Johnson v. United States - Oral Argument

Argument of Rita La Lumia

Chief Justice Rehnquist: We'll hear argument now in No. 99-5153, Cornell Johnson v. the United States.

Ms. La Lumia.

Am I pronouncing your name correctly?

Mr. Lumia: It's pronounced La Lumia.

Chief Justice Rehnquist: La Lumia.

I stand corrected.

Mr. Lumia: Thank you.

Mr. Chief Justice...

Justice Scalia: It's like Scalia.

Right?

Lumia.

[Laughter]

Mr. Lumia: Something like that.

Something like that.

Mr. Chief Justice, and may it please the Court:

The issue presented in this case is whether reimposition of supervised release under the provisions of subsection (h) of the supervised release statute violates the Ex Post Facto Clause in this case.

The Ex Post Facto Clause prohibits any law that is applied retrospectively and, in application, disadvantages an individual by imposing a sentence that is greater or harsher than that which would have applied at the time that the offense was committed.

The respondent in this case has effectively conceded that the application of the provisions of subsection (h) in this case and reimposition of supervised release is retrospective in this case.

However, the question remains then whether respondent was disadvantaged by application of those provisions and reimposition of supervised release.

Chief Justice Rehnquist: What... what do you mean or what do you think respondent... by the term retrospective?

Mr. Lumia: Retrospective means an application of a statute that is applied after commission of the offense, the initial offense.

And in this case the... the operative date is the date of Mr. Johnson's offense.

His credit card crime was committed in 1993 and that would be the operative date because supervised release is a punishment that springs forth from that offense.

Chief Justice Rehnquist: From that offense.

Mr. Lumia: Yes.

Justice O'Connor: Now, the First Circuit, in an opinion by Judge Selya I believe, thought that the original statute, 3583(e) unmodified permitted the same thing.

Isn't that right?

That was the First Circuit position.

Mr. Lumia: That's correct.

That is the...

Justice O'Connor: So, if that were the case, it wouldn't matter that 3583(h) was enacted I suppose.

There wouldn't be a change.

Mr. Lumia: That's... that's exactly right, Justice O'Connor.

Justice O'Connor: So, if we were to adopt the First Circuit view, end of case.

Mr. Lumia: That's correct.

That's correct.

There would be no need, as you say, for Congress to have enacted subsection (h).

Justice O'Connor: Well, except there was a split of authority and I suppose they wanted to deal with that.

Mr. Lumia: That's right.

And...

Justice O'Connor: Because we hadn't.

Mr. Lumia: I think that there was an invitation for this Court to deal with it because there was a circuit split.

And in fact the majority of the circuits that addressed the issue to which you are referring have determined that subsection (e)(3), the earlier version, that was in effect at the time of Mr. Johnson's offense...

Justice Ginsburg: But we don't weigh the number.

We weigh the persuasiveness.

Mr. Lumia: I'm sorry.

Justice Ginsburg: We weigh the persuasiveness of the Court's reason, not how many were on one side versus the other.

And O'Neil, as you conceded... if O'Neil was correct, that is the end of this case.

So, please focus on why O'Neil was incorrect because at least I found it a fairly persuasive analysis.

Mr. Lumia: The decision in O'Neil is incorrect, and the rationale of several courts who have addressed this issue is more persuasive.

The... the initial approach in determining whether subsection (e)(3) offered the authority for imposition... or reimposition of supervised release begins with the statute itself.

If one looks at the text of subsection (e)(3), it's very, very clear on its face.

It permits a court, upon the correct findings... in other words, a violation of supervised release... to revoke an individual's supervised release and to... to require that the person serve in prison all or part of the term of supervised release.

Justice Kennedy: But they used the... the term revoke in (3) but terminate in (1).

And it seems to me your position would be stronger if they had used the word terminate in (3) as well.

Mr. Lumia: I believe that there's a difference that could be drawn from... from the use of terminate in subsection (e)(1) as opposed to revoke in... as used in subsection (e)(3).

If you'll note, subsection (e)(1) contemplates a termination of supervised release under very favorable conditions.

In other words, it's much like an honorable discharge.

A person is terminated... a person's term of supervised release is terminated if, after a period of 1 year, the court determines that the conduct of the person released and the interest of justice warrant a termination of supervised release.

Justice Kennedy: Terminate has some sort of benevolent connotation and revoke doesn't?

Mr. Lumia: Well, in this situation it... it does.

Under subsection (1), the terminate does, indeed, refer to a favorable resolution of the supervised release term.

However, under subsection (e)(3) where the... where Congress has used the word revoke, it demonstrates an unfavorable conclusion of the term of supervised release.

And this is important to note because, you know, subsection (e)(3) refers to revocation upon a violation of the person's conditions of supervised release.

In other words...

Justice Scalia: Well, it's more than just unfavorable.

Isn't it?

I thought the strongest point for your case is that (3) goes on to say that the term... that the time he has already served in supervised release will not count towards his future prison time.

And in order to prevent it from not counting towards it, the whole thing has to be revoked.

It isn't just terminated.

It's revoked as though... as though it never occurred, and... and the full amount of that supervised release time will now be served in prison.

Mr. Lumia: That's exactly right, Justice Scalia.

Justice Scalia: So, I mean, that explains using revoked instead of terminated I suppose.

Mr. Lumia: That's exactly right, and if...

Justice Breyer: Where... where does it say that you can't... sorry.

What language is it?

I've gotten a little bit lost.

Which is the language that says... I thought that if you serve... suppose I impose a term of 5 years for a serious felony of supervised release.

Mr. Lumia: Yes.

Justice Breyer: 2 years passes, and the guy violates 14 conditions.

I thought that under Selya's reading of this, which I think makes sense to me and the others don't, to put... to say where I am at the moment... what you do is you say 5 years of supervised release.

You violated what you were doing.

Therefore, you're back to square one.

I'll take that 5 years and I can divide it 3 years jail, 2 years supervised release.

That's why they use the term part.

And moreover, it makes sense.

Why would you normally have a person adjust to the community but the person who's really worse because he's violated his supervised release, you'd say you're not going to have any adjustment period.

Why wouldn't they want to leave that up to the judge?

Divide it.

Mr. Lumia: Well, and in fact, Congress has made that authority available by enactment of subsection (h).

Justice Breyer: I know that.

