935 F.3d 1059
10th Cir.2019Background
- Andrew Haymond was convicted in 2010 of possession/attempted possession of child pornography under 18 U.S.C. § 2252(b)(2); he received 38 months imprisonment and a 10-year term of supervised release.
- While on supervised release, a 2015 search of Haymond’s phone revealed images identified as child pornography; probation alleged five supervised-release violations and the district court found them by a preponderance of the evidence.
- Under 18 U.S.C. § 3583(k) (a mandatory-revocation provision for certain sex-offender offenses), the district court imposed a mandatory five-year term of imprisonment after revocation.
- The Tenth Circuit (Haymond II) held § 3583(k) unconstitutional under the Fifth and Sixth Amendments because judge-found facts under a preponderance standard increased the legally prescribed sentencing range; the court vacated Haymond’s sentence and remanded for resentencing under § 3583(e)(3).
- On remand the district court resentenced Haymond to time served (the § 3583(e)(3) maximum was two years and he had already served more). The Supreme Court agreed § 3583(k) was unconstitutional as applied but remanded to allow the Tenth Circuit to consider the government’s unpreserved remedial argument (that empaneling a jury could cure the constitutional defect).
- The government conceded it never preserved the jury-empaneling remedy and subsequently abandoned seeking that remedy in Haymond’s case; the Tenth Circuit dismissed the appeal as moot/unpreserved and declined the government’s suggested alternate remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3583(k) is constitutional when a judge, by a preponderance, finds new conduct that triggers a mandatory increased sentence | Haymond: § 3583(k) violates Fifth and Sixth Amendments because judge-found facts (preponderance) increase the statutory sentencing range and deprive jury/trial protections | Government: District court findings by preponderance are adequate for revocation and imposition of § 3583(k)’s mandatory sentence; remedial cure possible | Tenth Circuit (and Supreme Court plurality): § 3583(k) as applied is unconstitutional; judge-found facts increasing the sentence violate Alleyne principles |
| Whether empaneling a jury to find the facts beyond a reasonable doubt could cure § 3583(k)’s constitutional defect | N/A (Haymond did not argue this remedial theory) | Government: A jury could constitutionally make the requisite findings beyond a reasonable doubt, preserving § 3583(k)’s operation | Not reached on merits: government never preserved this argument in district court or on initial appeal; government later abandoned it; court dismissed appeal as to remedial theory |
| Whether the appeal remains live or is moot given the district court’s resentencing to time served | Haymond: Resentencing to time served stands; government abandoned jury remedy so no live controversy | Government: Because it will not seek a jury trial now, any remedial ruling would not affect Haymond’s sentence, making the issue moot | Court: Appeal dismissed; government’s motion to dismiss granted because remedial argument unpreserved and would not change Haymond’s sentence |
| Proper remedy/remand requested by government after Supreme Court decision | Government: Suggested empaneling a jury or remand to reimpose district court’s February 2018 order reducing sentence to time served | Haymond: Government abandoned the jury remedy and will not seek further relief; resentencing stands | Court: Declined to adopt government’s suggested vacatur/remand; dismissed appeal and left resentencing intact |
Key Cases Cited
- United States v. Haymond, 672 F.3d 948 (10th Cir. 2012) (direct-appeal decision addressing conviction)
- United States v. Haymond, 869 F.3d 1153 (10th Cir. 2017) (panel held § 3583(k) unconstitutional and vacated sentence)
- Alleyne v. United States, 570 U.S. 99 (2013) (holding facts that increase mandatory minimum sentence must be found by a jury beyond a reasonable doubt)