Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8222
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
ARCHIE KELLY,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(September 21, 1992)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
BACKGROUND:
Archie Kelly pleaded guilty to possession with intent to
distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). In
the plea agreement, Kelly agreed to waive his right to appeal his
sentence unless the district court departed upward. The plea
agreement did not contain any agreement as to the length of the
sentence he would receive.
The probation office calculated his guideline sentencing range
based on a criminal history category of VI. Presentence report
(PSR) śś 32-33. Combined with a base offense level of 28, this

gave Kelly a guidelines sentencing range of 140-175 months
imprisonment. PSR ś 38. Kelly's criminal history score was high
because of several state misdemeanors which he pleaded guilty to in
September of 1991 before he was sentenced in federal court in March
of 1992. PSR śś 26-31.
Kelly did not file any written objections to the PSR, but his
counsel did express concern to the probation officer about the
effect of Kelly's guilty pleas in state court on his criminal
history score. PSR addendum. At the sentencing hearing, Kelly's
counsel again expressed his concerns that Kelly should not be
penalized by such a high criminal history category, because his
counsel in state court was not aware of the effect the state pleas
would have on Kelly's sentencing in federal court and erroneously
counseled him to plead guilty before his federal sentencing. The
district court overruled the objection, finding that he was
required by the guidelines to count those convictions in the
calculation of the criminal history category.
Kelly's counsel then argued to the court that it could
consider a downward departure from the guidelines because the
criminal history category was too severe. The district court did
not depart downward, but it did sentence Kelly to the lowest point
in the range, 140 months imprisonment.
The probation office also calculated Kelly's guideline range
for supervised release as three to five years. The PSR noted that
the statutory provisions required at least three years supervised
2

release. PSR śś 39-40. The district court sentenced Kelly to five
years supervised release. Kelly did not object.
DISCUSSION:
Waiver of appeal
The Government contends that Kelly has waived his right to
appeal his sentence and asks that his appeal be dismissed. Kelly's
plea agreement does contain the following language regarding waiver
or his right to appeal:
Knowing these facts, Defendant agrees that this Court has
jurisdiction and authority to impose any sentence within
the statutory maximum set for his offense, including a
sentence determined by reference to the Guidelines, and
he expressly waives the right to appeal his sentence on
any ground, including any appeal right conferred by 18
U.S.C. § 3742, except upward departure. Similarly, the
defendant agrees not to contest his sentence or the
manner in which it was determined in any post-conviction
proceeding, including, but not limited to, a proceeding
under 28 U.S.C. § 2255. (emphasis added).
Kelly argues that such waivers are approved only when the plea
agreement contains a specific sentence. He also argues that the
district court implicitly rejected the waiver term in the plea
agreement when it advised him that he had the right to appeal at
the sentencing hearing.
From the portion of the plea agreement quoted above, it is
evident that if the sentence imposed was "within the statutory
maximum set for his offense" and did not involve any "upward
departure" from the Guideline range, Kelly agreed that he would not
have any right to appeal from such sentence. Since for the reasons
hereinafter set forth, we conclude that the portion of the sentence
relating to supervisory release exceeded the statutory maximum
3

defined for such offense, and would therefore constitute some form
of "upward departure," Kelly was not bound by his waiver of appeal,
and we decline, therefore, to grant the Government's motion to
dismiss this appeal.
Supervised release
Kelly argues that the district court erred in sentencing him
to five years supervised release. He argues that because his crime
is classified as a Class C felony, his supervised release term was
limited by law to three years under 18 U.S.C. § 3583(b)(2). He
cites U.S. v. Terrell, No. 90-8699/90-8700 (5th Cir., October 11,
1991) (unpublished) as authority. The Government contends that
Terrell is distinguishable and that guidelines provision § 5D1.2(a)
applies to give a guideline range of three to five years supervised
release.
This Court reviews application of the sentencing
guidelines fully for errors of law. U.S. v. Sanders, 942 F.2d 894,
897 (5th Cir. 1991). However, because Kelly did not object to the
five years supervised release in the district court, this issue
must be reviewed for plain error. U.S. v. Lopez, 923 F.2d 47, 49-
50 (5th Cir.), cert. denied, 111 S. Ct. 2032 (1991).
In Terrell, this Court considered whether it was error for the
defendant to be sentenced to five years supervised release. The
defendant was convicted under 21 U.S.C. § 841(a)(1). At the guilty
plea hearing, the court informed the defendant that he could be
sentenced to not less than two nor more than three years of
supervised release. The court subsequently sentenced him to five
years of supervised release.
4