But, I mean, why wouldn't they have wanted it, as frankly I always they thought they did, from day one since there is no other reading that makes any sense?

Now, that... that's... I'm putting that pretty strongly, but I want to... I want to get your answer.

And I didn't think it said that you can't... if he's... if it's 5 years that you sentenced him to supervised release and he violated it after 4 years, I thought... but I might be wrong... you're back at square one.

You can send him to prison for the whole 5 years.

You can send him to prison for 3 years, whatever.

Is that... am I wrong about that?

Mr. Lumia: That's correct.

Justice Breyer: I'm right.

Mr. Lumia: That is correct.

That is a correct reading of subsection (e)(3) or subsection (h).

Justice Breyer: All right.

So, then why isn't Selya's... we're back there.

Why isn't Selya's thing the common sense reading of it, and why isn't the common sense reading of it at least permitted by the language?

Mr. Lumia: The starting point would be a look at the word revoke.

And revoke, under the plain dictionary definition, means to cancel or annul.

Justice Ginsburg: But how can you maintain that when (h), which does take the position you would say prospectively only... that section also uses the term revoked, and then spells out that you revoke it, you go back to square one, and you can make the division, but not quite as you conceded before because (e)(3) says even if the term of that's revoked is 3 years of supervised release, you can put him back in prison only for 2 years for this category of offense.

Isn't that so?

Mr. Lumia: Yes.

For this category of offense, that's correct.

There is a limit imprisonment.

Justice Ginsburg: So, you... so, the extra year that's been revoked under your reading doesn't get made up.

It just drops out.

Mr. Lumia: Under our reading of subsection (e)(3) that was in effect at the time of Mr. Johnson's offense, the... the authority that's provided by subsection (e)(3) is strictly for revocation.

However, in subsection (h), which you referred to, Justice Ginsburg, there is authority given for reimposition of supervised release.

Justice Kennedy: Well, I think...

Justice Ginsburg: Yes, but the word revoked... you can't put much weight on it when it's retained in the section that does say, Judge, here's the 3 years.

You can divide it not more than 2 in prison, but then you have another year left over.

You can put him on supervised release, using the word revoked.

So, I don't see how you can... you can say the word revoke means one thing in (h) and something different in (e)(3).

Mr. Lumia: In... in subsection (h), where Congress has specifically authorized the courts to reimpose supervised release, they have given that authority upon consideration of the split in authority that's come out... a split in the circuits' decisions...

Justice Kennedy: Well, that's what... it... it seems to me that you are better off with (h) because you can say (3) has this very strict reading and we... .

But under your insistence, I think proper insistence, that we look at the statute at the time the offense was committed, (h) wasn't there.

Mr. Lumia: That's correct.

Justice Kennedy: So, I think we have to... I... I suppose we have to look at the statute as if (h) were not there, other than the Congress gives a reading which we may give some... some weight to because it seems to interpret the statute in a particular way.

I don't... I don't think (h) helps you much.

Mr. Lumia: I agree.

I agree.

I think that subsection (e)(3), which is the operative statute in this case because Mr. Johnson's offense was committed prior to enactment of subsection (h), specifically limits...

Justice Kennedy: So, although you'd like to use (h), I'm not... I'm not sure that you can.

I should have said I think it does help you, but I'm not so sure that you can use it.

Mr. Lumia: I agree with you, and under subsection (e)(3) where the Congress has provided the authority to revoke a term of supervised release, if one looks at a common, plain dictionary definition of the word revoked, it clearly contemplates a recision, an end, a conclusion, that type of thing, a termination of a probation or... or in this case, a supervised release order because of a rule violation.

Justice Ginsburg: It doesn't have to.

Justice Scalia: Ms. La Lumia, is... is Judge Selya's position, the Government's position here, that the only supervised release that can be imposed after the revocation is whatever had not yet been served?

I mean, let's assume he had been given 5 years of supervised release.

He... he violates the terms after 2 years, and is... is it... is it Selya's position and the Government's position that the court can impose an additional 5 years of supervised release afterwards or only 3 years?

Mr. Lumia: I believe it's the Government's position that they may impose 5 years of supervised release.

Justice Scalia: The full 5 years.

So, really what you need to get to Selya's very intelligent position, as Judge Breyer sees it, makes more sense.

It probably does.

But to get there, what you need is some authorization to impose a term of supervised release at this stage, and the only... the only authorization for imposing supervised release is 3583(a), which says the court in imposing a sentence to a term of imprisonment for a felony or misdemeanor may include as part of the sentence.

At the original sentencing, you have authority to impose 5 years.

I don't know where you get the authority to impose 5 years under (e)(3).

Maybe... maybe you have authority to use the leftover... the leftover 3 years, but where do you get authority to impose the... the new 5?

You're not the one who should answer that question, but the Government will answer it, I am sure.

Justice Breyer: Well, it's (e)(2).

I mean, isn't the answer (e)(2)?

Justice Scalia: (e)(2).

Mr. Lumia: Under... under subsection (e)(2)...

Justice Stevens: (e)(2) talks about extending a term...

Mr. Lumia: Allows...

Justice Stevens: which has already been revoked.

Justice Scalia: Well, then the maximum was... was imposed.

Justice Souter: No, no. (2) can extend.

See, (e)(2) allows you to extend the term of supervised release if less... if less than the maximum authorized.

Justice Scalia: Was... was previously imposed.

I'm assuming he imposed 5 years and the guy... which is all that was authorized.

Justice Breyer: No, no.

What he does is, first he extends it.

Justice Souter: Let counsel participate.

Justice Scalia: Well, counsel doesn't understand the question.

Mr. Lumia: In this... in this particular case, the extent of the supervised release order at initial sentencing for Mr. Johnson was 3 years.

The judge could and did impose a 3-year sentence of supervised release at initial sentencing.

Justice Scalia: Was that the maximum he could have imposed?

Mr. Lumia: Yes.

Justice Scalia: Okay.

Mr. Lumia: Yes, he did and he imposed the maximum.

Upon revocation, however, the... the statute is clear.

It allowed the district court to revoke a term of supervised release and required the defendant to serve all or part of the term in prison with the limitation that only 2 years may be imposed for reimprisonment.

In other words, Congress capped a period of time for a court to impose a sentence of imprisonment as a punishment for that person's willful violation of his conditions of supervised release.

Justice O'Connor: Yes.

So, what happened here on the... the additional order by the court?

