first impression i want to talk about the revocation issue first because it is very consequential when we take away a man's freedom we should do it on the basis reliable evidence here there is no reliable evidence that he possessed or viewing the images found on that computer seems to me you're just making a jury argument if to the facts right that's correct you are well if in fact then there are any facts in the record that are not clearly erroneous which support the district court's determination and i'm finding it tough district court was the jury and they determined what was the evidence necessary to make the determination they had to make all you're suggesting is that i've got other evidence in the record that's opposite that so i don't think i mean i don't i don't understand it because there's no question the computer was unmonitored for three days there's no question the unallocated space of the computer contained twenty seven images of child pornography there's no question the browsers operating in private or in could mean a mode place in the files access while in that mode in the unallocated space there's no question the computer use private or ignorant cognito modes in both explorer and chrome during the three days the computer was on monitored and there's no question that there was non private browsing evidence of internet searches for poll of little pussy not associated with the browser certain suggested search and you're suggesting there's no evidence to sustain what the district court sa honor i think you're just arguing i've got other evidence i'd rather the district court accept because this is the evidence that under my standard review which you've now agreed to clear air i don't know how to go around that i think we operate in the real world here and there you can string  ences from those fests you can i suggest those inferences are told in reasonable given the whole of the record and that is what's the portion of the record that you can  making a representation there was documentary evidence to support the government's i can't we have one receipt that says new then we have always been like that why couldn't the court believe that of the entire documentary evidence which was the computer was four years old when he bought it in terms of the operating system that he back hardest four years old and never been driven you five years he's been ripped from his home on something that i suspect if we all step back we'd say you know he's not responsible for that but let me get but that moment we need to do that's the difficulty we don't get to step back and say if we very persuasively written but the crux years that we've taken because the district court found by preponderance that this man committed a specified new offense his minimum sentence went from zero to five years is maximum sense went from two years to life and all based on a finding made by a court  a jury and that's clearly a violation of a lien a friendly and booker what you call the six minute violation or a fifth the mine violation it's clearly punishment for new conduct which is unconstitutional when that him and found i looked at is the only way this could be constitutional conduct is if you did sort of what the supreme court did in booker is excise that part of the statute and made that lot i appreciate your argument and even if i buy your argument what you're saying is i have to follow the tenth circuit rather than looking at johnson and united states first allen as i said okara ends up but i'm not sure that's what it is but at the biggest problem i had is i don't think it was suggest that that's enough i believe in this court's precedent that's clearly enough that's it's that's plain as a time of appeal effects substantial rights because any time someone which is it seven seventy two fed third where it says we have held that the supervised release system under eighteen u s c thirty five eighty three including  supervised lease and the imposition of additional prison time as a result of a term of release does not violate a defendant's right to trial by jury what do you do with that case i have no quarrel with impose prison term on a revocation even though because that's part of that like parole supervised release is part of the initial scheme thirty five eighty three k is something wholly apart from that it has nothing or little to do with initial fence and everything to do with the new offense so it's the only one where three which is is the general statute and which is the statute that all those cases were dealing with counsel how can we get to play an era when there is no supreme court authority or ninth circuit authority that why we're even talking about planar so you don't need the tenth circuit case is that what you're saying yes to show that having a case obviously helps and i love that it's there but no this is this court to do or do in the morning in may please the court cerise applebee bhattacharjee for the united states while on supervised release for his child pornography conviction defendant attempted to thwart the us probation office's ability to track his internet activity by removing court ordered monitoring software from his computer and during the three days that his computer was unmonitored defendant search for the term p o v little pussy and multiple images including images consistent with that search term were found on his computer when it was seized and searched by the u s probation office the district court's order revoking defended supervised release and sentencing him to five years imprisonment should be affirmed for three reasons and i ask you he only pled guilty to one of the four charges of violating the supervisor lease and that was modification of his computer with prior u s approval correct your honor but he's not he's actually sentenced as if he had pled guilty to a much more than that he's sentenced based upon a finding that he has violated other conditions including the condition that he not possess child pornography and that he