United States of America v. Charles Leroy Fox

United States Court of Appeals
For the Eighth Circuit
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No. 19-3071
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Charles Leroy Fox
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: April 16, 2020
Filed: June 4, 2020
[Unpublished]
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Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
After Charles Leroy Fox violated the conditions of his supervised release, the
district court1 revoked his supervision and sentenced him to 36 months’ imprisonment.
1The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.

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Reviewing de novo, we hold that the district court did not impose a sentence in excess
of the statutory maximum. See United States v. Walker, 513 F.3d 891, 893 (8th Cir.
2008) (standard of review).
Fox pleaded guilty in 2009 to conspiracy to manufacture 5 grams or more of
actual methamphetamine after having been convicted of a felony drug offense, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851. Because he
previously had been convicted of a serious drug felony, Fox’s statutory sentencing
range was 10 years’ to life imprisonment, to be followed by a minimum term of 8 years
of supervised release. See 21 U.S.C. § 841(b)(1)(B). The district court sentenced him
to 102 months’ imprisonment to be followed by 8 years of supervised release.
Following his release in 2015, Fox’s supervised release was revoked twice, with the
district court imposing revocation sentences of 12 months’ imprisonment to be
followed by 8 years of supervised release, and 24 months’ imprisonment to be followed
by 5 years of supervised release.
Fox argues that his revocation sentence violates 18 U.S.C. § 3583(e)(3), which
provides, in relevant part, that upon revocation the district court may “require the
defendant to serve in prison all or part of the term of supervised release authorized by
statute for the offense that resulted in such term of supervised release.” Fox interprets
the statute as precluding the imposition of a sentence that exceeded the 5 years of his
most recent term of supervised release. Fox further argues that the district court was
required to consider his revocation sentences in the aggregate, and thus, when added
to his prior revocation sentences, his 36-month term of imprisonment exceeded the
5-year statutory maximum. See United States v. Two Crow, 781 Fed. App’x 562, 563
(8th Cir. 2019) (per curiam) (J. Kelly dissenting) (“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).”).
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Fox’s interpretation is misplaced. We have held that it is the defendant’s
original offense that determines the statutory maximum in § 3583(e)(3), even if the
defendant is serving a term of supervised release following a revocation sentence.
See United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008). The statute
authorizing supervised release for Fox’s original offense does not limit the term of
supervised release that the district court may impose. See 21 U.S.C. § 841(b)(1)(B)
(mandating a minimum 8-year term of supervised release when a defendant has been
previously convicted of a serious drug felony). Fox’s most recent revocation sentence
thus did not limit his term of imprisonment, and so the district court did not err in
sentencing Fox to 36 months’ imprisonment. Even if we were to consider revocation
sentences in the aggregate, Fox’s sentence does not result in a term of imprisonment
in excess of the term of supervised release authorized by statute.
The sentence is affirmed.
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