United States v. 2010-03-25 | 09-50307 | USA V. DAVID XINIDAKIS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-50307
Plaintiff-Appellee, D.C. No.
v. 3:08-CR-07026-  IEG-1DAVID XINIDAKIS,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted March 2, 2010*
Pasadena, California
Filed March 25, 2010
Before: Pamela Ann Rymer and Kim McLane Wardlaw,
Circuit Judges, and Matthew F. Kennelly,** District Judge.
Opinion by Judge Rymer
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
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COUNSEL
Jodi D. Thorp, Law Offices of Jodi Thorp, San Diego, Cali-
fornia, for the defendant-appellant.
Nicole A. Jones, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
OPINION
RYMER, Circuit Judge:
We must decide whether 18 U.S.C. § 3624(e) prohibits a
district court from imposing consecutive sentences of impris-
onment where a defendant violates concurrent terms of super-
vised release. Although we answered this question negatively
in United States v. Jackson, 176 F.3d 1175 (9th Cir. 1999)
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(per curiam), David Xinidakis argues that Jackson has been
undermined by the United States Supreme Court’s decision in
Johnson v. United States, 529 U.S. 694 (2000). We disagree.
Jackson remains the law of this circuit, and controls. Multiple
revocations of concurrent terms of supervised release may
result in consecutive time; there is no legal requirement that
they must result in concurrent time. Accordingly, we affirm.
I
Xinidakis was convicted on May 6, 1999, in the Western
District of Texas of bank robbery, using and carrying a fire-
arm during a crime of violence, and conspiracy to carry a fire-
arm during a crime of violence. He was sentenced to a total
of 123 months imprisonment, and 5 years of supervised
release on each count to run concurrently. He was released
from custody and began his term of supervised release on
August 1, 2006.
In May 2008 a petition was filed in the Western District of
Texas alleging that Xinidakis violated the conditions of super-
vised release by, among other things, failing to notify his pro-
bation officer of an arrest in California for trespassing after he
ignored the terms of a restraining order. Jurisdiction was
transferred to the Southern District of California, where Xini-
dakis was living at the time. The court revoked supervised
release, sentenced Xinidakis to time served, and reimposed
supervised release on the condition that he live in a Residen-
tial Reentry Center for up to 120 days.
Two and half months later, another petition to revoke was
filed based on Xinidakis’s unsuccessful termination from the
Reentry Center. It was subsequently amended to allege that
Xinidakis violated California law by stalking, violating a
restraining order, and committing battery. The district court
found that Xinidakis violated the conditions of release,1 and
1Xinidakis challenges the sufficiency of the evidence to support revoca-
tion, but we affirm the district court’s determination in a memorandum
disposition filed simultaneously with this opinion.
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sentenced him to 10 months imprisonment on Count 1 of the
underlying indictment and 10 months on Count 2, to run con-
secutively, and 10 months on Count 3, to run concurrently to
the sentence imposed on Counts 1 and 2, for a total of 20
months.
Xinidakis appeals the legality of the sentence, which we
review de novo. United States v. Chang, 207 F.3d 1169, 1177
(9th Cir. 2000).
II
[1] This appeal turns on whether Jackson remains good
law. If so, it squarely controls. There, we considered applica-
tion of § 3624(e) to revocation of multiple terms of supervised
release. Based on the language of § 3624(e),2 Jackson argued
that once concurrent sentences of supervised release had been
imposed, revocation of those sentences could only result in
the imposition of concurrent sentences of imprisonment. 176
F.3d at 1176-77. We joined other circuits that had rejected the
same argument, embracing their conclusion that § 3624(e)
governs just the initial imposition of supervised release, and
not the imposition of prison terms after revocation. Further,
we endorsed our colleagues’ opinion that § 3584(a),3 which
governs the imposition of multiple sentences of imprisonment
generally, applies to post-revocation sentences. 176 F.3d at
1177-78. As a result, a district court “ ‘retains discretion to
impose either concurrent or consecutive sentences after revo-
2Section 3624(e) provides in pertinent part:
The term of supervised release commences on the day the person
is released from imprisonment and runs concurrently with any
Federal, State, or local term of probation or supervised release or
parole for another offense to which the person is subject or
becomes subject during the term of supervised release.
3Section 3584(a) provides: “If multiple terms of imprisonment are
imposed on a defendant at the same time, . . . the terms may run concur-
rently or consecutively . . . .”
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cation of a defendant’s supervised release.’ ” Id. at 1177
(quoting United States v. Cotroneo, 89 F.3d 510, 513 (8th Cir.
1996)).4
[2] Xinidakis nevertheless maintains that the district court
lacked authority to impose consecutive sentences as Johnson
overrules Jackson. Johnson argued that it was improper for
the district court to revoke his single term of supervised
release and impose a prison term followed by a further term
of supervised release. 529 U.S. at 698. The Court declined to
apply retroactively newly enacted § 3583(h), which would
plainly allow this, and therefore had to decide whether the
pre-1994 version of § 3583(e)(3) permitted imposition of
supervised release after revocation and reincarceration. See
529 U.S. at 701-03. The Court held that it did, reasoning that
so far as that statute’s text was concerned, authority to “re-
voke” a term of supervised release and “require the person to
serve in prison all or part of the term of supervised release
. . .” meant that it was not a “term of imprisonment” being
served upon revocation, but all or part of the “term of super-
vised release.” Johnson, 529 U.S. at 705. Thus, whatever was
left of the term of supervised release after reincarceration
could be served as supervised release. Id. at 705-06.