not commit one of the numerated offenses in thirty five eighty three k which here what was alleged is his possession of child pornography or accessing with intent to view child pornography and i agree that those were not the conceded errors but based on just the conceded the conceded violation the violation of allegation number one and the second violation regarding the use of the l g tablet the defendant does not contest on this appeal those two conceded violations alone are sufficient to support the district court's order revoking supervised release so really what we have here is a challenge to the sentence and defendant is claiming that his sentence is based on insubstantial evidence or is violative of his constitutional rights and payment the government's position is that hammond is inconsistent with supreme court precedent and this court's own precedents regarding supervised release the the sixth amendment issue that the defendant raises we agree is a matter of first impression in this circuit but it has been addressed by two courts the fourth circuit in ward held that mandatory revocation and imprisonment under a prior version of thirty five eighty three g did not violate a defendant sixth amendment new case that might play into play in a review it's not the way he's arguing it but it is the government is not taking the position that the court cannot consider the way that haman resolve the sixth amendment issue but simply that haman got it wrong that the dissenting opinion heyman has the better of the logic that the dissenting opinion haman and that the majority opinion in ward and the companion said the supreme court  correct that that was the fallback but also the dissenting opinion recognized as war did that releasing these are individuals who enjoy only a conditional liberty they don't enjoy the full panoply of rights secured under the fourth fifth and sixth amendments but by virtue of being on supervised release they necessarily give up certain core constitutional rights which have always included in relevant part the right to a jury trial and to be sentenced to jail and what would be a new offense  which by the way you could have prosecuted him and in order to get a conviction if you would prosecuted him you would have had to prove beyond a reasonable doubt that that is true your honor it's over in right now we have a situation where you where he gets from what is essentially a new crime whether the fiction we want to talk about in terms of in terms of that it's or it's simply part of of the last crime and for a mandatory minimum sentence of five years and without the benefit of a jury trial which he would have had if you were chosen to prosecute him for that for that particular crime that the five tour was based on so a few points in response to that first the defendant is not situated as somebody who is being charged under eighteen u s c twenty two fifty two a for the first time in that he unlike a criminal defendant who has not been convicted is subject to a conditional liberty and that conditional liberty as johnson recognized results in in giving up certain rights and the way that johnson approached this issue about whether supervised release proceedings and the revocation and imprisonment for supervised release violations constitutes a new punishment and resolve the issue by holding that we cannot interpret these things as new punishment because if we did that would raise grave constitutional concerns so the way that johnson remedied the issue is by saying supervised release proceedings which occurred during a period when an individual is subject to certain conditional liberties when the individual does not enjoy the full panoply of rights including the sixth amendment protections of the right to a trial by jury that revocation and imprisonment in the supervised release context is just exit q of the original sentence that is the position that was stated by this court originally unsubtle eavis when it said supervised release  part of the sentence itself and when we revoke and imprison based on violations of supervised release we are executing the original sentence johnson and the supreme court's decision and johnson canonized that principle and then principle and as as judge smith recognized gavi linus is a case that really brings the principle into the into sharpest relief gabbing honest is is addressing to sixth amendment challenges to a supervised release came first  the the petitioner there is claiming that his supervisor lease proceedings where they took place three years after the underlying conduct violated his speedy trial rights under the sixth amendment and then in the wake of the supreme court's decision in a lean held that the supervised release proceedings violate his right to trial by jury and the way that gavel honest approaches the issue is first by looking to the conditional liberty of releases and saying that that is exactly what makes supervised release proceedings different in kind from criminal proceedings and the sixth amendment has only ever been interpreted to apply to criminal proceedings and so if supervised release proceedings are definitional ie not criminal proceedings they do not engage the protections of the sixth amendment and so under the logic of gabbie law as it necessarily follows that apprentice is not triggered by supervised release proceedings that booker which is the sixth amendment decision relying wholly on a is not implicated in supervised release proceedings and that ilene also and a pretty big a sixth amendment decision does not apply in supervised release proceedings the government's position here is that the mandatory revocation and imprisonment under thirty five eighty three k does not implicate much less violate the sixth amendment right to a jury trial but the government is not taking the position that there's no constitutional backstop whatsoever there isn't there always has been a supervised release proceedings which is due process protections a defendant in supervised release