Did they stay within the original 5-year term?

Mr. Lumia: No.

In this case, the... the court... well, there is... there was no... there was no initial 5-year term that was available for supervised release.

It was a 5-year...

Justice O'Connor: No, but an overall 5-year.

Mr. Lumia: Yes.

At initial sentencing, the court could have imposed 5 years of imprisonment and could have imposed 3 years of supervised release to follow.

And in the first instance, at initial sentencing, the court did impose 25 months based on guidelines factors that were appropriate in Mr. Johnson's case.

In other words, the court...

Justice O'Connor: Okay, and on revocation, what happened?

I mean, what limitation was imposed after the revocation of the supervised release?

Mr. Lumia: Upon revocation, the limit under subsection (e)(3) is a maximum period of reimprisonment of 2 years.

Justice O'Connor: And that's what was given?

Mr. Lumia: No, not in this case.

The court ordered 18 months of reimprisonment...

Justice O'Connor: All right.

Mr. Lumia: and thereafter imposed a sentence of supervised release that... it's our position, that no supervised release of any length of time was permissible.

Justice O'Connor: I know that's your position.

What was imposed?

Mr. Lumia: 1 year.

1 year.

And that placed the maximum period of restraint on liberty following Mr. Johnson's revocation at 2 and a half years.

Under subsection (e)(3), the maximum period of restraint in the form of imprisonment would have been 2 years.

Justice Ginsburg: Counsel...

Justice Scalia: But the total... but the total supervised release was still under 3 years?

Mr. Lumia: In this particular case...

Justice Scalia: How much supervised release had he served before he violated it and it was... and it was revoked?

Mr. Lumia: Roughly 7 months.

Justice Scalia: Okay, so...

Mr. Lumia: It was roughly 7 months at the time that he committed a new crime and...

Justice Souter: So, it was all within the statutory maximum.

Justice Scalia: All within the statutory maximum for supervised release at the original sentencing.

Mr. Lumia: No.

At... actually at original sentencing, the maximum was 3 years.

Upon... he was released on supervised release.

He served approximately 7 months.

Justice Scalia: Right and now has another... another how many?

Mr. Lumia: He had another year of supervised release.

However, that, coupled with the 2 years... excuse me... the 18 months of imprisonment that the judge ordered upon revocation, put him over the 2 years.

Justice Ginsburg: Counsel, would you please...

Justice Souter: No, but it was...

Justice Ginsburg: clarify one thing which I think there's been some confusion about?

As I understand your position, you are not contesting that if this judge said... if this judge said, I'm not going to put you back in prison, but the 3 years is revoked and it's restarted, that it would have been proper under the statute, as it existed before (h), to say start over on supervised release, 3 years of supervised release.

I do not understand you to be disputing that.

Am I correct?

Mr. Lumia: That the period of time had not been reached?

That's correct.

Justice Ginsburg: That the judge could have said, without regard to how much time he had served, you go back on supervised release for 3 years.

Didn't the statute permit that?

Mr. Lumia: I would disagree with that interpretation of subsection (e)(3).

Justice Ginsburg: What did it permit?

Mr. Lumia: It permitted the court, upon revocation, to require the person to serve in prison all or part of the term... excuse me... to require the person in prison all or part of the term.

Justice Ginsburg: It required prison time?

Mr. Lumia: It allows the court.

Justice Ginsburg: If it allowed prison time but didn't require it, wouldn't it allow supervised release to rerun on the idea that it's revoked and it starts over?

Mr. Lumia: I would disagree with... with that.

I think that the... the notion that created some... that there was discretion in the district court's order allowed the court the discretion... the all or part language... to...

Justice Ginsburg: All or part.

Mr. Lumia: All or part of the... up to 2 years.

And it allowed the court to impose a 1-month prison term if the court deemed that that was appropriate under the circumstances.

Justice Kennedy: Your position is all or nothing.

Imprisonment, freedom, but no supervised release once it's revoked.

Mr. Lumia: No supervised release once it's revoked under subsection (e)(3), but it's not so much all or... all or nothing.

It's not 2 years of imprisonment or no imprisonment.

It's a period up to 2 years.

Justice Kennedy: Well, it's all... all or nothing in the sense that it's rather odd to say that the judge can either... must either set him free or put him in prison and can't give him the lesser punishment.

But that's... but that's your position.

Mr. Lumia: But that's assuming that supervised release is a lesser punishment and... and I would not be willing to state that supervised release is a less harsh or... a less harsh punishment than imprisonment.

Justice Souter: But your... as I understand it, your position is that whatever combination of imprisonment and supervised release, whenever imposed, that... the total amounts of those two components... the total lengths of those two components may not extend beyond the maximum date that... that would have been possible for those two components at the time of sentencing.

Is that correct?

Mr. Lumia: There's a... a limitation on what can be imposed.

There's a... under subsection (e)(3)...

Justice Souter: But let me make it... let me make it simple.

If at the time of sentencing... forget this... I don't know what it was in this case.

If at the time of sentencing the judge had said I'm going to impose the maximum of... of imprisonment and release, and the maximum would have been 5 years... he could have, you know, given him 1 year in prison, 4 years of supervised release, or whatever, but the maximum is 5 years.

Is it your position that at... at any revision, he may not impose anything that extends beyond that 5-year date?

Is that your position?

Mr. Lumia: That is the position because that's the statutory... that would be the statutory authority provided by Congress.

Justice Stevens: But isn't...

Justice Scalia: That and then some.

You go beyond that.

Justice Stevens: But he's wrong on the statute.

The statute is 5 years prison plus 3 years supervised release was the maximum.

Wasn't it?

Mr. Lumia: That's right.

And I think maybe I'm misunderstanding...

Justice Souter: No, no, but I... I didn't mean in this case.

But whatever the... the... whatever the total length of imprisonment and supervised release may be in any case, is it your position that at any subsequent recomputation under (c), the total of those two components may not extend beyond the date which would have been the maximum date at time of sentence?

Is that your position?

Mr. Lumia: Under (c)?

I'm not... I'm not...

Justice Kennedy: Is your answer to Justice Souter that in your view, once there's been a revocation, there cannot be the second component at all?

Mr. Lumia: It is my position, in our view under subsection (e)(3), that there cannot be an additional imposition of supervised release...

Justice Souter: Oh, I... I realize that.

Mr. Lumia: of any period of time.

