The Honorable Richard J. Sullivan, of the United States District Court for the… v. Leon UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2011…

* The Honorable Richard J. Sullivan, of the United
States District Court for the Southern District of New York,
sitting by designation.
10-4090
United States v. Leon
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2011 5
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(Submitted: October 21, 2011 Decided: November 23, 2011) 8
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Docket No. 10-4090 10
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UNITED STATES OF AMERICA, 14
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Appellee, 16
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- v.- 18
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JAMES LEON, 20
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Defendant-Appellant. 22
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Before: JACOBS, Chief Judge, WESLEY, Circuit 26
Judge, and SULLIVAN, District Judge.*
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Defendant appeals from a judgment of the United States 29
District Court for the Southern District of New York 30
following his plea of guilty to a violation of the 31
conditions of his supervised release. Defendant argues that 32

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the district court exceeded its authority by imposing a 1
post-revocation term of supervised release that extended 2
beyond the end-date of the originally imposed term of 3
supervision. In the alternative, he argues that the term of 4
supervised release was a substantively unreasonable 5
sentence. 6
STEVEN M. STATSINGER, 7
Federal Defenders of New York, 8
Inc., New York, NY, for 9
Appellant. 10
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BRIAN R. BLAIS, JUSTIN S. 12
WEDDLE, for PREET BHARARA, 13
United States Attorney, 14
Southern District of New York, 15
New York, NY, for Appellee. 16
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18
PER CURIAM: 19
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James Leon appeals from a judgment entered in the 21
United States District Court for the Southern District of 22
New York (Kaplan, J.), following his plea of guilty to a 23
violation of the conditions of his supervised release. The 24
initial sentence of supervised release was 60 months; on 25
revocation, he was sentenced to a new 60-month term: one 26
month of the time served in prison pre-sentence, plus 59 27
months of supervised release. Leon argues that the district 28
court exceeded its authority by imposing a post-revocation 29

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term of supervised release that extended beyond the end-date 1
of the originally imposed term of supervision. In the 2
alternative, he argues that the 59-month term of supervised 3
release was a substantively unreasonable sentence. 4
Affirmed. 5
BACKGROUND 6
7
In 1994, James Leon pled guilty in the District of 8
Minnesota to aiding and abetting the possession of cocaine 9
with the intent to distribute and was sentenced to 192 10
months imprisonment to be followed by 60 months of 11
supervised release. After release from prison in May 2008, 12
Leon’s supervision was transferred to the Southern District 13
of New York. The term of supervision was scheduled to 14
expire on May 1, 2013. 15
In early 2010, officers from the New York Police 16
Department went to Leon’s apartment to arrest him for 17
possession of stolen goods. Leon fled, and was never 18
ultimately charged by state authorities. Following this 19
incident, however, Leon failed to report for a scheduled 20
office visit with his probation officer on February 16, 21
2010. After several unsuccessful attempts to contact him, 22

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Leon was charged with failing to report to the Probation 1
Office as directed, in violation of the conditions of his 2
supervised release, and was arrested on August 24, 2010. He 3
pled guilty to violating the conditions of his supervised 4
release. 5
At Leon’s sentencing, he sought leniency as the sole 6
caregiver for an aged mother suffering from various ailments 7
and disabilities. The Government recommended a prison 8
sentence within the applicable Sentencing Guidelines range 9
of 8 to 14 months. After soliciting the parties’ views 10
regarding the permissible length of supervised release that 11
Leon could be ordered to serve following any imprisonment, 12
the district court revoked Leon’s 60-month term of 13
supervised release and sentenced him to time served 14
(approximately one month) to be followed by a term of 15
supervised release of 59 months, on the same terms and 16
conditions that governed his original term of supervised 17
release. Leon moved for a correction of his sentence, which 18
the district court denied. This appeal followed. 19
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DISCUSSION 1
2
On appeal, Leon challenges the district court’s 3
imposition of a 59-month term of supervised release on two 4
grounds: [1] that the court was not authorized to impose an 5
additional term of supervised release that exceeded what 6
remained of his original 60-month term of supervised release 7
at the conclusion of his post-revocation imprisonment, and 8
[2] that the term of supervised release imposed was 9
substantively unreasonable. 10
I 11
12
Leon’s new 59-month term of supervised release exceeded 13
the end-date of his original 60-month term of supervised 14
release. He argues that the sentence was therefore 15
impermissible under Johnson v. United States, 529 U.S. 694 16
(2000). 17
In an appeal from a sentence, we review a district 18
court’s legal determinations de novo. See United States v. 19
Kinney, 211 F.3d 13, 19 (2d Cir. 2000). A post-revocation 20
sentence is governed by the law prevailing at the time of 21
the defendant’s original offense. Johnson, 529 U.S. at 700- 22

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1 Under 18 U.S.C. § 3583(h), “The length of such a term
of supervised release shall not exceed the term of
supervised release authorized by statute for the offense
that resulted in the original term of supervised release,
less any term of imprisonment that was imposed upon
revocation of supervised release.” Thus, the statute in its
current form clearly permits district courts to impose a
combination of post-revocation imprisonment and additional
supervised release that is equal in duration to the
authorized term of supervised release for the original
offense.
6
01. On September 13, 1994 (after Leon committed the 1
underlying offense for which he initially received 2
supervised release), Congress amended the supervised release 3
statute to expressly permit courts to impose an additional 4
term of supervised release following the revocation of an 5
original term of supervised release. See 18 U.S.C. 6
§ 3583(h).1 Johnson held that § 3583(h) did not apply 7
retroactively, but that, even prior to its enactment, 8
district courts had the authority to impose an additional 9
term of supervised release to follow any post-revocation 10
imprisonment by virtue of § 3583(e). Johnson, 529 U.S. at 11
713. That section permits a district court to “revoke a 12
term of supervised release, and require the person to serve 13
in prison all or part of the term of supervised release 14
without credit for the time previously served on postrelease 15
supervision, if it finds by a preponderance of the evidence 16

