# United Stat es Court of Appeals For the First C ircuit

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, 2005-2- SELYA, Cir cui t Judge . In this appeal, defendantappellant Timothy P. Work argues that the Si xth Am endment, as interpretedin Blake ly v. Washington , 124 S. Ct. 2531 (2004), applies to the revocation of supervised release andthe consequent imposition of additional prison time. He posits that when such a

r evocation leads to additional imprisonment above and beyondth e 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 appel lan t's argument is doubly flawed: it i s pre mised not only on a misunderstanding of supervisedrelease but also on an attempte d impo rtation 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 plead ed gui lty to one count of aiding and abetting the utter ing of counterfeit obligat ion s. 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 t hree years of supervised release. The court made the latter term subject to all the standard supervised release conditi on s, including a prohibition against the commission of further crimes. It added special conditions prohibiting the appellant from us ing or possessing alcohol or frequenting-3-

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 bee r from a convenience store, possessing alcohol, failing to report the arrest to a proba tion s upervisor, 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 re sid ence. As a result, the probation department petitioned the district court for revocation of the appellant's supervised release.

Befo re a ny action was taken on the petition, the appellant hit the trifecta: on June 13, 2004, police arrested him, massively intoxicated, at a bar in Myr tle Beach, South Carolina, afte r h e allegedly had attempted to pass counterfeit $20 bills. This incident prompted the proba tion department to amend the pendin g p etition 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 co nv ened a revocation hearing on August 16, 2004. The petitioner contested the shoplifting and-4-

passing of counterfeit currency charges, but admitted that he had

no factual defense to the ot her, less serious supervised release violations. As to those, however, he adverted to Blakely and offeredthe 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 admittedin his guilty plea to the original crime of conviction (for aiding and abetting the uttering of counterfe it c urrency) dictateda guideline sentencing range of 33 to 41 months; (iii) his initial prison sentence wa s 3 8 months; so therefore (iv) the district court could not convert more than three months of his supervisedrelease term into additional prison time without a further trial, as doing so would extend his termof 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 t he alleged supervised release violations.

The district court, ruling from the bench, rejected the appellant's syllogism. The court held that Blakelydoes 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 eviden ce o n the two most serious charges (shoplifting and the passing of counterfeit currency) and-5-

foundthat 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 couldnot lawfully exceed three months. The court rejected this view and sentenced the appellant to serve an incremental 14-month term. That coincided with t he 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.-6- 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 be yond 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 beyonda reasonable doubt." Id. at 490.

Blakely followed Apprendi by some four years. It involveda 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 "fact ors other than those which [were] used in computin g t he standard range sentence for the offense." Id. (internal quotation marks omitted). Blakely had pleaded guilty to kidnaping, and the state court had imposeda sentence thirty-seven months greater than the top of the-7-

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 submittedto 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 t he facts reflected in the jury verdict or admitted by the defendant ." Id. at 2537. Because Blakely's guilt y ple a did not autho r ize the additional thirty-seven month penalty and because that part of the sentence was based on a fact that was neither admittedby 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 appliedto the federal sentencing guidelines. 125 S. Ct. 738, 755 ( 2005). The Court repaired the constitutional defec t b y invalidating those provisions of the Sentencing Reform Act that-8-

made the federal sentencing guidelines mandatory. Id. at 764-65. We have since held that the error described in Booker "is that the de fendant'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 wa s sentenced to 52 months' imprisonment (an initial 38- month term for the offense of conviction plus an incremental 14- month term f or violating his supervised release) even though the sent enci ng 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 1 4-month prison term because it was mandatory under the guidelines. See Appellant's Reply Br. at 2. Given our holding that th e Bo oker

error is sentencing within a mandatory system — whethe r 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-9-

