UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DERON EDWARDS ROBINSON, Defendant-Appellant.
No. 21-6056
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 21, 2023
23a0051p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:05-cr-00196-2—William Lynn Campbell, Jr., District Judge.
Decided and Filed: March 21, 2023
Before: McKEAGUE, WHITE, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: Benjamin H. Perry, LAW OFFICE OF BENJAMIN H. PERRY, Nashville, Tennessee, for Appellant. Robert E. McGuire, UNITED STATES ATTORNEY‘S OFFICE, Nashville, Tennessee, for Appellee.
MURPHY, Circuit Judge. This case raises two questions about supervised release. The first question
The second question concerns the right to a jury trial. Courts have long held that defendants do not have a right to a jury at supervised-release hearings. See United States v. Johnson, 356 F. App‘x 785, 790–92 (6th Cir. 2009). Yet the Supreme Court recently found that this jury-trial guarantee applied to a unique provision—
I
In 2005, police officers spotted DeRon Robinson as he left a suspected stash house for illegal drugs. Robinson had a warrant out for his arrest. After officers arrested him, they uncovered a firearm and drugs in his car. Robinson pleaded guilty to possessing a firearm as a felon, in violation of
On February 9, 2021, a few months before the expiration of this supervised-release term, Robinson was driving late at night outside Nashville in Hendersonville, Tennessee. A Hendersonville officer stopped Robinson purportedly for a tinted-window infraction. According to Robinson, however, the dash-cam video on the police cruiser caught the officer stating that he had stopped the car after running its license plate because “he had a ‘50/50 shot’ of pulling over a criminal[.]” Order, R.203, PageID 826; Mot., R.196, PageID 783. (We do not know what this video shows because the parties failed to include it in our record on appeal.) Upon questioning from the officer, Robinson noted that he had almost completed his supervised-release term. The officer gave Robinson a written warning for the tinted-window violation. He then asked for consent to search the car, a request that Robinson apparently evaded. The officer allegedly told Robinson that a refusal to consent might violate the conditions of his supervised release. The officer added that he did not want to see Robinson run afoul of those conditions. Robinson responded: “I already know because[] I got, I have, I got a gun in the glove compartment man.” Pet., R.179, PageID 745. With this admission in hand, the officer searched the car and found a loaded
The Hendersonville police arrested Robinson on firearm and drug charges. Yet neither state nor federal prosecutors indicted him. According to the district court, they likely declined to prosecute because of the “obvious Fourth Amendment violations.” Tr., R.213, PageID 869–70. A probation officer did, however, petition the court to revoke Robinson‘s supervised release because his conduct had violated the conditions on that release.
In the ensuing supervised-release proceedings, Robinson moved to suppress the firearm and drugs found in his car on the ground that the search violated the Fourth Amendment. The government conceded the Fourth Amendment violation but argued that this violation did not require the court to exclude the evidence from Robinson‘s revocation hearing. The district court agreed that the exclusionary rule does not apply in the supervised-release context and denied Robinson‘s motion.
Robinson separately moved for a jury trial over whether he had violated the conditions of his supervised release. He argued that Haymond clarified the Sixth Amendment‘s scope and gave him a right to a jury in this context. The district court disagreed, citing out-of-circuit decisions to distinguish Haymond.
At Robinson‘s revocation hearing, the district court relied on the officer‘s dash-cam video to find as a fact that Robinson had possessed the firearm and drugs in violation of his supervised-release conditions. The court revoked Robinson‘s supervised release and sentenced him to another 28 months’ imprisonment.
II
Federal law allows district courts to require defendants to serve a term of “supervised release” after they complete their prison terms.
On appeal, Robinson asks us to incorporate two criminal-trial protections into supervised-release revocation hearings. He argues that the exclusionary rule and the right to a jury trial should apply at these hearings, which courts hold to determine whether defendants have violated their conditions of supervised release. Reviewing these legal arguments de novo, we disagree with Robinson on both fronts. See United States v. Roberge, 565 F.3d 1005, 1010, 1012 (6th Cir. 2009).
A. Exclusionary Rule
The Fourth Amendment restricts the government‘s ability to ferret out crime, including by banning “unreasonable searches and seizures[.]”
