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United States v. Old Rock.

No. 22-4047. 8/11/2023. D.Utah. Judge Murphy. Pretrial Detainee—Use of Force—Qualified Immunity—Summary Judgment.

August 11, 2023

Old Rock pleaded guilty to voluntary manslaughter and completed her prison sentence. She then began serving a three-year supervised release term, but 14 months later she admitted to violating her release terms on five occasions. These violations resulted in Old Rock’s detention by the US Marshals Service from October 26 to December 8, 2021, and again from February 18, 2022, until May 18, 2022, one day after her revocation judgment was entered. The district court revoked her supervision and sentenced her to time served and 31 months of post-release supervision under 18 USC § 3583(e)(3) and (h). Old Rock objected to the new term of supervised release under Apprendi v. New Jersey, 530 U.S. 466 (2000), arguing that the term unconstitutionally exceeded the § 3583 36-month maximum when combined with the post-release supervision she already served. Old Rock filed a notice of appeal 15 days after the judgment entered.

As an initial matter on appeal, the Tenth Circuit considered the government’s request for dismissal raised for the first time in its response brief. Pursuant to Fed. R. App. P. (4)(b)(1)(A), an appellant has 14 days from entry of judgment to file a notice of appeal. Tenth Circuit Rule 27.3 governs when a request to dismiss for an untimely notice of appeal must be made and provides that a motion to dismiss should be filed within 14 days after the notice of appeal is filed, unless good cause is shown. Here, although Old Rock filed her notice of appeal late, the government did not move to dismiss the untimely appeal pursuant to Rule 27.3(A). Instead, it raised the issue for the first time in its response brief and offered no good cause for its failure to file a motion. Therefore, the government failed to comply with the rule and forfeited its untimely notice of appeal argument.

On appeal, Old Rock again argued that under Apprendi and its progeny, due process and the Sixth Amendment limit the total amount of supervised release a defendant can serve to the amount set out in 18 USC § 3583(b). She asserted that her involuntary manslaughter conviction was a Class C felony, so the maximum allowable aggregate term of supervised release was 36 months. Under Apprendi, due process and the Sixth Amendment require any fact that increases the penalty for a crime beyond the prescribed statutory maximum to be submitted to a jury. Following Apprendi, the Tenth Circuit concluded that supervised release is part of the penalty for the initial offense, and once the original sentence has been imposed in a criminal case, further proceedings regarding that sentence have not been subject to Sixth Amendment protections. Accordingly, in typical revocation proceedings, § 3583 penalties that exceed the relevant statutory maximum when combined with the defendant’s prior time served do not offend Apprendi. Here, Old Rock was issued a statutorily compliant term of supervised release during an ordinary revocation proceeding, so her revocation sentence does not violate Apprendi.

Old Rock also argued that § 3583(h) fixes the amount of time a defendant can be placed on supervised release and that she should be credited with the time she served on supervised release prior to revocation. Section 3583(h) contains an aggregation system in which a district court must impose less supervised release as a defendant serves more time in prison for each revocation. Section 3583(h) thus only applies to imprisonment terms, not supervised release terms, imposed upon revocation of supervised release. Accordingly, Old Rock’s request is outside the scope of § 3583(h)’s aggregation requirement. Further, the district court credited Old Rock with five months’ time served upon revocation, lowering her post-release supervision from the statutory maximum of 36 months to 31 months.

The judgment was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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