Terrell was convicted of possession of less than 50 kilograms
of marijuana, and the applicable penalty provision was 21 U.S.C. §
841(b)(1)(D) which provided for not more than five years
imprisonment. This classified the offense as a Class D felony
under 18 U.S.C. § 3559(a)(4).
This Court noted that 18 U.S.C. § 3583(b) authorized a term of
supervised release of not more than three years for a Class D
felony, "except as otherwise provided." 21 U.S.C. § 841(b)(1)(D)
required the sentence to include a term of supervised release of at
least two years. This Court stated that the penalty provision in
21 U.S.C. § 841 imposed a minimum term of supervised release, and
that 18 U.S.C. § 3583(b) limited the length of supervised release
that could be imposed. This Court concluded that the proper term
of supervised release was two to three years.
This Court also noted that U.S.S.G. § 5D1.2(a) provided that
if a defendant is convicted under a statute that requires a term of
supervised release, the term should be three to five years, or the
minimum required by statute, whichever is greater. This Court held
that because this provision was in conflict with the statutory
provisions, the statutes controlled, citing U.S.S.G. § 5G1.1. This
Court vacated the sentence and remanded for resentencing.
Terrell is determinative of Kelly's situation in this case
before us. Kelly was convicted under 21 U.S.C. § 841(a)(1). The
only difference is that due to the amount and type of drug
involved, Kelly's penalty provision was 21 U.S.C. § 841(b)(1)(C),
which provides for a minimum term of supervised release of three
5

years, and that Kelly's felony was a Class C felony, which, under
18 U.S.C. § 3583(b)(2) limits the term of supervised release to
three years. Applying the analysis of Terrell, Kelly was required
to receive a supervised release term of not less than nor more than
three years.
The Government's attempt to distinguish Terrell is
disingenuous.1 There is a conflict between the statutory
provisions of 18 U.S.C. § 3583(b)(2), which limit supervised
release to three years for Class C felonies, and U.S.S.G. § 5D1.2,
which allows a supervised release term of three to five years.
According to Terrell, the statutory limit of three years prevails.
Contrary to the Government's contention, Terrell did take into
account the difference between mandatory and permissive supervised
release. Terrell involved a conviction under 21 U.S.C. §
841(a)(1), and the applicable penalty provision required a term of
supervised release of two years. Thus, Terrell refutes the
Government's argument that § 5D1.2(a) automatically applies
whenever there is a statutorily mandated term of supervised
release. The purpose of § 5D1.2 is to ensure that where there is
a minimum term of supervised release required by statute, that
minimum will be imposed over a lesser guidelines term. U.S.S.G. §
5D1.2, comment. (backg'd.). Its purpose is not to impose a greater
term of supervised release under the guidelines when there is a
lesser statutory maximum.
1 The Government conceded the error in U.S. v. Padilla, 947
F.2d 893, 894 (10th Cir. 1991).
6

The district court committed clear error in sentencing Kelly
to five years supervised release. U.S. v. Shano, 955 F.2d 291, 295
(5th Cir.), cert. denied, 112 S. Ct. 1520 (1992). See also U.S. v.
Pico, 966 F.2d 91, 92 (2nd Cir. 1992) (Although defendant did not
object to the length of the term of supervised release before the
district court, the sentence imposed constituted clear error.).
For the forgoing reasons we VACATE the sentence herein and
REMAND the case to the district court for resentencing.
C:BR:JUDGE:92-8222:opn
7