The Fourth Amendment‘s text does not identify the relief that courts must (or may) provide when a police officer violates one of its limits on government investigations. See Davis v. United States, 564 U.S. 229, 236 (2011). The Supreme Court has nevertheless adopted the “exclusionary rule” to deter the police from exceeding these limits. See id. at 236–37. This rule sometimes compels courts to exclude incriminating evidence from a trial if the police violated the amendment when obtaining it. See United States v. Reed, 993 F.3d 441, 450 (6th Cir. 2021).
The Supreme Court‘s use of the rule has changed over time. The Court once treated the rule as a constitutionally compelled remedy for all Fourth Amendment violations. See United States v. Baker, 976 F.3d 636, 646 (6th Cir. 2020). But the Court has come to recognize that the rule represents a judge-made remedy that it may adjust in common-law fashion. See Davis, 564 U.S. at 238. It has also come to recognize that the rule imposes an “extreme” penalty, Herring v. United States, 555 U.S. 135, 140 (2009) (citation omitted), with “heavy costs,” Davis, 564 U.S. at 237. Nowadays, therefore, the Court does not extend the rule to all Fourth Amendment violations. See Hudson v. Michigan, 547 U.S. 586, 591–92 (2006). Rather, the Court reserves the rule for cases in which its benefits (in deterring “future Fourth Amendment violations“) exceed its costs (in interfering with a trial‘s truth-finding function and freeing wrongdoers). Davis, 564 U.S. at 236–37; see also Herring, 555 U.S. at 140–42; Scott, 524 U.S. at 362–63.
The Supreme Court‘s current utilitarian approach to the exclusionary rule leads us to the proper question here: If we extended the rule to the supervised-release context, would its upsides of deterring Fourth Amendment violations outweigh its downsides of potentially allowing a defendant to violate a supervised-release condition without consequence? The Court‘s resolution of this cost-benefit inquiry in Scott goes a long way toward deciding it in this case too. Scott held that the exclusionary rule does not compel a state to exclude illegally obtained evidence from a parole-violation hearing at which the state seeks to revoke a defendant‘s parole. 524 U.S. at 364. The Court‘s weighing of the rule‘s benefits and costs in the parole context largely carries over to this related supervised-release context. See id. at 364–69.
Start with the exclusionary rule‘s benefits. The rule‘s expansion to supervised release would produce only modest additional deterrence of Fourth Amendment violations. See id. at 367–69. Just as in the parole context, officers will often not even know that a subject is on supervised release. See id. at 367. Usually, such an officer will be investigating crime with an eye toward a criminal trial, not a supervised-release proceeding. See id. Because the exclusionary rule would apply at trial, the officer already has a strong incentive to adhere to the Fourth Amendment‘s requirements. See id. And the “remote possibility” that the government might also use uncovered evidence in supervised-release proceedings would have “little, if any, effect on the officer‘s incentives.” Id.
Even when an officer knows that a suspect is on supervised release, extending the rule to supervised-release proceedings would not increase the officer‘s incentive to follow the Fourth Amendment by much. See id. at 368. Again as in the parole context, a typical officer‘s primary focus will remain on “obtaining convictions,” not supervised-release revocations. Id. The two proceedings are not one and the same. A supervised-release revocation usually triggers a shorter sentence, the maximum term of which generally depends on the defendant‘s original crime rather than the new offense. See
Turn to the exclusionary rule‘s costs. The rule would undermine the purpose of supervised release in the same way that it would undermine the purpose of parole. See id. at 365. The two programs serve the same function. See Johnson v. United States, 529 U.S. 694, 710–11 (2000). By requiring released prisoners to follow the conditions that a district court finds necessary for their successful reentry into society, supervised release seeks to help these “releasees” during this transition and ensure that they do not endanger the community. See id. at 708–10. Yet the exclusionary rule would reduce a court‘s ability to hold releasees accountable for violations of the conditions and so reduce the releasees’ incentives to follow them. See Scott, 524 U.S. at 365.
