UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL KA, a/k/a Daniel Konso, Defendant - Appellant.
No. 18-4913
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: December 2, 2020
PUBLISHED. Argued: September 9, 2020. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:10-cr-00144-FDW-DSC-1)
PUBLISHED
Affirmed by published opinion. Judge Wynn wrote the majority opinion, in which Judge Harris joined. Chief Judge Gregory wrote a dissenting opinion.
ARGUED: Melissa S. Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
While serving a term of supervised release, Defendant Daniel Ka made several self-incriminating statements to his probation officer. The United States District Court for the Western District of North Carolina considered these statements when it found Ka guilty of violating the terms of his supervision and revoked his supervised release.
On appeal, Ka contends that the district court violated his Fifth Amendment right against self-incrimination by denying his motion to suppress these statements. Because we have previously held that the use of compelled, self-incriminating statements in a supervised release revocation hearing does not violate the Self-Incrimination Clause of the Fifth Amendment, we affirm the district court‘s denial of Ka‘s motion to suppress.
I.
In 2011, Ka was convicted of possessing a firearm during and in relation to a drug trafficking crime. The district court‘s sentence of five years of imprisonment was followed by five years of supervised release which he began serving in June of 2016. The conditions of Ka‘s supervised release required him to refrain from committing any new crime or using controlled substances and to “answer truthfully all inquiries by [his] probation officer and [to] follow the instructions of [his] probation officer.” J.A. 15.1 Additionally, Ka‘s criminal judgment provided that “[u]pon a finding of a violation of probation or supervised release . . . the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3) modify the conditions of supervision.” Id. at 18.
Ka‘s trouble complying with the conditions of his release began approximately a year after he left prison. On May 26, 2017, he tested positive for drug use. His probation officer, Chelsey Padilla, warned him that any further positive tests would result in fifteen days of confinement. Accordingly, after Ka again tested positive two months later, the district court ordered
The officers spoke with Ka as the three sat around his dining room table. During their conversation, Ka told Officer Padilla that he was short on cash after leaving the county jail and that he had been helping friends sell drugs to make money. Officer Padilla reviewed text messages on Ka‘s phone, finding photos of marijuana and text messages related to drug sales. Ka then signed a statement prepared by Officer Padilla in which Ka admitted to selling marijuana and cocaine. The statement also included Ka‘s averment that “[t]hese are my own words and [are] given voluntarily.” Id. at 156. At no point during the conversation did Ka invoke his Fifth Amendment right against self-incrimination.
Following her conversation with Ka, Officer Padilla petitioned the district court to revoke Ka‘s term of supervised release pursuant to
Ka moved to suppress all statements he had made to Officer Padilla concerning his possession and sale of drugs on the grounds that the use of these statements violated his
Fifth Amendment privilege against self-incrimination. While conceding that he never invoked the privilege, Ka argued that the Fifth Amendment‘s “penalty exception” applied.
A defendant generally “must assert the [Fifth Amendment‘s privilege against self-incrimination] rather than answer [a law enforcement officer‘s questions] if he desires not to incriminate himself.” Minnesota v. Murphy, 465 U.S. 420, 429 (1984). However, this general rule does not apply in “penalty” cases, “in which assertion of the privilege results in a penalty that essentially ‘foreclose[s] a free choice to remain silent.‘” United States v. Lara, 850 F.3d 686, 692 (4th Cir. 2017) (alteration in original) (quoting Garner v. United States, 424 U.S. 648, 661 (1976)). Ka argued that the condition in his terms of supervision requiring him to “answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer” meant he would have been penalized for any assertion of his Fifth Amendment privilege, rendering the privilege self-executing under the penalty exception.
The magistrate judge recommended denying Ka‘s motion to suppress. The district court accepted the recommendation, denied Ka‘s motion, and later sentenced Ka to thirty months of imprisonment and an additional term of twenty-four months of supervised release for violating the conditions of his supervision. In so doing, the district court relied in part on Ka‘s statements to Officer Padilla. Ka filed a timely appeal.
