United States v. Hertler

Under 18 U.S.C. § 3583(h), "any terms of imprisonment" refers to the imprisonment in connection with the offense of the conviction and does not aggregate all counts of the conviction.

Mark William Hertler was indicted in 2005 for distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(b)(2), and 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 pleaded guilty to both counts and was given a lengthy prison sentence. He was released from prison in 2011 but was still supervised by his probation officer. However, he eventually violated the terms of his release and received additional prison time. Upon his second release, he further violated his release terms and was given a post revocation term of supervised release. Hertler filed a timely appeal of this additional sentencing. Hertler first argued on appeal that this new “twenty month term exceeds the maximum period that can be imposed under 18 U.S.C. § 3583(h).” The Ninth Circuit first turned to the relevant statute and prior case law, and determined that “[the statute] provides that when a district court initially imposes multiple terms of supervised release, it must order that they run concurrently.” Hertler further argued that his supervised term should have been aggregated down based on the two counts. Hertler argued that the phrase “any term of imprisonment” in the statute “refers to . . . all offenses following the latest revocation of supervised release.” However, the panel sided with the government who argued that because the two counts were separate and distinct from one another, Hertler’s sentence was proper under the statute. The panel reasoned that the statute would have applied to Hertler if the two offenses against him were apart of the same underlying offense. AFFIRMED.