UNITED STATES OF AMERICA, Appellee, v. CARLOS PEGUERO, AKA JAY, Defendant-Appellant.
No. 20-3798
United States Court of Appeals for the Second Circuit
May 13, 2022
August Term 2021 (Argued: December 7, 2021)
Before: SACK, BIANCO, Circuit Judges, and UNDERHILL, Chief District Judge.**
* The Clerk of the Court is respectfully instructed to amend the caption to conform with the above.
** Judge Stefan R. Underhill, Chief United States District Judge for the District of Connecticut, sitting
Defendant-Appellant Carlos Peguero appeals from a November 4, 2020 judgment of the United States District Court for the Southern District of New York (Roman, J.) revoking his term of supervised release and sentencing him to a total term of 28 months’ imprisonment for violations of multiple conditions of his supervised release.
On appeal, Peguero challenges his revocation on Specification Four, which alleged
We hold that the district court did not abuse its discretion in finding that Peguero committed Specification Four by a preponderance of the evidence or by finding good cause to admit the out-of-court statement under
Finally, as to Specification Nine, we agree with the parties that the written judgment conflicted with the district court‘s oral ruling that the alleged violation had been proven, and that the oral ruling controls.
Accordingly, we AFFIRM the judgment of the district court except as to Specification Nine and VACATE in part and REMAND for amendment of the judgment as to Specification Nine only.
JUDGE UNDERHILL dissents in a separate opinion.
SHIVA H. LOGARAJAH, Assistant United States Attorney (Hagan Scotten, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
JOSEPH A. VITA, Joseph A. Vita Law Office, Port Chester, NY.
JOSEPH F. BIANCO, Circuit Judge:
Defendant-Appellant Carlos Peguero appeals from a November 4, 2020 judgment of the United States District Court for the Southern District of New York (Roman, J.) revoking his term of supervised release and sentencing him to a total term of 28 months’ imprisonment for violations of multiple conditions of his supervised release.
On appeal, Peguero challenges his revocation on Specification Four, which alleged that, on May 12, 2019, Peguero committed the state crime of second-degree assault in violation of
We hold that the district court did not abuse its discretion in finding that Peguero committed Specification Four by a preponderance of the evidence or by finding good cause to admit the out-of-court statement under
As a threshold matter, the dissent‘s proposed holding is inconsistent with well-established precedent in this Circuit, which we are duty-bound to follow. Moreover, that binding precedent rests on sound constitutional footing because of the following indisputable facts regarding supervised release: (1) a supervised release term is a component of the initial sentence for the underlying crime that can only be imposed after the defendant received the full constitutional protections afforded in a criminal prosecution and was adjudicated to be guilty; (2) as a result of the initial sentence, the maximum term of imprisonment that the defendant can face is his initial custodial sentence plus additional imprisonment for violations of supervised release up to the maximum term of supervised release authorized by statute for the underlying offense (subject to the exceptions in
In reaching a contrary conclusion, the dissent suggests that the full constitutional protections for a criminal prosecution should exist for supervised release violations only involving new conduct punishable by more than one year in prison, and not at all for violations of parole or probation. The grounds for such distinctions, however, are difficult to discern as a legal
Finally, as to Specification Nine, we agree with the parties that the written judgment conflicted with the district court‘s oral ruling that the alleged violation had been proven, and that the oral ruling controls.
Accordingly, we AFFIRM the judgment of the district court except as to Specification Nine and VACATE in part and REMAND for amendment of the judgment as to Specification Nine only.
BACKGROUND
I. Initial Offense and Prior Supervised Release Violations
In 2006, Peguero was charged in a three-count indictment in connection with his participation in a 2004 armed bank robbery in Ardsley, New York, namely: (1) conspiracy to commit bank robbery, in violation of
Following the completion of the term of imprisonment on the underlying conviction, Peguero violated the terms of his supervised release. In particular, on April 1, 2015, Peguero pled guilty to the state crime of criminal contempt, as well
as the use of cocaine. For those violations, the district court revoked Peguero‘s supervised release and sentenced him to 8 months’ imprisonment, to be followed by a new 24-month term of supervised release. After completing his new term of imprisonment, and during his second period of supervised release, Peguero again pled guilty to violating the conditions of release by engaging in new criminal conduct—namely, endangering the welfare of a child.2 Based upon that violation, the district court revoked Peguero‘s supervised release and imposed a new 24-month term of supervised release. Peguero began that term of supervised release on June 7, 2018.
II. Instant Supervised Release Violations
During his third term of supervised release, Peguero was arrested multiple times for various alleged criminal activities, including, as relevant to this appeal, two arrests for domestic violence.
The first alleged domestic violence incident occurred on May 12, 2019, near Fishkill, New York (the “Fishkill Incident“). According to the Dutchess County
Criminal Complaint, Peguero physically assaulted and injured his ex-girlfriend, J.D., and ripped her television off the wall and threw it on the ground, breaking it. The day after the alleged assault, J.D. gave a sworn,
The second alleged incident occurred on September 3, 2019, in Yonkers, New York (the “Yonkers Incident“). According to the Yonkers Police Department (“YPD“) incident report, a YPD officer responded to a reported violation of an order of protection at Peguero‘s parents’ apartment, where J.D. was visiting at the time. When Peguero arrived at the apartment, he allegedly became angry with J.D. and proceeded to punch and choke her before fleeing the scene. The YPD report noted that J.D. had visible injuries, including bruising and swelling on her neck, which were also observed by medical professionals at the hospital where J.D. was taken after the alleged assault.
On October 28, 2019, J.D. wrote to both the Dutchess County and Westchester County prosecutors, stating that she wanted to “drop all domestic violence charges against Carlos Peguero” and that she was “not being forced or harassed” in making that decision. Joint App‘x at 167. Both counties subsequently dismissed all charges.
On September 15, 2020, in an amended violation petition, the United States Probation Department alleged that Peguero had committed twenty-two violations of his conditions of supervised release in connection with his alleged state criminal conduct. The government did not pursue nine of the specifications (Specifications Six and 15 through 22). Peguero contested six of the remaining 13 alleged violations3—namely, Specifications Four, Five, and Seven through Ten.
Specifications Four and Five arose from the Fishkill Incident and alleged, respectively, that Peguero: (1) committed assault in the second degree, in violation
of
A. Admission of Fishkill Statement
Law enforcement officers made several attempts to contact J.D. in order to serve a subpoena on her for in-person testimony at the scheduled revocation hearing. On September 10, 2020, an FBI Task Force Officer attempted to serve a subpoena on her at her last known address. Instead of reaching J.D., the officer was met by one of her children, who stated that J.D. was in the hospital. A few days later, on September 16, 2020, a Fishkill Police Officer attempted to follow up with J.D., who was again not present. Later that day, law enforcement finally reached J.D. on the phone, and she refused to appear at Peguero‘s hearing. The next day, a Fishkill Police Officer again contacted J.D., who informed the officer “that she did not want to testify [against Peguero] because she had suffered seizures and anxiety from both incidents [of domestic violence] and was afraid of having to relive them and retrigger her medical issues.” Joint App‘x at 174–75.
