United States of America v. Billy Washington, also known as BILLY JACOBS Billy Washington

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 04-4465
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UNITED STATES OF AMERICA
v.
BILLY WASHINGTON,
also known as BILLY JACOBS
Billy Washington,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 93-cr-00138-15
District Judge: Honorable James McGirr Kelly
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Submitted Under Third Circuit LAR 34.1(a)
September 23, 2005
Before: ROTH, McKEE and FISHER, Circuit Judges.
(Filed: October 17, 2005)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Appellant Billy Washington challenges the District Court’s statutory and
constitutional authority to impose a second term of supervised release following a prison
term imposed by the court for Washington’s violation of the conditions of his first
supervised release. We find no merit in Washington’s contention and will affirm the term
of supervised release imposed by the District Court. As we write only for the parties, we
set forth only those facts necessary to our analysis.
I.
On September 10, 1993, Billy Washington pleaded guilty to conspiracy to
distribute cocaine and marijuana, and on October 27, 1994, he was sentenced to 100
months imprisonment, and six years (72 months) of supervised release. While on
supervised release, Washington violated the conditions of his release, and on
November 23, 2004, the District Court, following a hearing, revoked Washington’s
supervised release, and ordered Washington to serve nine months of imprisonment, to be
followed by 63 months of supervised release.
II.
This is a timely appeal from a sentencing order, over which this Court has
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Our review of the District
Court’s interpretation of a provision of law is plenary. Gibbs v. Cross, 160 F.3d 962, 964
(3d Cir. 1998).

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Section 3583(h) was added to Title 18 in 1994, providing explicitly that “when a1
term of supervised release is revoked and the defendant is required to serve a term of
imprisonment, the court may include a requirement that the defendant be placed on a term
of supervised release after imprisonment.”
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III.
Washington argues that the 63 months of supervised release cannot be validly
imposed on him because, he contends, the statutory amendment authorizing the
imposition of the additional supervised release time was enacted subsequent to his
commission of the criminal conduct for which he was sentenced.
Washington is wrong. The statute as it stood at the time he sold the cocaine fully
authorized the additional release time imposed on him. The Supreme Court addressed
precisely this legal question, in precisely this factual context, in Johnson v. United States,
529 U.S. 694 (2000). Johnson is dispositive here: the subsequent amendment, and thus1
the Ex Post Facto Clause of the United States Constitution, Art. I, § 9, are not implicated.
As the Supreme Court explained in Johnson, because supervised release is
imposed pursuant to sentencing power deriving from the original conviction, 529 U.S. at
701, statutory authority to impose supervised release must be found in the sentencing
statute as it stood at the time of the offense. This case, therefore, as did Johnson, “turns
... on whether § 3583(e)(3) permitted imposition of supervised release following
recommitment” at the time of the defendant’s criminal conduct. Id. at 702-03. The

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relevant language was the same at the time of Washington’s criminal conduct as it was at
the time of Johnson’s, namely, that the District Court was authorized to
revoke a term of supervised release, and require the person to serve in
prison all or part of the term of supervised release without credit for time
previously served on postrelease supervision.
Id. at 697 (quoting 18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V)). The Court in Johnson
analyzed this language at some length, and concluded that for the entire duration of his
original sentence, the District Court retained the power to impose on Johnson either
prison time or supervised release. Id. at 713. The subsequent amendments to § 3583 only
made explicit the power that sentencing courts already had by virtue of the pre-
amendment language of §§ 3583(e) and (a). Id. at 708 (“There is no reason to think that
under [the pre-amendment] regime the court would lack the power to impose a
subsequent term of supervised release in accordance with its general sentencing authority
under 18 U.S.C. § 3583(a). This section provides that ‘[t]he court, in imposing a sentence
to a term of imprisonment for a felony or a misdemeanor, may include as a part of the
sentence a requirement that the defendant be placed on a term of supervised release after
imprisonment....’”).
IV.
In short, under the law as it stood at the time Washington committed his offense,
the District Court had the power both to revoke his supervised release and send him back
to prison upon violation of the terms of that release, and to impose an additional period of

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Under § 3583(e)(3), incarceration imposed as a consequence of violation of2
release conditions is to be served “without credit for time previously served on
postrelease supervision.” Thus Washington is not entitled to credit for the period of
supervised release served between his initial release from prison and his re-incarceration.
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supervised release to follow that second term of incarceration. Within the temporal
confines of the original sentence (in this case 172 months) the District Court had the2
power to impose upon Washington either imprisonment or supervised release, depending
on Washington’s conduct. In this case, Washington served 109 months in prison. Under
Johnson, therefore, the District Court had authority to order an additional 63 months of
supervised release, as it did. There is neither illegality nor the specter of ex post facto
punishment in the District Court’s treatment of Washington. Accordingly we will affirm
the sentencing order of the District Court.

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