U.S. v. Hinson

• Decision Date: 21 October 2005
• Docket Number: No. 04-10995.,04-10995.
• Citation: 429 F.3d 114
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pepper Sue HINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

429 F.3d 114

UNITED STATES of America, Plaintiff-Appellee, v. Pepper Sue HINSON, Defendant-Appellant.

No. 04-10995.

United States Court of Appeals, Fifth Circuit.

October 21, 2005.

Delonia Anita Watson, Fort Worth, TX, for U.S.

Peter Michael Fleury, Asst. Fed. Pub. Def., Fort Worth, TX, for Hinson.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, DENNIS and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Pepper Sue Hinson contends that the district court violated her Sixth Amendment right to a jury trial in revoking her supervised release and imposing a two-year sentence of re-imprisonment based on facts neither found by a jury nor admitted by her. Because Hinson was not entitled to have a jury determine the facts that gave rise to the revocation of her supervised release or the facts that underpin the duration of her sentence upon revocation, we affirm her sentence.

I

Pepper Sue Hinson pleaded guilty to the possession of stolen mail, which constituted a violation of 18 U.S.C. § 1708. The district court sentenced her to a 30-month term of imprisonment and a three-year term of supervised release. Hinson initially appealed, then dismissed her appeal of that sentence. She served the term of imprisonment, but about one year before the end of her supervised release, the government filed a motion seeking revocation, alleging that Hinson had made unauthorized charges on someone else's credit card and that she had used and possessed illegal drugs. Hinson pleaded true to the illegal drug allegations but not the credit card fraud allegation. At the revocation hearing, evidence was adduced, and the district court found, that Hinson had violated her supervised release as alleged and sentenced her to a 24-month term of imprisonment. Hinson filed this appeal contending that she could not be re-imprisoned and alternatively contending that her right to a jury trial had been violated.

II

The maximum statutory term of imprisonment under 18 U.S.C. § 1708 for possession of stolen mail was five years,¹ and that offense was a Class D felony.² In addition to a prison term, an offender may also be placed on a term of supervised release after imprisonment pursuant to 18 U.S.C. § 3583 as "part of the sentence" for a felony or misdemeanor, and if the terms of supervised release are violated, reimprisoned.³ The federal criminal statutory scheme envisions that there can be at least two components of a sentence:⁴ 1) a term of imprisonment up to the maximum prison term permitted in a statute delineating the penalty for a particular offense, such as sections 1708 and 3559,⁵ and 2) a term of supervised release as delineated in section 3583⁶ with the potential for additional prison time if the terms of supervised release are violated.⁷

Under the Sentencing Guidelines, the range of imprisonment Hinson faced for her possession of stolen mail was 12 to 18 months, and in addition to imprisonment, the district court had the discretion under section 3583 to include a term of supervised release of up to three years. In the judgment imposing a 30-month term of imprisonment, the district court stated that it was departing from the Guidelines, concluding that Hinson's criminal history category of VI did not adequately reflect the seriousness of her past criminal conduct or the likelihood that she would commit other crimes. That judgment recounted that although Hinson was only 27 years old at the time, she had 23 prior convictions, including 21 felony offenses and two parole revocations. The district court also imposed the maximum time for supervised release permissible under section 3583 for a Class D felony, which was 24 months.

Hinson first contends that she should have been sentenced to no longer than 18 months for possession of stolen mail rather than 30 months, and that since she completed her 30-month sentence, she cannot be re-imprisoned for violating the terms of her supervised release. She also asserts that the 30-month term was imposed by the district court based on facts that the judge, rather than a jury, found and on facts to which she did not plead guilty. Hinson may not, however, use an appeal of the revocation of her supervised release to attack her original sentence directly or collaterally in this proceeding.⁸

With regard to the revocation, Hinson asserts that a court may not impose a prison term upon revocation of supervised release unless a jury finds beyond a reasonable doubt that the terms of the supervised release were violated or the defendant admits those facts, citing Blakely v. Washington,⁹ Apprendi v. New Jersey,¹⁰ and United States v. Booker.¹¹ We, of course, are bound to apply existing precedent from the United States Supreme Court unless and until that Court expressly overrules that precedent.¹²

In Booker, the Supreme Court held in an opinion written by Justice Stevens that certain aspects of the Federal Sentencing Guidelines violated the Sixth Amendment right to trial by jury because the Guidelines were mandatory, and if the judge found additional facts by a preponderance of the evidence, the judge was required to sentence an offender to a longer prison term than would otherwise have been the maximum under the Guidelines.¹³ The Supreme Court made clear, however, that there would be no Sixth Amendment violation if the Guidelines were merely advisory:

If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.¹⁴

Mandatory sentencing guidelines have never been applicable to revocation of supervised release, only advisory policy statements apply to sentences imposed upon revocation.¹⁵ The introductory comments in Chapter 7 of the Sentencing Commission Guidelines Manual reflect that the Commission chose "to promulgate policy statements only,"¹⁶ explaining that "because of its greater flexibility, the policy statement option will provide better opportunities for evaluation by the courts and the Commission."¹⁷ Accordingly, the concerns that led the Supreme Court to hold that mandatory sentencing guidelines violated the Sixth Amendment do not exist with regard to sentences imposed when supervised release is revoked.

Additionally, in Booker, the Supreme Court excised only two specific statutory provisions from the Sentencing Guidelines, "the provision requiring sentencing courts to impose a sentence within the applicable Guidelines ranges," and "the provision that sets forth standards of review on appeal."¹⁸ The Court's opinion written by Justice Breyer explicitly said "[m]ost of the statute is perfectly valid," citing, among other provisions, "§ 3583 (supervised release)" and concluding that the Court "must retain those portions of the Act that are (1) constitutionally valid, (2) capable of `functioning independently,' and (3) consistent with Congress's basic objectives in enacting the statute."¹⁹ To the extent that Hinson complains that the district court imposed a 24-month sentence based on facts found by the court that were neither found by a jury nor admitted by Hinson, Booker is dispositive.

III

The decision in Booker did not, however, squarely address whether a defendant is entitled to a jury trial to determine whether the terms of supervised release have been violated. We see no principled reason for treating revocation of supervised release differently from revocation of parole in this regard. The United States Supreme Court has held that "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations."²⁰ The Supreme Court further observed that "[g]iven the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole."²¹ In describing the process that was due in revoking parole, the Supreme Court included neither the right to a jury trial nor the burden of proof beyond a reasonable doubt:

[T]he minimum requirements of due process . . . include (a) written notice of the claimed violations of parole; (b) disclosure to the 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 such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.²²

More recently, in Johnson v. United States,²³ decided just one month before Apprendi,²⁴ the Supreme Court considered the nature of revocation of supervised release, concluding that a violation of supervised release may be found by a judge applying a preponderance of the evidence standard.²⁵ In rejecting the Sixth Circuit's determination that revocation of supervised release imposed punishment for violating the conditions of supervised release, the Supreme Court reasoned:

While this understanding [the Sixth Circuit's] of revocation of supervised release has some intuitive appeal, the Government...