Prior to Peguero‘s scheduled revocation hearing on the contested specifications, the government, anticipating that J.D. would be unavailable to testify due to her unwillingness to do so, moved to admit the out-of-court statements she had made to law enforcement about the alleged assaults, including, as relevant here, the Fishkill Statement. The district court granted the motion, concluding that the Fishkill Statement was admissible pursuant to
B. Revocation Hearing
A revocation hearing regarding the contested specifications was held on October 8, 2020. To prove the specifications related to the Fishkill Incident, the government presented the testimony of Fishkill Police Officer Nesbitt, who testified that he responded to a 911 call of a domestic incident on May 12, 2019. When he arrived at the scene, he spoke to the caller, J.D., who was “[u]pset, crying, [and] disheveled,” and who told him that Peguero, her boyfriend at the time, had punched her and “hit her in the head.” Joint App‘x at 80, 82. Officer Nesbitt further testified that he observed a “laceration” or “abrasion” on J.D.‘s head, consistent with her statements, and confirmed that she was taken to a hospital for medical treatment. Joint App‘x at 83–84. He also stated that he observed property
damage in the home, including a broken television. On cross-examination, Officer Nesbitt confirmed that the domestic incident report he prepared at the scene—signed by J.D. and containing her statements—did not mention Peguero using a weapon or sharp object to assault her, and
To prove the specifications related to the Yonkers Incident, the government presented the testimony of YPD Officer Michael Derosa, who responded to J.D.‘s 911 call on September 3, 2019. Officer Derosa testified that J.D., who was “[v]isibly upset and crying,” told him that Peguero “struck her with a closed fist multiple times in the head, left abdomen area and her chest.” Joint App‘x at 106, 108. Officer Derosa further testified that he had “observed bruising and swelling to her
head, neck area and left arm,” and noted that J.D. “complained about substantial pain to her left abdomen area.” Joint App‘x at 108. He also stated that J.D. was transported to a hospital for medical treatment, which was corroborated by medical records introduced by the government documenting the “multiple contusions” on J.D.‘s body as well as the “stress marks” on her neck. Joint App‘x at 123. Additionally, Officer Derosa testified that J.D. had reported that, at the time of the incident, she had “an order [of protection] against [Peguero].” Joint App‘x at 107.
Peguero did not offer any evidence in his defense but, instead, argued that there was insufficient proof to demonstrate: (1) that he was aware of and knowingly violated the order of protection against him at the time of the Yonkers Incident, as required by the
At the end of the hearing, the district court issued an oral decision finding that the government had proved by a preponderance of the evidence, as required by
C. Sentencing
On November 4, 2020, after hearing arguments from both sides, the district court revoked Peguero‘s term of supervised release and sentenced him to a total of 28 months’ imprisonment, with no new term of supervised release to follow. More specifically, the district court sentenced Peguero to 28 months on Specification Four (Assault in the Second Degree), 27 months on Specification One (Aggravated Unlicensed Operation of a Motor Vehicle in the First Degree), and 14 months on the remaining
Although the district court found during the revocation hearing that Specification Nine was not proven, and it was not mentioned by the district court in imposing Peguero‘s sentence, the district court‘s written judgment indicated that Peguero had committed Specification Nine in disobeying a court order and had received a concurrent 14-month sentence for that violation.
This appeal followed.
DISCUSSION
Peguero raises three claims on appeal. First, as to the state felony offense of second-degree assault charged as the basis for Specification Four, Peguero contends that the district court failed to make the requisite finding that he caused injury to J.D. by means of a deadly weapon or dangerous instrument (rather than only with his hand) and, in any event, the evidence was insufficient to support any such finding. Second, he argues that the admission of the Fishkill Statement as to that alleged offense without requiring J.D. to testify in person violated
Additionally, although not raised by Peguero, the dissent contends that the current supervised release revocation framework—specifically, the lesser procedural protections afforded during a revocation proceeding—is unconstitutional.
We address each issue in turn.
I. Sufficiency of the Evidence
A district court may revoke supervised release and impose a term of imprisonment if the court “finds by a preponderance of the evidence that the defendant violated a condition of supervised release.”
We review the district court‘s finding of a violation of supervised release “only for abuse of discretion, which can consist of an error of law or a clearly erroneous assessment of the facts.” Edwards, 834 F.3d at 199; see United States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006).
Specification Four charged Peguero with committing assault in the second degree in violation of
Peguero argues that the district court did not find one of the requisite elements of assault—the use of the weapon or instrument to cause the injury—and that, in any event, there was insufficient evidence to support that element. We disagree. As set forth below, the district court made the requisite finding on that element and did not abuse its discretion in making such a finding based upon the totality of the evidence adduced at the revocation hearing.
In particular, Peguero contends that the district court did “not mak[e] a finding that [Peguero] struck [J.D.] with the glass bottle or that the glass bottle caused the physical injury” but that, instead, the district court merely found that “Peguero was in possession of an object when he punched [J.D.].” Appellant‘s Br. at 16 (emphases added). That contention rests upon a strained interpretation of the record that we decline to adopt. Taken in context and read in the most natural way, it is evident that the district court‘s statement that Peguero “punched [J.D.] . . . while holding a glass bottle in his hand” constituted a finding that Peguero hit J.D. with the bottle, not a finding that he hit J.D. with his hand while also, unrelatedly, holding a glass bottle. See Joint App‘x at 131.