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 t he 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 rejectedthe essence of this argum ent over a decade ago. See UnitedStates 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 def endant] 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 appell ant 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-10-

federal criminal statutes. Under the latter rubric, a defendant's felony conv iction 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,

a nd a spec ial 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 defen dant be pl aced 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 aggregatedfor all purposes. It merely means that the sentence contains distinct aspects. These include the inca rcer ative term impos ed for the crime of conviction (derived from the statute delineating the penalties appl icab le to that particular offense) andthe supervised release term applicable thereto ( deri ved from section 3583). T he supervised release period is an independent element of the sentence. It is not carved out of the maximum permi ssible time allotted for incarceration under some oth e r 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

r eleased" (quoting S. Rep. No. 98-225, 123-24, reprinted i n 198 4-11-

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 supervisedrelease . . . does not replace part of the term of inca rceration, but is imposed in addition to the incarceration term"). Given this backgro u nd, it is unsurprising that courts routinely ha ve hel d that the combined sentence of years of imprisonment plus year s of supervised release may exceed the statutory maximum number of years of imprisonment authorizedby the substa ntive 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); Unit ed St ates v. Montenegro -Rojo , 908 F.2d 425, 431-32 (9th Cir. 1990); West , 898 F.2dat 1504; United States v. Butler , 895 F.2d 1016 , 1018 (5th Cir. 1989). We think it follows inelu ctably th at any term of incarceratio n au thorized 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 (7t h Cir .-12-

1997) (affirming nin e -month term of imprisonment for supervised release violation, where defendant already had servedseven 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 maximumterm of imprisonment for the offense and after his release fromprison 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 maximumfor the underlying offense"); United States v. Purvis , 940 F.2d1276, 1279 (9th Cir. 1991) (explaining that "§ 3583 authorizes the revocation of supervised release even where the resulting incarceration, when combinedwith the periodof time the defendant has already served for his sub sta ntive offense, will exceed the maximumincarceration permissible under the substantive statute").

Afortiori, the permissible term of incarceration authorizedfor a supervised release violation is not circumscribed by the substantive sentence called for under the federal sentencing guidelines. See Mandarelli , 982 F.2d a t 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-13-

termof incarceration permitted in conse quen ce 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 t he

answ er. F ollowing their lead, we conclude that when determining whether a sentence exc eeds the maximum permissible under the Constitution, each aspect of the s ente nce must be analyzed separately. See , e.g. , UnitedStates 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 involvedany constitutional affront. Hence, there was no Blakely violation.

At the tim e 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 arrivedat th is sentencing range using only (i) facts that were admitted by the appellant in his guilty plea, (ii) the appellant's criminal1 The cr imin al 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 A ppren di and therefore of Blakely simply does not affect sentence-enhancement provisions premised upon a defendant's prior criminal convictions. UnitedState s v. Stearns , 387 F.3d 104, 107 (1st C ir. 2 004), 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 allegedin an indictment nor put before a jury). In the roiled wake of Booker , it remains the law tha t p revious criminal convictions are not "facts" that must be found by a jury and proved beyonda reaso nable doubt. See United States v. Lewis , 406 F.3d 11, 21 n.11 (1st Cir. 2005).

2 To be sure, there was a Booker er ror, as the district court treatedthe sentencing guidelines as mandatory. Here, however, the appellant has affirmatively waived any Booker challenge. -14- history, 1 and a downwardadjustment for acceptance of responsibility. See USSG §§2B5.1(b)(2)(A), 2B5.1(b)(3), 3E1.1, 4A1.1, 5A. The appellant does not dis pute the accuracy of the determinedrange, 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-15-

the supervised release sta tute 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 represen ted, 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 supervisedrelease. 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 fa ctfinding does not pose a Sixth Amendment problem. The law is clear that once the original sentence has been imposedin a criminal case, further procee din gs 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

r elease); Gagnon v. Scarpelli , 411 U.S. 778, 782 (1973) (d ealin g-16-

with revocation of p robation). 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 accordeda 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 swee p of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the fa cts o f the alleged violation). See Morrissey , 408 U.S. at 489; UnitedStates 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 entitledto such protections collapses under the wei ght 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 s ent encing 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

re leas e are merely policy statements. See USSG §§7B1.1-7B1.5.-17-

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.3d294, 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 ini tia l 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 .