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October 26, 2018
Supreme Court grants cert on Haymond from Tenth Circuit to address when Apprendi and Alleyne meet supervised release!!
I am excited to report that the Supreme Court this afternoon, via this order list, added an interesting sentencing case to its docket by granting cert in United States v. Haymond, 17-1672, a case from the Tenth Circuit in which the defendant prevailed on the claim that the procedures used to sentence him following his supervised release violation was unconstitutional. The Tenth Circuit opinion below in Haymond is available at this link, and the federal government's cert petition posed this "Question Presented":
Whether the court of appeals erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. 3583(k) that required the district court to revoke respondent’s ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography.
Seeking (unsuccessfully) to avoid a cert grant, the defendant's brief in opposition to cert framed the issue of the case this way:
Following his conviction for possession of child pornography, a Class C felony that carried a statutory sentencing range of zero to ten years, a district court judge in a revocation hearing specifically found by only a preponderance of the evidence that Andre Haymond had violated the terms of his supervised release by committing a “second sex offense” as set forth in 18 U.S.C. 3583(k). The statute required the district court to impose a sentence of not less than five years up to life in prison for commission of the new crime, rather than the zero to two-year statutory range ordinarily applicable for revocation in Class C felony cases. Did the enhanced sentencing range carrying a mandatory minimum sentence in the revocation proceeding violate the Court’s longstanding jurisprudence guaranteeing a defendant charged with a serious criminal offense to a right to a jury trial under the Fifth and Sixth Amendments?
Given that there are now only two members of the Supreme Court who are generally hostile to Apprendi rights under the Fifth and Sixth Amendment (Justices Alito and Breyer), I do not think it is a given that this grant of cert means that the Justices are eager to reverse the ruling below. But we really do not know just how far any of the other Justices, and especially the new guys Gorsuch and Kavanaugh, are willing to take the Fifth and Sixth Amendment in the sentencing universe, and so I am disinclined to make any predictions on any votes at this point (save for expected Justice Alito to be his usual vote against a criminal defendant).
October 26, 2018 at 04:07 PM | Permalink
Comments
I'm not sure why a "win" for the defendant here would actually be a win. If the Court holds that the finding of him "knowingly possessing child pornography" in revocation proceedings must be afforded 5A and 6A protections, then the government would just forgo supervised release proceedings and instead charge him with a new law violation. In that situation, with a defiant who has a prior conviction for possessing child pornography, a new federal conviction for the same offense would have a mandatory 10 year sentence. So, the defendant can chose: does he want a mandatory 5 year sentence in a revocation proceeding or a mandatory 10 year sentence for a new conviction? If I were him, I'd go with the 5 year option.
(Of course, there may be proof issues where the government may not be able to prove the possession BARD but could do so by a preponderance. But how often would that be the case?)
Posted by: Dave | Oct 27, 2018 1:59:21 AM
Good points, Dave, but according to the district judge in this case, there was a proof issue here as the judge expressly indicated only being convinced by a preponderance of the new CP possession "charge." Moreover, in this case there were other supervise release revocation claims, and it is quite possible (perhaps likely) that in lots of low-level cases a prosecutor will be content to just seek the "softer" hit of a SR revocation rather than bother with a new charge.
Posted by: Doug B | Oct 28, 2018 11:08:39 AM
If the proof threshold at a revocation hearing is preponderance why would the judge discuss some more onerous level of proof? Any such discussion would appear to be nothing but dicta.
Posted by: Soronel Haetir | Oct 28, 2018 12:52:58 PM
I would think if the government brought a new charge, a conviction (and resulting 10 year mandatory minimum) would not be difficult. First, the defendant has a prior for the same offense, which the government would likely claim the jury gets to learn about as 404(b) evidence. And most judges would likely agree it comes in under 404(b). Second, the jury would also likely learn he was on some type of supervision as res gestae. Third, the jury will see the images. No jury is going to like this case. I'm guessing the government would like it's chances. Of course, the defendant could seek a trial to the bench. But if I'm the government, I would like my chances with a jury and thus object.
In any event, I guess my point is that Mr. Haymond is gambling here. The possible outcomes for him from his case is: 2 year sentence, 5 year sentence, or 10 year sentence. (He admits he could have received 2 years for his conduct. Thus, a 2 year sentence is almost gauranteed - i.e. it's not like he's walking out of this with no time even in the best outcome for him.) It would be rationale to take the 5 years and run.
Posted by: Dave | Oct 29, 2018 12:39:44 PM
I agree that 404(b) might come in at trial, but 404(b) has no bearing over a revocation hearing. Under Morrissey v. Brewer, a defendant during a revocation hearing is not afforded the "full panoply of rights".
Posted by: Anon | Nov 7, 2018 12:10:42 AM
I agree that 404(b) might come in at trial, but 404(b) has no bearing over a revocation hearing. Under Morrissey v. Brewer, a defendant during a revocation hearing is not afforded the "full panoply of rights".
Posted by: Anon | Nov 7, 2018 12:10:43 AM
