United States v. Henderson

• Decision Date: 03 June 2021
• Docket Number: No. 19-30209,19-30209
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Lawrence HENDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

998 F.3d 1071

UNITED STATES of America, Plaintiff-Appellee,

v.Patrick Lawrence HENDERSON, Defendant-Appellant.

No. 19-30209

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 5, 2020 Seattle, Washington

Filed June 3, 2021

CALLAHAN, Circuit Judge:

Patrick Lawrence Henderson appeals his fifteen-month sentence for violating the terms of his supervised release, arguing that it violates his Fifth and Sixth Amendment rights because it extends his incarceration beyond the maximum term of imprisonment for his underlying conviction, without findings of fact proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, Henderson's argument is based on the plurality opinion in United States v. Haymond , ––– U.S. ––––, 139 S.Ct. 2369, 204 L.Ed.2d 897 (2019), and Justice Breyer's controlling concurring opinion did not adopt the plurality's position. Thus, Haymond did not overrule or undermine our prior opinion in United States v. Purvis , 940 F.2d 1276 (9th Cir. 1991), which held a term of supervised release may extend beyond the statutory maximum for the underlying substantive offense. Nor does Haymond hold that the right to jury findings proved beyond a reasonable doubt recognized in Apprendi extends to a revocation of supervised release hearing. Indeed, as the dissent concedes, when district courts revoke supervised release, the new sentences they impose are treated, for constitutional purposes, "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). Neither our circuit nor any of our sister circuits has adopted or endorsed Henderson's argument that the terms of imprisonment and the terms of reimprisonment must be aggregated and may not exceed the maximum term of the statute of conviction. Accordingly, we affirm the district court's sentence.

I.

Following his guilty plea in the United States District Court for the District of Montana, Henderson was convicted in January 2010 of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced to serve 117 months' imprisonment followed by three years of supervised release. The statutory maximum for felonious possession of a firearm was 120 months. 18 U.S.C. § 924(a)(2).

Henderson began his term of supervised release on September 26, 2018. On October 11, 2018, Henderson was arrested by Montana state officials for felony aggravated assault, which resulted in the victim sustaining injuries, including a broken jaw

, broken nose, and extensive damage to facial bones that required surgery to repair. On October 29, 2018, the United States Probation Office filed a report alleging this assault violated a mandatory condition of Henderson's supervised release. Henderson was allowed to remain on supervised release, but the terms of supervision were modified to require him to undergo a mental health evaluation.¹

A month later, on November 30, 2018, Henderson was arrested by Montana officials and charged with eleven new offenses, including: four counts of felony burglary, two counts of misdemeanor theft, and three counts of misdemeanor criminal mischief. In April 2019, Henderson entered into a plea agreement in the Cascade County District Court to one count of felony burglary, one count of felony theft, and one count of misdemeanor assault. In June 2019, he was committed to the Montana Department of Corrections for twenty years, with fifteen years suspended.

In July 2019, the United States Probation Office filed an amended charge of violation of supervised release. The petition alleged that Henderson had committed three additional violations since the October 2018 report: (1) he had failed to appear for a scheduled urinalysis test on November 14; (2) he had failed to appear for a scheduled mental health assessment on November 15; and (3) on November 30 he committed new crimes for which he had been convicted and sentenced in state court.

On July 17, 2019, Henderson appeared before a Magistrate Judge for a revocation hearing. Henderson admitted that he failed to report for the substance abuse test and the mental health assessment and that he had committed another crime. The Magistrate Judge revoked Henderson's supervised release, sentenced him to incarceration for twenty-one months, with fifteen months of supervised release to follow, and stated that the term of custody should run consecutive to Henderson's state sentence.

Henderson timely objected. He argued that under the Fifth and Sixth Amendments he could only be sentenced to three months' imprisonment because otherwise he would be subjected to a total term of imprisonment greater than the statutory maximum for his underlying crime of being a felon in possession. He also argued that the recommended sentence was substantially unreasonable.

