Argued: April 26, 2016
from the United States District Court for the Eastern
District of Kentucky at London. No. 6:06-cr-00038-Danny C.
Reeves, District Judge.
S. Hoskins, HOSKINS, HILL & HILL, PLLC, Corbin, Kentucky,
Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE,
Lexington, Kentucky, Ellen Kathleen Coffey, UNITED STATES
ATTORNEY'S OFFICE, London, Kentucky, for Appellee.
Before: KETHLEDGE and WHITE, Circuit Judges; COHN, District
KETHLEDGE, Circuit Judge.
Cross argues that the district court lacked jurisdiction to
revoke his supervised release a second time based on conduct
occurring before the first revocation. We reject that
argument and affirm.
was convicted of a federal marijuana offense in 2006 and
sentenced to 60 months in prison, to be followed by 48 months
of supervised release. In August 2010 Cross's prison term
ended and his supervised release began. During the next 32
months, Cross committed two state-law offenses: drug
possession and theft, both of which violated the conditions
of Cross's supervised release. The district court learned
about the drug possession first; on that ground the court
revoked Cross's supervised release in April 2013 and
ordered him to serve eight months in prison, to be followed
by another 24 months of supervised release. In December 2013,
Cross finished his eight-month post-revocation incarceration
and resumed his supervised release.
district court did not learn about Cross's theft offense
until April 2015, after Cross pled guilty to that offense in
Kentucky state court. By then Cross had completed about 15
months of his remaining 24-month period of supervised
release. In June 2015 the district court held a revocation
hearing, at which Cross argued that the district court lacked
jurisdiction to revoke his supervised release based on the
theft offense. The district court rejected that argument,
revoked Cross's supervised release, and sentenced him to
a single day's post-revocation incarceration and another
60 months of supervised release.
review de novo the district court's June 2015
determination that it had jurisdiction to revoke Cross's
supervised release. See United States v. Goins, 516
F.3d 416, 419 (6th Cir. 2008). The question, broadly stated,
is whether a district court's supervisory authority over
a defendant continues unbroken throughout the defendant's
supervised release, or whether, instead, when a court revokes
the defendant's supervised release, the court revokes its
own supervisory authority along with it. Cross takes the
latter view: as he sees it, his supervised release ended when
the district court first revoked it in April 2013; a second,
distinct term of supervised release then began in December
2013, when he finished his eight-month prison term; and the
district court lacked authority to revoke that second term of
supervised release based upon a crime (the theft offense)
that Cross committed during the first.
argument misconstrues the nature of revocation as described
in 18 U.S.C. § 3583(e). Under that provision, revocation
and termination of supervised release are distinct concepts.
Termination "discharge[s] the defendant" and
thereby ends the district court's supervision of him.
Id. § 3583(e)(1). Thus, if the district court
later discovered that the defendant had earlier violated some
condition of his supervised release, the court would lack
authority to send him back to prison for that violation
qua violation. Revocation, in contrast, means that
the defendant must "serve in prison all or part of
the term of supervised release[.]" Id.
§ 3583(e)(3) (emphasis added). Thus, revocation does not
terminate the defendant's supervised release; quite the
contrary, it requires him to serve "all or part" of
it in prison. Indeed the Supreme Court has already held that
"a 'revoked' term of supervised release survives
to be served in prison." Johnson v. United
States, 529 U.S. 694, 707 (2000).
therefore revokes only the release part of supervised
release; the district court's supervisory authority
continues until the defendant's supervised release
terminates or expires. See id. at 706; 18 U.S.C.
§ 3583(e)(2) (providing that a district court may extend
supervised release or modify its conditions "at any time
prior to . . . expiration or termination"). And because
the district court's authority continues throughout the
defendant's supervised release, so too does the
court's ability to police violations of the release's
conditions. Here, Cross's supervised release-and thus the
district court's supervisory authority-had neither
terminated nor expired by June 2015. The district court
therefore had authority then to revoke Cross's supervised
release a second time based upon its discovery that Cross had
committed a second violation.
in Johnson the Supreme Court construed the 1994
version of § 3583, none of the amendments to that
section since then liberate us to equate revocation of
supervised release with termination of it. Section 3583(e)(3)
says now, just as it did then, that revocation means the
defendant must "serve in prison all or part of the term
of supervised release[.]" That is reason ...