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United States v. Dillon

United States Court of Appeals, Third Circuit

August 5, 2013

UNITED STATES OF AMERICA
v.
PERCY DILLON, Appellant

Argued May 15, 2013.

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-93-cr-00084-002) District Judge: Honorable Alan N. Bloch.

Renee Pietropaolo, Esq. (ARGUED) Office of Federal Public Defender, Counsel for Appellant.

Rebecca R. Haywood, Esq. Michael L. Ivory, Esq. (ARGUED) Office of United States Attorney, Counsel for Appellee.

Before: SMITH, FISHER and CHAGARES, Circuit Judges.

OPINION

FISHER, Circuit Judge.

Percy Dillon appeals from the sentence imposed by the District Court following a violation of the conditions of his supervised release. In 1993, Dillon was convicted of three drug-related felony counts and was sentenced to 322 months in prison along with "a term" of five years of supervised release. Dillon argues that by using this language, the District Court sentenced him to a single term of supervised release, rather than to three concurrent terms, and that it was therefore plain error for the District Court to impose three consecutive terms of reimprisonment and three concurrent terms of supervised release when it revoked Dillon's supervised release in 2012. We will vacate Dillon's sentence and remand to the District Court for resentencing.

I.

On September 17, 1993, a jury convicted Dillon and his co-conspirator Jerron Lollis of (1) conspiracy to distribute more than 50 grams of crack and 500 grams of cocaine, in violation of 21 U.S.C. § 846 ("Count One"); (2) use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) ("Count Two"); and (3) possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) ("Count Four"). At a sentencing hearing on November 19, 1993, the District Court announced its sentence:

"Pursuant to the Sentencing Reform Act of 1984 it is the judgment of the Court that the defendant, Percy Dillon, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 322 months. This term consists of a term of 262 months as to Counts 1 and 4 and a term of 60 months as to Count 2 to be served consecutively with the term imposed at Counts 1 and 2 [sic; should be "Counts 1 and 4"].
"Upon release from imprisonment the defendant shall be placed on supervised release for a term of five years."

App. at 39. Three days later, the District Court filed its written judgment of sentence:

"The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of three-hundred and twenty-two (322) months. This term consists of a term of two hundred and sixty-two (262) months as to Counts 1 and 4 and a term of sixty (60) months as to Count ...

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