No. 13-­--2622 UNITED STATES OF AMERICA v. Roosevelt L. Spencer

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-­‐‑2622
UNITED STATES OF AMERICA,
Plaintiff-­‐‑Appellee,
v.
ROOSEVELT L. SPENCER,
Defendant-­‐‑Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 13-­‐‑cr-­‐‑33-­‐‑bbc — Barbara B. Crabb, Judge.
____________________
ARGUED JANUARY 6, 2014 — DECIDED JANUARY 10, 2014
____________________
Before EASTERBROOK, WILLIAMS, and TINDER, Circuit Judg-­‐‑
es.
EASTERBROOK, Circuit Judge. A person who accumulates
three convictions for violent felonies or serious drug offens-­‐‑
es, then commits a federal firearms offense, is an armed ca-­‐‑
reer criminal and must be sentenced to at least 15 years in
prison. 18 U.S.C. §924(e). Roosevelt Spencer pleaded guilty
to possessing a firearm, despite his prior felony convictions,
in violation of 18 U.S.C. §922(g). The district court concluded

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No. 13-­‐‑2622 2
that he is an armed career criminal and sentenced him to the
minimum term. He concedes that two of his convictions
qualify under §924(e) but denies that the third, for a meth-­‐‑
amphetamine crime, meets the statutory standard for a “se-­‐‑
rious drug offense”, which for state convictions means one
“involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance
(as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), for which a maximum term of imprison-­‐‑
ment of ten years or more is prescribed by law”. Spencer
maintains that Wis. Stat. §961.41(1)(e)(1), which prohibits the
manufacture or delivery of methamphetamine, does not car-­‐‑
ry “a maximum term of imprisonment of ten years or more”.
Spencer’s Wisconsin conviction is for a Class F felony. A
separate statute, Wis. Stat. §939.50(3)(f), provides that the
maximum punishment for a Class F felony is 12½ years’ im-­‐‑
prisonment. But for felonies committed in 2000 and later (as
Spencer’s was) the judge must impose a “bifurcated sen-­‐‑
tence” that “consists of a term of confinement in prison fol-­‐‑
lowed by a term of extended supervision”. Wis. Stat.
§973.01(2). For a Class F felony, the longest permissible
“term of confinement in prison” is 7½ years. Wis. Stat.
§973.01(2)(b)(6m). “Extended supervision” must be at least
25% of the “term of confinement in prison”, see
§973.01(2)(d), and may be as long as the rest of the term au-­‐‑
thorized by §939.50(3). The consequences of “extended su-­‐‑
pervision” are laid out in Wis. Stat. §302.113. The state’s De-­‐‑
partment of Corrections can extend an inmate’s time in pris-­‐‑
on by as much as 10 days for the first violation of any prison
rule, 20 days for the second, 40 days for the third, and 50% of
any time spent in segregation; all of these extensions togeth-­‐‑
er cannot exceed the term of extended supervision. A convict

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3 No. 13-­‐‑2622
released from custody, but still on extended supervision,
may be returned to prison for the balance of the term if the
convict violates any condition of supervision imposed by the
judge, either initially or on petition by the Department.
The United States contends, and the district judge held,
that the “maximum term of imprisonment” for the purpose
of §924(e) is the one provided by §939.50(e). Bifurcation be-­‐‑
tween initial confinement and extended supervision under
§973.01 does not matter, the judge held, because §302.113
and §939.50(e) together show that a Class F felon in Wiscon-­‐‑
sin can spend as much as 12½ years behind bars without the
need for a further criminal conviction—indeed, without the
need for a state judge to act, if the inmate’s behavior is so
poor that the Department of Corrections extends the in-­‐‑
mate’s confinement to the limit of the extended release in-­‐‑
cluded in the sentence. This meant that Spencer faced a max-­‐‑
imum prison stay of 12½ years for his methamphetamine
crime, giving him a total of three violent felonies or serious
drug offenses.
The principal difficulty with this understanding is that it
uses “maximum term of imprisonment” in a non-­‐‑standard
way. When lawyers refer to a “maximum term” they usually
mean the time the judge could impose, on the worst offend-­‐‑
er, on the date of sentencing, rather than the amount of time
a given person is likely to serve. United States v. Rodriquez,
553 U.S. 377 (2008), shows this in holding that the “maxi-­‐‑
mum term” for the purpose of §924(e) includes recidivist
enhancements even if state or federal guidelines will lead the
judge to select a term below the highest possible one.
McNeill v. United States, 131 S. Ct. 2218 (2011), adds that the
“maximum term” means the maximum on the date of sen-­‐‑

