fall within this prohibition: (1) "the law 'must be retrospective, that is, it must apply to events occurring before its enactment,'" Miller, 482 U.S. at 430 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)); and (2) the law must "alter the definition of criminal conduct or increase the penalty by which a crime is punishable," California Dept. of Corrections v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597, 1602 n.3 (1995); *fn4 see also Lynce v. Mathis, 117 S. Ct. 891, 896 (1997); United States v. Brady, 88 F.3d 225, 228 & n.1 (3d Cir. 1996), cert. denied, 117 S. Ct. 773 (1997). Withers maintains that the district court's application of sec. 3583(h) was retrospective because her offense conduct -- i.e., her cocaine possession -- occurred before the enactment of sec. 3583(h), and that this enactment changed rather than clarified the prior law. She also asserts that the application of sec. 3583(h) disadvantaged her because under the old law she could not have been sentenced to an additional term of supervised release after the revocation of her original term of supervised release and the completion of the additional seven months of imprisonment.
Of Withers' asserted claims, we need only address whether the application of sec. 3583(h) increased Withers' punishment. Even if sec. 3583(h) did change the prior law, we find that sec. 3583(h) does not inflict a harsher punishment than the old law and ...