increases the penalty for a crime must be submitted to a jury found beyond reasonable doubt we know that the penalty on a revocation of supervised release really is a penalty tied to the original crime it's not it is not new conduct or not punishing new conduct we are imposing or modifying the sentence or the original crime a supervised release medication is not a criminal right just like just like a sentencing hearing is not a criminal proceeding in the sense that the sixth amendment might talk about it at a sort of sentencing hearing a judge can find facts beyond a by a preponderance of the evidence that the sentencing hearing is part of the criminal proceeding you would never argue  a number of rights and the a pretty line of cases deals with the jury trial right under the sixth amendment so we're not talking about the right to counsel we're talking about the jury trial right right but there's no right to a cheeriness supervised release proceeding and there's no right to a jury at sentencing either  that that's the appropriate compared to because what's happening at a revocation hearing yes that's going on about the grounds for medication as well as the appropriate penalty that's right so it's not just  imprisonment substituted for of course of this supervised release because there's been a violation and that's the same type of question that a district court might encounter at sentencing where the government says we have proof of this drug amount but actually he's responsible for a much greater quantity that wasn't submitted to a jury for under the guidelines that's going to have a serious effect on the sentence and so the jury trial right for those findings of facts doesn't what are the procedures that we use to make findings of fact it's what does the jury's verdict authorize the judge to do because the main six amendment concern was the reservation of power in our juries rather than allocating that we've got an up or term and we've got a middle term and we're just saying the officer and the statutory max and you're on notice are that you can be sentenced under it but judges didn't impose that unless they make findings of fact that would elevate your s into that term that's reversal not that violates a crime do you can't have two different statutory ranges and leave it up to the judge to decide which one to apply that power is reserved and in the jury and i think this case is a good under thirty five eighty three he threw what happens with this factual finding that revocation is the judge could put mr hellman in prison for the rest of his life based only on a finding of fact by a judge by a preponderance of the evidence but that there's no i mean that's i don't i doubt that right i mean i know what you're saying if you had a ticket you had a case here for supervised release violation led to the and of an individual for time well beyond the stacks of statutory maximum for the underlying offense to any secret have a problem with that i think you would have a problem with that but that that's that's the same issue that we've got here where so let's say congress says under don't you have a fight you have a five year right which which comes under the seven year term of supervised release that he got but that just happens to be a mandatory term of five right faces up to two years i mean the maximum term of imprisonment for violating supervised release without an additional finding is two years and that's that's how statutory maximum is defined in blakely it's what is the by preponderance of the evidence that's not the question the question is ultimately what sentence can the judge impose because it's based on the jury's verdict the other problem with construing this statute to allow the judge to do this is it does raise double jeopardy problems because this is an express penalty for new conduct which is what the supreme court said we should we shouldn't concede a supervised release this way it's a penalty for the old conduct to avoid that double jeopardy question if we premise a five year mandatory minimum sentence rather than a two year maximum sentence on a finding of new criminal conduct we're going to have double jeopardy concerns because mr holman this currently being prosecuted for the new con a separate criminal case that's that's true in every drug case where you revoke and you re imprisoned because somebody is you know back to the old ways of dealing drugs it's new criminal conduct right but there but their original conviction authorized maximum term a supervised release of whatever section thirty five eighty three eighty three provide it so there's there's already the authorization and so we have it might be a legal fiction i don't know but the penalty young drive the case you're tired he knew that there were those two different penalties the question isn't what the defendant was on notice of that's a pertinent consideration in this line of cases the question though is what the jury found what the jury authorized and so even though it might be clear to everybody at sentencing this guy brandished a firearm the mandatory minimum can't be seven years in that case even those on the books we had a we have a scheme under nine twenty four see where it's five to life seven to life ten to life depending on our argument is about the authority that the district judge pass sentence and where that authority comes from it does in almost every case that doesn't implicate thirty five eighty three ok the district judge has the authority to revoke a term supervised release and impose a term of imprisonment based on the original conviction there were those those facts alone that were either up to and including the maximum supervis term that's that's right yeah and so in this case the so that's the definition of what statutory maximum is when mr holman pleaded guilty what was the statutory maximum term of by a preponderance of the evidence so i'm well over my time but jury trial judgment and by judgment implying the sentence and then that right to a jury trial and a judgment and there is simply no supreme court or circuit court just by its terms that's the maximum terms of remain in prison for supervised release violations based upon the severity of the federal right time so you go through that you figure out as a class a class b as you well know thirty five eighty three k is different right yeah it's focused on you know new conduct as and as opposed to the you know th s scenario the original point is that difference of any legal significance in your view no for a couple reasons first i think i think thirty five eighty three conviction there is no exception here if you turn around or commit a specific type of offense unsupervised release and it was clearly within we believe congress parag would have to say there are certain violations on supervised release that are more serious that will result in a higher re imprisonment range that a person who commits this type of violation this case the one possession of child pornography poses a greater threat to society and therefore will be re imprisoned for at least five years that really president term of at least five years was authorized by mr homans original conviction because under the first sentence of thirty five eighty subsection k and therefore of the third sentence he gets a five year term of imprisonment so getting back to my two original points first a pretty doesn't apply but even if it did alking about so but let me give you an example we see this commonly in drug cases what's the drug amount that's the aggravating factor is it more than twenty eight grams of cocaine reasonable doubt must apply in a criminal proceeding again to both the core offense and the aggravating factor that increases the sentence here there is no core of finance or aggravating offense it is the supervisor at least violation of knowing possession of child pornography and what's the court made that finding by a preponderance of evidence whether he did it or he didn't do it that resulted in the required sent years to life there was no alternative under the facts of his of a defense that he committed on supervised release for the court to impose a lower threshold whereas in the apprentice line of cases there is that alternative this may be outside the  were all handled administratively within the within that executive branch if congress were to say we don't want to bother article three judges with supervised release or proceedings anymore we're going to set up an executive on that point the supreme court is very clear that we are to take the court at its word and it johnson against united states they dress this very issue and they said the re imprisonment for violation of supervisor lease is ties back to the offense of conviction and so it is not a separate punishment for a new offe it is a real imprisonment based on the original offense convictions so for that reason there's not a double jeopardy concern and so judge scatter to go back to your original question you're bringing up a court ham and i think th those reasons the statute as applied to mr holder is not unconstitutional he was reamed prison within the range authorized by his offens conviction which was five years to life until there is no a pretty violation in this case thank you mr henderson and we kept you going to have some extra time violations of supervised release one was the knowing possession of child pornography and one was a failure to abide by the rules of the computer and internet monitoring program the first violation upon a finding of fact by the district judge by preponderance of the evidence create a statutory range of five years to life the second violation would be up to two years so that both if one is not found and the other is found then we've got different statutory range s based on the judge's findings of fact this ultimately is about authority it's supervised release it's not exactly parole but if we think about the parole context if a jury's verdict finding of fact that extends the portion of parole beyond that that was originally authorized and that's what happened here the judge made a finding of fact that creates a new statutory range for what is con