Federal Sentencing Under U.S. v. Patrick Henderson

When maximum does not mean maximum.

With the exception of capital crimes that carry the possibility of a sentence of life in prison or the death penalty, all federal crimes have a maximum period of incarceration that is set by statute. But, does that mean a defendant can never serve a sentence longer than the statutorily mandated maximum sentence for a particular crime? The answer might seem obvious. If the law establishes a maximum sentence for a crime, no person could be lawfully required to serve a longer term of imprisonment based on a conviction for that crime. As it turns out, however, that is not the case.

In United States of America v. Patrick Lawrence Henderson, 998 F.3d 1071 (9th Cir. 2021), the Ninth Circuit court held that, under the right (or wrong) set of circumstances, a person convicted of a federal crime could be required to serve the statutory maximum term for the offense, plus an additional period of incarceration for failing to comply with the requirements of supervised release. In doing so, the court relied on a prior Ninth Circuit case, United States v. Purvis, 940 F.2d 1276 (9th Cir. 1991), in which the court had held the authority granted under 18 U.S.C. § 3583 to impose a period of supervised release in addition to any sentence of incarceration necessarily included the authority to punish a violation of release conditions with additional incarceration. Furthermore, the authority under § 3583 to impose additional incarceration was not limited by the application of any statutory maximum sentence for the offense. Thus, a defendant could be sentenced to both the maximum term of imprisonment for the offense of conviction, plus an additional period of imprisonment for violating conditions of supervised release, which in some cases could be up to an additional five years.

Both Henderson and Purvis are consistent with decisions from other federal circuits. However, neither can be reconciled with two fundamental principles of law. First, criminal statutes must be given their plain and ordinary meaning based on the language used in the statute. Second, the due process clause of the Fifth Amendment to the Constitution requires that citizens be given fair notice of both the conduct prohibited by a criminal statute and the punishment that may be imposed for its violation.

In 2010, Patrick Henderson pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Under that statute, Henderson was subject to both a fine and a term of imprisonment of "not more than 10 years" under 18 U.S.C. § 924(a)(2). He was sentenced to 117 months imprisonment, which was just three months short of the maximum 120 month sentence He was also given a term of supervised release of 36 months. He was released from prison and began his term of supervised release in September 2018. Less than a month later, Henderson was arrested on state charges in Montana. In November, he was arrested again in Montana on a variety of state misdemeanor and felony charges. Any violation of state criminal laws was also a violation of Henderson's supervised release conditions.

In July 2019, a magistrate judge revoked Henderson's supervised release and sentenced him to serve an additional 21 months in prison. When combined with his original sentence of 117 months, the result was a total period of incarceration of 138 months, or 18 months longer than the 10 year maximum authorized under § 924(a)(2).

Henderson objected, arguing that he could not be sentenced to any more than three months for the supervised release violation because any additional incarceration would exceed the maximum sentence allowed for his original conviction. Henderson based his argument on both the Fifth and Sixth Amendments. The court, however, paid little heed to the Fifth Amendment claim and instead focused on the argument that, under his the Sixth Amendment right to trial by jury, any penalty for the violation of his supervised release conditions that exceeded a total of 120 months would have to be based upon a finding by a jury beyond a reasonable doubt and not on a finding by a judge based on a preponderance of the evidence.

The court swept that argument aside by characterizing the imposition of additional prison time for violating supervised release conditions as "part of the maximum sentence authorized for the underlying offense." Thus, no new finding of guilt by a jury was required. What the court did not explain, however, was how the additional 21 months of incarceration, which resulted in a total sentence of 138 months, could be part of Henderson's original sentence when that sentence was limited by statute to a maximum of 120 months.

The Henderson court got around that problem by characterizing the sentence imposed for violating supervised release conditions as part of the original sentence for purposes of the Sixth Amendment right to trial by jury, but not for purposes of calculating the maximum sentence that could be imposed for the underlying conviction. Logically, of course, a sentence imposed for violating supervised release conditions is either part of the original sentence or it is not. If it is not, then it can only be a new sentence based on a new conviction obtained in a manner consistent with the Sixth Amendment right to a jury trial. If it is part of the original sentence, then the total sentence cannot exceed the maximum allowed by law.

