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United States v. Dees

November 8, 2006

UNITED STATES OF AMERICA
v.
JOSEPH DEES, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania. District Court Nos. 99-cv-122-01; 00-cr-126-01; and 01-cr-156-01 District Judge: The Honorable Arthur J. Schwab.

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 26, 2006

Before: SMITH, WEIS, and NYGAARD, Circuit Judges.

OPINION

Joseph Dees was sentenced to 51 months in prison and 36 months of supervised release on each of three separate convictions of violating 18 U.S.C. § 1029(a)(2) (twice) and 18 U.S.C. § 2314. The sentences ran concurrently. After he left prison, Dees engaged in criminal activity that constituted Grade B violations of his supervised release. The Government filed a motion to revoke his supervised release. The District Court granted the motion, and sentenced Dees to the statutory maximum of two years in prison for each underlying conviction, but the sentences were imposed consecutively so that Dees was sentenced to 72 months in prison. All of the issues presented by Dees revolve around whether a district court can sentence a defendant for revocation of supervised release conditions consecutively even though the initial sentences ran concurrently. Because we agree with the District Court that it has statutory authority to impose consecutive sentences upon revocation of concurrent terms of supervised release based upon the same violation conduct, we will affirm the Judgment of the District Court.

I.

Joseph Dees pled guilty to one count of use of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(2) on March 16, 2001 after being indicted on July 22, 1999. That same day, Dees pled guilty to one count of interstate transportation of stolen goods in violation of 18 U.S.C. § 2314 after being indicted on July 19, 2000. Dees then pled guilty to another count of use of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(2) on August 10, 2001 after waiving indictment.District Judge Donald Ziegler sentenced Dees for all three crimes simultaneously on October 26, 2001.Dees was sentenced to 51 months in prison and 36 months of supervised release for each conviction, with the sentences to run concurrently. Dees served his sentence and, almost immediately after his release from prison, began to violate technical and non-technical conditions of his supervised release. On April 6, 2005, the Government filed a Motion to Revoke Supervised Release along with an arrest warrant. Two months later, on June 16, 2005, a grand jury returned a two-count indictment that charged Dees with use of unauthorized access devices and a related credit card crime under 18 U.S.C. 1018(a)(1). The Government filed an amended motion on June 16, 2005 that reflected more details from the indictment.

District Judge Arthur Schwab presided over Dees' revocation hearing on September 29, 2005 because Judge Ziegler had retired from the bench. After receiving testimony from three witnesses, the District Court found that Dees committed technical violations and non-technical Grade B violations, including cocaine and heroin use as well as unauthorized use of access devices and aggravated identity theft. Judge Schwab then asked the Assistant U.S. Attorney (AUSA) and the Federal Public Defender whether he had discretion to impose consecutive rather than concurrent sentences for violations of supervised release even though Dees' initial sentences for the three crimes ran concurrently. Because the AUSA did not believe the District Court had discretion to run the sentences consecutively, the AUSA asked for the statutory maximum for the violations (24 months) to run concurrently. Judge Schwab then had the AUSA read aloud 18 U.S.C. § 3584(a), which governs the imposition of concurrent or consecutive terms when multiple terms of imprisonment are imposed. The AUSA quickly changed his mind and stated that, based on the plain meaning of § 3584(a), the District Court did have the discretion to sentence Dees consecutively. At the conclusion of this hearing, Judge Schwab sentenced Dees to 24 months in prison for violation of supervised release on each of the three initial charges, but reserved ruling on whether he had discretion to sentence Dees consecutively. Judge Schwab stated that if he concluded that the District Court had the authority to sentence Dees consecutively, then the sentence would be 72 months instead of 24 months.

The parties then briefed the issue. After briefing by the parties, Judge Schwab concluded that he did have statutory discretion to impose consecutive sentences for violations of supervised release even though Dees' initial punishments for the underlying crimes ran concurrently. Accordingly, on October 24, 2005, the District Court issued a Memorandum Order and three days later issued an Amended Judgment Order sentencing Joseph Dees to three consecutive 24 month prison terms. Joseph Dees now appeals.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), which applies to final sentences imposed in violation of law. See United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

III.

Dees presents five issues on appeal. They are: 1) Whether the District Court had statutory discretion under 18 U.S.C. § 3584(a) to impose consecutive sentences upon revocation of concurrent terms of supervised release based upon the same violation conduct, or whether 18 U.S.C. § 3583(e)(3) removes this discretion; 2) Whether the 72-month sentence, which exceeds Dees' initial sentence by 21 months, was "unreasonable"; 3) Whether the District Court violated the Double Jeopardy Clause when it revoked Dees' three concurrent terms of supervised release and required him to serve three consecutive terms in prison; 4) Whether the District Court violated Dees' Fifth and Sixth Amendment rights under Apprendi, Blakely, and Booker by requiring Dees to serve three consecutive terms in prison; and 5) Whether the District Court violated the Fifth ...


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