1

United States Court of Appeals

Fifth Circuit

FILED

October 21, 2005

Charles R. Fulbruge III

Clerk

REVISED NOVEMBER 21, 2005

In the United States Court of Appeals

for the Fifth Circuit

No. 04-10995

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

PEPPER SUE HINSON

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:00-CR-188-ALL-A

Before JOLLY, DENNIS and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Pepper Sue Hinson contends that the district court violated her Sixth Amendment right to a

jury trial in revoking her supervised release and imposing a two-year sentence of re-imprisonment

based on facts neither found by a jury nor admitted by her. Because Hinson was not entitled to have

a jury determine the facts that gave rise to the revocation of her supervised release or the facts that

underpin the duration of her sentence upon revocation, we affirm her sentence.
1

18 U.S.C. § 1708.

2

Id. § 3559(a)(4).

3

Id. § 3583(a), (e)(3).

2

I

Pepper Sue Hinson pleaded guilty to the possession of stolen mail, which constituted a

violation of 18 U.S.C. § 1708. The district court sentenced her to a 30-month term of imprisonment

and a three-year term of supervised release. Hinson initially appealed, then dismissed her appeal of

that sentence. She served the term of imprisonment, but about one year before the end of her

supervised release, the government filed a motion seeking revocation, alleging that Hinson had made

unauthorized charges on someone else’s credit card and thatshe had used and possessed illegaldrugs.

Hinson pleaded true to the illegal drug allegations but not the credit card fraud allegation. At the

revocation hearing, evidence was adduced, and the district court found, that Hinson had violated her

supervised release as alleged and sentenced her to a 24-month term of imprisonment. Hinson filed

this appeal contending that she could not be re-imprisoned and alternatively contending that her right

to a jury trial had been violated.

II

The maximum statutory term of imprisonment under 18 U.S.C. § 1708 for possession of

stolen mail was five years,1and that offense was a Class D felony.2 In addition to a prison term, an

offender mayalso be placed on a termofsupervised release after imprisonment pursuant to 18 U.S.C.

§ 3583 as “part of the sentence” for a felony or misdemeanor, and if the terms ofsupervised release

are violated, reimprisoned.3 The federal criminal statutory scheme envisions that there can be at least
4

Id.; see also United States v. Work, 409 F.3d 484, 489 (1st Cir. 2005) (noting that the

“reference to supervised release as being ‘part of the sentence’ [in section 3583(a)] . . . means that

the sentence contains distinct aspects [, which] 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)”); United States v.

Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001) (observing that “supervised release . . . is still

considered to be a component of the defendant’s total sentence,” citing section 3583(a) and noting

its statement that supervised release may be included “‘as part of the sentence’”). 

5

18 U.S.C. §§ 1708, 3559.

6

Id. § 3583(e)(3), (g).

7

Id.; see also Work, 409 F.3d at 489 (observing that “courts routinely have held that the

combined sentence of years of imprisonment plus years of supervised release may exceed the

statutorymaximumnumber of years ofimprisonment authorized bythe substantive statute applicable

to the crime of conviction”); United States v. Pettus, 303 F.3d 480, 487 (2d Cir. 2002) (explaining

that imprisonment for violation of supervised release coupled with initial imprisonment for the

conviction may exceed the statutory maximum prescribed for that offense and that “post-revocation

sanctions are properly considered part of the penalty for the initial offense”); United States v. Wirth,

250 F.3d 165, 170 n.3 (2d Cir. 2001) (recognizing the well-settled rule “that punishment for a

violation of supervised release is separate from punishment for the underlying conviction and may,

when combined with the latter, exceed the statutory maximum for the underlying substantive

offense”).

