U.S. v. Work

Decision Date03 June 2005
Docket NumberNo. 04-2172.,04-2172.
Citation409 F.3d 484
PartiesUNITED STATES of America, Appellee, v. Timothy P. WORK, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Mary A. Davis, with whom Tisdale & Davis, P.A. was on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney (Appellate Chief), with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and HOWARD, Circuit Judge.

SELYA, Circuit Judge.

In this appeal, defendant-appellant Timothy P. Work argues that the Sixth Amendment, as interpreted in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time. He posits that when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt. We conclude that the appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong. Consequently, we affirm the judgment below.

I. BACKGROUND

On April 10, 2001, the appellant pleaded guilty to one count of aiding and abetting the uttering of counterfeit obligations. See 18 U.S.C. §§ 2, 472. On August 16, 2001, the district court, using the then-current edition of the federal sentencing guidelines, imposed a 38-month incarcerative sentence, to be followed by three years of supervised release. The court made the latter term subject to all the standard supervised release conditions, including a prohibition against the commission of further crimes. It added special conditions prohibiting the appellant from using or possessing alcohol or frequenting establishments that had the primary purpose of dispensing alcoholic beverages.

The appellant served his prison sentence without incident. His supervised release commenced on March 9, 2004. Over a span of three weeks in May of that year, the appellant committed a string of relatively minor supervised release infractions. See USSG § 7B1.1(a)(3) (describing Grade C violations). These included an arrest for stealing beer from a convenience store, possessing alcohol, failing to report the arrest to a probation supervisor, failing to make a probation office visit after being so instructed, failing to appear for drug testing, and failing to notify the probation office of a change in residence. As a result, the probation department petitioned the district court for revocation of the appellant's supervised release.

Before any action was taken on the petition, the appellant hit the trifecta: on June 13, 2004, police arrested him, massively intoxicated, at a bar in Myrtle Beach, South Carolina, after he allegedly had attempted to pass counterfeit $20 bills. This incident prompted the probation department to amend the pending petition and include a charge that the appellant had committed a Grade B violation of the conditions of his supervised release. Id. § 7B1.1(a)(2).

The district court convened a revocation hearing on August 16, 2004. The petitioner contested the shoplifting and passing of counterfeit currency charges, but admitted that he had no factual defense to the other less serious supervised release violations. As to those, however, he adverted to Blakely and offered the following syllogism: (i) Blakely held that the maximum sentence that a judge may impose is that which the facts reflected in the jury verdict or guilty plea actually support; (ii) the facts admitted in his guilty plea to the original crime of conviction (for aiding and abetting the uttering of counterfeit currency) dictated a guideline sentencing range of 33 to 41 months; (iii) his initial prison sentence was 38 months; so therefore (iv) the district court could not convert more than three months of his supervised release term into additional prison time without a further trial, as doing so would extend his term of immurement past the maximum of 41 months authorized by the sentencing guidelines. In order for the court to impose more than three months' additional imprisonment, his thesis ran, a jury would have to determine beyond a reasonable doubt that he had committed the alleged supervised release violations.

The district court, ruling from the bench, rejected the appellant's syllogism. The court held that Blakely does not apply to the revocation of supervised release and that, in any event, no right to jury trial obtains in a supervised release revocation hearing. The court then took evidence on the two most serious charges (shoplifting and the passing of counterfeit currency) and found that the government had not carried its burden of proof. Finally, the court found that the Grade C infractions had been established by preponderant evidence.

The government argued for a two-year prison sentence—the maximum permitted by the applicable statute. See 18 U.S.C. § 3583(e)(3). The appellant reiterated his view that the sentence could not lawfully exceed three months. The court rejected this view and sentenced the appellant to serve an incremental 14-month term. That coincided with the maximum recommended by the Sentencing Commission for a Grade C supervised release violator with the appellant's criminal history. See USSG § 7B1.4(a). This timely appeal followed.

II. ANALYSIS

In this venue, the appellant reiterates that 11 of the 14 months of his incremental prison term are unconstitutional because a judge, not a jury, determined that he had committed the infractions undergirding the sentence. Analytically, we divide this argument into two parts. First, we consider whether the appellant's additional imprisonment constituted a violation of the Sixth Amendment as interpreted by the Blakely Court. Next, we consider whether the appellant had a right to a jury trial on the question of whether he had violated the conditions appertaining to his supervised release.

An intelligent discussion of Blakely requires an understanding of a predecessor case: Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In that decision, the Supreme Court invalidated a New Jersey law that permitted a court to impose additional years of imprisonment above and beyond the defined statutory maximum punishment for the crime of conviction if it found by a preponderance of the evidence that the offense was a hate crime. 530 U.S. at 468-69, 120 S.Ct. 2348. In the process, the Court announced the principle that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348.

Blakely followed Apprendi by some four years. It involved a challenge to a state determinate sentencing scheme. For each offense, the state law prescribed a "standard range" of months that a court had to impose following a conviction. Blakely, 124 S.Ct. at 2535. The law permitted a court to impose a sentence greater than the top of the prescribed range if it found "substantial and compelling reasons justifying an additional sentence" so long as the justification relied on "factors other than those which [were] used in computing the standard range sentence for the offense." Id. (internal quotation marks omitted). Blakely had pleaded guilty to kidnaping, and the state court had imposed a sentence thirty-seven months greater than the top of the applicable range based on its finding that Blakely had acted with "deliberate cruelty." Id.

The Supreme Court adjudged this sentence-enhancement procedure to be in violation of the Sixth Amendment. Id. at 2537-38. The Court repeated Apprendi's holding that, apart from the fact of a prior conviction, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury." Id. at 2536 (citing Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). The Court interpreted the phrase "statutory maximum" to mean the "maximum sentence [that] a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 2537. Because Blakely's guilty plea did not authorize the additional thirty-seven month penalty and because that part of the sentence was based on a fact that was neither admitted by the defendant nor found by the jury, the enhanced sentence violated his Sixth Amendment rights. Id. at 2538.

Blakely reasoning cast a pall over the constitutionality of the federal sentencing guidelines. See, e.g., id. at 2548-50 (O'Connor, J., dissenting) (predicting the imminent demise of the guidelines). The Supreme Court confirmed this gloomy forecast in United States v. Booker, holding squarely that Blakely applied to the federal sentencing guidelines. ___ U.S. ___, ___, 125 S.Ct. 738, 755, 160 L.Ed.2d 621 (2005). The Court repaired the constitutional defect by invalidating those provisions of the Sentencing Reform Act that made the federal sentencing guidelines mandatory. Id. at 764-65. We have since held that the error described in Booker "is that the defendant's Guidelines sentence was imposed under a mandatory system." United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir.2005).

Despite this turn of events, the appellant, in his post-Booker briefing, continues to rely upon the "fact" that he in effect was sentenced to 52 months' imprisonment (an initial 38-month term for the offense of conviction plus an incremental 14-month term for violating his supervised release) even though the sentencing guidelines called for a maximum of 41 months' imprisonment for the offense of conviction. This argument is more cry than wool.

To begin, the appellant has...

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