United States v. Michelle Wing

dissenting:

There is now a fifth dimension beyond that previously known to federal district judges. It is a new dimension of consequence-free criminality: a dimension of unpunished corruption, unsanctioned wickedness, and unchastened immorality. It is an area between a convict’s “first” term of supervised release, and her “second” term of supervised release.

Our story begins in a courtroom. The camera zooms in on the defendant’s table, where a young woman wipes away her tears. The somnolent voice of the narrator, Rod Serling, intones:

*875 As the narration fades and Wing leaves the courtroom, the camera follows her. Mystified by her good fortune but happy to exploit it, Wing takes full advantage of the benevolent parameters of this unique parallel dimension. In the three weeks between July 3 and July 23, 2008, alone, she executes eight fraudulent financial transactions totaling $240,000. She spends $600 on toys at Toys “R” Us. She pays a $900 dental bill with a forged check. And, for good measure, she outfits her many fraudulently purchased cars with fraudulently purchased wheels and tires.

The camera soon returns to the courtroom, where Wing’s parole officer is seen pleading…

Michelle Wing appeals the district court’s revocation of her second term of supervised release, which had not yet commenced, based on newly discovered violations of conditions of her previously revoked first term of supervised release. Wing contends that the district court *863 lacked jurisdiction to revoke her second term of supervised release. In this matter of first impression, we conclude that a district court lacks jurisdiction under 18 U.S.C. § 3583 (e)(3) to revoke a term of supervised release based on newly discovered violations of a previously revoked term of supervised release. Accordingly, we REVERSE and REMAND.

I

On August 8, 2001, a grand jury in the District of Montana returned an indictment against Michelle Wing, charging her with one count of bank embezzlement in violation of 18 U.S.C. § 656 . On October 18, 2001, Wing entered a plea of guilty to the charge and was thereafter sentenced to six months in prison followed by five years of supervised release.

Wing’s term of supervised release commenced on February 11, 2004. On April 24, 2008, Wing’s probation officer filed a petition to revoke Wing’s supervised release. The petition alleged that Wing had…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 11-30017 Plaintiff-Appellee, D.C. No. v.  9:01-cr-00037-

MICHELLE WING, DWM-

Defendant-Appellant.  OPINION

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Argued and Submitted December 7, 2011—Seattle, Washington

Filed June 21, 2012

Before: M. Margaret McKeown and Richard C. Tallman, Circuit Judges, and Barry Ted Moskowitz, District Judge.*

Opinion by Judge Moskowitz; Dissent by Judge Tallman

*The Honorable Barry Ted Moskowitz, Chief Judge of the United States District Court for the Southern District of California, sitting by des- ignation.

7335 7338 UNITED STATES v. WING

COUNSEL

John Rhodes, Federal Defenders of Montana, Missoula, Mon- tana, for the defendant-appellant.

J. Bishop Grewell, U.S. Attorney’s Office, Helena, Montana, for the plaintiff-appellee.

OPINION

MOSKOWITZ, District Judge:

Michelle Wing appeals the district court’s revocation…