If anything, the exclusionary rule could have more harmful effects in this supervised-release context than in the parole context. When switching from parole to supervised release, Congress changed from a system that applied to all releasees to one in which courts target “supervision to those releasees who need[] it most.” Johnson, 529 U.S. at 709. Because supervised release applies only to the defendants most in need of supervision, the federal government has an even more “overwhelming interest” in ensuring that they follow their supervised-release requirements. Scott, 524 U.S. at 365 (quoting Morrissey v. Brewer, 408 U.S. 471, 483 (1972)). If courts cannot adequately monitor this group of releasees due to the exclusionary rule, the rule‘s application might “disadvantage” these releasees by making it more likely that the courts would impose longer initial prison terms instead in order to ensure public safety. Cf. id. at 367. Scott made a similar point when it noted that the use of the exclusionary rule in the parole context could make “the hearing body . . . less tolerant of marginal deviant behavior and feel more pressure to reincarcerate than to continue nonpunitive rehabilitation.” Id. (quoting Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973)).
This balance of costs and benefits also follows from the nature of the prison term that a court imposes after it revokes a defendant‘s supervised release. That prison term does not represent punishment for the conduct that violated a supervised-release condition. See Johnson, 529 U.S. at 700. It represents “part of the penalty for the initial offense[.]” Id. So a supervised-release hearing resembles a sentencing hearing because both seek to choose the proper sentence for a crime that a jury has already found beyond a reasonable doubt. Yet we (and most
The Supreme Court‘s consistent track record of rejecting the exclusionary rule in all contexts other than a criminal trial further undergirds our cost-benefit analysis. United States v. Hill, 946 F.3d 1239, 1241 (11th Cir. 2020) (per curiam). Do the rule‘s benefits exceed its costs when a prosecutor seeks to present illegally obtained evidence to a grand jury? No. United States v. Calandra, 414 U.S. 338, 351–52 (1974). How about when the government‘s tax lawyers use this evidence to seek overdue taxes in a civil case? Also no. United States v. Janis, 428 U.S. 433, 458–60 (1976). Or when the government‘s immigration lawyers use the evidence to seek an immigrant‘s deportation? No, for a third time. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050–51 (1984). We fail to see why courts should treat supervised release differently.
Lastly, seven other circuit courts have now held that the exclusionary rule does not apply in supervised-release proceedings. See United States v. Hightower, 950 F.3d 33, 36–38 (2d Cir. 2020) (per curiam); Hill, 946 F.3d at 1241–42; Phillips, 914 F.3d at 558–60; United States v. Charles, 531 F.3d 637, 640 (8th Cir. 2008); United States v. Herbert, 201 F.3d 1103, 1104 (9th Cir. 2000) (per curiam); United States v. Armstrong, 187 F.3d 392, 393–95 (4th Cir. 1999); United States v. Montez, 952 F.2d 854, 857–59 (5th Cir. 1992). We have likewise refused to apply the rule in those proceedings, albeit in lightly reasoned unpublished decisions. See United States v. Williams, 858 F. App‘x 827, 830 (6th Cir. 2021); United States v. Alexander, 1997 WL 592807, at *1 (6th Cir. Sept. 24, 1997) (order); United States v. Blackshear, 1993 WL 288297, at *4–5 (6th Cir. July 29, 1993) (per curiam). We now officially join this unanimous circuit precedent.
Robinson responds with both a broad argument and a narrow one. As a broad matter, he asserts that the exclusionary rule should apply at all supervised-release revocation hearings. Robinson asks us to distinguish Scott (and create a circuit split) because he says that a hearing to revoke a defendant‘s supervised release is “drastically” different from a hearing to revoke a defendant‘s parole. Appellant‘s Br. 15. He accurately identifies distinctions between the two hearings. An agency might oversee a parole hearing, Scott, 524 U.S. at 366, whereas a judge oversees a supervised-release hearing,
Citing the
As a narrow matter, Robinson alternatively asks us to carve out a “harassment” exception that would allow courts to apply the exclusionary rule if an officer harasses a defendant because of the defendant‘s supervised-release status. Although we have discussed the possibility of this exception, we have never found that it applies. See Alexander, 1997 WL 592807, at *1; Blackshear, 1993 WL 288297, at *4; see also United States v. Farmer, 512 F.2d 160, 162 (6th Cir. 1975). Scott also rejected a request to create a “special” exclusionary “rule for those situations in which the officer performing the search knows that the subject of his search is a parolee.” 524 U.S. at 367–68; cf. Hightower, 950 F.3d at 38 n.2. Yet we need not resolve whether this exception survives Scott. Even if we could apply the exclusionary rule when a defendant makes a sufficient showing of harassment, Robinson has failed to prove such harassment here. Apart from the alleged Fourth Amendment violation itself, the district court saw no evidence of harassment by the otherwise “courteous” Hendersonville officer and no evidence that this officer knew that Robinson was on supervised release when the officer stopped his vehicle. Tr., R.203, PageID 826–27. Robinson does not attempt to show that these findings of fact were clearly erroneous. Cf. Montez, 952 F.2d at 859. We thus have no basis to overturn the court‘s rejection of the exclusionary rule.