The district court carefully considered Henderson's argument that he could be imprisoned for only three months under Apprendi. The district court recognized that Haymond raised questions as to the continued viability of Ninth Circuit precedent allowing the preponderance-of-evidence standard to apply in revocation proceedings. But the court noted that Haymond was a plurality opinion and that Justice Breyer's concurring opinion limited the case's holding to the mandatory five-year sentence provided by 18 U.S.C. § 3583(k). The district court concluded that it was bound by Ninth Circuit precedent given the lack of a Supreme Court decision directly on point. The district court sentenced Henderson to fifteen months' imprisonment to run consecutive to his state sentence, followed by fifteen months of supervised release. Henderson filed a timely appeal.

II.

We review de novo a claim that a sentence violates a defendant's constitutional rights. United States v. Hunt , 656 F.3d 906, 911 (9th Cir. 2011). Apprendi errors are reviewed under the harmless error standard applied in Neder v. United States , 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Id .

III.

The district court was correct. In light of our precedent and the lack of a Supreme Court decision directly on point, we are not free to adopt Henderson's argument.

In Purvis , the appellant similarly argued that his total time of imprisonment, including a term of supervised release, could not extend beyond the statutory maximum for his underlying substantive offense. 940 F.2d at 1278. We held that " § 3583 authorizes the revocation of supervised release even where the resulting incarceration, when combined with the period of time the defendant has already served for his substantive offense, will exceed the maximum incarceration permissible under the substantive statute." Id . at 1279. In declining Purvis' arguments, we noted that under his theory, "although supervised release could still be imposed when a defendant is sentenced to the statutory maximum period of incarceration, the imposition would accomplish nothing in the case of the most serious offenders—those who actually serve the maximum, or close to the maximum, period of time." Id . (emphasis in original). Thus, "[f]or those defendants, no violation of the terms of their supervised release, no matter how egregious, could ever result in its revocation." Id .

We are bound by our prior opinion unless an intervening case so undercuts the theory or reasoning underlying the prior circuit precedent as to make it clearly irreconcilable with that intervening authority. Close v. Sotheby's, Inc. , 894 F.3d 1061, 1072–73 (9th Cir. 2018) (citing Miller v. Gammie , 335 F.3d 889 (9th Cir. 2003) (en banc)).

IV.

Henderson argues that Johnson , 529 U.S. at 700, 120 S.Ct. 1795, recognized that supervised release was part of the penalty for the initial offense, see Haymond , 139 S.Ct. at 2370–80, and that the application of decisions such as Apprendi and Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), compels the determination that the revocation of supervised release may not extend a person's incarceration beyond the statutory maximum for the underlying offense on a preponderance of evidence standard without a jury. Our dissenting colleague argues that our decision in Purvis is inapposite because the constitutional questions raised by Henderson were not discussed in that case. But because in Purvis we held that a revocation sentence is part of the maximum sentence authorized for the underlying offense, Purvis dictates that Henderson's revocation sentence does not trigger the constitutional analysis set forth in Apprendi .

Apprendi held that a judge may not increase a defendant's sentence beyond the statutory maximum based on the judge's finding of new facts by a preponderance of the evidence. 530 U.S. at 495, 120 S.Ct. 2348. Our decision in Purvis informs whether a revocation sentence exceeds the statutory maximum for an underlying offense. There, we explained that a term of supervised release and any resulting revocation sentence are part of the sentence authorized for the underlying criminal conviction. Indeed, the dissent and Henderson both acknowledge that the term of supervised release is part of the original sentence.

The dissent and Henderson further assert that because the terms of supervised release are part of the original sentence, Johnson and Haymond require that the terms of imprisonment and the terms of reimprisonment must be aggregated and may not exceed the maximum term of the statute of conviction. Thus, they argue that Henderson could be reimprisoned for only three months because a longer sentence would exceed the statutory maximum for his underlying crime of being a felon in possession.

This argument is based, in large part, on the plurality opinion in Haymond and fails to recognize Justice Breyer's narrower controlling concurring opinion. It also overstates the plurality's holding. Haymond was found guilty by a jury of possessing child pornography in violation of...