Justice Souter: I realize that, but if you lose on that point, is it then your position... is your fall-back position... that whatever the maximum date for the combination of those two components would have been at the time of sentencing is the maximum date for whatever the court imposes consisting of those two components at the... at the time of resentencing?

Mr. Lumia: In... in this particular case, the resentencing I believe that you're referring to is upon revocation.

Justice Souter: Yes.

Mr. Lumia: His initial sentencing... at his initial sentencing, the court had a certain term of imprisonment available, subject to the sentencing guidelines factors, and a certain period of supervised release available.

Upon revocation and within the... the supervised release statute, upon revocation, the court did not have the same period of imprisonment available.

It had a limit on the period of imprisonment...

Justice Souter: Okay.

So, let's assume that there could only have been 2 years imprisonment, and whatever else there was could have been supervised release.

You don't concede that, but let's assume it for the sake of argument.

Is the date beyond which that combination cannot extend the same date beyond which such a combination could not have extended at the time of original sentencing?

Mr. Lumia: Yes.

Justice Souter: Okay.

Justice Scalia: But it won't help you in this case.

Mr. Lumia: I'm sorry.

I didn't hear...

Justice Scalia: It won't help you in this case.

I mean, you...

Mr. Lumia: That... that's right.

Justice Souter: Because it... it didn't go beyond that.

There was... what was it... 2 years, 5 months left.

Mr. Lumia: In this particular case, upon revocation, even if we assumed that subsection (e)(3) permitted a reimposition of supervised release, the period of supervised release that would have been allowed was 3 years.

And in this case if... if we take the entire time that Mr. Johnson has been under restraint, it would be the 7 months that he was on restraint for prior to his revocation.

Justice Ginsburg: Well, excuse me.

Justice Souter: No, you don't...

Justice Ginsburg: The statute says without credit for time previously served on post-supervision release.

Mr. Lumia: That's correct.

Justice Ginsburg: It seems to me that those words say you can go back.

You give him no credit for time previously served on posted... post-release supervision.

You give him no credit for that.

You can reimpose that whole 3 years.

Mr. Lumia: That's... that's correct.

Justice Ginsburg: But you said no when I asked a question before.

Mr. Lumia: I'm sorry.

I must have misunderstood your question.

Justice Ginsburg: I asked you if you... the judge is reading (e)(3) and he says, ah, this tells me he gets no credit for time previously served on post-release supervision.

So, we go back and I'm going to give him the whole 3-year supervised release over again.

No jail.

No prison.

Is that... was that lawful under (e)(3)?

Mr. Lumia: No, that's not... the period of time is a... may be a lawful sentence because it has not exceeded the 3-year limitation.

However, the nature of the sentence we would still argue is...

Justice Breyer: All right.

Look.

Wait.

Your answer to Justice Souter couldn't be what you said, I don't think, if I understand it.

Justice Souter: I don't think so.

Justice Breyer: Imagine it's a class A felony, not D.

Mr. Lumia: That's right.

Justice Breyer: And suppose the statutory maximum is 5 years prison, 5 years supervised release.

He serves 5 years prison.

The sentencing date was 1990, July 1.

It's now July 1995.

He's finished.

He then goes on supervised release.

4 years and 360 days later he violates all the terms.

So, it is now the year 1999.

The judge is perfectly free to give him 5 years of prison even on your theory, and therefore you could extend the term into 2004, even on your theory.

But you're not denying that.

You're denying that the judge, instead of giving him the 4 years prison, could give him 4 years of supervised release.

Mr. Lumia: That's... that's correct.

Justice Breyer: Am I not right?

Mr. Lumia: That's correct.

However, there are certain limitations in the statute.

Justice Breyer: Yes, there are limitations.

If it's a class D felony, you can't put him in for more than 2 years, and yours happens to be a class D felony.

And they didn't put him in for more than 2 years.

So, the whole thing comes down to the meaning of the word revoke.

Mr. Lumia: That's right.

Justice Breyer: And your view is revoke means terminate and finish.

And their view means revoke means call back, but you can still do it.

Is that right?

Mr. Lumia: That's... that's it in a nutshell.

Justice Breyer: All right.

Justice Ginsburg: And why isn't (h) instructive at least to that extent, that Congress again used the word revoke?

So, we can assume that it... when it used the word revoke, it meant call back.

It meant it in (h) and it meant it in (e)(3).

Mr. Lumia: The difference is that in... in (h) Congress gave the specific authority for reimposition.

Anything called back in order to...

Justice Ginsburg: But it's not inconsistent with interpreting the... the word revoke to mean call back because that's clearly what it means in (h).

Mr. Lumia: However, in order to undo something, one has to undertake an additional act.

In this case, Congress did not provide the authority for undertaking an additional act to undo the... the revocation in this... in this situation, and under subsection (h) it did.

I'd like to reserve the rest of my time, if I may.

Argument of Paul Rq Wolfson

Chief Justice Rehnquist: Very well, Ms. La Lumia.

Mr. Wolfson.

Justice Stevens: Mr. Wolfson, may I make a suggestion before you start?

I think perhaps your opponent didn't have a full time to develop her argument.

Supposing the argument were phrased this way, that prison time and supervised release are different animals and that you cannot grant supervised release unless there's specific statutory authority for it and there is no such authority in (e)(3).

What's your response to that argument?

Mr. Wolfson: I think that it is... I don't think that you have to have specific authority.

Does... the statute does not have to say, and the district court may, in addition, impose a term...

Justice Stevens: But you do agree there's no express authority in (e)(3) for granting supervised release after a revocation.

Mr. Wolfson: Well, it depends on how you read (e)(3).

I guess I have to come back to that... to that point.

Justice Stevens: Tell me... do this for me.

Mr. Wolfson: Right.

Justice Stevens: Tell me what the express language in (e)(3) is that authorizes supervised release.

Mr. Wolfson: Right.

Right.

It's to... it's to... upon revoking a term of supervised release, it is to require him to serve in prison all or part of the term, all or part of the term of supervised release, without credit for the time previously spent on... on post-release supervision.

Now, what this...

Justice Stevens: In prison.

Mr. Wolfson: Right, right, but the... right.

Right, but the...

Justice Stevens: served on supervised release.

Mr. Wolfson: The question is what happens if he serves part of it... of the term of supervised release in prison.

What happens to the rest of the term of supervised release?