The Sixth Amendment issue, however, is actually a red herring. Henderson's alleged violation of Montana law might also have been a violation of his conditions of release, but it was not a crime under federal law. Recognizing that fact, the court made it clear that the only legal authority for sending Henderson back to prison for an additional 21 months was his original conviction for being a felon in possession of a firearm. Although the court also recognized that the statutory maximum sentence for that offense was 120 months, it simply ignored the fact that the two sentences together exceeded that maximum. In so doing, the court completely disregarded fundamental principles of statutory interpretation and the Due Process Clause of the Fifth Amendment.

The first and most fundamental rule of statutory construction is that the words of the statute must be given their plain and ordinary meaning. See, Middle Mountain Land & Produce, Inc. v. Sound Commodities, Inc., 307 F..3d 1220, 1223 (9th Cir. 2002). 18 U.S.C. § 924(a)(2) states that a person convicted of being a felon in possession of a firearm under §922(g) "shall be fined as provided in this title, imprisoned not more than 10 years, or both." The phrase "not more than 10 years," when given its plain and ordinary meaning sets an absolute limit on the length of time a person can be incarcerated for violating § 922(g). The statute makes no exceptions.

As the Henderson court noted, the only legal authority for sending Henderson back to prison after having served his sentence for being a felon in possession of a firearm was 18 U.S.C. § 3583(e)(3), which states that a court may revoke supervised release "and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release." However, § 3583(e)(3) says nothing about the maximum sentence of imprisonment that can be imposed for any crime and cannot by any stretch of the imagination be read as either amending or repealing § 924(a)(2). It does nothing more than authorize the imposition of a term of supervised release "as part of the sentence."

Without actually saying so, what the Henderson court did was amend 18 U.S.C. § 924(a)(2) by implication to add any period of supervised release ordered by the sentencing court to the statutory maximum for the offense. In doing so, the court violated the long standing principle that the implied amendment of a statute will be found only when there is no rational alternative. See, Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). There is a completely rational and reasonable alternative to finding an implied amendment of 18 U.S.C. § 924(a)(2) and, by further implication, all other statutes setting maximum prison terms for federal crimes. The alternative is to read § 3583(e)(3) as permitting the sentencing court to impose a period of supervised release in addition any term of imprisonment so long as the combined total does not exceed the statutory maximum for the offense.

An even more fundamental problem is the court's failure to consider the Fifth Amendment right to due process applicable to all criminal proceedings, including sentencing. Due process under the Fifth Amendment requires that citizens have "fair notice" of the penalties that apply to forbidden conduct. United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). A statute that states a person convicted of a particular crime can be imprisoned for "not more than 10 years" does not give fair notice that the penalty for conviction may actually be imprisonment for 138 months or longer. Any reasonable person reading § 922(g) would rightly believe that the phrase "not more than ten years" means exactly what it says.

The Henderson court was not concerned with such legal niceties, however. Instead, the court was more troubled by the possibility that Henderson and other bad actors like him might not be subject to any penalty for violating supervised release conditions after having served the statutory maximum sentence. But that objection is no more than an objection to the maximum sentence allowed by law for the offense, a choice that is solely within the discretion of Congress to make, not the courts.

Judge Rakoff, in a lengthy and thoughtful dissent concluded that under Apprendi v. New Jersey, the imposition of a sentence beyond the statutory maximum based on findings made by a judge violated Henderson's Sixth Amendment right to a jury trial. While there is much to be commended in Judge Rakoff's dissent, it also misses the point. As a matter of simple logic, a court can never under any circumstances impose a sentence that exceeds the maximum sentence for the offense of conviction. Maximum means maximum. It would not make any difference if a jury had found beyond a reasonable doubt that Henderson had violated the conditions of his release. He was neither charged with nor convicted of any new crime under federal law. Absent a conviction for a new offense, any incarceration was simply additional punishment for the original conviction, as the majority of the court recognized it was. The sentence for that conviction was limited to a maximum of ten years - period.