United States Court of Appeals

For the First Circuit

No. 04-2172

UNITED STATES OF AMERICA,

Appellee,

v.

TIMOTHY P. WORK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Mary A. Davis, with whom Tisdale & Davis, P.A. was on brief,

for appellant.

Margaret D. McGaughey, Assistant United States Attorney

(Appellate Chief), with whom Paula D. Silsby, United States

Attorney, was on brief, for appellee.

June 3, 2005
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SELYA, Circuit Judge. In this appeal, defendantappellant Timothy P. Work argues that the Sixth Amendment, as

interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004),

applies to the revocation of supervised release and the consequent

imposition of additional prison time. He posits that when such a

revocation leads to additional imprisonment above and beyond the

top of the original guideline sentencing range, the facts

underlying the revocation must be proven to a jury beyond a

reasonable doubt. We conclude that the appellant's argument is

doubly flawed: it is premised not only on a misunderstanding of

supervised release but also on an attempted importation of Sixth

Amendment jury trial rights into an area in which they do not

belong. Consequently, we affirm the judgment below.

I. BACKGROUND

On April 10, 2001, the appellant pleaded guilty to one

count of aiding and abetting the uttering of counterfeit

obligations. See 18 U.S.C. §§ 2, 472. On August 16, 2001, the

district court, using the then-current edition of the federal

sentencing guidelines, imposed a 38-month incarcerative sentence,

to be followed by three years of supervised release. The court

made the latter term subject to all the standard supervised release

conditions, including a prohibition against the commission of

further crimes. It added special conditions prohibiting the

appellant from using or possessing alcohol or frequenting
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establishments that had the primary purpose of dispensing alcoholic

beverages.

The appellant served his prison sentence without

incident. His supervised release commenced on March 9, 2004. Over

a span of three weeks in May of that year, the appellant committed

a string of relatively minor supervised release infractions. See

USSG §7B1.1(a)(3) (describing Grade C violations). These included

an arrest for stealing beer from a convenience store, possessing

alcohol, failing to report the arrest to a probation supervisor,

failing to make a probation office visit after being so instructed,

failing to appear for drug testing, and failing to notify the

probation office of a change in residence. As a result, the

probation department petitioned the district court for revocation

of the appellant's supervised release.

Before any action was taken on the petition, the

appellant hit the trifecta: on June 13, 2004, police arrested him,

massively intoxicated, at a bar in Myrtle Beach, South Carolina,

after he allegedly had attempted to pass counterfeit $20 bills.

This incident prompted the probation department to amend the

pending petition and include a charge that the appellant had

committed a Grade B violation of the conditions of his supervised

release. Id. §7B1.1(a)(2).

The district court convened a revocation hearing on

August 16, 2004. The petitioner contested the shoplifting and
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passing of counterfeit currency charges, but admitted that he had

no factual defense to the other, less serious supervised release

violations. As to those, however, he adverted to Blakely and

offered the following syllogism: (i) Blakely held that the maximum

sentence that a judge may impose is that which the facts reflected

in the jury verdict or guilty plea actually support; (ii) the facts

admitted in his guilty plea to the original crime of conviction

(for aiding and abetting the uttering of counterfeit currency)

dictated a guideline sentencing range of 33 to 41 months; (iii) his

initial prison sentence was 38 months; so therefore (iv) the

district court could not convert more than three months of his

supervised release term into additional prison time without a

further trial, as doing so would extend his term of immurement past

the maximum of 41 months authorized by the sentencing guidelines.

In order for the court to impose more than three months' additional

imprisonment, his thesis ran, a jury would have to determine beyond

a reasonable doubt that he had committed the alleged supervised

release violations.

The district court, ruling from the bench, rejected the

appellant's syllogism. The court held that Blakely does not apply

to the revocation of supervised release and that, in any event, no

right to jury trial obtains in a supervised release revocation

hearing. The court then took evidence on the two most serious

charges (shoplifting and the passing of counterfeit currency) and
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found that the government had not carried its burden of proof.

