IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

v. )

) Criminal No. xx-324-04 (RCL)

xxxxxxxxxxxxxxx, )

)

Defendant. )

____________________________________)

DEFENDANT'S MEMORANDUM IN AID OF SENTENCING

The Defendant, through his undersigned counsel, respectfully submits this memorandum to aid the Court in the sentencing of Mr. xxxxxxx set for January 7, 1999. Mr. xxxxxxx request the Court to sentence him within the guidelines and not reimpose a period of supervised release.

PROCEDURAL HISTORY

Mr. xxxxxxx agrees with the government's version of the procedural history.

DISCUSSION

I. The Court should sentence Mr. xxxxxxx within the policy statement sentencing range.

The Court has found that Mr. xxxxxxx committed a grade A violation of supervised release. §7B1.1(a)(1). Based upon Mr. xxxxxxx's criminal history category IV Chapter 7 of the U.S.S.G. Manual recommends a sentencing range of 24-30 months. §7B1.4(a). As the government has stated in its memorandum, the statutory maximum sentence that can be imposed for this class B felony is three years.

The Court should sentence Mr. xxxxxxx within the recommended sentencing range because his conduct is completely consistent with the type of conduct contemplated by the sentencing commission when it promulgated the policy statements in Chapter seven.

Chapter seven defines a grade A violation as "conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device of type described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years". U.S.S.G. § 7B1.1. Therefore, the commission specifically considered crimes of violence, which the defendant is accused of committing. Mr. xxxxxxx's conduct is not outside the "heartland" of the conduct contemplated by the commission because when it defined a crime of violence the commission specifically provided for robbery. U.S.S.G. § 4B1.2.

II. The Ex Post Facto clause of the United States Constitution prohibits the reimposition of supervised release if the Court sentences Mr. xxxxxxx to a period of incarceration.

The Ex Post Facto clause of the Untied States Constitution prohibits sentencing Mr. xxxxxxx to the maximum period of incarceration, three years, and sentencing him to a period of supervised release. Applying 18 U.S.C. § 3583(h) to individuals who where originally sentenced for a class B, C or D felony before September 1994 violates the Ex Post Facto Clause because it increases the total amount of time their liberty can be restrained. United States v. Lominac, 144 F.3d 308, 316 (4^th Cir. 1997); U.S. v. Dozier, 119 F.3d 239 (3d Cir. 1997); United States v. Collins, 118 F.3d 1394 (9^th Cir. 1997). The Ex Post Facto clause of the Untied States Constitution prohibits the retroactive application of a law that either "alters the definition of criminal conduct or increases the penalty by which a crime is punished". Dozier, at 241. The first step in the analysis is to determine if the law is being applied retroactively. Here the retrospective requirement is met because "punishment for violating the terms of supervised release is punishment for the original offense". Lominac, at 313. The next step is to determine if the law acts to change the definition of a crime or increases the punishment. Mr. xxxxxxx does not suggest that the enactment of 18 U.S.C. § 3583(h) changes the definition of any criminal conduct, it does, however, increase the penalty by which his crime is punished.

Once this Court revoked Mr. xxxxxxx's supervised release the original supervised release period is no longer controlling and Mr. xxxxxxx must then be resentenced. When the Court is considering sentencing it is confined to the statutory maximums. The statutory maximum now is significantly higher than the statutory maximum in place in 1990 when Mr. xxxxxxx was sentenced. When Mr. xxxxxxx was convicted in 1990 the maximum statutory penalty for a violation of supervised release, if the defendant had been convicted of a class B felony, was three years incarceration. It was not until September of 1994 that Congress enacted 18 U.S.C. § 3583(h) which expressly provided that when supervised release is revoked, and the defendant is sentenced to a period of imprisonment that is less than the statutory maximum, that sentence may be followed by a period of supervised release. While this circuit had not specifically interpreted 18 U.S.C. § 3583(e) before 1994 it recognized that a majority of the circuits had interpreted 18 U.S.C. § 3583(e) as allowing only the imposition of up to three years incarceration for a supervised release violation, nothing more.⁽¹⁾ Thus, prior to the enactment of 18 U.S.C. § 3583(h) neither case law nor the statute granted the Courts in this circuit authority to impose supervised release when the defendant was revoked and sentenced to a period of incarceration.

The imposition of incarceration and additional supervised release increases Mr. xxxxxxx's penalty in two ways. First, prior to the enactment of 18 U.S.C. § 3583(h) the maximum amount of punitive time Mr. xxxxxxx was facing in the event he was found in violation of his supervised release was three years, not twelve. Second, prior to the enactment of 18 U.S.C. § 3583(h) Mr. xxxxxxx could not be placed back on supervised release after having served a period of incarceration.

The government's reliance on United States V. St. John,⁽²⁾ is misplaced because the eighth circuit is one of only two circuits that, prior to the enactment of 18 U.S.C. § 3583(h), had interpreted 18 U.S.C. § 3583(e) to allow the District Courts to sentence supervised release violators to both incarceration and supervised release. See. Collins, at 1398 (distinguishing the eighth circuit's holding in St. John's from the majority of the Circuits). The proper way to frame the issue before the Court, contrary to the government's approach, is engaging in an Ex Post Facto analysis of the majority view point prior to the statute's amendment in 1994.

When Mr. xxxxxxx's was sentenced in 1990 the maximum penalty for a violation of supervised release was three years incarceration, thus the Ex Post Facto clause prohibits the imposition of any other punishment now despite any subsequent changes in the law.

CONCLUSION

For the reasons stated above, and for any other reasons that the Court may deem just and proper, the defendant Carl xxxxxxx respectfully requests the Court to sentence him within the guideline range and not impose a period of supervised release following that incarceration period.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

_______________________________

Maria Jankowski

Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE

I hereby certify that on this ___day of December, 1998, copies of the foregoing Defendant's Memorandum in Aid of Sentencing were served upon (1) Assistant United States Attorney John Dominguez by hand delivering a copy to a receptacle at the United States District Courthouse, 3rd Street and Constitution Avenue, N.W., Washington, D.C., provided for service of pleadings upon the Office of the United States Attorney; and (2) United States Probation Officer Paul Howard, Second Floor, United States Courthouse, 333 Constitution Avenue, N.W., Washington, D.C., by regular United States mail, first class postage prepaid.

Maria Jankowski

Assistant Federal Public Defender

1. While this circuit expressly declined to address this issue in United States v. Williams, 54 F.3d 820, it recognized that the majority of the circuits have held that prior to the enactment of 18 U.S.C. § 3583(h) the reimposition of supervised release was prohibited.

2. 92 F.3d 761 (8^th Cir. 1996).