Maximum Term on Revocation of Supervised Release Is Based on Class of Underlying Felony at the Time of the Offense
In United States v. Turlington, 2012 WL 4237611 (3d Cir. Sept. 21, 2012), defendant’s conviction for conspiring to distribute more than 50 grams of cocaine base was a class A felony, permitting up to five years of imprisonment on revocation of supervised release pursuant to 18 U.S.C.A. § 3583(e)(3). In 2004, he was sentenced by the District Court of the Third Circuit to eighty-four months' imprisonment and sixty months' supervised release. His sentence was less than one-third of that recommended by the Sentencing Guidelines.
On October 29, 2008, Turlington began his term of supervised release. On September 6, 2009, Turlington was charged with driving under the influence in New Jersey. Then, on December 7, 2009, New Jersey state police observed Turlington engaging in three hand-to-hand drug transactions. When the police approached Turlington and announced themselves, he attempted to flee. During flight, Turlington threw a loaded handgun to the ground. The state police eventually arrested him, and found $245 in cash and a plastic bag of cocaine. Turlington pleaded guilty to a state charge of possessing a weapon while committing a controlled dangerous substance crime. However, by this time, the Fair Sentencing Act of 2010 amendments had reduced the maximum term of imprisonment for Turlington’s original offense, such that it became a class B felony, which would permit only three years of imprisonment upon revocation of supervised release.
The Third Circuit held that where an underlying offense was a class A felony at the time of conviction, but had since been reduced to a class B felony, the maximum term of imprisonment upon violation of supervised release, pursuant to 18 U.S.C.A. § 3583(e)(3), was still determined based on the classification of the offense at the time of conviction. The Court cited Johnson v. United States, 529 U.S. 694 (2000), in which the Supreme Court found that new revocation terms were a part of the first offense of conviction, and McNeil v. United States, 131 S.Ct 2218 (2011), holding that in determining whether a prior conviction qualified as a predicate under the ACCA, a court must look at the prior offense as it was at the time of conviction. Thus the District Court did not plainly err in sentencing Turlington to five years' imprisonment, a term which was clearly authorized by § 3583(e)(3).
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