Finally, the court found that the Grade C infractions had been

established by preponderant evidence.

The government argued for a two-year prison sentence —

the maximum permitted by the applicable statute. See 18 U.S.C. §

3583(e)(3). The appellant reiterated his view that the sentence

could not lawfully exceed three months. The court rejected this

view and sentenced the appellant to serve an incremental 14-month

term. That coincided with the maximum recommended by the

Sentencing Commission for a Grade C supervised release violator

with the appellant's criminal history. See USSG §7B1.4(a). This

timely appeal followed.

II. ANALYSIS

In this venue, the appellant reiterates that 11 of the 14

months of his incremental prison term are unconstitutional because

a judge, not a jury, determined that he had committed the

infractions undergirding the sentence. Analytically, we divide

this argument into two parts. First, we consider whether the

appellant's additional imprisonment constituted a violation of the

Sixth Amendment as interpreted by the Blakely Court. Next, we

consider whether the appellant had a right to a jury trial on the

question of whether he had violated the conditions appertaining to

his supervised release.
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An intelligent discussion of Blakely requires an

understanding of a predecessor case: Apprendi v. New Jersey, 530

U.S. 466 (2000). In that decision, the Supreme Court invalidated

a New Jersey law that permitted a court to impose additional years

of imprisonment above and beyond the defined statutory maximum

punishment for the crime of conviction if it found by a

preponderance of the evidence that the offense was a hate crime.

530 U.S. at 468-69. In the process, the Court announced the

principle that "[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." Id. at 490.

Blakely followed Apprendi by some four years. It

involved a challenge to a state determinate sentencing scheme. For

each offense, the state law prescribed a "standard range" of months

that a court had to impose following a conviction. Blakely, 124 S.

Ct. at 2535. The law permitted a court to impose a sentence

greater than the top of the prescribed range if it found

"substantial and compelling reasons justifying an additional

sentence" so long as the justification relied on "factors other

than those which [were] used in computing the standard range

sentence for the offense." Id. (internal quotation marks omitted).

Blakely had pleaded guilty to kidnaping, and the state court had

imposed a sentence thirty-seven months greater than the top of the
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applicable range based on its finding that Blakely had acted with

"deliberate cruelty." Id.

The Supreme Court adjudged this sentence-enhancement

procedure to be in violation of the Sixth Amendment. Id. at 2537-

38. The Court repeated Apprendi's holding that, apart from the

fact of a prior conviction, "any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury." Id. at 2536 (citing Apprendi, 530 U.S. at

490). The Court interpreted the phrase "statutory maximum" to mean

the "maximum sentence [that] a judge may impose solely on the basis

of the facts reflected in the jury verdict or admitted by the

defendant." Id. at 2537. Because Blakely's guilty plea did not

authorize the additional thirty-seven month penalty and because

that part of the sentence was based on a fact that was neither

admitted by the defendant nor found by the jury, the enhanced

sentence violated his Sixth Amendment rights. Id. at 2538.

Blakely's reasoning cast a pall over the

constitutionality of the federal sentencing guidelines. See, e.g.,

id. at 2548-50 (O'Connor, J., dissenting) (predicting the imminent

demise of the guidelines). The Supreme Court confirmed this gloomy

forecast in United States v. Booker, holding squarely that Blakely

applied to the federal sentencing guidelines. 125 S. Ct. 738, 755

(2005). The Court repaired the constitutional defect by

invalidating those provisions of the Sentencing Reform Act that
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made the federal sentencing guidelines mandatory. Id. at 764-65.

We have since held that the error described in Booker "is that the

defendant's Guidelines sentence was imposed under a mandatory

system." United States v. Antonakopoulos, 399 F.3d 68, 75 (1st

Cir. 2005).

Despite this turn of events, the appellant, in his postBooker briefing, continues to rely upon the "fact" that he in

effect was sentenced to 52 months' imprisonment (an initial 38-

month term for the offense of conviction plus an incremental 14-

month term for violating his supervised release) even though the

sentencing guidelines called for a maximum of 41 months'

imprisonment for the offense of conviction. This argument is more

cry than wool.