II.
On appeal, Ka argues that the district court violated the Fifth Amendment by considering his statements to Officer Padilla. “[W]e review de novo the issue whether the
government violated a defendant‘s Fifth Amendment right against compelled self-incrimination.” Lara, 850 F.3d at 690.
We need not decide whether the condition of Ka‘s release requiring him to answer truthfully all inquiries by his probation officer triggered the Fifth Amendment‘s penalty exception because, even if it did, our recent holding in United States v. Riley precludes Ka‘s
The Self-Incrimination Clause provides that no person “shall be compelled in any criminal case to be a witness against himself.”
Ka argues that the Supreme Court‘s recent decision in United States v. Haymond fatally undermines our holding in Riley. United States v. Haymond, 139 S. Ct. 2369 (2019). We disagree.
The defendant in Riley, like Ka, was sentenced under the ordinary supervised release revocation provision,
Moreover, in his controlling concurrence,2 Justice Breyer highlighted three unique aspects of § 3583(k) that distinguish it from § 3583(e): (1) § 3583(k) applies only to an enumerated list of federal criminal statutes; (2) it strips judges of the discretion to decide whether a violation of a condition of supervised release should result in imprisonment; and (3) it “limits the judge‘s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of [five years]” upon the judge‘s finding that the releasee had committed one of the enumerated offenses. Id. at 2386 (Breyer, J., concurring). “Taken
together,” these features made § 3583(k) “resemble the punishment of new criminal offenses,” and so triggered the jury right “that attend[s] a new criminal prosecution.” Id. Section 3583(k) did not grant releasees that jury right, so, Justice Breyer concluded, it was unconstitutional. Id. Notably, however, § 3583(e) “does not contain any of the three features that, in combination, render[ed] § 3583(k) unconstitutional.” United States v. Doka, 955 F.3d 290, 296 (2d Cir. 2020).
conclusion that Ka‘s Fifth Amendment right against compelled self-incrimination did not attach in his supervised release revocation hearing conducted pursuant to § 3583(e).
III.
Because we previously held in Riley that the Self-Incrimination Clause of the Fifth Amendment does not apply in supervised release revocation hearings conducted pursuant to § 3583(e), and because that holding remains good law, the district court did not err in denying Ka‘s motion to suppress and considering his incriminating statements.
AFFIRMED
GREGORY, Circuit Judge, dissenting:
The majority concludes that United States v. Riley controls this case, such that even compelled self-incriminating statements may be used against defendants in supervised release revocation proceedings. Because in my view Riley cannot serve as binding precedent after the Supreme Court‘s decision in United States v. Haymond, I respectfully dissent.
I.
Riley considered a sentence arising under the general supervised release revocation provision,
Here, the majority concludes that Haymond did not abrogate Riley. Haymond considered only revocation proceedings subject to § 3583(k), whereas the proceeding in Riley arose under § 3583(e). See Maj. Op. at 6-8. First, the majority points to Haymond‘s express limitations, like the plurality‘s qualifiers that it “d[id] not pass judgment one way or the other on § 3583(e)‘s consistency with Apprendi” and
to § 3583(k).” Haymond, 139 S. Ct. at 2382-83 & n.7 (plurality opinion); Maj. Op. at 6. Next, the majority emphasizes that Justice Breyer—in his controlling concurrence—identified “unique aspects of § 3583(k) that distinguish it from § 3583(e).” Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring); Maj. Op. at 6-7. It was these aspects that made revocation proceedings under § 3583(k), in particular, more like a criminal prosecution, such that the Fifth and Sixth Amendments applied. Maj. Op. at 6-7. Because § 3583(e) lacks these features, the majority concludes that Riley remains good law.
The majority‘s reasoning goes to whether Haymond controls the outcome of constitutional challenges to revocation proceedings arising under § 3583(e)—like the one at issue in Riley or the one Mr. Ka raises here. But Mr. Ka does not argue that Haymond necessarily binds this Court to decide his Fifth Amendment challenge one way or the other.