Our reading of the district court‘s finding is fully supported by the fact that the only direct evidence in the record regarding the bottle came from J.D.‘s sworn statement about the attack, in which she stated that Peguero “picked up a glass makeup bottle, held it in his left hand and hit me on the top of the head with it causing pain, bleeding” and dizziness “to the point I thought I was going to pass
out.”6 Joint App‘x at 96 (emphasis added). It is entirely implausible then that the district court made a finding that Peguero was holding the bottle in one hand, while using his other hand to punch J.D., because there is simply no evidence in the record to support that version of events. Moreover, the record reveals that the district court was well aware of the required elements of second-degree assault when it made its finding, as both Peguero‘s counsel and the government repeatedly emphasized the requirement that a weapon or instrument be used to cause injury. Therefore, we conclude that the district court made the requisite finding that Peguero injured J.D. by striking her with the bottle.To the extent that Peguero alternatively contends that there was insufficient evidence in the record to support such a finding, that argument is similarly unpersuasive. The evidence presented at the hearing included: (1) a sworn statement from J.D., as noted above, that Peguero “hit [her] on the top of the head” with a glass bottle, causing her injury, Joint App‘x at 96; (2) a 911 call in which J.D. informed the dispatcher multiple times that she was bleeding from her head; (3) a photo of the laceration on J.D.‘s head; and (4) testimony from the responding police officer that he saw “a laceration” or “abrasion” on J.D.‘s head that was “consistent” with her account, Joint App‘x at 83. In sum, the totality of the evidence supports
Furthermore, we disagree with Peguero‘s assertion that the evidence was insufficient to support the district court‘s finding because it was based in large part on J.D.‘s “multiple inconsistent oral and written out of Court statements.” Appellant‘s Br. at 13. Peguero asserts that these statements are inconsistent because J.D. described only being punched and hit in her call to 911 and in her first statement to law enforcement, but then described being punched and hit with the glass bottle when she gave her sworn statement the next day (the Fishkill Statement). However, the mere absence of the detail regarding the bottle in the earlier statements does not render the Fishkill Statement inherently contradictory. Moreover, the later statement, as described above, was corroborated by the physical evidence of J.D.‘s injury. Thus, it was well within the discretion of the district court to find the Fishkill Statement credible notwithstanding any purported inconsistencies in the record. Cf. United States v. Payne, 591 F.3d 46, 60 (2d Cir. 2010) (“Assessments of witness credibility and choices between competing inferences lie solely within the province of the [trier of fact]. Where there are conflicts in the testimony, we must defer to the [trier of fact‘s] resolution of the weight of the evidence and the credibility of the witnesses.” (internal quotation marks and alterations omitted)).
Accordingly, we conclude that the district court made the requisite finding regarding the elements of Specification Four and did not abuse its discretion by finding that those elements had been proven by a preponderance of the evidence.
II. Admission of the Fishkill Statement under Rule 32.1(b)(2)(c)
Peguero also argues that the district court abused its discretion when it admitted the Fishkill Statement without requiring J.D. to testify at the hearing in violation of
Because revocation hearings are “not deemed part of a criminal prosecution, . . . defendants in such proceedings are not entitled to ‘the full panoply of rights’ that criminal defendants generally enjoy.” United States v. Carthen, 681 F.3d 94, 99 (2d Cir. 2012) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). However, “[a]lthough the Confrontation Clause of the Sixth Amendment does not apply to supervised-release revocation hearings,” United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006),
Although Peguero does not contest that the district court applied the correct
Here, J.D. informed law enforcement “that she did not want to testify because she had suffered seizures and anxiety from both incidents [of domestic violence] and was afraid of having to relive them and retrigger her medical issues.” Joint App‘x at 175. Peguero contends that J.D.‘s statement fails to give rise to good cause not to testify as it only demonstrates that J.D. had “concerns about lingering medical problems,” not that she was “fearful of Carlos Peguero.” Appellant‘s Br. at 23. We disagree. As outlined above, there was a sufficient basis for the district court to reasonably infer that J.D.‘s statement about her refusal to testify indicated an ongoing fear of and intimidation by Peguero that would re-trigger the significant medical issues that she suffered from the alleged domestic violence at issue in the hearing. No explicit statement of fear is required. See also United States v. Alvear, 959 F.3d 185, 190 (5th Cir. 2020) (“We‘ve previously said that we deem it unnecessary to remand to [the district] court for it to make explicit that which is already implicit. In other words, inferential conclusions from the testimony and the documentary evidence are sufficient to evaluate and find good cause.” (internal quotation marks and citation omitted)).
Peguero also argues that J.D.‘s sworn statement was “inherently unreliable, as it was inconsistent with [her] other admitted written and oral statements.” Appellant‘s Br. at 24. This argument likewise fails. As we have already discussed, J.D.‘s sworn statement was corroborated by her other statements, both on 911 calls and to law enforcement immediately after the incidents of domestic violence, as well as by her physical injuries and Peguero‘s own account of the incident on his call from jail. Therefore, the district court reasonably determined that the sworn statement was sufficiently reliable to be admitted. See Carthen, 681 F.3d at 100 (holding that out-of-court statements were reliable as they were “corroborated by other evidence” and “detailed, credible, and sometimes under oath“).
Accordingly, based upon this record, we find that the district court did not abuse its discretion in concluding, on balance, that the reasons for admitting the hearsay statement outweighed Peguero‘s right to confront the complaining witness as to these alleged incidents of domestic violence, and that “good cause” had thus been shown under
III. The Constitutionality of Supervised Release Revocation Proceedings
Although the issue was neither raised nor briefed by either party, the dissent asserts that
A. Circuit Precedent
It is well-established in our Circuit that the supervised release revocation process, and its attendant procedural mechanisms, is constitutional.7 See, e.g., United States v. Diaz, 986 F.3d 202, 208–09 (2d Cir. 2021); United States v. Doka, 955 F.3d 290, 293 (2d Cir. 2020); Carthen, 681 F.3d at 99–100; Carlton, 442 F.3d at 807–10; United States v. McNeil, 415 F.3d 273, 276–77 (2d Cir. 2005); United States v. Meeks, 25 F.3d 1117, 1123 (2d Cir. 1994), abrogated on other grounds by Johnson v. United States, 529 U.S. 694 (2000). As we noted above, revocation proceedings “are not deemed part of a criminal prosecution” and, as such, “defendants in such proceedings are not entitled to ‘the full panoply of rights’ that criminal defendants generally enjoy.” Carthen, 681 F.3d at 99 (quoting Morrissey, 408 U.S. at 480); see Diaz, 986 F.3d at 208 (“[A] revocation proceeding cannot be equated with a criminal prosecution in any sense. Because the defendant already stands convicted of a crime, the government is not put to the burden of an adversarial criminal trial.” (internal quotation marks and citation omitted)).
Accordingly, we have repeatedly held that certain constitutional protections, such as the right to a grand jury indictment for a felony offense, the right to hold the government to a burden of proof beyond a reasonable doubt, the right to confront adverse witnesses, and the right to a jury trial, do not attach to supervised release hearings in the same way that they do to criminal prosecutions. See, e.g., Diaz, 986 F.3d at 209 (noting that “[n]either the Federal Rules of Evidence nor the Sixth Amendment‘s Confrontation Clause apply with full force in a revocation proceeding“); Carthen, 681 F.3d at 99–100 (noting that, at a revocation hearing, “the alleged violation of supervised[] release need only be proven by a preponderance of the evidence, not beyond a reasonable doubt“); Carlton, 442 F.3d at 809 (“[I]t is evident that the constitutional rights afforded a defendant subject to revocation of supervised release for violation of its conditions are not co-extensive with those enjoyed by a suspect to whom the presumption of innocence attaches.“); McNeil, 415 F.3d at 277 (“[A] violation of supervised release is not a separate basis for criminal punishment that requires a jury verdict and all that that entails.“); Meeks, 25 F.3d at 1122 (“[T]hese fundamental constitutional protections do not apply . . . because a revocation proceeding is not a proceeding designed to punish a criminal defendant for
Given the inarguable clarity and weight of this caselaw, the dissent acknowledges that our holding is “supported by precedent.” Post at 33. However, the precedent outlined above is not mere support for our position—it is binding authority from which we cannot deviate. It is a longstanding rule that a panel of our Court is “bound by the decisions of prior panels until such times as they are overruled either by an en banc panel of our Court or by the Supreme Court.” United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). Accordingly, it is “neither appropriate nor possible” for us to reject our prior decisions upholding the constitutionality of supervised release. Shipping Corp. of India v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d Cir. 2009).