3

two components of a sentence:4 1) a term of imprisonment up to the maximum prison term

permitted in a statute delineating the penalty for a particular offense,such assections 1708 and 3559,5

and 2) a term of supervised release as delineated in section 35836 with the potential for additional

prison time if the terms of supervised release are violated.7 

Under the Sentencing Guidelines, the range ofimprisonment Hinson faced for her possession

of stolen mail was 12 to 18 months, and in addition to imprisonment, the district court had the

discretion under section 3583 to include a term of supervised release of up to three years. In the

judgment imposing a 30-month term of imprisonment, the district court stated that it was departing

from the Guidelines, concluding that Hinson’s criminal history category of VI did not adequately
8

See United States v. Moody, 277 F.3d 719, 721 (5thCir. 2001) (holding that a defendant may

not use a challenge to the imposition of supervised released “as a vehicle” for challenging the

language of her original indictment or the drug quantity used in calculating her original sentence).

9

542 U.S. 296 (2004).

10530 U.S. 466 (2000).

11125 S.Ct. 738 (2005).

4

reflect the seriousness of her past criminal conduct or the likelihood that she would commit other

crimes. That judgment recounted that although Hinson was only 27 years old at the time, she had

23 prior convictions, including 21 felony offenses and two parole revocations. The district court also

imposed the maximum time for supervised release permissible under section 3583 for a Class D

felony, which was 24 months.

Hinson first contends that she should have been sentenced to no longer than 18 months for

possession ofstolen mailrather than 30 months, and that since she completed her 30-month sentence,

she cannot be re-imprisoned for violating the terms of her supervised release. She also asserts that

the 30-month term was imposed by the district court based on factsthat the judge, rather than a jury,

found and on facts to which she did not plead guilty. Hinson may not, however, use an appeal of the

revocation of her supervised release to attack her original sentence directly or collaterally in this

proceeding.8

With regard to the revocation, Hinson assertsthat a court may not impose a prison termupon

revocation of supervised release unless a jury finds beyond a reasonable doubt that the terms of the

supervised release were violated or the defendant admits those facts, citing Blakely v. Washington,

9

Apprendi v. New Jersey,

10 and United States v. Booker.11 We, of course, are bound to apply existing

precedent fromthe United States Supreme Court unless and until that Court expressly overrulesthat
12Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If

a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in

some other line of decisions, [the lower court]should follow the case which directly controls, leaving

to this Court the prerogative of overruling its own decisions.”).

13Booker, 125 S.Ct at 749-50.

14Id. at 750 (citing Apprendi, 530 U.S. at 481, and Williams v. New York, 337 U.S. 241, 246

(1949)).

15See United States v. Escamilla, 70 F.3d 835 (5th Cir. 1995) (“[T]his court (together with

all other circuit courts that have addressed the issue) has consistently held that the policy statements

in Chapter 7 of the Sentencing Guidelines are merely advisory and that a court only need consider

them in rendering a decision.”); United States v. Nace, 418 F.3d 945, 949 (8th Cir. 2005) (“[E]ven

before Booker the guidelines applicable to sentences imposed upon revocation ofsupervised release

were advisory only.”); United States v. Work, 409 F.3d 484, 492 (1st Cir. 2005) (“[T]he portions of

the sentencing guidelines dealing with revocation ofsupervised release are merely policy statements.

Even before Booker, those guidelines were deemed advisory rather than mandatory.”).

5

precedent.12

In Booker, the Supreme Court held in an opinion written by Justice Stevens that certain

aspects of the Federal Sentencing Guidelines violated the Sixth Amendment right to trial by jury

because the Guidelines were mandatory, and if the judge found additional facts by a preponderance

of the evidence, the judge was required to sentence an offender to a longer prison term than would

otherwise have been the maximumunder the Guidelines.13 The Supreme Court made clear, however,

that there would be no Sixth Amendment violation if the Guidelines were merely advisory:

If the Guidelines as currently written could be read as merely advisory

provisions that recommended, rather than required, t he selection of particular

sentencesin response to differing sets offacts, their use would not implicate the Sixth

Amendment. We have never doubted the authority of a judge to exercise broad

discretion in imposing a sentence within a statutory range.14

Mandatorysentencing guidelines have never been applicable to revocation ofsupervised release, only

advisory policy statements apply to sentences imposed upon revocation.15 The introductory

commentsinChapter 7 ofthe SentencingCommissionGuidelines Manualreflect that theCommission
16U.S. SENTENCING GUIDELINES MANUAL, ch. 7, pt. A(1), introductory cmt. (2004).

