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United States v. Hertler

United States Court of Appeals, Ninth Circuit

January 15, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MARK WILLIAM HERTLER, Defendant-Appellant

Argued and Submitted, Portland, Oregon July 10, 2014.

Appeal from the United States District Court for the District of Montana. D.C. No. 9:12-cr-00032-DWM-1. Donald W. Molloy, District Judge, Presiding.

SUMMARY[*]

Criminal Law

Affirming a postrevocation term of supervised release, the panel held that the phrase " any term of imprisonment" in 18 U.S.C. § 3583(h), which authorizes a district court to impose a postrevocation term of supervised release up to the statutory maximum less " any term of imprisonment that was imposed upon revocation of supervised release," refers to terms of imprisonment imposed in connection with the offense of conviction for which an additional term of supervised release is imposed, not to terms of imprisonment imposed for all counts of conviction.

Andrew J. Nelson (argued), Assistant Federal Defender, Federal Defenders of Montana, Missoula, Montana, for Defendant-Appellant.

Lori Anne Harper Suek (argued) and Cyndee L. Peterson, Assistant United States Attorney, United States Attorneys' Office District of Montana, Missoula, Montana, for Plaintiff-Appellee.

Before: Harry Pregerson, Richard A. Paez, and Paul J. Watford, Circuit Judges.

OPINION

Page 681

PAEZ, Circuit Judge:

Defendant Mark William Hertler appeals a postrevocation term of supervised release. He argues that the new term of twenty months exceeds the maximum period that can be imposed under 18 U.S.C. § 3583(h). That subsection authorizes a district court to impose a postrevocation term of supervised release up to the statutory maximum, but requires the court to reduce the length of supervised release by " any term of imprisonment that was imposed upon revocation of supervised release." Hertler contends that the phrase " any term of imprisonment" in § 3583(h) refers to any term of imprisonment imposed for all offenses following the latest revocation of supervised release. He therefore argues that the district court erred when it construed this clause to refer only to all terms of imprisonment imposed for a single underlying offense. He further argues that, as a result of this error, the district court concluded that he was eligible for up to thirty-two months of additional supervised release when he should have been sentenced to no more than nine.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo the legality of Hertler's sentence. United States v. Xinidakis, 598 F.3d 1213, 1215 (9th Cir. 2010). For the reasons set forth below, we agree with the construction of " any term of imprisonment" adopted by the district court, the Eighth Circuit in United States v. Zoran, 682 F.3d 1060 (8th Cir. 2012), and the Fifth Circuit in United States v. Oswalt, 771 F.3d 849 (5th Cir. 2014). We therefore affirm.

I

On July 13, 2005, Hertler was named in a two-count indictment in the Southern District of Texas. The indictment charged Hertler with: (1) distribution of child pornography in violation of 18 U.S.C. § § 2252A(a)(2)(B) and 2252A(b)(2), and (2) possession of child pornography involving sexual exploitation of minors, in violation of 18 U.S.C. § § 2252A(a)(5)(B), 2252A(b)(1), and 2256(8). Hertler pled guilty to both counts in September, 2005. The district court ultimately sentenced him to concurrent terms of eighty-seven months of imprisonment on Count 1 and sixty months on Count 2. The court also imposed concurrent thirty-six month terms of supervised release " as to each of Counts 1 and 2." [1]

Hertler was released from prison and began his supervised release on November 22, 2011. In July, 2012, the Southern District of Texas transferred jurisdiction over Hertler's case to the District of ...


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