To be sure, there is an exception to this general rule. If “an intervening Supreme Court decision casts doubt on the prior ruling“—that is, where “the Supreme Court‘s conclusion in a particular case . . . broke[] the link on which we premised our prior decision, or undermined an assumption of that decision,“—then we are not bound by our prior ruling.9 Dale v. Barr, 967 F.3d 133, 142–43 (2d Cir. 2020) (internal quotation marks omitted). “[W]e resort to this exception cautiously,” however, as a “less-than-stringent application of the standards for overruling prior decisions not only calls into question a panel‘s respect for its predecessors but also increases uncertainty in the law by revisiting precedent without cause.” Id. at 143 (internal quotation marks omitted).
The dissent does not claim that any intervening Supreme Court decision has cast doubt upon our precedent. In particular, although the dissent heavily relies upon the Supreme Court‘s opinion in United States v. Haymond,10 139 S. Ct. 2369 (2019), to support its analysis, the dissent does not suggest that Haymond overruled our binding precedent and required the additional constitutional protections in a supervised release revocation proceeding the dissent now proposes. Nor could any such argument be made from Haymond. First, Haymond concerned the constitutionality of
Accordingly, as there is no intervening opinion undermining our prior decisions that upheld the constitutionality of
B. Supervised Release Revocation Proceedings Do Not Require the Constitutional Protections of a Criminal Prosecution
Notwithstanding the above, even if we were able to reexamine the constitutionality of supervised release, we disagree with the dissent‘s contention that a revocation of supervised release for conduct punishable by more than one year in prison constitutes a criminal prosecution without affording the proper constitutional protections. See post at 1–2. Instead, the jurisprudence of both the United
Because “[s]upervised release is imposed as part of the original sentence,” it “is authorized by the original conviction, and so too are the consequences of its violation.” McNeil, 415 F.3d at 277; see Doka, 955 F.3d at 294 (quoting McNeil). Therefore, at the time of the sentencing on the underlying criminal offense, the maximum term of imprisonment that the defendant can face for that conviction is the maximum term of imprisonment for the underlying crime plus the maximum term of his supervised release authorized by statute for the underlying offense, if he violates any conditions of release. For instance, if a defendant is convicted of bank fraud under
As a component of the initial sentence, “[s]upervised release is a form of postconfinement monitoring that permits a defendant a kind of conditional liberty by allowing him to serve part of his sentence outside of prison.” Mont v. United States, 139 S. Ct. 1826, 1833 (2019) (internal quotation marks omitted). Indeed, “the very purpose of a supervised release revocation hearing is to determine the gravity of the breach of trust committed by the defendant in the context of the ‘conditional liberty’ [he] was granted following [his] conviction of the underlying offenses.” United States v. Ramos, 979 F.3d 994, 1001 (2d Cir. 2020) (internal quotation marks omitted). It is within this framework that we have soundly concluded that “[r]evocation proceedings are not deemed part of a criminal prosecution and, therefore, defendants in such proceedings are not entitled to the full panoply of rights that criminal defendants generally enjoy.” Carthen, 681 F.3d at 99 (internal quotation marks omitted). In doing so, we have emphasized that “[t]his Court considers the constitutional protections for revocation of supervised release to be the same as those afforded for revocation of parole or probation.” United States v. Ramos, 401 F.3d 111, 115 (2d Cir. 2005) (internal quotation marks omitted).
We find the dissent‘s effort to distinguish supervised release from either parole or probation, for purposes of determining the requisite constitutional protections for revocation, to be unpersuasive. To be sure, there are differences between these three systems of supervision. For example, as opposed to parole, a supervised release term “does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court.”
Moreover, even though “supervised release fulfills rehabilitative ends, distinct from those served by incarceration,” United States v. Johnson, 529 U.S. 53, 59 (2000), it is still, like probation or parole, a grant of leniency based on a defendant‘s promise to follow certain conditions, see Mont, 139 S. Ct. at 1833; cf. Morrissey, 408 U.S. at 477. A defendant‘s ability to follow those conditions reflects the trust placed in him by the sentencing court—essentially, the defendant promises he is “able to return to society and function as a responsible, self-reliant person.” Morrissey, 408 U.S. at 482. Thus, as noted above, any sanctions resulting from violations of supervised release conditions, even if based on new criminal conduct, “are first and foremost considered sanctions for the defendant‘s ‘breach of trust[,]’ . . . not ‘for the particular conduct triggering the revocation as if that conduct were being sentenced as new federal criminal conduct.‘”15 Haymond, 139
S. Ct. at 2386 (Breyer, J., concurring) (quoting
With this understanding in mind, it is abundantly clear why supervised release revocation proceedings are, in fact, constitutionally distinguishable from new criminal prosecutions and, thus, why the “full panoply” of constitutional rights does not attach to a supervised release revocation, just as it does not attach to a revocation of parole or probation. See Haymond, 139 S. Ct. at 2393 (Alito, J., dissenting) (“[I]t makes little sense to treat [a defendant] as the accused . . . when he has been charged not with a crime, but with violating the terms of a jury-authorized sentence that flowed from his original conviction.“). Although the dissent decries this approach as a “legal fiction” and a “constitutional workaround,” post at 3, 18, it is, in fact, far more straightforward. We reemphasize that the additional constitutional protections outlined by the dissent are unnecessary because revocation of supervised release is not a new criminal prosecution—it is simply an additional sanction authorized by the original sentence based upon the releasee‘s breach of trust by violating the terms of his conditional release. Indeed, the dissent describes the purposes of probation in almost precisely the same terms. See post at 13 (explaining that, with respect to probation, “[l]eniency is granted in exchange for a defendant‘s promise to comply with certain conditions; failure to do so at least arguably breaches the ‘trust’ placed in the defendant by the sentencing judge“).16
Because probation and supervised release are both forms of conditional liberty for which sanctions for breach of that trust are authorized by the original sentence, the dissent‘s effort to distinguish the two for purposes of constitutional protections in a revocation proceeding would lead to probationers and supervised releasees being conferred with vastly different constitutional rights, even though they were originally sentenced for the exact same underlying offense and are alleged to have violated their conditions of release in an identical manner.
