UNITED STATES OF AMERICA v. ERIC SEIGHMAN, Appellant
Nos. 17-3368 and 19-3203
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
(Filed: July 21, 2020)
PRECEDENTIAL
Argued May 28, 2020
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-14-cr-00206-004)
District Judge: Honorable Cathy Bissoon
Before: HARDIMAN, PHIPPS, and NYGAARD, Circuit Judges.
Jacob Schuman [Argued]
Brett G. Sweitzer
Federal Community Defender Office for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center,
Philadelphia, PA 19106
Counsel for Appellant
Adam N. Hallowell [Argued]
Laura S. Irwin
Office of United States Attorney
Western District of Pennsylvania
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
In United States v. Haymond, 139 S. Ct. 2369 (2019), the Supreme Court held that subsection (k) of the supervised release statute (
I
In 2014, Seighman pleaded guilty to a counterfeiting conspiracy in violation of
Soon after he left prison, Seighman went astray by buying heroin, testing positive for opiates, and failing to comply with drug treatment. Upon petition of the United States Probation Office, the District Court revoked Seighman‘s supervision and sentenced him to another 24 months’ imprisonment plus 12 months of supervised release. The District Court also strongly recommended significant and intensive drug treatment for Seighman.
After his second release from prison, Seighman transitioned to Renewal, Inc., a residential reentry center. There he violated his supervised release once again. On August 7, 2019, the day after Seighman‘s second term of supervised rеlease began, the Probation Office petitioned the District Court to issue a warrant for Seighman because he brought heroin into Renewal. The next week, the Probation Office filed supplemental petitions alleging that Seighman had committed two more violations: leaving Renewal without permission and buying illegal drugs.
The Probation Office calculated Seighman‘s revocation sentencing range as 21–27 months’ imprisonment. But because Seighman‘s crime of conviction was a Class D felony,
Seighman objected to the Probation Office‘s calculation. He argued that because his counterfeiting conspiracy conviction permitted a maximum оf 60 months in prison, he could be sentenced to no more than six months in prison (since he had served 54 months already). On Seighman‘s view, any sentence of more than six months would require a jury trial under the Supreme Court‘s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Haymond.
The District Court held a sentencing hearing, at which Seighman argued his objection. The prosecutor responded that “revocation and a term of imprisonment are mandatory under [subsection (g)] because of drug possession.” App. 98–99. He also asked the Court to “place on the
The District Court rejected Seighman‘s objection for three reasons. First, it cited a “swath of court decisions [rejecting] the notion that we should aggregate the sentences, both original and on supervised release, to ensure that the underlying statutory maximum sentence is not breached.” App. 105. Second, it noted “the Haymond [C]ourt took pains to limit its decision to [subsection (k)].” Id. Finally, it explained “Section 3583(e) . . . governs supervised release revocation proceedings generally, including [Seighman‘s], . . . [and] does not contain any similar mandatory minimums triggered by judge-found facts.” App. 105–06. In sum, the District Court said it was “not willing to go where the Supreme Court refused to.” App. 106.
Seighman timely appealed.
II
The District Court had jurisdiction under
In this appeal, Seighman principally argues that the mandatory imprisonment aspect of subsection (g) is unconstitutional. But he never raised that argument in the District Court, so we review for plain error. See United States v. Lopez, 650 F.3d 952, 959 (3d Cir. 2011). Plain error exists when an error is clear at the time it was made and it affected the defendant‘s substantial rights. United States v. Olano, 507 U.S. 725, 732–33 (1993). If those conditions are met, we may reverse only if the error affected the fairness, integrity, or public reputation of the proceeding. Id. at 732.
III
We begin by briefly summarizing the role of supervised release in the federal criminal justice system. Under the Sentencing Reform Act of 1984, whenever a federal court sentences a criminal defendant to a term of imprisonment, it may include “a requirеment that the defendant be placed on a term of supervised release.”