That is, the term is not... the term is not dead.

It's still in existence...

Justice Scalia: You're talking about the originally sentenced term, not the authorized term, but the term to... so, you would agree that you can never sentence him to a new term of supervised release, a new 3-year term if that was the original limit.

If he's already served a year of it, the most you can do is put him... according to your theory, is put him in jail for a year and then 2 years of supervised release, which is what would have been left.

Mr. Wolfson: Well, you have to bear in mind that he loses credit for time previously spent on the street.

So, if he... and that's in (e)(3).

It's in the... this is on page 3a of our brief.

It says...

Justice Scalia: Well, he uses credit...

Mr. Wolfson: Right.

Justice Scalia: against the jail time for that.

Mr. Wolfson: No, no.

No.

Justice Scalia: It doesn't say he loses credit against the... against the future... in fact, I guess it says nothing about the future supervised release time.

Mr. Wolfson: No.

I think our argument does assume that he... that he loses credit for the entire period of time spent on supervised release.

So...

Justice Scalia: Both...

Mr. Wolfson: let's assume that...

Justice Scalia: both against prison and against a future supervised release sentence.

Mr. Wolfson: Yes, but the total of prison... no, but the total of prison and supervised release under (e)(3), as it existed before, couldn't exceed the time that he was ordered to serve on supervised release initially.

So, if he was initially sentenced at his original conviction and sentencing hearing to a 3-year period of supervised release...

Justice Scalia: Right.

Mr. Wolfson: then he's released from prison and... and goes out and serves his supervised release.

And then he violates his supervised release on 2 years and one-half...

Justice Scalia: Okay.

Mr. Wolfson: that... and... and he's... let's assume that he's revoked immediately, just to simplify.

He loses credit for that 2 years and one-half and the 3-year period runs anew.

It's exactly as Justice Breyer was saying.

You go back essentially to square one.

So, then the district court says, what will I do with this 3-year term of supervised release?

That is the term of supervised release.

And what (e)(3) allows the district judge to do... the district court to do... is to order him to serve all or part of it in prison, all or part of the term, and the rest of the term...

Justice Scalia: Where does it authorize him to spend part of it in supervised release?

The old sentence of supervised release has been revoked.

I assume you need some new authority to prescribe a new term of supervised release.

Where did you get that from?

Mr. Wolfson: Justice Scalia, I... I don't think I agree.

It's a subtle difference, but I don't think that I agree that it is really a new term of supervised release.

The point is that it is... it is the term of supervised release... the... that is basically called back and set anew.

So, I don't think that it's... I think it's incorrect to look at it as though the district court is required to... to impose a new term of supervised release as the sentence... as the statute was in effect then.

Justice Breyer: It does... I wonder... actually this is a point I had not at all focused on.

But let's imagine a person who isn't violating anything.

That person was sentenced to 5 years in prison, followed by 1 year of supervised release or 2.

Let's say 2 years of supervised release, and he never does anything wrong.

Now, I have always thought that under (e)(2), not (e)(3), the prosecutor or someone could come in and say, I'm sorry.

I don't think that 2 years is enough.

I would like his term extended to 4 years, all within the statute.

It's an A felony.

Mr. Wolfson: Right.

Justice Breyer: I would have thought that (e)(2), since it gives the authority of the judge to extend, as well as to cut down in the same way, it says, that we used to do that with parole.

It says that right in the statute.

I would have thought that gave him the authority to extend or cut back or impose new conditions.

It's like parole.

It's just another word for parole.

Now, I thought that that was so, but I'm not positive.

Mr. Wolfson: Well, I'm not sure it's just like parole, but... but if... if he was initially... let's suppose it was a class A felony and... and he could have gotten 5 years of supervised release, but he initially got only 2, and close to the end of his period on supervised release, the prosecutor or the probation office says we think that his record warrants a new... an extension of the term.

Yes.

And... and... but that's not...

Justice Breyer: That's relevant for this case in the following way.

It's relevant to this case because the person who was sentenced to less than the maximum that violated his condition could be called in.

The judge would then extend the term to the maximum and then, having done that, revoke it and divide it between prison and supervised release.

Now, I'm not... I'm putting this to you to get your reaction.

I'm not certain that that's the right way to read it.

Mr. Wolfson: I... I think that some courts have said that you could look at it that way.

I think it would... but it would depend in some cases on how the math worked, frankly.

I mean, in... in this case he violated... he violated for 7 months... 7 months in, but I... but of course, the judge was proceeding under (h).

But...

Justice Stevens: But I think Justice Breyer's example was no violation.

They just changed their mind and wanted to up the sentence a little bit.

Mr. Wolfson: Right.

But I... but in Justice Breyer's original hypothetical, where he said extend it from 2... 2 years to 4 years or 5 years, he's not being sentenced to a new term of supervised release.

He's extending a term of supervised release.

And my... I think in the same... I think one should look at Justice Scalia's question to me in the same way, which is even when his supervised release is being revoked and then he's being... he's required to spend some time in prison and some new time on supervised release, he's not being sentenced to a new term of supervised release.

The term of supervised release is being called back and set as if at the beginning.

And that's... I mean, I think that that's... you know, one can read the, you know, (2) and (3) sort of... proceeding roughly along the same lines.

Justice Souter: But the reason you say that is that it... I take it, that it would make no sense or it wouldn't make much sense to say that upon revocation the sentence may be to all or even a portion of the original period of supervised release, unless Congress had meant that if the court sentences only to a portion, there would be at least the balance of supervised release to be served as supervised release because that only... that's the only reading that would be consistent with the theory of what supervised release is there for.

Mr. Wolfson: I think that's basically right.

That is, when one does interpret this statute, one has to bear in mind what the policies of supervised release are.

And it does raise, I think as... as the First Circuit and the Eighth Circuit and one of the Eleventh Circuit decisions pointed out, why would one want to sort of force a court to choose between sending somebody to prison and... and following again the policy of supervised release?

Justice Stevens: Well, the... the answer is pretty easy to that, that you have a tough law and order of Congress that says we want people on supervised release to know that if they revoke... if they violate a term of... of their condition, their release can be revoked, and they must now do prison time.

And that's exactly what the plain language says.

Mr. Wolfson: Well...

Justice Scalia: And... and we don't want... we don't want some bleeding heart judge to... to refuse to give them the full time in prison by giving him some of that time back on release which they've just violated.