For example, assume that two defendants are convicted of bank fraud under
Furthermore, the dissent attempts to limit its holding to revocation proceedings only involving allegations of new conduct punishable by over a year‘s imprisonment. That limitation, however, has little practical effect on the broad category of violations that would qualify for full constitutional protections, including the right to indictment and the right to a jury trial. Specifically, if the underlying offense of conviction was a Class D felony or higher (which, in practice, would include the overwhelming majority of underlying offenses), a supervised releasee could receive a maximum sentence of up to two years’ imprisonment upon revocation for any violation, whether criminal or not. See
Although it is not relevant to the constitutionality of the supervised release regime, the dissent‘s approach would likely also have far-reaching, “potentially destabilizing consequences” to the federal criminal justice system. Haymond, 139 S. Ct. at 2385 (Breyer, J., concurring). Between 2013 and 2017, an average of 21,600 supervised release violations a year were reported in the federal system. U.S. SENT‘G COMM‘N, FED. PROB. AND SUPERVISED RELEASE VIOLATIONS 14 (July 2020), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200728_Violations.pdf. An overwhelming majority of those violations (approximately 93.4%, or 20,147) resulted in terms of imprisonment following a revocation hearing. Id. at 27. Moreover, regardless of the ultimate sentence, nearly all of
Even if the dissent‘s approach were limited to revocations based on new criminal conduct punishable by over a year‘s imprisonment—thus eliminating the other non-criminal violations discussed above (Grade C under the Guidelines)—the impact is still substantial. In the time period cited above, 45.1% of supervised release violations—or an average of 9,741 violations per year—qualified as either Grade A (violent, firearms, or drug offenses punishable by more than one year of imprisonment, and all other offenses punishable by more than 20 years of imprisonment) or as Grade B (offenses punishable by more than one year of imprisonment).17 FED. PROB. AND SUPERVISED RELEASE VIOLATIONS, at 31. We recognize that this statistic does not take into account the fact that defendants are often charged with multiple violations in the same revocation proceeding and thus, separate trials would not be necessary for each violation. However, even considering that limitation in the statistics, we can safely state that the dissent‘s approach (with its full panoply of constitutional protections) would apply to hundreds and hundreds of revocation proceedings annually.
Further, to the extent one might argue that only a small percentage of such violations would proceed to trial, that assumption is likely misplaced. Where, as here, the alleged new criminal conduct did not result in a state conviction, supervised releasees may hesitate to plead guilty because of a belief (perhaps well-founded) that the prosecutor may choose not to even pursue a violation involving alleged new criminal conduct if he or she would need to expend the time and resources to present the evidence of such violation in a grand jury proceeding and then a jury trial. That belief may be magnified in situations where proving the new criminal conduct (or proving a non-criminal Grade C violation) in such proceedings would likely only result in a relatively short term of imprisonment if supervised release were revoked. At a minimum, supervised releasees may often make the government present the case to the grand jury before making any plea decisions, thus potentially requiring additional hundreds of grand jury presentations annually that could overwhelm prosecutors and the grand jury system. Moreover, even assuming that the guilty plea rate remained the same for supervised release violations within the dissent‘s new framework under the current system—that is, approximately 81.9%, see FED. PROB. AND SUPERVISED RELEASE VIOLATIONS, at 30—that would potentially result in several hundred additional jury trials each year that would need to be conducted in district courts for supervised release violations. That additional volume would significantly burden the district
In sum, for the reasons set above and in our well-settled, binding precedent, we again hold that
IV. Clerical Error in Judgment
Finally, Peguero challenges the inclusion of Specification Nine in his judgment as a proven violation, as the district court orally pronounced that the government had failed to prove that violation by a preponderance of the evidence. The government concedes that this was a clerical error and also seeks a limited remand on Specification Nine to permit the district court to enter an amended judgment. We agree that remand is appropriate here.
We have consistently held that “where an unambiguous oral sentence conflicts with the written judgment, the constitutional right of a defendant to be present at sentencing dictates that the oral pronouncement of sentence must control.” United States v. Jacques, 321 F.3d 255, 263 (2d Cir. 2003) (internal quotation marks and alteration omitted); United States v. Carr, 557 F.3d 93, 109 (2d Cir. 2009). “When such a conflict exists, the proper remedy is to remand for amendment of the written judgment.” Jacques, 321 F.3d at 263; accord United States v. Marquez, 506 F.2d 620, 622–23 (2d Cir. 1974).
The district court‘s written judgment, issued on November 4, 2020, indicated that Peguero had committed Specification Nine by disobeying a court order of protection. However, at the October 8, 2020 revocation hearing, the district court orally announced its finding “that the government failed to demonstrate by a preponderance of the evidence that Carlos Peguero committed [Specification 9]” as the government had “fail[ed] to introduce the order of protection . . . or present evidence that there was in fact an order of protection in effect on the date of the incident.” Joint App‘x at 132–33. Similarly, the transcript of Peguero‘s sentencing also clearly demonstrates that he was not sentenced based upon Specification Nine, which the government had failed to prove. Because there is a clear discrepancy between the written judgment and the oral pronouncement, we conclude that the oral pronouncement controls and remand for the limited purpose of amending the judgment to remove Specification Nine from the list of Peguero‘s violations and, instead, to include Specification Nine on the list of specifications that Peguero did not violate. Jacques, 321 F.3d at 263.
CONCLUSION
For the reasons set forth above, we AFFIRM Peguero‘s judgment of revocation except as to Specification Nine and VACATE in part Peguero‘s judgment of revocation and REMAND for amendment of the judgment as to Specification Nine.
Stefan R. Underhill, District Judge, dissenting:
Carlos Peguero was sentenced to twenty-eight months in federal prison for criminal conduct proscribed by the State of
I acknowledge that the district court acted consistently with existing precedent of this Court, and that the majority feels constrained to follow that precedent and to affirm. Importantly, however, no decision of the Supreme Court or this Court has ever analyzed whether a person on supervised release facing violation charges punishable by more than one year in prison has a right to indictment on those charges. Nor has either Court ever held that proceedings that require indictment do not constitute a “prosecution” and therefore can be decided without affording the accused his Sixth Amendment rights. Because this appeal raises Confrontation Clause issues, and because I conclude that Peguero had the right to be indicted for his claimed supervised release violations, I further conclude that he had the right to confront witnesses against him. In my view, prior decisions allowing a judge to sentence a person to prison for more than a year based on a violation of supervised release without providing such essential Constitutional protections are misguided and based on unsupportable legal fictions. Accordingly, I respectfully dissent.
I. Introduction
The majority relies upon decisions that treat a violation of supervised release exactly like a violation of parole or probation. Those decisions ignore essential differences between supervised release on the one hand and parole and probation on the other. A person released on parole who commits new criminal conduct while on parole will be returned to prison to serve the remainder of the sentence imposed on the original conviction for the original criminal conduct—for which he was indicted and was provided the other rights guaranteed by the Constitution. A person sentenced to probation who commits new criminal conduct while on probation can be sent to prison after being resentenced on the original conviction for the original criminal conduct—for which he was indicted and was provided the other rights guaranteed by the Constitution. A person serving a term of supervised release, following completion of a prison sentence, who allegedly violates a condition of supervised release punishable by more than one year in prison has a right to be indicted before having a new prison term imposed. Unlike parolees and probationers, he is not being resentenced or imprisoned based upon the criminal conduct for which he was already indicted, convicted, and punished.