Xinidakis posits that Johnson makes clear that § 3584(a)
does not apply to revocation proceedings because a district
court revoking supervised release does not sentence a defen-
4Every circuit court of appeals to consider the issue agrees that a district
court retains discretion under § 3584(a) to impose consecutive sentences
upon revoking concurrent terms of supervised release. See United States
v. Dees, 467 F.3d 847, 851-52 (3d Cir. 2006); United States v. Cordova,
461 F.3d 1184, 1189 (10th Cir. 2006); United States v. Deutsch, 403 F.3d
915, 916-18 (7th Cir. 2005) (per curiam); United States v. Gonzalez, 250
F.3d 923, 926-29 (5th Cir. 2001); United States v. Jackson, 176 F.3d 1175,
1176-79 (9th Cir. 1999) (per curiam); United States v. Johnson, 138 F.3d
115, 118-19 (4th Cir. 1998); United States v. Quinones, 136 F.3d 1293,
1294-95 (11th Cir. 1998) (per curiam); United States v. Cotroneo, 89 F.3d
510, 512-13 (8th Cir. 1996).
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dant to “a term of imprisonment,” but instead determines he
is to serve all or part of “the term of supervised release” in
prison. See Johnson, 529 U.S. at 705-06. This, in his view,
undercuts Jackson’s fundamental premise, so Jackson can no
longer stand. In turn, Xinidakis would apply § 3624(e) to any
“terms of supervised release” that are to be served in custody
following the revocation of supervised release, thus requiring
the terms to run concurrently.
[3] We are bound by Jackson unless Johnson “undercut the
theory or reasoning underlying [Jackson] in such a way that
the cases are clearly irreconcilable.” Miller v. Gammie, 335
F.3d 889, 900 (9th Cir. 2003) (en banc). We do not read John-
son as undermining Jackson. Johnson did not mention
§ 3624(e) or address whether a district court can order consec-
utive terms of imprisonment when revoking concurrent terms
of supervised release. It dealt with the entirely different issue
of whether the pre-1994 version of § 3583(e)(3) implicitly
permitted imposition of supervised release following a recom-
mitment even though the statute did not do so explicitly.
From Johnson’s discussion of the “metaphysics” of the pre-
1994 version of § 3583(e)(3), 529 U.S. at 705, Xinidakis
infers that § 3584(a) — which allows multiple terms of
imprisonment to run concurrently or consecutively — does
not apply to revocation proceedings because a district court
revoking supervised release does not sentence a defendant to
a “term of imprisonment.” However, Johnson did not categor-
ically determine the nature of a prison term that a defendant
serves as a result of a supervised release violation. Rather, the
Court was concerned only with a district court’s authority to
impose supervised release after reincarceration under an out-
dated statute. Id. at 702-03. The imposition of supervised
release after reincarceration was not at issue in Jackson and
it is not at issue here; the same goes for the pre-1994 version
of § 3583(e)(3).
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Nor did the Court suggest that its analysis would be the
same were it to consider the post-1994 version of
§ 3583(e)(3). Although Xinidakis imputes this result to John-
son by asserting that Congress has not changed the language
that informed Johnson’s interpretation of § 3583(e)(3), in fact
Congress has changed the language of § 3583(e)(3),5 some-
thing which the Court emphasized in contrasting the two ver-
sions. See 529 U.S. at 705.6
[4] In short, Jackson is alive and well. A district court has
discretion to impose concurrent or consecutive sentences after
revocation of multiple concurrent terms of supervised release.
Consequently, having revoked Xinidakis’s multiple terms of
supervised release, the district court could sentence him to
terms of imprisonment to run consecutively even though the
original terms of release ran concurrently. AFFIRMED.
5Compare 18 U.S.C. § 3583(e)(3) (1994) (authorizing courts 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
serviced on postrelease supervision”), with 18 U.S.C. § 3583(e)(3) (1997)
(authorizing courts to “revoke a term of 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 super-
vised release without credit for time previously served on postrelease
supervision”) (emphasis added). The latter version of § 3583(e)(3) applies
to Xinidakis because he was convicted in 1999. See Johnson, 529 U.S. at
701 (holding that “postrevocation penalties relate to the original offense”).
6The issue confronting Johnson, whether § 3583 allows a district court
to impose an additional term of supervised release after incarcerating a
defendant for violating a term of supervised release, was resolved when
Congress added § 3583(h). See Violent Crime Control and Law Enforce-
ment Act of 1994, Pub. L. No. 103-322, § 110505(3), 108 Stat. 1796,
2017. In contrast with Xinidakis’s theory, this subsection characterizes the
time served in custody after revocation of supervised release as a “term of
imprisonment.” See 18 U.S.C. § 3583(h); see also United States v. John-
son, 529 U.S. 53, 57-58 (2000) (analyzing § 3624(e) and noting that “the
ordinary, commonsense meaning of release is to be freed from confine-
ment. To say respondent was released while still imprisoned diminishes
the concept the word intends to convey”).
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