Because supervised release is a system of post-conviction monitoring intended to facilitate the offender‘s reintegration
Having explained federal supervised release generally, we turn to the Supreme Court‘s decision last year in Haymond. There, the Court declared
(k) Notwithstanding subsection (b), the authorized term of supervised release for any offense under section 1201 involving a minor victim, and fоr any offense under section 1591, 1594(c), 2241, 2242, 2243, 2244, 2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 2425, is any term of years not less than 5, or life. If a defendant required to register under the Sex Offender Registration and Notification Act commits any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment under subsection (e)(3) without regard to the exception contained therein. Such term shall be not less than 5 years.
In Haymond, a jury found Andre Haymond guilty of possessing child pornography in violation of
Haymond appealed to the United States Court of Appeals for the Tenth Circuit, which concluded subsection (k) violated his right to trial by jury because it imposed “a new and higher mandatory minimum resting only on facts found by a judge by a preponderance of the evidence.” Id. at 2375. A divided Supreme Court affirmed. See id. at 2373. Writing for a plurality, Justice Gorsuch defined a “prosecutiоn” as “the process of exhibiting
Justice Gorsuсh limited his analysis to the constitutionality of subsection (k) under Alleyne. See id. at 2383 (“As we have emphasized, our decision is limited to [subsection (k)]—an unusual provision enacted little more than a decade ago—and the Alleyne problem raised by its 5-year mandatory minimum term of imprisonment.“). He declined to address the constitutionality of subsection (k) under Apprendi, or the constitutionality of subsection (g). See id. at 2379 n.4, 2382 n.7.
Justice Breyer concurred in the judgment. His opinion is the Cоurt‘s holding because it supplies the narrowest ground supporting the judgment. See Marks v. United States, 430 U.S. 188, 193 (1977). Justice Breyer agreed with the dissent that “the role of the judge in a supervised-release proceeding is consistent with traditional parole.” Haymond, 139 S. Ct. at 2385 (Breyer, J., concurring in the judgment). He also cautioned against “transplant[ing] the Apprendi line of cases to the supervised-release context,” citing “potentiаlly destabilizing consequences.” Id. He nevertheless agreed with the plurality that subsection (k) is unconstitutional. His succinct concurrence merits quotation at length because it governs our analysis below:
Revocation of supervised release is typically understood as “part of the penalty for the initial offense.” Johnson v. United States, 529 U.S. 694, 700, 120 S. Ct. 1795, 146 L.Ed.2d 727 (2000). The consequences that flow from violatiоn of the conditions of supervised release are first and foremost considered sanctions for the defendant‘s “breach of trust“—his “failure to follow the court-imposed conditions” that followed his initial conviction—not “for the particular conduct triggering the revocation as if that conduct were being sentenced as new federal criminal conduct.” United Stаtes Sentencing Commission, Guidelines Manual ch. 7, pt. A, intro. 3(b) (Nov. 2018); see post, at 2392 – 2393. Consistent with that view, the consequences for violation of conditions of supervised release under
§ 3583(e) , which governs most revocations, are limited by the severity of the original crime of conviction, not the conduct that results in revocation. See§ 3583(e)(3) (specifying that a defendant may as a consequence of revocation serve no “more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, [no] more than 3 years in prison if . . . a class B felony,” and so on).[Subsection (k)] is difficult to reconcile with this understanding of supervised release. In particular, three aspects of this provision, considered in combination, lead me to think it is less like ordinary revocation and more like punishment for a new offense, to which the
jury right would typically attach. First, [subsection (k)] applies only when a defendant commits a
discrete set of federal criminal offenses specified in the statute. Second, [subsection (k)] takes away the judge‘s discretion to decide whether violation of а condition of supervised release should result in imprisonment and for how long. Third, [subsection (k)] limits the judge‘s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge‘s finding that a defendant has “commit[ted] any” listed “criminal offense.”
Taken together, these features of
§ 3583(k) more closely resemble the punishment of new criminal offenses, but without granting a defendant the rights, including the jury right, that attend a new criminal prosecution. And in an ordinary criminal prosecution, a jury must find facts that trigger a mandatory minimum prison term. Alleyne, 570 U.S. at 103, 133 S. Ct. 2151.
Id. at 2386 (emphasis added).