Caselaw employs the legal fiction that, because a term of supervised release is imposed as part of the sentence on the original criminal conduct, any punishment imposed for violating a condition of supervised release is simply adding to the sentence for the original criminal conduct. Relying on precedent developed in the context of parole, those decisions hold that a supervised release violation proceeding does not constitute a “prosecution” to which the Sixth Amendment right to confront government witnesses — or other Fifth and Sixth Amendment rights — would attach.
The legal fiction collapses when one considers the implications of the right to indictment. The
More practically, whatever label might be attached or whatever it might be “deemed,” a supervised release violation proceeding constitutes a prosecution within the meaning of the
In the present case, following indictment, Peguero pled guilty to bank robbery (not domestic assault) in 2007. He was sentenced to more than eight years in prison followed by a five-year term of supervised release. Peguero‘s initial term of supervised release began on December 27, 2013. In 2019, more than twelve years after his original conviction (and after two separate supervised release revocations, one of which included additional time in prison), Peguero was arrested for felony assault in violation of New York penal law. Peguero was charged with the crime, but then a complication arose: the alleged victim declined to testify. Without that witness, the state prosecutor determined, there was simply not enough evidence to prove Peguero guilty beyond a reasonable doubt. The charges were dismissed, and later expunged from Peguero‘s record.
That turn of events only made things worse for Peguero—his case was picked up by federal authorities as a violation of the conditions of his supervised release. The consequence of the move to federal court was to deny Peguero his right to indictment, his right to confront witnesses, his right to a jury trial, and his right to remain free of imprisonment unless proven guilty beyond a reasonable doubt—all of which he was constitutionally required to receive in state court. Peguero challenged the proceedings as violative of the Confrontation Clause of the
Peguero was sent to prison by the federal court in violation of his fundamental constitutional rights. Those same violations occur in federal court supervised release proceedings across the country every day. It is time for the courts to acknowledge that injustice and bring supervised release proceedings into line with the Constitution.
II. The Constitution
The “most elemental of liberty interests [is] the interest in being free from physical detention by one‘s own government.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004); see also Ex parte Mitsuye Endo, 323 U.S. 283, 299 (1944) (discussing the constitutional safeguards surrounding “arrest, detention and conviction of individuals“); Akhil Reed Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 660 (1996). On that premise, the framers crafted a Constitution that makes securing a criminal conviction a difficult task. Herrera v. Collins, 506 U.S. 390, 398-99 (1993). Consider the safeguards that attach
First, indictment. The
The grand jury requirement guards against “an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial, before [] probable cause is established.” Hurtado v. California, 110 U.S. 516, 551-52 (1884) (Harlan, J., dissenting) (cleaned up); see also 2 Joseph Story, Commentaries on the Constitution of the United States § 1785 (5th ed. 1994) (“[T]he grand jury perform [the] most important public functions, and are a great security to the citizens against vindictive prosecutions, either by the government, or by political partisans, or by private enemies.“).
Next, the right to trial by jury. Those who wrote our Constitution considered the right to be tried by an impartial jury essential to “prevent oppression by the Government.” Duncan v. Louisiana, 391 U.S. 145, 155 (1968); see also id. at 155 n.23 (“[T]rial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.“) (quoting P. Devlin, Trial by Jury 164 (1956)); United States v. Haymond, 139 S. Ct. 2369, 2375 (2019) (plurality opinion) (describing the right to trial by jury as “‘the heart and lungs, the mainspring and the center wheel’ of our liberties, without which ‘the body must die; the watch must run down; the government must become arbitrary‘“) (quoting Letter from Clarendon to W. Pym (Jan. 27, 1766), in 1 Papers of John Adams 169 (R. Taylor ed., 1977)). The Confrontation Clause of the
Finally, the burden of proof. The due process clause of the
Taken together, those amendments “indisputably entitle a criminal defendant to ‘a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.‘” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)); see also Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). In so doing, they act as a bulwark against the arbitrary exercise of power by government, even at the expense of making it more difficult to convict the guilty.
Those fundamental constitutional protections undoubtedly apply when a person is prosecuted—accused of committing a new criminal offense—in federal court. Betterman v. Montana, 578 U.S. 437, 441-43 (2016) (explaining the rights that apply at each stage of a criminal prosecution). With the exception of the right to indictment, the fundamental criminal trial rights apply, through the
According to the majority, however, Peguero was entitled to none of those constitutional protections in federal court when he was accused, found guilty, and sentenced to serve more than two years in federal prison for committing that very same assault. Peguero was on supervised release at the time he was accused of the crime, the majority explains, and was therefore required to comply with certain conditions-including the “condition” that he not commit a new federal, state, or local offense.
I cannot agree that the Constitution affords Peguero such limited protection.
III. Supervised Release is Different
Supervised release was not intended to be punitive. Created in 1984 by the Sentencing Reform Act (“SRA“), supervised release is a “unique method of post-confinement supervision,” Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991), explicitly designed to afford a defendant rehabilitation. See S. Rep. No. 98-225, at 124 (1983) (explaining that the primary purpose of supervised release is “to ease the defendant‘s transition into the community after the service of a long prison term for a particularly
The architects of the SRA meant to make a clean break with past federal sentencing practice. Johnson v. United States, 529 U.S. 694, 724-25 (2000) (Scalia, J., dissenting); see also Mistretta v. United States, 488 U.S. 361, 366 (1989) (noting that the SRA ushered in “sweeping reforms“); Haymond, 139 S. Ct. at 2382 (plurality opinion) (describing the SRA as part of an effort to “overhaul[] federal sentencing procedures“). By design, supervised release is structurally different from parole, which the SRA prospectively abolished, and from probation, which it reformed.
First, consider parole. “The essence of parole is release from prison, before the completion of a sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey v. Brewer, 408 U.S. 471, 477 (1972). Under the now-abolished federal parole system, a defendant “was generally eligible for parole after serving only one-third of his sentence” and could be released to serve the remainder of that prison sentence in the community, so long as he complied with certain restrictions. Haymond, 139 S. Ct. at 2389 (Alito, J., dissenting). If he violated any of those restrictions, he could be returned to prison to serve “the remaining balance of the term of imprisonment.” Id. at 2377 (plurality opinion); see also Johnson, 529 U.S. at 725 (“[W]hen parole was revoked (unlike when supervised release is revoked), there was no need to impose a new term of imprisonment; the term currently being served (on parole) was still in place.“) (cleaned up). Parole, in other words, “replace[d] a portion of the defendant‘s prison term.” Id. at 2382 (plurality opinion).