Mr. Wolfson: Well...

Justice Scalia: We don't want that to happen.

The only option we're going to give these judges is to send them to prison.

Mr. Wolfson: Well, I'm not... I'm not sure...

Justice Scalia: I mean, that makes some sense.

You don't have to agree with it, but it makes sense.

Mr. Wolfson: I'm not sure I agree with that, Justice Scalia.

First of all, I think if... if Congress had wanted that approach, one would have expected it to say something like the district judge must revoke his supervised release, and indeed one would have expected that it would have put particular times that the defendant had to serve in... in prison.

But... but in fact, what it did was it said to the district judge, all or part of it.

In the end... and part of it can be quite... can be a quite a short amount of time.

That is, consider, for example... and we've cited one case like this in our brief, the case of Cooper.

Consider, for example, a defendant who looks as though he's basically going on the right road, but he's having some trouble and he commits a... a relatively minor but, nonetheless, still serious violation of supervised release.

And the district judge says, I think... I think you need some time back in prison.

It's, you know... it's necessary for you to... to have a reminder of what prison is like.

It's necessary to protect society.

You're... you're sort of... you've wandered a little bit off the road.

But after... but I don't think that... I'm not going to give up on you completely, and so I'm going to put you back on supervised release again.

That I think is... that is a very sensible policy, and that is exactly the policy that's lost...

Justice Stevens: No, there's no doubt about that being a very sensible policy.

The question is whether the literal reading of the statute is so nonsensical.

Frankly, I think it would be unwise to read it that way.

But is it so unwise that we can't believe Congress really intended what it said?

Mr. Wolfson: I'm not going to...

Justice Stevens: Because the only... and... and to answer it, they could have spelled it out, but they could also say, well we've given the judge... judge his four options in (e)(1), (2), (3), and (4).

In option (3), he can really throw the book at him, put him in prison up to the time of... spent on authorized supervised release.

But that's his only option.

They... they could have said that and it would not have been irrational.

Mr. Wolfson: I don't think... I'm not going to argue that it would be an absurd result, but I do think that it is somewhat... it is a somewhat... it is a somewhat illogical policy to say that Congress wanted to deny the district court the flexibility to say you should both have some time in prison and some time in supervised release...

Justice Stevens: All they would have had to do was say, to serve in prison or on an additional period of supervised release.

Then all the rest would read the same way.

That's what they should have...

Mr. Wolfson: It could have... it could have said that.

Justice Stevens: That's what it means.

Mr. Wolfson: Right.

I agree it could have said that, but it did say... but I think it did say... the fact they didn't say all or part of the term of supervised release.

Justice Stevens: the language.

Yes.

Mr. Wolfson: Well, what it... what it points out, though, I think is that if the district court saw that only a short amount of time in prison was necessary and it gave that to the discretion of the district court... if only a short amount of time in prison was necessary to sort of get the offender back on the right path, and then after the offender was on the right path, you know, it was time to start the supervised release experiment again, I think that... that... that's what Congress intended for... for district courts to have the flexibility to do.

Justice Souter: The reason... the reason you say it would be illogical to deny that, I take it, is that supervised release is supposed to increase the odds of the prisoner succeeding in working his way back into society without further trouble.

And... and it would be illogical to suppose that Congress meant to jettison that policy for somebody in your hypothetical.

Mr. Wolfson: I think that's basically right.

And I think that in considering that, it's also useful...

Justice Scalia: Except that the guy had already forfeited his entitlement to that by violating the conditions once.

Why is it irrational to say, you know, we tried to help you out, but you know, you... you ingrate, you violated the terms of it.

We're not going to give you another... another round of the same thing so you can go... go off and... and rob another grocery store, you know, whatever...

Mr. Wolfson: Well, the district court does in some cases... the district court doesn't have to... doesn't have to give him another chance on supervised release.

I mean, the district court can order him to serve all of the time in prison, all of the... the part of the term that remains in prison and not give him any supervised release.

So, what... what the statute does is it says to the district court, here's basically a menu that you can choose from, balancing the various policies of supervised release and deterring the... deterring the defendant against committing future crimes, protecting the public, but also providing rehabilitation and providing assistance for reintegration into society.

Now, here... excuse me.

Justice Breyer: If we're speaking metaphysically, I guess metaphysically the term of supervised release must still exist, for otherwise how could you serve all or part of it?

Mr. Wolfson: I think that's... that's... that is what we've argued basically.

Justice Breyer: I think if you're speaking non-metaphysically...

Mr. Wolfson: Right, right.

Justice Breyer: I guess you have to read into those words about supervised release, former term of supervised release.

But if they're saying former term, serve part of it in prison, you could as easily imply and serve the rest of it where he's supposed to spend it, on supervised release.

Mr. Wolfson: Well, in this...

Justice Breyer: Are we speaking metaphysically or non-metaphysically or what?

Mr. Wolfson: Well, the term... I think the word term in this situation is used to mean the... the sanction that was imposed upon the offender, that is, the... his actual term.

I think in this respect, it is also useful to look at the experience under the predecessor forms of... of non-imprisonment monitoring, special parole, parole, and probation, in particular special parole, which took a very similar approach.

And supervised release is a... is a close cousin to special parole.

Justice Breyer: I'm asking that because I think where she's right... your opponent... is that you do have to do a little bit of twisting of this language.

So... so, I would guess what is the best non-twisting that you could do and come up with the result that you think... and I agree with you... makes sense?

Mr. Wolfson: Well, I'm not sure that... I'm not sure I agree to this point.

Justice Breyer: literally.

Mr. Wolfson: I'm not sure that I agree it is twisting.

I mean, after all, in the O'Neil opinion, the First Circuit said, to read the word term the other way, you really need to say...

Justice Breyer: Yes, but the First Circuit calls upon a meaning of revoke as given by Sheridan approximately, which... which I think is at least an unusual meaning and other than Sheridan, it might be tough to find examples.

Or have you found them?

Mr. Wolfson: Revoke means... I mean, literally of course it means call back, and that's...

Justice Breyer: That's true, but we don't seem to use it in that way.

We seem to use it in the sense of call back and cancel, except for this time revoked and so forth.

Mr. Wolfson: Well, it is used in that way actually in the predecessor provisions, that is, special parole.

I mean, it is used.

It's a very similar approach, and I think that that's probably what Congress looked to when it... when it was thinking about what did the word revoke mean.