Rather, Mr. Ka argues that Haymond undermined the necessary premises of Riley, such that Riley can no longer be given binding effect. See, e.g., United States v. Peterson, 629 F.3d 432, 438 (4th Cir. 2011) (finding a circuit precedent non-binding where a Supreme Court holding “overruled at least in part the reasoning of” the prior decision) (emphasis added); see also In re Guo, 965 F.3d 96, 105 (2d Cir. 2020) (explaining that a prior panel decision is no longer binding after a Supreme Court decision either “broke the link on which we premised” the prior decision “or undermined an assumption of that decision,” even if the Supreme Court did not “address the precise issue decided by the panel“) (internal quotations omitted). Therefore, Mr. Ka contends, Riley does not control the outcome of this case, and this Court should consider anew the question of Fifth Amendment protections at supervised release revocation proceedings post-Haymond.
A.
The Riley court, like the majority here, declined to reach the defendant‘s compelled-statement argument because “[e]ven with regard to statements made under circumstances that would otherwise be viewed as coercive, the Self-Incrimination Clause is violated only if those statements are used in a criminal trial,” and supervised release revocation proceedings “are not part of the underlying criminal prosecution.” 920 F.3d at 205.
To support this conclusion, Riley cited Supreme Court decisions reaching the same conclusion as to probation and parole revocation proceedings. See id. at 205-06 (citing Minnesota v. Murphy, 465 U.S. 420, 429 (1984); Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Riley relied on the common presumption that the “[probation and parole] analysis is equally applicable to supervised release proceedings, which[] are analogous to and largely indistinguishable from probation and parole proceedings.”1 Id. at 206 (emphasis added); see also id. (explaining that supervised release revocation proceedings are analogous to those of parole because, in both settings, the “full panoply of constitutional protections afforded a criminal defendant is not available“) (quoting United States v. Armstrong, 187 F.3d 392, 394 (4th Cir. 1999)). In other words, the holding that the majority cites as controlling this case—that supervised release revocation proceedings are
not part of the criminal prosecution—arose directly from the Riley court‘s determination that constitutional protections in supervised release revocation proceedings are coextensive with those of parole and probation. See id. at 205-06.
In Haymond, the Supreme Court controverted this premise for the first time. Cf. Jacob Schuman, Supervised Release Is Not Parole, 53 Loy. L.A. L. Rev. 587, 590 (2020) (”Haymond is the Supreme Court‘s first major decision on the constitutional law of supervised release.“). Haymond held that imposing a mandatory revocation sentence under § 3583(k) based on the district court‘s factfinding on a preponderance of the evidence standard violated the Fifth and Sixth Amendments. 139 S. Ct. at 2376-85 (plurality opinion); id. at 2385-86 (Breyer, J., concurring).
The plurality found that these protections could apply because “a ‘criminal prosecution’ continues . . . until a final sentence is imposed,” and “an accused‘s final sentence includes any supervised release sentence he may receive.” Id. at 2379-80 (plurality opinion) (citing Johnson v. United States, 529 U.S. 694, 700 (2000)). “The defendant receives a term of supervised release thanks to his initial offense, and whether that release is later revoked or sustained, it constitutes a part of the final sentence for his crime.” Id. at 2380. Therefore, in the context of a challenge to § 3583(k), the plurality concluded that “[a]s at the initial sentencing hearing, . . . a jury must find any facts that trigger a new mandatory minimum prison term.” Id. And in reaching this conclusion, the plurality identified “structural difference[s]” between supervised release and parole and probation that “bear[] constitutional consequences.” See id. at 2381-82.