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No. 13-­‐‑2622 4
tencing, without regard to what happens later—parole, par-­‐‑
don, or a statutory change (in McNeill, a reduction in the cap
for future offenders, something the Justices held does not
matter when ascertaining the maximum a particular convict
faced on the day he was sentenced).
Post-­‐‑sentencing events that affect how long a person
spends in prison do not change the “maximum term” as the
legal system customarily uses that phrase. Consider federal
practices before the Sentencing Reform Act of 1984. Most
prisoners were eligible for parole after serving a third of
their sentences; some prisoners could be released on parole
almost immediately after entering prison. After serving two-­‐‑
thirds of a sentence, a person was entitled to release unless
the Parole Board had a strong reason to keep him locked up.
United States v. Addonizio, 442 U.S. 178 (1979), describes this
system. But judges and lawyers understood the “maximum
term” to be the longest confinement authorized by statute,
not how long a given felon was likely to spend in prison be-­‐‑
fore release. Good-­‐‑time credits are treated the same way.
Prisoners sentenced under federal law receive 15% off their
time if they follow prison rules. See 18 U.S.C. §3624(b); Bar-­‐‑
ber v. Thomas, 560 U.S. 474 (2010). The statutory maximum is
unaffected by this possibility, however; it reflects the highest
imposable sentence rather than how much will be served in
light of events that occur after imprisonment begins.
The prosecutor wants us to view Wisconsin’s bifurcated
sentencing as a form of reverse good time. Instead of setting
a maximum less rewards for good behavior, as federal law
does, Wisconsin sets a minimum plus penalties for bad be-­‐‑
havior. Good-­‐‑time and bad-­‐‑time systems come to the same
thing by different routes, the prosecutor insists, and should

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5 No. 13-­‐‑2622
be treated the same way, so that the “maximum term of im-­‐‑
prisonment” under either system is the longest time a con-­‐‑
vict may spend in custody without the need for a new con-­‐‑
viction.
If that is so, however, then supervised release under fed-­‐‑
eral law also increases the “maximum term.” Every federal
sentence imposed since the 1984 Act took effect in 1987 has
been bifurcated in a way similar to Wisconsin’s. The judge
pronounces a term of incarceration, to be followed by a term
of supervised release under 18 U.S.C. §3583. Anyone who
violates the conditions attached to supervised release may be
returned to prison for the full length of the supervised term.
Commission of another crime is unnecessary. So if a felon
refuses to submit to drug tests required by the conditions of
release, or leaves the state without permission, or balks at
paying restitution, these and other acts may put him back in
prison.
Treating a prospect of longer imprisonment as augment-­‐‑
ing the “maximum term” for the purpose of §924(e) would
increase the number of persons who qualify as armed career
criminals. According to 18 U.S.C. §3559(a)(4), a crime with a
maximum penalty of five or more years, but less than 10
years, is a Class D felony. According to §3583(b)(2), a person
convicted of a Class D felony may have three years’ super-­‐‑
vised release tacked onto the sentence. Thus a crime with a
statutory maximum of seven years would have a “maximum
term” of 10 years, adding together imprisonment and super-­‐‑
vised release in the same way the prosecutor proposes to
add imprisonment plus extended supervision under Wis-­‐‑
consin law. And that’s not all. For crimes involving terror-­‐‑
ism, crimes in which the victim is a minor, and a variety of