17Id. at pt. A(3)(a), introductory cmt. (2004).

18Booker, 125 S.Ct at 764.

19Id. at 764 (internal citations omitted).

6

chose “to promulgate policy statements only,”16 explaining that “because of its greater flexibility, the

policy statement option will provide better opportunities for evaluation by the courts and the

Commission.”17 Accordingly, the concerns that led the Supreme Court to hold that mandatory

sentencing guidelines violated the Sixth Amendment do not exist with regard to sentences imposed

when supervised release is revoked.

Additionally, in Booker, the Supreme Court excised only two specific statutory provisions

from the Sentencing Guidelines, “the provision requiring sentencing courts to impose a sentence

within the applicable Guidelines ranges,” and “the provision that sets forth standards of review on

appeal.”

18 The Court’s opinion written by Justice Breyer explicitly said “[m]ost of the statute is

perfectly valid,” citing, among other provisions, “§ 3583 (supervised release)” and concluding that

the Court “must retain those portions of the Act that are (1) constitutionally valid, (2) capable of

‘functioning independently,’ and (3) consistent with Congress’s basic objectives in enacting the

statute.”19 To the extent that Hinson complains that the district court imposed a 24-month sentence

based on facts found by the court that were neither found by a jury nor admitted by Hinson, Booker

is dispositive.

III

The decision in Booker did not, however, squarely address whether a defendant is entitled to

a jury trial to determine whether the terms of supervised release have been violated. We see no

principled reason for treating revocation of supervised release differently from revocation of parole
20Morrissey v. Brewer, 408 U.S. 471, 480 (1972).

21Id. at 483.

22Id. at 488-89.

23529 U.S. 694 (2000).

24Apprendi v. New Jersey, 530 U.S. 466 (2000).

25Johnson, 529 U.S. at 700.

7

in this regard. The United States Supreme Court has held that “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 to parole revocations.”20 The Supreme Court further observed that “[g]iven the previous

conviction and the proper imposition of conditions, the State has an overwhelming interest in being

able to return the individual to imprisonment without the burden of a new adversary criminal trial if

in fact he hasfailed to abide by the conditions of his parole.”21 In describing the process that was due

in revoking parole, the Supreme Court included neitherthe right to a jury trial nor the burden of proof

beyond a reasonable doubt:

[T]he minimum requirements of due process . . . include (a) written notice of the

claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c)

opportunityto be heard in person and to present witnesses and documentaryevidence;

(d) the right to confront and cross-examine adverse witnesses (unless the hearing

officerspecifically finds good cause for not allowing confrontation);(e) a ‘neutral and

detached’ hearing body such as a traditional parole board, members ofwhich need not

be judicial officers or lawyers; and (f) a written statement by the factfinders as to the

evidence relied on and reasonsfor revoking parole. We emphasize there is no thought

to equate this second stage of parole revocation to a criminal prosecution in any

sense. It is a narrow inquiry; the process should be flexible enough to consider

evidence including letters, affidavits, and other material that would not be admissible

in an adversary criminal trial.22

More recently, in Johnson v. United States,

23 decided just one month before Apprendi,24 the

Supreme Court considered the nature of revocation ofsupervised release, concluding that a violation

ofsupervised release may be found by a judge applying a preponderance of the evidence standard.25
26Id. at 700-01.