proceedings always has the protection against court or congressional action that is arbitrary capricious or irrational by claiming that those are due process violations but those issues have to be preserved and naturally the showing for due process violation is substantially higher than the showing for an apprentice violation and a lien violation a book or violation as those things happen in the context of of criminal or those circumstances well the process i think depends on the form in which we're discussing these things where when the when the conduct is interpreted as a breach of the court's trust where the individual is still under supervised release the process that  process that has always been do a fair hearing before a judge a factual findings by the judge there's that are supported by evidence in the record and then the judge is able to impose for the breach of trust that congress has decided thirty five eighty three k is a significant breach of trust that the five year mandatory minimum does apply and congress at the same time that it enacts this one five year mandatory minimum in the adam walsh act also enhances the recidivist penalties for  individuals who are charged with the crimes for the same conduct so if the defendant had been charged criminally he would be facing a ten year mandatory minimum and yes the government would have to prove beyond a reasonable doubt that he committed that conduct in order to trigger the heightened penalty but just because congress said nothing in this record that the government went this way simply because they didn't think they could prove the burden meet the burden in prosecuting him straight up is there that there is no such evidence and your honor we're dealing in the context where this individual was violated by the probation office based on the probation officers forensic findings which the court the district court  remains available to the government and the only reason remains available to the government is because johnson held that rather cation and imprisonment in supervised release proceedings is not a criminal proceeding it's a reimposition of the original sentence and so if the government were to prosecute the defendant criminally for the same conduct it wouldn't raise double jeopardy concerns johnson addressed that question but suggesting that it would that's not the issue but it does go to the issue of why supervised release proceedings are different in kind from criminal proceedings and it's because they are not they do not constitute punishment for new conduct but rather under current and prevailing supreme court precedent and the precedent of this own circuit and where to put men as it is the reimposition of the original sentence it is a non criminal proceeding and individuals in supervised release proceedings do not enjoy the protections of the sixth amendment so you deny him a favor remains to be seen but i mean taking the opposite point of view fairly for those merely for the fact that we might need a little bit of opposition here if in fact one is just suggest that imposing the terms of supervisor of prison term for violating supervisor release for violating the law again and one says one can't do that because one could charge and go through the process and there would be no reason to have in the terms and conditions of release not to violate the love with their correct  it would essentially make make that standard condition of supervised release meaningless and another thing in the way that the hayman majority categorizes thirty five eighty three k proceedings as punishment for new conduct the dissent notes that that logic would necessarily apply to any supervised release proceeding that results in revocation and imprisonment which would then raise the price the prospect of requiring jury trials and findings of guilt beyond a reasonable doubt for any supervised release proceedings which is precisely the outcome of the johnson sought to avoid when it construed all supervised release sort of an overstatement most of the supervisor was violations of again are people who are committing relatively minor unique is that is that is a severe mandatory minimum sentence suppose the mandatory minimum sentence had been fifty years were dear argument in the say it my argument would be the same under the sixth amendment but i wouldn't have  similar grounds perhaps under the fifth amendment and due process considerations but that's not an argument that's been made here that's not an argument that's been preserved here and the defendant concedes that plain error review applies here so ultimately the defendant's ultimate showing even if the court were to adopt the sixth amendment reading is to establish some kind of prejudice the defendant's underlying sentence here was thirty nine months his revocation imprisonment term is sixteen months that's ninety nine months which is less than one hundred twenty months statutory maximum which is what defendant alleges is the violation here that thirty five eighty three k raises the statutory maximum as to him that's clearly not the case on the facts here and so even if the court were to adopt the defendant's reading and speak from personal knowledge about where where everything is going in that in the tenth circuit i just i know that the department of justice is considering all of its options all right thank you counsel thank you very much  this is clear is i tunes i'm not sure that it has been is that when we talk about the regular supervised release scheme and that's the context what the punishment is and it also caps the punishment that to the original offense of the class a felony if the regional fence commit caps the punishment that's what thirty five eighty three eat three does so under that regime yeah there's no problem when we talk about revocation there's no six member right and that's all those cases help because irrespective of the statutory two year cap ah otherwise exists and you can be sensed a maximum of life that is that is just not