To begin, the appellant has made it pellucid that he is

not attacking the constitutionality of the incremental 14-month

prison term because it was mandatory under the guidelines. See

Appellant's Reply Br. at 2. Given our holding that the Booker

error is sentencing within a mandatory system — whether or not a

Blakely violation occurred on any particular set of facts — this

concession may mortally wound the appellant's claims. See

Antonakopoulos, 399 F.3d at 75 ("The error is not that a judge (by

a preponderance of the evidence) determined facts under the

Guidelines which increased a sentence beyond that authorized by the
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jury verdict or an admission by the defendant; the error is only

that the judge did so in a mandatory Guidelines system.").

In all events, the record here does not reveal a Sixth

Amendment transgression of the kind described in Blakely. The

appellant's position is that the top of the guideline sentencing

range represents the maximum term of imprisonment that a defendant

can be compelled to serve for a particular crime, regardless of

whether that imprisonment stems from the initial sentence or from

the revocation of an ancillary order for supervised release. We

rejected the essence of this argument over a decade ago. See

United States v. Mandarelli, 982 F.2d 11, 11 (1st Cir. 1992)

(Breyer, C.J.) (dismissing the contention that "the law forbids [a]

court to sentence [a defendant] for his supervised release

violation to more than . . . the maximum he could have received

under the Guidelines for his original . . . offense") (internal

punctuation omitted). We reject it again today, for the same

elementary reason: the argument relies on an improper elision of

two statutorily distinct modes of punishment. Applying Blakely to

each authorized aspect of the sentence reveals that the court below

committed no error at all. We explain briefly.

The appellant appears to confuse the lay view of a

"criminal sentence" — a predetermined number of months or years in

prison that corresponds to a conviction for a specific offense —

with the larger concept of the "sentence" as provided in the
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federal criminal statutes. Under the latter rubric, a defendant's

felony conviction typically authorizes the sentencing court to

impose several different forms of punishment. These normally

include either some period of incarceration, or a fine, or both,

and a special monetary assessment under 18 U.S.C. § 3013. In

addition, the conviction authorizes the court to "include as a part

of the sentence a requirement that the defendant be placed on a

term of supervised release after imprisonment." Id. § 3583(a).

The reference to supervised release as being "part of the

sentence" does not mean that a federal criminal sentence must be

aggregated for all purposes. It merely means that the sentence

contains distinct aspects. These include the incarcerative term

imposed for the crime of conviction (derived from the statute

delineating the penalties applicable to that particular offense)

and the supervised release term applicable thereto (derived from

section 3583). The supervised release period is an independent

element of the sentence. It is not carved out of the maximum

permissible time allotted for incarceration under some other

criminal statute. See United States v. West, 898 F.2d 1493, 1504

(11th Cir. 1990) (describing supervised release as "a separate part

of the defendant's sentence" and noting that its length is not

dependent "on the almost sheer accident of the amount of time that

happens to remain of the term of imprisonment when the defendant is

released" (quoting S. Rep. No. 98-225, 123-24, reprinted in 1984
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U.S.C.C.A.N. 3182, 3306-07)); 3 Charles Alan Wright et al., Federal

Practice and Procedure § 536.1 (2004) (explaining that "the term of

supervised release . . . does not replace part of the term of

incarceration, but is imposed in addition to the incarceration

term").

Given this background, it is unsurprising that courts

routinely have held that the combined sentence of years of

imprisonment plus years of supervised release may exceed the

statutory maximum number of years of imprisonment authorized by the

substantive statute applicable to the crime of conviction. See,

e.g., United States v. Wirth, 250 F.3d 165, 170 n.3 (2d Cir. 2001);

United States v. Pierce, 75 F.3d 173, 178 (4th Cir. 1996); United

States v. Robinson, 62 F.3d 1282, 1285-86 (10th Cir. 1995); United

States v. Watkins, 14 F.3d 414, 415 (8th Cir. 1994); United States

v. Jamison, 934 F.2d 371, 375 (D.C. Cir. 1991); United States v.

