52 F.4th 879
9th Cir.2022Background
- Richards, originally convicted in 2007 of possession with intent to distribute crack and possessing a firearm in furtherance of a drug-trafficking crime, was on supervised release after prison and had prior release modifications and a brief 2018 revocation.
- On March 8, 2020 a witness saw a driver point a gun at her and throw an object from a white pickup; officers later found a Taurus .40 near the median where Richards was stopped and a Glock 17 where the witness indicated; both firearms were loaded and clean.
- The government’s Amended Petition charged multiple supervised-release violations: criminal threats (Charge 1), several freeway offenses (Charge 2), possession of a firearm (Charge 3), possession of ammunition (Charge 4), and failures to participate in substance/mental-health programs (Charges 5–6); Richards admitted Charges 5–6 and contested the rest.
- The district court found by a preponderance that Richards violated Charges 3 and 4 (possession of firearm and ammunition); Charge 1 was not proved and Charge 2 was dismissed by the government.
- The court imposed 48 months’ imprisonment as two consecutive 24-month terms allocated to Counts One and Three of the original indictment (total 48 months); Richards appealed raising (1) Fifth and Sixth Amendment objections under Haymond/Apprendi/Alleyne, (2) a Double Jeopardy/due-process rule-of-lenity challenge to consecutive sentences, and (3) insufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation sentencing under 18 U.S.C. § 3583(g) requires jury findings beyond a reasonable doubt (Haymond/Apprendi/Alleyne issue) | Richards: Haymond plurality reasoning requires jury/BRD for facts triggering post-revocation imprisonment | Government: Haymond’s controlling Breyer concurrence is narrow; §3583(g) differs from §3583(k) and judge may find violations by preponderance | Court: No constitutional violation—judge may find supervised-release violations by preponderance; Apprendi/Alleyne do not apply here (Breyer concurrence controls; Henderson precedential) |
| Whether imposing consecutive sentences for possession of a firearm and ammunition violates Double Jeopardy / rule of lenity (Keen issue) | Richards: Consecutive punishments for the same conduct (possessing a loaded firearm/ammunition) unconstitutional; statutory text must clearly permit double punishment | Government: Two separate possessions (two different firearms at different times/places) and sentence was allocated to two underlying indictment counts, so consecutive terms permissible | Court: No Double Jeopardy violation—possession of two separate firearms at distinct times/places and sentences imposed on separate underlying counts justify consecutive terms |
| Sufficiency of evidence that Richards possessed the two firearms | Richards: No forensic link; guns found far apart; witness only assumed object was a gun; circumstantial at best | Government: Witness ID, location where witness said object thrown, condition of guns, officers’ observations, and recorded jail call admitting other weapons | Court: Evidence sufficient—factfinder reasonably could conclude by preponderance Richards possessed both firearms and ammunition |
Key Cases Cited
- United States v. Haymond, 139 S. Ct. 2369 (2019) (Supreme Court plurality and controlling concurrence addressing jury rights in supervised-release revocations)
- United States v. Henderson, 998 F.3d 1071 (9th Cir. 2021) (Ninth Circuit: Breyer concurrence in Haymond controls; judge may use preponderance in revocation proceedings)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (fact that increases punishment must be found by jury under certain circumstances)
- Alleyne v. United States, 570 U.S. 99 (2013) (facts that increase mandatory minimums must be submitted to a jury)
- United States v. Keen, 104 F.3d 1111 (9th Cir. 1996) (simultaneous possession of firearm and ammunition treated as single unit unless separate in time/place)
- United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (standard for sufficiency review and deference to trier of fact)
- Jackson v. Virginia, 443 U.S. 307 (1979) (legal standard for sufficiency of the evidence review)