Probation is similar. Instead of early release from prison, however, probation allows a defendant to “avoid prison altogether” and serve his entire sentence in the community, again subject to certain restrictions. Haymond, 139 S. Ct. at 2381 (plurality opinion); see also S. Rep. No. 98-225, at 59 (1983) (describing probation as a “form of sentence with conditions” and an “alternative to a term of imprisonment“). Like parole, probation is a discretionary reprieve from prison, once considered “an act of grace to one convicted of a crime.” Escoe v. Zerbst, 295 U.S. 490, 492 (1935). Leniency is granted in exchange for a defendant‘s promise to comply with certain conditions; failure to do so at least arguably breaches the “trust” placed in the defendant by the sentencing judge. United States v. Sindima, 488 F.3d 81, 86 (2d Cir. 2007); see also Jacob Schuman, Revocation and Retribution, 96 Wash. L. Rev. 881, 907 (2021) (“By sentencing a defendant to probation, the
Probation and parole allow a defendant to serve all or part of a sentence of imprisonment in the community in exchange for compliance with certain conditions, and revocation of either therefore “deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of [those] . . . restrictions.” Morrissey, 408 U.S. at 480; Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973). Commensurate with the pared-down liberty interest at stake, a probationer or parolee is entitled only to limited procedural protections before a court revokes the grant of leniency and reimposes the original term of imprisonment (parole) or imposes the term of imprisonment originally available (probation). Id.; see also Gagnon, 411 U.S. at 781-82. Those protections include:
(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body . . . ; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.
Gagnon, 411 U.S. at 786 (quoting Morrissey, 408 U.S. at 489) (cleaned up).3
Supervised release is structurally different. Rather than replacing imprisonment, it is a period of post-confinement monitoring that begins only after a defendant has completed her full carceral sentence. See
Although compliance with certain “conditions” is required of one sentenced to supervised release, supervised release is no reprieve from prison.6 As a result, the liberty of one sentenced to supervised release is distinct from the contract-like “conditional” liberty described by Morrissey (and, later, Gagnon), where reprieve from prison is given in exchange for continued compliance with certain restrictions.
IV. The Constitutional Workaround
As a plurality of the Supreme Court recognized in Haymond, the structural differences between parole, probation, and supervised release may, in the context of revocation, “bear[] constitutional consequences.” Haymond, 139 S. Ct. at 2382 (considering the constitutionality of
As the Supreme Court recognized in Johnson, the idea that a court can sanction a supervised release violation with additional imprisonment raises “serious constitutional questions.” Johnson, 529 U.S. at 700. First, though the acts of violation may “lead to reimprisonment, the violative conduct need not be criminal.” Id. Even when the act of violation is a criminal offense in its own right (which, because of
Since enactment of the SRA, courts have dodged the constitutional “difficulties” created by
In a similar attempt to avoid those constitutional pitfalls, some courts have construed the sanctions imposed for violating the conditions of supervised release as punishment for breaching the court‘s “trust,” rather than as punishment for the violative conduct itself. See Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring) (“[t]he consequences that flow from violation 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‘“) (quoting U.S. Sent‘g Guidelines Manual ch. 7, pt. A, intro. 3(b) (Nov. 2018) (cleaned up)); United States v. Edwards, 834 F.3d 180, 194 (2d Cir. 2016) (“the critical ‘subject under consideration’ at a revocation proceeding is . . . the breach of trust manifested by the violation“) (citing to U.S. Sent‘g Guidelines Manual, ch. 7, pt. A., intro. 3(b)).
By labeling reimprisonment for supervised release violations something other than punishment for the violative conduct itself, courts have artificially distinguished the rights afforded to one facing revocation of supervised release from those afforded to an accused in a criminal prosecution. See, e.g., United States v. Doka, 955 F.3d 290, 294 (2d Cir. 2020) (post-revocation consequences are “authorized by the original conviction” and defendants in revocation proceedings are therefore not entitled to “the full panoply of rights that criminal defendants generally enjoy“) (cleaned up); United States v. Meeks, 25 F.3d 1117, 1123 (2d Cir. 1994), abrogated on other grounds by Johnson, 529 U.S. 694 (constitutional protections that govern criminal prosecutions “have been ruled inapplicable because the conduct that violates the conditions of supervised release is not viewed as a separate criminal offense“);8 United States v. Soto-Olivas, 44 F.3d 788, 792 (9th Cir. 1995) (“The limited procedural protections afforded [revocation] proceedings are justified precisely because revocation of supervised release is not new punishment for a new crime. It is part of the whole matrix of punishment which arises out of a defendant‘s original crime . . . .“) (cleaned up); United States v. Work, 409 F.3d 484, 491 (1st Cir. 2005) (reasoning that “once the original sentence has been imposed in a
Relatedly, this Court has suggested that the conditional nature of the liberty afforded one on supervised release justifies the surrender of constitutional rights in a revocation proceeding. See United States v. Carlton, 442 F.3d 802, 809 (2d Cir. 2006) (“[t]he full panoply of procedural safeguards does not attach to [supervised release] revocation proceeding because a probationer [sic] already stands convicted of a crime“) (cleaned up) (emphasis mine). According to the Carlton Court, the “conditions placed on a defendant‘s liberty in supervised release encompass by implication” the “condition . . . that the defendant surrender his rights to trial by jury and to having accusations against him proved beyond a reasonable doubt.” Id. at 810; see also United States v. Ward, 770 F.3d 1090, 1098-99 (4th Cir. 2014) (“Like parolees, individuals on supervised release also enjoy only ‘conditional liberty’ because they already have been convicted of the underlying criminal offense . . . . [T]he conditional liberty to which those under supervised release are subject entails the surrender of certain constitutional rights . . . .“); United States v. Cunningham, 607 F.3d 1264, 1268 (11th Cir. 2010) (same).
But the fact that supervised release is imposed as part of a criminal sentence does not convert a new and additional term of imprisonment triggered by new conduct into part of the original penalty imposed. Nor does supervised release involve the same sort of conditional liberty relied upon in Morrissey and Gagnon; it does not replace prison on the condition that an individual abide by certain rules for the duration of that prison sentence.9 It is similarly unpersuasive to suggest that any new term of imprisonment imposed merely sanctions a breach of “trust” rather than the underlying violation conduct; including a sentence of supervised release entails no leap of faith or “trust” by a district court, nor does the evidence suggest that judges impose less severe prison terms by virtue of the discretion to include a term of supervised release. See Schuman, supra, at 907 (“[S]upervised release is the opposite of trust- additional supervision to follow full service of the prison term.“).