Montenegro-Rojo, 908 F.2d 425, 431-32 (9th Cir. 1990); West, 898

F.2d at 1504; United States v. Butler, 895 F.2d 1016, 1018 (5th

Cir. 1989). We think it follows ineluctably that any term of

incarceration authorized under the supervised release statute is

not limited by reference to the period of incarceration authorized

by the substantive criminal statute applicable to the crime of

conviction. Several of our sister circuits have passed upon this

question and their decisions are in accord with this analysis.

See, e.g., United States v. Colt, 126 F.3d 981, 982-83 (7th Cir.
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1997) (affirming nine-month term of imprisonment for supervised

release violation, where defendant already had served seven months

on a charge punishable by one year of imprisonment); United States

v. Wright, 2 F.3d 175, 180 (6th Cir. 1993) (stating that "it is

possible for a defendant to be sentenced and serve the statutory

maximum term of imprisonment for the offense and after his release

from prison to be subject to further imprisonment if he violates

the terms of his supervised release . . . even if when combined

with [the] defendant's original sentence it exceed[s] the statutory

maximum for the underlying offense"); United States v. Purvis, 940

F.2d 1276, 1279 (9th Cir. 1991) (explaining 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").

A fortiori, the permissible term of incarceration

authorized for a supervised release violation is not circumscribed

by the substantive sentence called for under the federal sentencing

guidelines. See Mandarelli, 982 F.2d at 11; see also 3 Charles

Alan Wright et al., supra § 542 ("The Sentencing Guidelines do not

limit the sentence that can be imposed on a defendant who is found

to have violated the conditions of his supervised release, and the

sentence for the violation can exceed the sentence allowable under

the Guidelines at the time of initial sentencing."). Rather, the
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term of incarceration permitted in consequence of a supervised

release violation is cabined by section 3583 itself. See 18 U.S.C.

§ 3583(e)(3) (setting forth limits on incarceration for supervised

release violations).

Although the precise question posed in this case is one

of first impression, these authorities point unerringly to the

answer. Following their lead, we conclude that when determining

whether a sentence exceeds the maximum permissible under the

Constitution, each aspect of the sentence must be analyzed

separately. See, e.g., United States v. Barnes, 251 F.3d 251, 260-

61 (1st Cir. 2001) (following this praxis; finding no Apprendi

sentencing error with regard to imposition of incarcerative term,

but finding such a violation with regard to supervised release

term). As we explain below, neither aspect of the appellant's

sentence involved any constitutional affront. Hence, there was no

Blakely violation.

At the time of the underlying substantive offense, the

statute of conviction carried a 15-year maximum term of

imprisonment. See 18 U.S.C. § 472 (2000). The sentencing court,

acting in the pre-Booker era, found that the guidelines mandated a

33-41 month incarcerative term. The court arrived at this

sentencing range using only (i) facts that were admitted by the

appellant in his guilty plea, (ii) the appellant's criminal
1The criminal history score is composed from the record of a

defendant's past convictions and thus consists of facts that need

not be proven to a jury for Blakely purposes. See Blakely, 124 S.

Ct. at 2536. The rationale of Apprendi and therefore of Blakely

simply does not affect sentence-enhancement provisions premised

upon a defendant's prior criminal convictions. United States v.

Stearns, 387 F.3d 104, 107 (1st Cir. 2004), cert. denied, 125 S.

Ct. 1614 (2005); United States v. Moore, 286 F.3d 47, 51 (1st Cir.

2002); see generally Almendarez-Torres v. United States, 523 U.S.

224, 243-44 (1998) (explaining that prior offenses need not be

alleged in an indictment nor put before a jury). In the roiled

wake of Booker, it remains the law that previous criminal

convictions are not "facts" that must be found by a jury and proved

beyond a reasonable doubt. See United States v. Lewis, 406 F.3d

11, 21 n.11 (1st Cir. 2005).

2To be sure, there was a Booker error, as the district court

treated the sentencing guidelines as mandatory. Here, however, the

appellant has affirmatively waived any Booker challenge.

