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 impo sing 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 cons tituted 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

tha t sent ence. 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 that she had used and possessed illegal drugs.

Hinson pleaded true to the illegal drug allegations but not t he 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 t erm o f imprisonment under 18 U.S.C. § 1708 for possession of

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

offender may also be placed on a term of supervised release after imprisonment pursuant to 18 U.S.C.

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

are violated, reimprisoned. 3 The federal criminal statutory scheme envisions that there can be at least4 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 t erm applicable thereto (derived from section 3583)”); U nited States v.

Gonzalez

, 250 F.3d 923, 928 (5th Cir. 2001) (observing that “supervised rele ase . . . 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 imprison ment 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”); United States v. Pettus , 303 F.3d 480, 487 (2d Cir. 2002) (explaining

that imprisonment for violation of supervised release coupled with ini t ial 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 init ial offense”); United States v. Wirth

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

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

when combined with the latter, exceed the statutory maximum fo r t he 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 as sections 1708 and 3559, 5

and 2) a term of supervised release as delineated in section 3583 6 with the potenti al fo r additional

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

Under the Sentencing Guidelines, the range of imprisonment Hinson faced for her possession

of st o len 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 hist ory category of VI did not adequately8 See United States v. Moody

, 277 F.3d 719, 721 (5th Cir. 2001) (holding that a defendant may

not use a challenge to the imposition o f 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).

10 530 U.S. 466 (2000).

11 125 S.Ct. 738 (2005).

4 reflect the seriousness of her past criminal conduct or the likeliho o d 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 fo r 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 of stolen mail rather 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 facts that 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

revocatio n o f her supervised release to attack her original sentence directly or collaterally in this

proceeding. 8

With regard to the revocation, Hinson asserts that a court may not impose a prison term upon

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 from the United States Supreme Court unless and until that Court expressly overrules that12 Rodriguez 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.”).

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

14 Id

. at 750 (citing Apprendi, 530 U.S. at 481, and Williams v. New York

, 337 U.S. 241, 246

(1949)).

15 See 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 of supervised 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 of supervised 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 St evens that certai n

aspects of the Fede ral 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 maximum under 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 req uired, t he selection of particular

sentences in response to differing sets of facts, 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

Mandatory sentencing guidelines have never been applicable to revocation of supervised release, only

advisory policy statements apply to sentences imposed u pon revocati on. 1 5 The introductory

comments in Chapter 7 of the Sentencing Commission Guidelines Manual reflect that the Commission16 U.S. S ENTENCING G UIDELINES M ANUAL , ch. 7, pt. A(1), introductory cmt. (2004).

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

18 Booker , 125 S.Ct at 764.

19 Id . at 764 (internal citations omitted).

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

policy statem

ent o pt io n will provide better opportunities for evaluation by the courts and the

Commission.” 17 Accordingly, the concerns that led the Supreme Co urt t o ho ld 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 p rovisions

from the Sentencing Guide lines, “t he provision requiring sentencing courts to impose a sentence

within the applicable Guidelines ranges,” and “the provision that sets forth standards o f 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 thos e portions of the Act that are (1) constitutionally valid, (2) capable of

‘functioning independentl y,’ 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 rel ease have been violated. We see no

principled reason for treating revocation of supervised release differently from revocation of parole20

Morrissey v. Brew er , 408 U.S. 471, 480 (1972).

21 Id . at 483.

22 Id . at 488-89.

23 529 U.S. 694 (2000).

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

25 Johnson , 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 has failed to abide by the conditions of his parole.” 21 In describing the process that was due

in revoking parole, the Supreme Court included neither the right to a jury trial nor the burden of proof

beyond a reasonable doubt:

[T]he minimum requirements of due process

. . . incl ude (a) wri tten noti ce of the

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

opportuni ty to be heard in person and to present witnesses and documentary evidence;

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

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

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

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

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

to equate this second stag e o f paro le revocation to a criminal prosecution in any

sens e. 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 of supervised release, concluding that a violation

of supervised release may be found by a judge applying a preponderance of the evidence standard. 2526 Id . 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 of supervised release has

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

ser io us constitutional questions that would be raised by construing revocation and

reimprisonment as punishment for the vio lat ion 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. S ee 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 sanct io ns as part of the penalty for the

init ial offense, however (as most courts have done), avoids these difficulties. See

, e.g.

, United States v. Wyatt

, 102 F.3d 241, 244-245 (C.A.7 1996) (rejecting doubl e

jeopardy challenge on ground that sanctions for violating the conditions of supervised

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 noncriminal violations must be justified

by reference 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 pro cedural protections in revocation

proceedings). C

f

. 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-j udge

court), summarily af

f'd, 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968), i n

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

Massachusett s st at ute imposing sanctions for violation of parole to a prisoner

origina lly sentenced before its enactment. We therefore attribute postrevocation

penalties to the original conviction. 26

The Sixth Amen dment right t o trial by a jury was not at issue in J ohnson

, but based on

Johnson ’s reasoning, Hinson was not entitled to a jury trial of whether she had committed credit card

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

make findings ut ilizing the beyond-a-reasonable-doubt standard rather than a preponderance-of-the-27 See 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).

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

29 18 U.S.C. § 3742(a), (e).

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

31 Id . 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 contends that applying the post- Booker remedy of treating 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 a re no applicable guidelines for

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

violation of

t he law o r plainly unreasonable,” 2 8 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

Booker the Supreme Court excised subsection 3742(e) 30 and directed appellate courts to “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 not10

imposed in violation of law.

Hinson’s sentence is hereby AFFIRMED.