“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
In the July case of United States v. Two Crow, Trump judge Steve Grasz cast the deciding vote that allowed a lower court to sentence a man to prison for a longer period than Congress authorized for the federal crime he committed, raising serious constitutional concerns. The issue was how long a defendant can be sent back to prison for violating the terms of his supervised release multiple times.
If an individual is convicted of voluntary manslaughter in federal court, the sentencing judge can include a period of up to three years of post-incarceration “supervised release.” According to statute—18 U.S.C. § 3583(e)(3)— if the defendant violates the conditions of the supervised release, the judge can take away credit for any time already spent under supervised release and send the defendant back to prison.
The permissible amount of new prison time is governed by the same statute, which specifically takes into account the possibility that supervised release might be revoked more than just one time and which—importantly—has one provision followed by an exception: The judge can order that “all or part” of the three years originally permitted by the statute for supervised release be spent in prison instead, “except that … on any such revocation,” a defendant can’t be required to serve more than two years in prison.
Unsurprisingly, the Eighth Circuit has recognized that the “on any such revocation” language in the “except” clause means the two-year limit applies to each revocation, regardless of the length of previous revocations. They are not cumulative. But the court has not addressed what happens when multiple revocations add up to more than the three-year limit in the “all or part” portion of the provision.
That’s what happened to Theodore Randelle Two Crow. The first time his supervised release was revoked, the judge sentenced him to return to prison for 14 months. The second time, it was ten months, for a cumulative total of 24 months (two years). But the third time, the judge sentenced him to another 24 months, which Two Crow appealed because that pushed him over the three-year limit by a full year.
In an unsigned summary affirmance, the 2-1 panel majority that Judge Grasz was part of rejected the claim. In a brief three-paragraph opinion, they incorrectly claimed the result was controlled by circuit precedent:
To the extent counsel asks us to reconsider our prior case law or to make a special exception in this case, we find no basis to do so.
In fact, the court was not being asked to reconsider anything, but to consider for the first time a legal question never before addressed by the Eighth Circuit. As Judge Jane Kelly explained in dissent:
We have yet to squarely confront whether this second “all or part” limitation operates as another per-revocation limitation or instead limits the aggregate amount of time that a defendant may spend in prison on revocation sentences to the term of supervised release originally authorized by § 3583(b).
The dissent also pointed out the “serious constitutional concerns” raised by the majority’s interpretation:
A defendant could end up spending more time in prison for revocation sentences than the statutory maximum authorized by his original conviction, all based on findings found by a judge by a preponderance of the evidence.
Therefore, Judge Kelly concluded that Two Crow “has identified an important non-frivolous issue that merits full briefing” and consideration by the court. But that didn’t happen, because of Judge Grasz.