I agree with the majority that Justice Breyer‘s controlling concurrence is narrower than the plurality opinion. See, e.g., id. at 2385 (Breyer, J., concurring) (“I agree with much of the dissent, . . .“). However, Justice Breyer also found that § 3583(k) “is unconstitutional,” specifically because “[r]evocation of supervised release is typically understood as ‘part of the penalty for the initial offense,‘” and “[§] 3583(k) is difficult to reconcile with this understanding of supervised release.” Id. at 2386 (quoting Johnson, 529 U.S. at 700). Thus, while Justice Breyer disagreed with the plurality on the extent to which the Court‘s Fifth and Sixth Amendment jurisprudence should apply to supervised release revocations more broadly, he agreed that constitutional protections can attach. Haymond, 139 S. Ct. at 2385-86 (Breyer, J., concurring). Ultimately, then, Haymond held that a supervised release revocation could be part of a criminal prosecution, whereas under Murphy and Morrissey—the cases Riley relied upon—parole and probation revocations cannot be.
After Haymond, Riley‘s broad rule statement that “[s]upervised release revocation proceedings . . . are not part of the underlying criminal prosecution” is incorrect. See Riley, 920 F.3d at 205. Instead, it is now possible for them to be “part of the underlying criminal prosecution” based on unique features of the supervised release system. It is no longer true, as a general rule, that “as with parole revocation proceedings, the full panoply of constitutional protections afforded a criminal defendant is not available in supervised release revocation proceedings.” See id. at 206 (internal quotations omitted). And it can no longer be taken as a given that the
is “equally applicable” in the supervised release context because the systems are constitutionally “indistinguishable.” See id.
Therefore, Haymond undermined Riley‘s presumption of coextensive constitutional protections across the supervised release, parole, and probation contexts. Rather, supervised release‘s differences from parole and probation bear constitutional consequences. Haymond, 139 S. Ct. at 2382. For these reasons, I would find that Riley does not bind this panel. See Peterson, 629 F.3d at 438; In re Guo, 965 F.3d at 105. Instead, I would consider anew whether the Fifth Amendment‘s Self-Incrimination Clause attached at Mr. Ka‘s supervised release revocation proceeding.2
B.
Mr. Ka argues, based on Haymond‘s guidance, that supervised release revocation proceedings are sentencing proceedings triggering the Fifth Amendment‘s protection against self-incrimination. There is no denying that the circuit courts have reached the opposite conclusion, as this Court did in Riley, based on the presumption that supervised release is “virtually indistinguishable” from parole and probation. See, e.g., United States v. Hulen, 879 F.3d 1015, 1019-20 (9th Cir. 2018); United States v. Neal, 512 F.3d 427, 434-35 (7th Cir. 2008); United States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006).
But supervised release is different. Most fundamentally, supervised release differs in its intent. See Haymond, 139 S. Ct. at 2381-82. “[U]nlike parole, supervised release wasn‘t introduced to replace a portion of the defendant‘s prison term“; it is intended “only to encourage rehabilitation after the completion of [their] prison term.” Id. at 2382 (internal quotations omitted). This rehabilitative intent results in a sentencing regime that persists well beyond the period of incarceration. See id.
Previously, a federal defendant “could serve as little as a third of his assigned prison term” before obtaining parole eligibility, or “might avoid prison altogether in favor of probation.” Id. at 2381. If parole or probation was revoked, “the prison sentence a judge or parole board could impose . . . normally could not exceed the remaining balance of the term of imprisonment already authorized by the jury‘s verdict.” Id. at 2377.
