5th Circuit Notes Settled Split Re Due Process Concerns When District Court Reimposes Term of Supervised Release After Revoking Initial Term

Per U.S. v. Molina Martinez, --- F.3d ----, 2007 WL 2285324 (5th Cir.(Tex.) Aug 09, 2007) (NO. 06-41065):

The Supreme Court settled the circuit split in Johnson v. United States, which was issued in 2000, well before Martinez's initial supervised release term was revoked. In Johnson, the Supreme Court sided with the minority approach and held that § 3583(e)(3) permitted district courts to impose a term of supervised release after revoking an initial term of supervised release. Martinez argues that applying Johnson retroactively to his 1993 conviction violates the Due Process Clause because he had no notice or fair warning that he could be subjected to reimposition of supervised release following revocation. The Government argues that the retroactive application of Johnson does not violate the Due Process Clause because the Supreme Court's judicial interpretation of the statute was neither unexpected nor indefensible.

In a recent unpublished decision, United States v. Seals, this court held that Johnson was properly applied retroactively to the defendant's original conviction, which occurred in 1992. The court stated that "[i]f a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect." Because a circuit-split existed prior to Johnson and at the time of the defendant's original conviction and sentencing, the court concluded that Johnson's construction of § 3583(e)(3) was reasonably foreseeable and provided the defendant with a fair warning. Thus, it was not unconstitutional to apply Johnson retroactively.

Although Seals is unpublished, and thus not binding, Seals is authoritative and persuasive. Therefore, applying Johnson retroactively to Martinez's 1993 conviction does not violate the Due Process Clause, and the district court did not plainly err in reimposing supervised release after the first revocation. Accordingly, Martinez's sentence is affirmed.