In the special parole statute, the parole commission had the authority to revoke somebody's special parole and then... and then he had to serve some period of time in prison after that.

And then the parole commission said then you can put him on special parole again.

Now, there is a... there is a conflict as to whether it could impose special parole again, but there's no disagreement among the courts that it could impose at least either parole or special parole after having revoked his special parole the first time.

And so, this is... this is the experience that Congress has looked to.

Similarly, under the old probation statute, the statute said that the district court may revoke an offender's probation and order to... him to serve any sentence.

And it was recognized that the majority of the courts had certainly held that.

What... when... once the district court revoked an offender's probation, it could order him to serve another term of probation.

It wasn't required... it wasn't limited to the option of sending him back to jail.

And so, this is the... this is the experience to which Congress was looking when it enacted this statute, and I think it would... this statute should be interpreted in light of that experience to provide some continuity along those grounds.

Justice Kennedy: What do you want us to say about (h)?

The less, the better, so far as you're concerned?

Mr. Wolfson: The less, the better.

I agree.

I mean, I think that basically the construction of (h) is not... is not directly at issue in this case.

And as we have pointed out in our brief, the... the real question is could the district court have done this under (e) before (h) was enacted.

So, I think it's... it's probably best just to look at 3583...

Justice O'Connor: Well, the district court thought it was relying on (h) and that it was going to apply it retrospectively.

Mr. Wolfson: The district court... I agree the district court thought it was relying on (h), but I think nobody doubt... nobody disputes that what the district court was proper under (h).

The... the question is whether it could have done the same thing under (e)(3) or under (e) as it existed at the time of the offense, (h) not being in the picture and...

Justice Kennedy: It does seem to me from one standpoint that if your construction is correct, they would have gone back and... and amended (h)... pardon me... and simply amended sub (3).

Mr. Wolfson: Well, they could have done that, but I think obviously they were aware of this conflict and perhaps wanted to make it more clear by putting out...

Justice Stevens: And they did... and they did change (3).

Mr. Wolfson: They changed (3) also.

I mean, they made another... several other amendments to (3).

They changed (g).

Justice Stevens: And instead of it being... the limitation being the period of supervised release originally imposed, it's the statutory maximum that now governs under (e)(3).

Mr. Wolfson: That's correct.

That's correct.

So, I'm not sure I have an answer as to why Congress put it in its own section as opposed to amending (h)... as opposed to amending (e)(3)... excuse me...

Justice Scalia: Mr. Wolfson, what about... what about the rule of lenity?

Now that... now that whatever (3) originally meant doesn't matter, since we have (h), isn't... doesn't the rule of lenity counsel that we interpret (3) the way petitioner would have it rather than the way you would because hers will... will come down less hard on...

Mr. Wolfson: Well, of course, to invoke the rule of lenity, the Court has to conclude that there is a true ambiguity in the statute and...

Justice Scalia: Oh, you don't think there's a true ambiguity here.

Mr. Wolfson: and...

Justice Scalia: You argue that your position is not... is not only right, but it's not even the resolution of an ambiguity?

Mr. Wolfson: The... the Court has to arrive at the conclusion that the statute is truly ambiguous after looking to... to all of the tools available, including...

Justice Scalia: Let's assume I have no trouble with that.

Let's assume I have no trouble with the proposition that it is at least... at least... ambiguous if not contrary...

Justice Stevens: Your answer I suppose, Mr. Wolfson, is you look at the rule of lenity before a statute is amended.

The question is which would be the more lenient reading of (e)(3) without (h) having been subsequently enacted.

Mr. Wolfson: I think I have to say that that is... well, that is... one has to look at (e)(3) or at (e), the statute at the time that petitioner committed his offense.

Obviously, if... if the Court concluded that the... that the statute is truly ambiguous and decides to apply the rule of lenity...

Justice Ginsburg: It's hard not to confuse that...

Justice Kennedy: Well, I thought you... I thought that your answer might have been it is an odd rule of lenity that says that all of these prisoners have to serve in prison and can't get... and can't get...

Mr. Wolfson: Right, right.

Well, right.

I mean, I think that's... I mean, there are... there are certainly circumstances in which not having this option available to the district court hurts the prisoner, or I mean, that is, the district court faced with... faced with the construction that the petitioner proposes, a district court might very well say, you know, I... I think it's necessary to impose more prison time.

Justice Breyer: Maybe they would in the case of her client.

Mr. Wolfson: Maybe they would.

We don't know.

I mean, after all, the district court did impose less time in prison than the amount of time it could have even under the old statute, which I think actually confirms again that the district court ought to have at its... ought to have at its hand all of these available... all of these available tools.

Justice Scalia: It's no doubt true if you... if you apply the rule of lenity as of... as of the time the statute was enacted, but interpreting the statute currently, there is no doubt which interpretation is more favorable to defendants.

Justice Breyer: Really?

Why?

Why... why is it not...

Justice Scalia: I think to any defendant.

I... I don't see how any defendant could be disadvantaged by the interpretation that petitioner asserts today.

Any defendant today can be...

Mr. Wolfson: Well, today... well, today of course (h) does confirm that the district court has... has that option, but... but... I think that's...

Justice Breyer: Is that right?

You know, I mean, this is a part that... imagine the class of people who were sentenced under this prior to the ones... the Ex Post Facto Clause.

Now, if you sent those back for sentencing...

Mr. Wolfson: Right, right.

Justice Breyer: and you cut away the option of putting them for 7 months on supervised release, the judge might say, well, I can't give him a supervised release.

I'm going to throw him into prison for the 7 months.

Mr. Wolfson: Well, that might happen and...

Justice Breyer: So, how do we know which way it will cut?

Mr. Wolfson: But I was assuming that... I was assuming that the question meant suppose somebody committed their offense today with (h)... with (h) in the picture.

Justice Breyer: The offense date is no problem because...

Mr. Wolfson: With (h)... right.

Justice Breyer: but we're only talking about the class of people who committed their offense prior to (h).

And as regards that class, I honestly don't know, which is why I'm mentioning it because you may know.

I don't know what will happen to that class of people under an interpretation that says the judge can't give them any supervised release but has to either give them imprisonment or nothing.

Justice Scalia: But you... you would apply (h) to those people even if the offense was committed before (h) was adopted.

(h)... there's no problem in applying (h) to those people today if it... if it provides more liberal treatment for them.