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No. 13-­‐‑2622 6
other offenses, the maximum term of supervised release is
life. 18 U.S.C. §3583(j), (k). A long list of crimes would be
added to those qualifying under §924(e) for stiff recidivist
sentences. This strikes us as an unlikely, backhanded way to
bring additional predicate crimes within §924(e). It is more
sensible to read “maximum term” as lawyers and judges or-­‐‑
dinarily do—a reference to the maximum sentence the judge
can pronounce on the worst offender, with neither additions
nor subtractions reflecting probabilities about what may
happen in the future (pardon, parole, commutation, good
time, bad time, statutory amendments, retroactive changes
to sentencing guidelines, and so on).
Counsel for the United States contended at oral argument
that supervised release under federal law differs from ex-­‐‑
tended supervision under Wisconsin law because only a
judge can revoke a federal prisoner’s supervised release,
while Wisconsin’s Department of Corrections can require a
state prisoner to serve in prison some or all of a sentence’s
term of extended supervision. That’s true enough, though
the separation between administrative and judicial action is
not complete: decisions adding prison time in Wisconsin are
reviewable in the state courts by common-­‐‑law writ of certio-­‐‑
rari, and in the federal courts by petitions for writs of habeas
corpus under 28 U.S.C. §2254. No matter. The allocation of
tasks between executive and judicial personnel is unrelated
to the meaning of “maximum term of imprisonment” in
§924(e). If Congress were to amend §3583 so that supervised
release could be revoked by the court’s Probation and Pretri-­‐‑
al Services System—as parole used to be revocable by the
Parole Commission—that change would not suddenly add
the longest possible duration of supervised release to the
“maximum term” under §924(e).

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7 No. 13-­‐‑2622
Classifying offenses according to the usual legal under-­‐‑
standing of “maximum term” allows federal judges to de-­‐‑
termine their sentences without a need to dig into the back-­‐‑
ground and administration of the many different state sys-­‐‑
tems. Wisconsin appears to be unique in implementing a
“bad-­‐‑time” split sentence that looks like a mirror image of
the federal good-­‐‑time-­‐‑plus-­‐‑supervised-­‐‑release system, but
other states have their own variations.
The prosecutor has invited us to consider the nature of
Wisconsin’s truth-­‐‑in-­‐‑sentencing reforms and to conclude
that the introduction of the bifurcated sentence under Wis.
Stat. §973.01(2) didn’t “really” change the maximum term,
despite what §973.01(2)(b)(6m) says. The maximum through
1999 was 12½ years, and the prosecutor maintains that it is
still 12½ years; the substitution of “extended supervision”
for five years of the old statutory cap is just the means that
Wisconsin used to end parole and adopt a system of deter-­‐‑
minate sentences parallel to those under the federal Sentenc-­‐‑
ing Reform Act of 1984. That may be an accurate description
of some (even many) state legislators’ thinking, but if federal
recidivist statutes such as §924(e) are to be administrable, we
must go on what the state statute books say, rather than on
why they say what they do or how they got that way com-­‐‑
pared with predecessor statutes.† Avoiding the need for de-­‐‑
† Wisconsin’s history provides an illustration. The text of this opin-­‐‑
ion greatly simplifies the developments, at the expense of some impreci-­‐‑
sion. A more complete description would cover the initial changes enact-­‐‑
ed in June 1998 and effective at the beginning of 2000, and a second set of
changes enacted in July 2002 and effective February 1, 2003. This second
set created the Class F felony; until then §939.50(3)(f) and
§973.01(2)(b)(6m) did not exist. The 1998 legislation changed the length
of imprisonment plus extended release at the same time as it created the

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No. 13-­‐‑2622 8
tours is one reason why federal recidivist sentences depend
on the terms of the statute of conviction, rather than on what
the defendants did in fact. See, e.g., Descamps v. United States,
133 S. Ct. 2276 (2013).
The normal legal understanding of “maximum term” is
the highest sentence a judge can mete out to anyone for a
particular crime. To the extent that there is ambiguity in the
text and structure of §924(e), the Rule of Lenity calls for us to
read the federal statute favorably to the accused. Skilling v.
United States, 130 S. Ct. 2896, 2932 (2010); Scheidler v. National
Organization for Women, Inc., 537 U.S. 393, 409 (2003). The
highest custodial sentence a judge in Wisconsin was author-­‐‑
ized to impose on Spencer for his Class F felony was 7½
years. This is the “maximum term” as §924(e) uses that
phrase. The upshot is that Spencer has only two qualifying
predicate convictions and may not be sentenced as an armed
career criminal.
The judgment is vacated, and the case is remanded with
instructions to resentence Spencer without the enhancement
under §924(e).
bifurcated sentence (at one point the total was only 5 years), and the cur-­‐‑
rent total of 12½ years comes from the 2002 statute. A summary of these
and other changes may be found in Thomas J. Hammer, The Long and
Arduous Journey to Truth-­‐‑in-­‐‑Sentencing in Wisconsin, 15 Federal Sentencing
Reporter 15 (2002). As we say in the text, our reading of §924(e) enables
us to resolve the appeal without getting into these complexities.

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