United States v. Becker

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 12, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11188
Non-Argument Calendar
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D.C. Docket No. 2:07-tp-14005-DLG-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff–Appellee,
versus
TODD ERLING BECKER,
lllllllllllllllllllll Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 12, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Todd Erling Becker appeals his sentence of two years’ imprisonment
followed by one year of supervised release, which the district court imposed after
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revoking his supervised release. Becker argues that 1) the district court lacked
jurisdiction to rule on his revocation petition because pretrial detention does not
constitute imprisonment and does not toll the supervised release term; and 2)
under 18 U.S.C. § 3583 the maximum sentence permissible for revocation of
supervised release was two years, so the district court erred when it sentenced him
to two years’ imprisonment to be followed by one year of supervised release.
I.
In October 2003, Becker was convicted of money laundering in the Eastern
District of Texas. The district court sentenced him to 51 months’ imprisonment to
be followed by three years’ supervised release. Becker’s sentence was to be
served concurrently with any sentence imposed as a result of three pending state
law felony charges in Florida. In November 2003, Becker pleaded guilty to some
of those charges and was sentenced to 6 years’ imprisonment to be followed by 10
years’ probation. The remaining state charges were dismissed.
In April 2007, Becker was released from custody and began his term of
supervised release. While on supervised release, Becker was not permitted to
possess a firearm or engage in additional criminal conduct. His supervision was
transferred to the Southern District of Florida. About two weeks after his release,
while in Palm Beach County, Becker was arrested again, this time on state charges
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of possession of a firearm by a convicted felon and solicitation to commit a home
invasion robbery. Becker was then taken into custody for violating his probation
that was imposed as a result of his November 2003 guilty plea in Florida.
Although he was held by Orange County officials from August 2007 until June
2009, he was eventually found not guilty of the probation violation charges. He
was then transferred back to the authorities in Palm Beach County on June 18,
2009 to face the pending charges from the solicitation-of- home-invasion-robbery
arrest. In December 2010, Becker was convicted in state court for solicitation to
commit home invasion robbery with a firearm and was sentenced to 15 years’
imprisonment.
Meanwhile, in June 2007, an arrest warrant was issued for Becker’s
violations of the terms of his supervised release, for the same conduct discussed
above, in his federal money laundering case. Becker then filed a motion to1
dismiss the supervised release petition for lack of jurisdiction. In the motion, he
argued that because he began his supervised release on April 11, 2007, his
supervision should have ended on April 10, 2010, thus the district court did not
Because jurisdiction has transferred to the Southern District of Florida, a district judge1
there signed the superseding petition, and added a second violation to the terms of Becker’s
supervised release. The government later dismissed the first supervised release violation, but the
district court found that the government had sustained its burden to establish the second
violation.
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have jurisdiction to revoke his supervised release in January 2011. The United
States responded that Becker’s term of supervised release was tolled from the time
of the new violation until his December 2010 conviction, thus his supervised
release had not expired at the time of the revocation hearing. The district court
denied Becker’s motion to dismiss and sentenced him to two years’ imprisonment
to be followed by one year of supervised release. This is his appeal.
II.
A.
We review de novo whether a district court has jurisdiction to revoke a term
of supervised release. United States v. Johnson, 581 F.3d 1310, 1311 (11th Cir.
2009). This court has observed that:
Although the Supreme Court has held that supervised release begins
when a prisoner is released from federal custody, it has also noted that
. . . “[a] term of supervised release does not run during any period in
which the person is imprisoned in connection with a Federal, State, or
local crime unless the imprisonment is for a period of less than 30
consecutive days.”
Id. (quoting United States v. Johnson, 529 U.S. 53, 57 (2000)). Becker concedes that
our ruling in Johnson forecloses his requested relief, but contends that he wants to
preserve this issue for further appeal. Because Becker was detained for more than 30
days prior to his conviction on the state solicitation-of-a-home-invasion-robbery
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charge, his term of supervised release was tolled while he was in custody and had not
expired when the superseding revocation petition was filed. Id. at 1311. Thus, the
district court properly exercised jurisdiction over the revocation petition.
B.
Becker next argues that the district court erred because the sentence it
imposed exceeded the maximum sentence permissible for revocation of supervised
release for money laundering. In support, Becker contends that the district court
erred by ordering him to serve an additional year of supervised release upon
completion of his two years’ imprisonment.
We review the legality of a sentence, including the sentence imposed
because of a revocation of supervised release, de novo. United States v. Pia, 345
F.3d 1312, 1313 (11th Cir. 2003). A district court may exercise its discretion to
revoke a defendant’s term of supervised release if it finds by a preponderance of
the evidence that the defendant violated a condition of his supervised release.
United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). It is also within
the district court’s discretion to impose a revocation sentence, including
imprisonment. Id.
The statutory maximum term of imprisonment to be imposed upon a
revocation of supervised release is determined by the class of the original offense
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of conviction. 18 U.S.C. § 3583(e)(3). The money laundering offense that resulted
in Becker’s original term of supervised release carries a statutory maximum of 20
years’ imprisonment and qualifies as a Class C felony. 18 U.S.C. § 1956(a). The
maximum term of supervised release for a Class C felony is, “not more than three
years.” Id. at § 3583(b)(2). Section 3583(h) allows for supervised release
following revocation, but limits it to “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.”
Here, the district court sentenced Becker to two years of imprisonment to be
followed by one year of supervised release. The difference between the three-year
maximum term of supervised release that was authorized for the original money
laundering offense, pursuant to § 3583(b)(2), and the two years’ imprisonment
imposed by the district court is one year. Thus, the district was was statutorily
permitted to impose up to one year of supervised release, in addition to the two
year term of imprisonment, for Becker’s supervised release violation; it did just
that. Accordingly, the district court is AFFIRMED.
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