United States v. Shakespeare

• Decision Date: 29 April 2022
• Docket Number: 21-8010
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Laquan Kyle Duane SHAKESPEARE, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

32 F.4th 1228

UNITED STATES of America, Plaintiff - Appellee,

v.Laquan Kyle Duane SHAKESPEARE, Defendant - Appellant.

No. 21-8010

United States Court of Appeals, Tenth Circuit.

FILED April 29, 2022

Robert S. Jackson, Oklahoma City, Oklahoma, for Defendant - Appellant.

Francesco Valentini, Trial Attorney, Appellate Section, Criminal Division, U.S. Department of Justice, Washington D.C. (L. Robert Murray, United States Attorney and Timothy W. Gist, Assistant United States Attorney, District of Wyoming, Lander, Wyoming; Kenneth A. Polite, Jr., Assistant Attorney General, U.S. Department of Justice, Washington, D.C., with him on the briefs), for Plaintiff - Appellee.

Before HARTZ, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

While Laquan Shakespeare was serving the supervised-release portion of his sentence for violating 18 U.S.C. §§ 1153 and 2243(a) (the "2018 conviction"), he sexually assaulted a fourteen-year-old girl. Based on the events underlying that sexual assault, Shakespeare pleaded guilty to violating 18 U.S.C. §§ 1153 and 2244(a)(5) (the "2020 conviction"). Thereafter, the government moved to revoke Shakespeare's supervised release. The district court set a combined (1) sentencing hearing on the 2020 conviction and (2) revocation hearing on Shakespeare's supervised release. At that combined hearing, the district court first sentenced Shakespeare to a term of imprisonment of 293 months on the 2020 conviction. The district court then recessed the completed proceedings relating to the 2020 conviction¹ and turned to the question whether Shakespeare's supervised release on the 2018 conviction should be revoked. Acting pursuant to the provisions of 18 U.S.C. § 3583(k), the district court concluded it was obligated to revoke Shakespeare's supervised release and to impose a mandatory-minimum five-year term of imprisonment. For the first time on appeal, Shakespeare argues the district court's application of § 3583(k) violated (1) his jury-trial rights, as guaranteed by the Fifth and Sixth Amendments; and (2) his Fifth Amendment right to be free of double jeopardy. Shakespeare's arguments are predicated on Justice Breyer's opinion concurring in the judgment in United States v. Haymond , ––– U.S. ––––, 139 S. Ct. 2369, 204 L.Ed.2d 897 (2019).

Shakespeare has failed to demonstrate the district court committed error, let alone plain error. The jury-trial-rights aspect of Shakespeare's claim fails because he admitted all of the facts necessary for the application of § 3583(k). The Supreme Court has made clear that the Apprendi / Alleyne line of cases² do not apply to admitted facts, as the Haymond plurality specifically recognized. 139 S. Ct. at 2377.³ Nor does the Apprendi / Alleyne line apply to the existence of a prior criminal conviction. Almendarez-Torres v. United States , 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ; Haymond , 139 S. Ct. at 2377 & n.3 (plurality opinion) (recognizing continuing viability of Almendarez-Torres ). The double-jeopardy aspect of Shakespeare's claim fails because the Court has explicitly held that revocation proceedings are part of the punishment for the initial offense, not a new prosecution. See Johnson v. United States , 529 U.S. 694, 700-01, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Neither the plurality opinion in Haymond nor Justice Breyer's concurring opinion purport to overrule Johnson . 139 S. Ct. at 2380 (plurality opinion); id. at 2386 (Breyer, J., concurring in the judgment). Shakespeare's reliance on Justice Breyer's separate opinion in an effort to reach a different result is misplaced. The facts underlying Justice Breyer's as-applied Haymond analysis are meaningfully distinguishable from the facts at issue here and, importantly, nothing in that analysis supports the conclusion § 3583(k) is unconstitutional as applied to Shakespeare. Thus, exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the judgment entered by the district court.⁴

II. BACKGROUND

In 2018, Laquan Shakespeare pleaded guilty to sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153 and 2243(a) (the "2018 conviction"). He was sentenced to a fifteen-month term of imprisonment, to be followed by a ten-year term of supervised release. As conditions of his supervised release, the court required Shakespeare to not violate any federal, state, or local law; to "comply with the requirements of the Sex Offender Registration and Notification Act ( 34 U.S.C. § 20901, et seq. ) [("SORNA")] as directed by the probation officer"; and to not "associate with children under the age of 18 ... except in the presence of a responsible adult who is aware of the nature of the defendant's background and current offense and who has been approved by the Probation Officer."