IV
Citing Haymond, Seighman claims the District Court committed plain error when it revoked his supervised release and sentenced him to 24 months in prison. He argues subsection (g) is “less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach.” Id. And he contends that subsection (g)
“shares all three of the features that rendered [subsection (k)] unconstitutional.” Seighman Br. 13–14. We are unpersuaded.
Subsection (g) states:
(g) Mandatory revocation for possession of controlled substance or firearm or for refusal to comply with drug testing.—If the defendant—
(1) possesses a controlled substance in violation of the condition set forth in subsection (d);
(2) possesses a firearm, as such term is defined in section 921 of this title, in violation of Federal law, or otherwise violates a condition of supervised release prohibiting the defendant from possessing a firearm;
(3) refuses to comply with drug testing imposed as a condition of supervised release; or
(4) as a part of drug testing, tests positive for illegal controlled substances more thаn 3 times over the course of 1 year;
the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).
Regarding Justice Breyer‘s first factor, we note that subsection (g) does not apply to a “discrete set of federal criminal offenses specified in the statute.” Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment). By its terms, subsection (g) applies to conduct that does not rise to the level of a federal criminal offense, such as “refus[ing] to comply with drug testing” or repeatedly “test[ing] positive for illegal controlled substances.” Recognizing this weakness, Seighman argues that because his supervised release was “mandatorily revoked for the discrete offense of drug possession,” we “need not trouble [ourselves]” with the fact that subsection (g) also applies to noncriminal conduct. Reply Br. 2–3. But Justice Breyer‘s concurrence counsels in favor of reading subsection (g) holistically: he stressed that subsection (k) applies ”only when a defendant commits a discrete set of federal criminal offenses specified in the statute.” Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).
The differencеs between the two subsections become even clearer when we consider Justice Breyer‘s second and third points of emphasis. Seighman is correct that subsection (g), like subsection (k), mandates imprisonment. But the former requires only one day in prison, while the latter mandated at least five years in prison.
Even more significantly, subsection (g) does not limit the judge‘s discretiоn in the same “manner” as subsection (k). Subsection (k) mandates five years’ imprisonment and empowers the judge to impose a life sentence regardless of how serious (or minor) the defendant‘s crime of conviction was. By contrast, subsection (g) imposes a mandatory term of imprisonment of just one day, and the maximum length of the defendant‘s sentence depends on the seriousness of his crime of conviction under subsection (e)(3). Considering these three factors “in combination,” we are convinced that subsection (g) is more like ordinary revocation and less like punishment for a new offense. Cf. id.1
Seighman insists the one-day mandatory minimum “alone” violates the jury right, and the “length of the mandatory sentence is irrelevant.” Reply Br. 3–4. We disagree. Justiсe Breyer stressed the length of subsection (k)‘s mandatory minimum repeatedly. See Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment). And because he emphasized that the three factors he applied are to be considered “in combination,” id., it cannot be true that one factor “alone” is outcome-determinative.
Had we reached the opposite conclusion, Seighmаn‘s appeal would still fail. The novelty of the question presented precludes relief under the stringent Olano standard because any error would not have been plain. See Olano, 507 U.S. at 734. And because the District Court imposed a sentence well beyond a day in prison (24 months), it‘s clear that Seighman‘s substantial rights were not affected by subsection (g)‘s
mandatory minimum. Id. Indeed, the District Court‘s frustration with Seighman‘s repeated breaches of trust resulted in a term of imprisonment to the maximum еxtent the statute permits.
For these reasons, the District Court committed no error, much less plain error, when it sentenced Seighman under subsection (g).
VI
Seighman also argues that his sentence is unconstitutional under Apprendi. As counsel rightly conceded in his brief, however, Seighman is merely preserving this argument for Supreme Court review because Justice Breyer‘s refusal to “transplant the Apprendi line оf cases to the supervised-release context” forecloses it. Haymond, 139 S. Ct. at 2385 (Breyer, J., concurring in the judgment); see also Seighman Br. 18. Justice Breyer‘s opinion is consistent with our own precedent, where we have rejected the argument that a defendant can establish an Apprendi violation by “aggregat[ing] . . . revocation sentences and then compar[ing] them to” a
*
For the reasons stated, we will affirm Seighman‘s judgment of sentence.2