B. Jury Trial
The Fifth and Sixth Amendments give an “accused” both the right to “an impartial jury” and the right to “due process of law” before the government may deprive the accused of liberty.
In the supervised-release statute, however, Congress has adopted a system that does not provide these procedural protections for the hearing at which a court determines whether to revoke a defendant‘s supervised release and return the defendant to prison.
Do these procedures conflict with the Fifth and Sixth Amendments? As a general matter, circuit courts have long rejected constitutional attacks on
As a specific matter, however, the Supreme Court‘s Haymond decision carved out an exception to this precedent. In that case, Andre Haymond committed a child-pornography offense that came with a prescribed punishment of 0 to 10 years in prison. 139 S. Ct. at 2373 (plurality opinion). A court sentenced Haymond to 38 months in prison and 10 years on supervised release. Id. He served his prison time. id. at 2374. In subsequent supervised-release proceedings, a district court found that he committed additional child-pornography crimes that triggered a unique supervised-release provision:
In a 4-1-4 decision, the Supreme Court held that the Fifth and Sixth Amendments required a jury to find beyond a reasonable doubt that Haymond committed the crimes listed in
Justice Breyer concurred in the outcome for different reasons. He rejected the plurality‘s choice to expand Apprendi and its progeny wholesale into this supervised-release context. id. at 2385 (Breyer, J., concurring in the judgment). Yet he still found
Citing Haymond, Robinson argues that the Fifth and Sixth Amendments required a jury to find beyond a reasonable doubt that he had a gun and drugs while driving in Hendersonville—the facts that led the district court to revoke his supervised release and reimprison him for 28 months. Although Robinson‘s case does not implicate
We disagree. At the outset, though, it is not clear how the Haymond plurality‘s Apprendi-based logic would apply here. The plurality did not “express a view” on whether its logic extended to
On the other hand, the correct result under the plurality‘s reasoning gets murkier if we consider Alleyne, which prohibits a court from finding a fact that increases a defendant‘s mandatory-minimum sentence beyond the statutory minimum that would apply based on the jury‘s conviction alone. 570 U.S. at 103. Robinson‘s original drug conviction included a 5-year mandatory minimum. See
Given these complexities, we opt not to decide how the plurality‘s Apprendi-based logic applies in this case. We instead hold that Justice Breyer issued the Haymond opinion that binds us here because it took the narrowest path to the judgment finding
When examined through the lens of Justice Breyer‘s narrower analysis,
The same pragmatic assessment here, however, leaves no doubt that
The differences in allowable punishments across the two subsections confirm this point. By incorporating
The two subsections also generally reach different types of violations. The four paragraphs requiring the revocation of supervised release in
For these reasons, the other circuit courts that have considered
Robinson‘s responses do not change things. He points out that
Robinson next argues that his specific supervised-release violations that triggered
Robinson lastly asserts that “experience” has shown that district courts broadly impose supervised release as new punishment for new conduct, not as an additional sanction for the initial offense. Appellant‘s Br. 23–24. But all the opinions in Haymond rejected this view by reiterating that supervised-release revocations are “part of the penalty for the initial offense.” Haymond, 139 S. Ct. at 2380 (plurality opinion) (quoting Johnson, 529 U.S. at 700); id. at 2386 (Breyer, J., concurring in the judgment); id. at 2391 (Alito, J., dissenting). We must follow this binding authority until the Supreme Court instructs us otherwise. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
We affirm.