8

In rejecting the Sixth Circuit’s determination that revocation of supervised release imposed

punishment for violating the conditions of supervised release, the Supreme Court reasoned:

While this understanding [the Sixth Circuit’s] of revocation ofsupervised release has

some intuitive appeal, the Government disavows it, and wisely so in view of the

serious constitutional questions that would be raised by construing revocation and

reimprisonment as punishment for the violation of the conditions of supervised

release. Although such violations often lead to reimprisonment, the violative conduct

need not be criminal and need only be found by a judge under a preponderance of the

evidence standard, not by a jury beyond a reasonable doubt. See 18 U.S.C.

§ 3583(e)(3) (1988 ed., Supp. V). Where the acts of violation are criminal in their

own right, they may be the basis for separate prosecution, which would raise an issue

of double jeopardy if the revocation of supervised release were also punishment for

the same offense. Treating postrevocation sanctions as part of the penalty for the

initial offense, however (asmost courts have done), avoidsthese difficulties. See, e.g.,

United States v. Wyatt, 102 F.3d 241, 244-245 (C.A.7 1996) (rejecting double

jeopardy challenge on ground that sanctionsfor violating the conditions ofsupervised

release are part of the original sentence); United States v. Beals, 87 F.3d 854, 859-

860 (C.A.7 1996) (noting that punishment for noncriminalviolations must be justified

byreference to original crimes), overruled on other grounds, United States v. Withers,

128 F.3d 1167 (C.A.7 1997); United States v. Meeks, 25 F.3d 1117, 1123 (C.A.2

1994) (noting absence of constitutional procedural protections in revocation

proceedings). Cf. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36

L.Ed.2d 656 (1973) (“Probation revocation ... is not a stage of a criminal

prosecution”). For that matter, such treatment is all but entailed by our summary

affirmance of Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967) (three-judge

court), summarily aff'd, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968), in

which a three-judge panel forbade on ex post facto grounds the application of a

Massachusetts statute imposing sanctions for violation of parole to a prisoner

originally sentenced before its enactment. We therefore attribute postrevocation

penalties to the original conviction.26

The Sixth Amendment right to trial by a jury was not at issue in Johnson, but based on

Johnson’sreasoning, Hinson was not entitled to a jury trial of whethershe had committed credit card

fraud in violation of the terms of her supervised release nor wasshe entitled to have the district court

make findings utilizing the beyond-a-reasonable-doubt standard rather than a preponderance-of-the-
27See United States v. Work, 409 F.3d 484, 492 (1st Cir. 2005) (holding that there is no right

to a jury trial or that facts be proven beyond a reasonable doubt in proceedings to revoke supervised

release).

28United States v. Gonzalez, 250 F.3d 923, 925 (5th Cir. 2001) (internal citations omitted).

2918 U.S.C. § 3742(a), (e).

30United States v. Booker, 125 S.Ct. 738, 742 (2005).

31Id. at 744.

9

evidence standard.27 Moreover, Hinson admitted to illegal drug possession and use while on

supervised release, and revocation would have been justified based on that admission alone.

IV

Hinson contendsthat applying the post-Bookerremedy oftreating the Guidelines as advisory

would violate the Constitution’s prohibition of ex post facto laws. As we have discussed above, the

policy statements applicable to sentencing upon revocation of supervised release have always been

advisory. Hinson faced the same maximum sentence upon revocation of supervised release both

before and after Booker.

V

Prior to Booker, this Court held that “[b]ecause there are no applicable guidelines for

sentencing after revocation of supervised release, this court will uphold a sentence unless it is in

violation of the law or plainly unreasonable,”28 which was consistent with the provisions of

section 3742(a) and (e) that applied to sentences “for which there is no sentencing guideline.”29 In

Bookerthe Supreme Court excised subsection 3742(e)30 and directed appellate courtsto “review for

unreasonable[ness].”

31 We need not decide today whether the “plainly unreasonable” standard in

subsection 3742(a) continues to apply to sentences imposed upon revocation of supervised release

or whether Booker’s “unreasonableness” standard governs. Nor is it necessary to decide if there is

a difference between the two standards. Hinson’s sentence passes muster under either and was not
10

imposed in violation of law.

Hinson’s sentence is hereby AFFIRMED.