Then, “Congress overhauled federal sentencing procedures to make prison terms more determinate and abolish the practice of parole,” substituting the supervised release system. Id. at 2382. “Now, when a defendant is sentenced to prison he generally must serve the great bulk of his assigned term.” Id.; see also United States v. Thompson, 777 F.3d 368, 372 (7th Cir. 2015) (“Supervised release does not shorten prison time; instead it imposes restrictions on the prisoner to take effect upon his release from prison.“). Then, upon release, the defendant must comply with “restrictions, imposed by the judge at
sentencing, called conditions or terms of supervised release, that . . . continue for a
During that term of supervision, violations of the restrictions can result in a loss of the defendant‘s conditional liberty. If supervised release is revoked, the court can impose a new term of incarceration—usually capped by statute at one, three, or five years depending on the violation, but not temporally linked to any remitted prison sentence. See id.;
Put differently, “[p]arole mitigates punishment; supervised release augments it—most dramatically when the defendant, having been determined to have violated a condition or conditions of supervised release, is given, as punishment, a fresh term of imprisonment.” Thompson, 777 F.3d at 372. So while “the primary purpose of supervised release is to facilitate the reentry of offenders into their communities, rather than to inflict punishment,” United States v. Murray, 692 F.3d 273, 280 (3d Cir. 2012), supervised release nevertheless “lengthens [the] sentence, unlike parole
Ultimately, then, supervised release revocation proceedings—unlike revocations of parole or probation—consider the imposition of new terms of incarceration. Yet, “between 1984 and 2019, the Supreme Court said almost nothing about how this new system of post-release supervision fit into the nation‘s constitutional framework.” Schuman, supra, at 612. Haymond‘s acknowledgment that the unique features of supervised release have constitutional ramifications should reasonably be expected to have implications for this Court.
One such implication is presented by this case, which invites this Court to reconsider the presumption that parole and probation case law apply equally to supervised release. See Haymond, 139 S. Ct. at 2382; see also Johnson, 529 U.S. at 724-25 (Scalia, J., dissenting) (arguing that “equat[ing] parole and supervised release is unpersuasive” because “the Sentencing Reform Act‘s adoption of supervised release was meant to make a significant break with prior practice“). We should accept the invitation and recognize what has long been true but, until now, has gone unaddressed: the supervised release system‘s differences from probation and parole necessitate additional constitutional protections.
Supervised release sanctions are “part of the penalty for the initial offense.” Johnson, 529 U.S. at 700; see also Haymond, 139 S. Ct. at 2379-80 (plurality opinion); Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring). And supervised release revocation can result in a new, additional term of incarceration. See Thompson, 777 F.3d at 372; Siegel, 753 F.3d at 707. Therefore, a supervised release revocation proceeding should be regarded as a “sentencing proceeding,” and the same constitutional protections available at
the initial sentencing should attach.5 See Haymond, 139 S. Ct. at 2377-80 (plurality opinion).
The Supreme Court has “repeatedly rejected efforts to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution” as an “enhancement,” “modification,” or “postjudgment sentence-administration proceeding.” Id. at 2379. Here, a supervised release revocation proceeding is a sentencing proceeding, regardless of what the government labels it. Its purpose is to modify the supervised release portion of the defendant‘s sentence—which is one portion of a single, unified sentence for the original offense—and potentially impose a new term of incarceration followed by a new term of supervised release. And it is well-established that sentencing is a critical stage of the criminal prosecution, such that the Fifth Amendment applies. Mitchell v. United States, 526 U.S. 314, 328 (1999); Mempa v. Rhay, 389 U.S. 128, 137 (1967).
Indeed, it is especially vital that the protection against the use of compelled statements applies at sentencing proceedings: “To say that [the defendant] ha[s] no right to remain silent but instead could be compelled to cooperate in the deprivation of her liberty would ignore the Fifth Amendment privilege at the precise stage where, from her point of
view, it was most important.” See Mitchell, 526 U.S. at 327-28. That principle applies just as forcefully to a revocation proceeding—where additional terms of incarceration and supervised release are considered—as it does to the initial sentencing.
Unlike parole and probation revocations, supervised release revocation proceedings uniquely allow for the imposition of new prison sentences. Just like the initial sentencing proceeding, then, constitutional protections should apply. Here, I would find that Mr. Ka‘s supervised release revocation proceeding was a sentencing proceeding, part of his “criminal prosecution,” and the Fifth Amendment‘s protection against the use of compelled statements applied. Because the majority declines to do so, I respectfully dissent.