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history,1 and a downward adjustment for acceptance of

responsibility. See USSG §§2B5.1(b)(2)(A), 2B5.1(b)(3), 3E1.1,

4A1.1, 5A. The appellant does not dispute the accuracy of the

determined range, nor does he contend that he was initially

sentenced outside the range. Thus, there was no Blakely error at

the time the original sentence was imposed.2

The conviction also authorized the imposition of a term

of supervised release. The applicable statute classified the

appellant's original crime as a Class C felony, id. § 3559(a)(3),

so that the allowable supervised release term was "not more than

three years," id. § 3583(b)(2). Pre-Booker, the sentencing

guidelines required the court to impose a supervised release term

of two to three years. See USSG §5D1.2(a)(2). In this case, the

court pronounced a three-year supervised release term. Since both
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the supervised release statute and the supervised release

guidelines authorized the court to impose a supervised release term

of that duration based solely on the facts admitted in the guilty

plea, there was no Blakely violation with respect to this aspect of

the sentence.

The appellant, ably represented, attempts to blunt the

force of this reasoning by shifting the focus to the revocation

proceeding. He remarks that the court alone found the facts

confirming the supervised release violations and notes that, absent

those facts, the court would not have been authorized to revoke

supervised release. This, he says, was raw judicial factfinding in

direct contravention of the interpretive gloss that the Blakely

Court impressed on the Sixth Amendment.

The difficulty with the appellant's argument is that this

type of judicial factfinding does not pose a Sixth Amendment

problem. The law is clear that once the original sentence has been

imposed in a criminal case, further proceedings with respect to

that sentence are not subject to Sixth Amendment protections. See

Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (holding that the

"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"); see also Johnson v. United States, 529

U.S. 694, 700 (2000) (dealing with revocation of supervised

release); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (dealing
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with revocation of probation). To be sure, the conversion of a

less restrictive form of punishment, such as supervised release, to

a harsher one, such as imprisonment, does entail a deprivation of

liberty (albeit conditional liberty). As such, the accused must be

accorded a suitable panoply of due process protections. See United

States v. Correa-Torres, 326 F.3d 18, 22 (1st Cir. 2003); United

States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). The process

that is due, however, does not encompass the full sweep of the

Sixth Amendment's prophylaxis (such as a right to a jury trial on

the facts of the alleged violation). See Morrissey, 408 U.S. at

489; United States v. Czajak, 909 F.2d 20, 24 (1st Cir. 1990). Nor

are facts required to be proven beyond a reasonable doubt in such

a proceeding. See DeWitt v. Ventetoulo, 6 F.3d 32, 37 (1st Cir.

1993). The appellant's argument that he was constitutionally

entitled to such protections collapses under the weight of these

authorities.

By like token, the district court did not commit Booker

error in imposing the incremental prison term. While the Sixth

Amendment does not apply in revocation hearings, a Booker error can

occur even absent a Sixth Amendment violation if the sentencing

court treats the federal sentencing guidelines as mandatory. See

Antonakopoulos, 399 F.3d at 75. That being said, the portions of

the sentencing guidelines dealing with revocation of supervised

release are merely policy statements. See USSG §§7B1.1-7B1.5.
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Even before Booker, those guidelines were deemed advisory rather

than mandatory. See United States v. O'Neil, 11 F.3d 292, 301 n.11

(1st Cir. 1993). They remain advisory to this date. Consequently,

resort to them cannot constitute Booker error. See United States

v. González-Mercardo, 402 F.3d 294, 303 (1st Cir. 2005) (describing

nature of Booker error); Antonakopoulos, 399 F.3d at 75 (same).

III. CONCLUSION

We need go no further. We hold, without serious

question, that both (i) the lower court's initial imposition of

imprisonment plus supervised release and (ii) its subsequent

revocation of supervised release coupled with its order for

additional imprisonment pass constitutional muster. The short of

it is that the proceedings below did not transgress either the

teachings of Blakely or the strictures of the Sixth Amendment.

Affirmed.