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that the person violated a condition of supervised release.” 1
Id. at 704 (quoting 18 U.S.C. § 3583(e)(3)). 2
Leon contends that this provision bears only upon the 3
prison component of a post-revocation sentence, allowing the 4
court to deny credit for time already served on supervised 5
release in deciding the length of post-revocation 6
imprisonment. Leon’s argument on appeal is that any new 7
post-revocation term of supervised release should have 8
reflected a credit for the supervised release time he served 9
under the initial sentence. However, the statute allows a 10
court to sentence a defendant to serve only part of the 11
original term of supervised release in prison and the rest 12
(potentially the greater part of the term) through 13
additional supervised release. The clear import of the 14
statute is to deny credit with respect to the entire term of 15
supervised release regardless of how the court allocates 16
that term between imprisonment and additional supervised 17
release. 18
Leon’s approach seems to run counter to one of the 19
purposes of release on supervision. Johnson referenced a 20
Congressional intent “to use the district courts’ 21
discretionary judgment to allocate supervision to those 22

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releasees who needed it most.” Id. at 709. It reasoned 1
that “forbidding the reimposition of supervised release 2
after revocation and reimprisonment would be fundamentally 3
contrary to that scheme” because a defendant’s violation of 4
the terms of his supervised release “tends to confirm the 5
judgment that help was necessary, and if any prisoner might 6
profit from the decompression stage of supervised release, 7
no prisoner needs it more than one who has already tried 8
liberty and failed.” Id. In view of Johnson’s expansive 9
interpretation of district courts’ statutory authority to 10
impose additional supervised release following revocation in 11
order to ease reintegration into society for those prisoners 12
that violate the conditions of their release, we fail to see 13
how the decision can be read to impose the limitation which 14
the defendant seeks. 15
We join a number of other Circuits in rejecting the 16
approach urged by Leon. See, e.g., United States v. 17
Gresham, 325 F.3d 1262, 1268 (11th Cir. 2003) (holding that, 18
under § 3583(e)(3), “a defendant is not entitled to credit 19
for pre-revocation time served on supervised release”); 20
United States v. Russell, 340 F.3d 450, 454 (7th Cir. 2003) 21
(interpreting Johnson to mean that “a district court may, 22

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upon revoking a term of supervised release under 1
§ 3583(e)(3), sentence a defendant to serve a combined term 2
of reimprisonment and additional supervised release, so long 3
as that sentence does not exceed the original term of 4
supervised release”). 5
II 6
7
Leon also argues that even if the district 8
court possessed the legal authority to impose it, a 59-month 9
period of supervised release was substantively unreasonable. 10
We review a district court’s sentence for substantive 11
reasonableness under an abuse of discretion standard. Gall 12
v. United States, 552 U.S. 38, 51 (2007). “[W]hen 13
conducting substantive review, we take into account the 14
totality of the circumstances, giving due deference to the 15
sentencing judge’s exercise of discretion, and bearing in 16
mind the institutional advantages of district courts.” 17
United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) 18
(in banc). We will “set aside a district court’s 19
substantive determination only in exceptional cases where 20
the trial court’s decision cannot be located within the 21
range of permissible decisions.” Id. at 189 (internal 22

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quotation marks omitted). Thus, the substantive 1
unreasonableness standard “provide[s] a backstop for those 2
few cases that, although procedurally correct, would 3
nonetheless damage the administration of justice because the 4
sentence imposed was shockingly high, shockingly low, or 5
otherwise unsupportable as a matter of law.” United States 6
v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). 7
According to Leon, the sentence was substantively 8
unreasonable because the district court’s record findings do 9
not support the need for a long period of supervised 10
release, and instead operate to justify the imposition of a 11
below-Guidelines term of imprisonment (time served of one 12
month versus the 8-14 month Guidelines recommendation). In 13
explaining its sentence, the court primarily focused on 14
sympathetic factors that counseled in favor of a below- 15
Guidelines term of imprisonment, including the defendant’s 16
role as a caregiver for his elderly mother. But the court 17
also signaled distrust of Leon’s use of liberty, citing his 18
“idiocy” in severing all contact with the Probation Office 19
after fleeing the NYPD. District courts are permitted thus 20
to “hedge against [a] relatively lenient term of 21
imprisonment” by imposing a longer term of supervised 22

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release. See United States v. Rivera, 192 F.3d 81, 87-88 1
(2d Cir. 1999). Leon had only recently begun the process of 2
reintegrating into society after a lengthy prison sentence 3
and had thus far proven incapable of complying with the 4
terms of his supervised release. The district court could 5
therefore reasonably conclude that a relatively long term of 6
supervised release was necessary to prevent recidivism in 7
view of the lenient prison sentence it imposed. The 8
district court’s decision to offset a short prison sentence 9
with a long period of supervised release “is a matter of 10
fine-tuning rather than inconsistency.” Id. at 88. Because 11
this is not an “exceptional case[] where the trial court’s 12
decision cannot be located within the range of permissible 13
decisions,” we find the district court did not abuse its 14
discretion in imposing a 59-month term of supervised 15
release. See Cavera, 550 F.3d at 189 (internal quotation 16
marks omitted). 17
CONCLUSION 18
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For the foregoing reasons, the judgment of the district 20
court is AFFIRMED. 21

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