Because “revocation” of supervised release is nothing less than new punishment imposed by a court after finding an accused guilty of a new wrong, a supervised release revocation proceeding is fundamentally a new criminal prosecution.10 See Haymond, 139 S. Ct. at 2376 (plurality opinion) (noting that a crime was traditionally defined as those “acts to which the law affixes . . . punishment” and a criminal prosecution as “the process of exhibiting formal charges against an offender before a legal tribunal“) (cleaned up); id. at 2393 (Alito, J., dissenting) (a prosecution was
Consider the sequence of events in the case at bar. In 2007, following a conviction for armed bank robbery, Peguero was sentenced to a lengthy term of imprisonment followed by a term of supervised release. Nearly a decade later, Peguero got into an altercation with his former girlfriend, during which he purportedly struck her over the head with a glass bottle. Although there was insufficient evidence to prove his guilt beyond a reasonable doubt in state court, Peguero was nonetheless accused of assault in federal court, and, following a hearing where a United States Attorney attempted to prove that he had committed that crime, found guilty by a judge employing a preponderance of the evidence standard. He was then sentenced to serve twenty-eight months in federal prison.
The majority maintains that “well-settled, binding precedent” - from which we are not free to deviate-compels that unnatural outcome. Ante at 49. But decisions from this Circuit purporting to distinguish the rights of an accused in a criminal prosecution from those afforded in a supervised release revocation proceeding offer a jumble of inconsistent and artificial reasons for doing so. In particular, many opinions rely heavily on Morrissey to declare that supervised release revocation proceedings are not criminal prosecutions. E.g., United States v. Diaz, 986 F.3d 202, 208-09 (2d Cir. 2021); United States v. Carthen, 681 F.3d 94, 99 (2d Cir. 2012). Morrissey, however, was handed down more than a decade before supervised release was created, and its holding is premised in part on structural aspects of parole that do not apply to supervised release. See Morrissey, 408 U.S. at 477, 480 (explaining that “[t]he essence of parole is release from prison, before the completion of sentence” and noting that “supervision [of a parolee] is not directly by the court” and that “[r]evocation deprives an individual . . . only of . . . conditional liberty“).
Some opinions invoke the rationale set forth in Johnson, suggesting that the inclusion of a term of supervised release as part of a criminal sentence authorizes any penalty imposed for a violation of its conditions. See, e.g., Doka, 955 F.3d at 294. Other opinions, however, recognize the flaws of that rationale. See, e.g., Carlton, 442 F.3d at 809 (“[W]e cannot fully attribute the penalty imposed at a revocation hearing to the original conviction.“); United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005) (concluding in the same breath that “the imprisonment that ensues from revocation is . . . wholly derived from a different source” than the original sentence, but also that “imposition [of] supervised release is authorized by the original conviction, and so too are the consequences of its violation“); United States v. Smith, 982 F.2d 757, 761 (2d Cir. 1992) (concluding that the original term of imprisonment and the term of imprisonment imposed following
In sum, I cannot agree that this Court has articulated a clear or consistent basis for concluding that the rights afforded an accused in a criminal prosecution do not extend to supervised release revocation proceedings. Moreover, although the majority contends that the “United States Supreme Court. . . ha[s] thoroughly examined the legal principles supporting the constitutionality of the current revocation system,” see ante at 36, the sparse Supreme Court jurisprudence on the constitutionality of supervised release belies that contention. In particular, “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.” Ka, 982 F.3d at 228 (Gregory, J., dissenting) (quoting Jacob Schuman, Supervised Release Is Not Parole, 53 Loy. L.A. L. Rev. 587, 612 (2020)). Significantly, the Supreme Court has not explicitly considered whether supervisees, as opposed to probationers and parolees, enjoy a right to indictment for violation conduct that could send them to prison for more than one year.11
Tellingly, the majority opinion (and the jurisprudence on which it relies) is littered with statements revealing the constitutional cracks in the statutory scheme governing supervised release; at various points, the majority suggests that postrevocation penalties should be “treated” as part of the penalty for the original offense, or “deemed” distinguishable from a criminal prosecution. See ante at 23, 30, 38 (“[r]evocation proceedings are not deemed part of a criminal prosecution“) (quoting Carthen, 681 F.3d at 99) (emphasis mine); ante at 42 (“[I]t makes little sense to treat [a defendant] as the accused . . . when he has been charged not with a crime, but with violating the terms of a jury-authorized sentence that flowed from his original conviction.“) (quoting Haymond, 139 S. Ct. at 2393 (Alito, J., dissenting) (emphasis mine); see also Meeks, 25 F.3d at 1123 (“the conduct that violates the conditions of supervised release is not viewed as a separate criminal offense“) (emphasis mine).
But the scope of constitutional rights does not vary with the words we use to
I therefore cannot agree that Peguero was entitled to less than the full panoply of rights that attend a new felony prosecution, including: indictment, trial by an impartial jury, the right to confront and cross-examine his accusers, and the right to be proven guilty beyond a reasonable doubt before he was sentenced to more than two years in prison. Cf. Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring) (holding a different subsection of 3583 unconstitutional because it too “closely resemble[d] the punishment of new criminal offenses, but without granting a defendant the rights, including the jury right, that attend a new criminal prosecution“).
V. The Consequences
The majority defends the constitutionality of the current supervised release revocation scheme in part by citing to concerns about the chaos that might result if constitutional rights were extended to revocation proceedings. See ante at 46-49; see also Haymond, 139 S. Ct. at 2388 (Alito, J., dissenting) (“[I]f every supervised-release revocation proceeding is a criminal prosecution . . . the whole concept of supervised release will come crashing down.“). I do not dispute that if supervisees’ constitutional rights were properly recognized, the consequences would be significant. We do not, however, make determinations about the scope of constitutional rights in order to avoid disruption or based on what would be expedient or convenient.12 Cf. Booker, 543 U.S. at 244 (quoting 4 Commentaries on the Laws of England 343-344 (1769)) (“However convenient these new methods of trial may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters.“) (cleaned up).
Surely, it would be most efficient to permit a judge to determine guilt by a preponderance of the evidence in every criminal prosecution, without going to the trouble of obtaining an indictment, empaneling a jury, calling witnesses, and requiring proof of guilt beyond a reasonable doubt. But “the Constitution‘s guarantees cannot mean less today than they did the day they were adopted,” and the protections of the Fifth and Sixth Amendment cannot be denied merely because they are inconvenient or burdensome. Haymond, 139 S. Ct. at 2376 (plurality opinion). A
VI. Conclusion
Although I acknowledge that the majority‘s holding today is supported by precedent, I cannot agree that Peguero was entitled to anything less than the full panoply of constitutional rights prior to being sentenced to twenty-eight months in prison for committing felony assault. Because there is no dispute that he was not granted those rights, I would vacate the judgment of the district court with respect to Specification Four. I concur with the majority, however, that a remand to correct the judgment with respect to Specification Nine is necessary.
Notes
Id. at 1000-01. With that last-minute “technical amendment” to the statute, the ADAA “grafted the . . . same rules of diluted procedure applicable to parole and probation revocation hearings” onto supervised release revocation proceedings, id. at 1001-02, thus creating the constitutional problems at the crux of this case.revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release.