Don't you think that even for offenses committed before (h) was enacted, (h) can be applied nowadays?

Is... is that the Government's position that (h) only applies to prisoners...

Mr. Wolfson: No.

I mean, our position is that it...

Justice Scalia: who committed their offenses after (h) was enacted?

Mr. Wolfson: Well, our position in this case is that it was... it was acceptable to apply (h) because it was... it was... even with (h), it's not more onerous than... than it was... than the previous law was.

Justice Stevens: No, but (h) is part of a statutory amendment that made (e)(3) more severe because (e)(3) under the new amendment imposes... authorizes a longer period of imprisonment than (e)(3) under the old statute.

Mr. Wolfson: Right.

Well, it depends...

Justice Stevens: So, that statute as a whole could, in some cases, be more severe.

Mr. Wolfson: It depends on one looks at the amendment that was made to (e)(3) because, after all, what is true is that even before (e)(3) was amended, under the old... under the old (e)(3), of course, that the limit... there was a limit of the term that was actually imposed.

But it... one has to remember it is also true that under (e)(2), the judge could have extended the term to the statutory maximum, and then it could... and then it could have been revoked and the entire term... entire term...

Justice Stevens: Well, that depends on how one reads (e)(2) because (e)(2) doesn't speak in terms of violations of supervised release.

And if it did, then you'd have to have a Morrisey against Brewer hearing and all the rest of it.

Mr. Wolfson: Well...

Justice Stevens: Either that or it might be double jeopardy to be adding... imposing a higher sentence later on.

Mr. Wolfson: Well, I don't know that the double jeopardy is...

Justice Stevens: There are a lot of problems with...

Mr. Wolfson: is in the picture.

But the point is that I think that the Court should construe (e)... should construe with respect to (e)... that's the question before the Court... in deciding... in deciding whether that... whether (h) is more onerous.

And when the Court looks to what the prior law was, we've relied basically on (e) as it was at the time.

Justice Ginsburg: Mr. Wolfson, as I read your brief, you were relying specifically on (e)(3) and the reading of that, as Judge Selya did, and you were not infusing this section (e)(2) that was first introduced into this colloquy by Justice Breyer.

Your brief seems to concentrate on (e)(3) and the meaning of that.

Mr. Wolfson: That's right.

The only... the only point that we... I mean, except insofar as the statute needs to be construed, you know, as a whole and one has to look at sort of the... the menu of options that the district court has in considering the policy of the statute.

But we do believe that the... the authority for the district court to do what it could have done under prior law is found in (e)(3).

Justice Ginsburg: And... but... and I think you would have to concede, would you not, that there is some ambiguity, otherwise how could you account for this circuit split that is lopsided the other way?

Mr. Wolfson: Well, certainly courts have looked at this different ways, but the... this Court has said many times that the mere fact that several lower courts have disagreed about the meaning of a criminal statute doesn't necessarily bring to bear the rule of lenity.

And I think that the First Circuit's opinion in the O'Neil case presents a rather persuasive explanation of it.

I think the problem with... one of the problems with the other courts is that they... the other courts' constructions of (e) is that they didn't sort of... they didn't consider what were the policy objectives behind supervised release, and they also didn't place it in the context of special parole and parole and probation as the First Circuit did very persuasively.

And all of those are legitimate tools of statutory construction that this Court should consider before arriving at any conclusion that the statute is ambiguous.

If there are no further questions, we would request that the judgement be affirmed.

Rebuttal of Rita La Lumia

Chief Justice Rehnquist: Thank you, Mr. Wolfson.

Ms. La Lumia, you have 3 minutes remaining.

Mr. Lumia: Thank you.

I want to address a couple points.

The first one is the point of policy that the Government makes.

One must keep in mind that the policy of... of the imposition of supervised release at initial sentencing may differ from reimposition of supervised release upon revocation, and given that it's more of a punishment for a person's willful failure to abide by the Court's imposed conditions, the petitioner's reading of subsection (e)(3) would make more sense, to allow the court to impose reimprisonment upon revocation.

And, in fact, reimprisonment is what triggers a reimposition of supervised release.

Under subsection (h)...

Chief Justice Rehnquist: But under (e)(3), it's clear the court could, if it wanted to, impose additional imprisonment, isn't it?

I mean, that isn't what the ambiguity is about.

Mr. Lumia: Under subsection (e)(3), the court could, indeed, impose reimprisonment, and there...

Chief Justice Rehnquist: The question is whether it can impose another term of supervised release or more supervised release.

Mr. Lumia: That's correct.

That's correct, at which... and that... that is our... the petitioner's position in this case.

There is no authority to reimpose any term of supervised release.

Chief Justice Rehnquist: So, a judge is faced with the alternative, either you send the guy to prison or he goes free.

Mr. Lumia: You send him to prison for up to 2 years, the statutory limitation under the supervised release statute... any period in between.

And the court can consider factors that would be... that would make a longer or shorter term of imprisonment appropriate.

Chief Justice Rehnquist: How about the benefit of supervised release in enabling someone to reintegrate into society?

Mr. Lumia: Well, if one considers the benefits weighed against the disadvantages, I think that supervised release is clearly more disadvantageous because it... it imposes a restraint on liberty.

The proper comparison...

Chief Justice Rehnquist: Well, but surely prison is a restraint on liberty too.

Mr. Lumia: But the proper comparison in this case is not between an imposition of a prison sentence and imposition of supervised release.

It's between imposition of supervised release and freedom.

And imposition of supervised release, no matter what the policy goals, is much more disadvantageous...

Justice Ginsburg: I don't why that's the proper comparison because you're denying the district judge under the old law the ability to say I won't send them to prison at all, but I am going to reimpose supervised release.

Mr. Lumia: Well, that's correct.

And... and even under subsection (h), if a district... district judge wants to reimpose supervised release, it's only upon imposition of a sentence of imprisonment.

That's the way the statute reads.

It's only if the judge considers revocation appropriate...

Justice Ginsburg: Yes, but even I agreed with you about that, you are saying it's got to be the maximum prison.

The judge can't divide it up between the two.

It's got to be the 2 years in prison, not 1 year in prison, 1 year supervised release.

Mr. Lumia: Under subsection (e)(3), that's correct.

Chief Justice Rehnquist: Thank you, Ms. La Lumia.

The case is submitted.