Shakespeare finished his term of imprisonment on the 2018 conviction and began his term of supervised release in September 2019. On November 15, 2019, Shakespeare was charged in tribal court⁵ with sexually assaulting a fourteen-year-old relative. He pleaded guilty to Sexual Assault – Second Offense in tribal court and was sentenced to 365 days’ confinement.

In July 2020, based on the events underlying Shakespeare's tribal court conviction for sexual assault, a federal grand jury charged Shakespeare with two counts of aggravated sexual abuse of a minor. Shakespeare ultimately pleaded guilty, pursuant to a plea agreement, to one count of abusive sexual contact with a minor, in violation of 18 U.S.C. §§ 1153 and 2243(a)(5) (the "2020 conviction"). In his plea agreement and guilty plea, Shakespeare admitted "he did knowingly engage in and cause, or attempt to engage in and cause, sexual contact, that being the intentional touching, either directly or through the clothing, of the genitalia, groin, inner thigh, or buttocks of" the fourteen-year-old victim. Shakespeare's plea agreement contained a binding provision, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), that he would receive a sentence between 240 and 360 months’ imprisonment. The district court accepted Shakespeare's Rule 11(c)(1)(C) plea and set a sentencing hearing for February 2021.

In December 2020, the Probation Office filed a petition to revoke Shakespeare's supervised release on the 2018 conviction. The petition alleged Shakespeare committed a new sex offense against a minor, violating the release condition requiring him not to commit another federal, state, or local crime. The petition also alleged that, because Shakespeare committed a new sex offense while subject to registration under SORNA, the court was required to revoke his supervised release and impose a five-year minimum revocation sentence under § 3583(k).⁶

In February 2021, the district court held a combined sentencing hearing on the 2020 conviction and revocation hearing on the 2018 conviction. With respect to the 2020 conviction, the district court sentenced Shakespeare to 293 months in prison, at the top of Shakespeare's advisory Guidelines range. The district court explained Shakespeare had a "documented history as a sexual predator of minor children as evidenced by the commission of the instant [rape] less than two months following his release from federal prison for another sex-offense conviction." The court concluded a "lengthy sentence" was "needed in order to protect the public from his future potential conduct" and "necessary given the prior sentence was insufficient to adequately deter the conduct that he engaged in." After imposing sentence, the district court recessed the now-completed proceedings on the 2020 conviction.

The district court then turned to the revocation petition on the 2018 conviction. At the outset, Shakespeare confirmed he intended to admit the violation, with his counsel noting "the Court could really take judicial notice of the fact that [Shakespeare] has pled guilty in the other docket to satisfy the violation of supervised release." The district court insisted, however, on advising Shakespeare as to the rights he would be waiving if he admitted to violating the terms of his supervised release. R. Vol. III at 37 ("All right. And I would take judicial notice for the factual basis. Nonetheless, I will go through and advise him as to his rights and what he would be waiving if he admits to committing that violation."). The district court confirmed, after placing Shakespeare under oath and confirming his competency and the voluntariness of his admissions, that Shakespeare understood the alleged violation. The district court further advised Shakespeare, among other things, that he (i) faced "a mandatory minimum sentence of five years" under § 3583(k) ; and (ii) had the right to deny the petition and proceed to both a preliminary hearing and hearing on the merits, at both of which the government would carry the burden of proof. Having been advised of his rights, Shakespeare admitted the alleged supervised-release violation, and the district court took judicial notice of Shakespeare's guilty plea as a factual basis for the admission. At no point did Shakespeare raise an objection under the Fifth or Sixth Amendment or mention Haymond . The district court ruled that "a five-year term [was] sufficient and appropriate in this matter consecutive to the sentence in [the 2020 conviction]."

III. DISCUSSION

A. Standard of Review

This Court generally reviews a "district court's decision to revoke supervised release for abuse of discretion." United States v. LeCompte , 800 F.3d 1209, 1215 (10th Cir. 2015) (quotation omitted). Underlying questions of law are ordinarily reviewed de novo. Id. Because, however, Shakespeare failed to raise relevant objections in the district court, his claim is reviewed only for plain error. United States v. Penn , 601 F.3d 1007, 1009 (10th Cir. 2010) ; Fed. R. Crim. P. 52(b). Importantly, it is Shakespeare's burden to establish the existence of plain error, United States v. Courtney , 816 F.3d 681, 683 (10th Cir. 2016), and...