UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

EUGENE LOUIS PERIARD, JR., 

 Defendant - Appellant.

___________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

EUGENE LOUIS PERIARD, JR., 

 Defendant - Appellant.

No. 20-6168

(D.C. No. 5:15-CR-00013-HE-1)

(W.D. Okla.)

No. 20-6169

(D.C. No. 5:19-CR-00170-HE-1)

(W.D. Okla.)

_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________

Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.

_________________________________

* This order is not binding precedent except under the doctrines of law of the case, 

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

February 9, 2021

Christopher M. Wolpert

Clerk of Court
2

Eugene Periard, Jr., a federal inmate, seeks a certificate of appealability (COA) 

under 28 U.S.C. § 2253(c)(1)(B) to challenge the denials of his 28 U.S.C. § 2255 motions 

in two federal criminal cases, CR-15-13-HE and CR-19-170-HE.

1 We deny a COA. 

BACKGROUND

In 2013, Periard was convicted in CR-15-13-HE of failing to register as a sex 

offender, in violation of the Sex Offender Registration and Notification Act (SORNA), 

18 U.S.C. § 2250.2 For this, the United States District Court for the Northern District of 

New York sentenced him to eight months’ imprisonment and five years’ supervised 

release. When the supervised release began, that court transferred jurisdiction over it to 

the United States District Court for the Western District of Oklahoma. 

In July 2016, the Oklahoma district court revoked Periard’s initial supervised

release, finding that Periard had violated supervised-release conditions. For the violation, 

the court sentenced him to twenty-four months’ imprisonment and lifetime supervised 

release. 

Periard did no better on supervised release the second time. In June 2019, he

stipulated to having violated his conditions of supervision by possessing and viewing

child pornography. The district court delayed holding a revocation hearing after learning

that the government was expected to file charges related to Periard’s possession of child 

pornography. A few days later, the United States filed charges in an Information in 

1 For the case numbers, we will use the same convention as the district court.

2 In 2007, Periard had been convicted in Oklahoma state court of second-degree 

rape. 
3

CR-19-170-HE, for possession of child pornography, in violation of 18 U.S.C. 

§ 2252A(a)(5)(B) and (b)(2). This offense carried a mandatory-minimum sentence of ten 

years’ imprisonment. In exchange for Periard’s guilty plea, the government agreed to 

recommend that the sentence run concurrently with any prison time imposed for the

supervised-release violation. At a combined sentencing hearing, the district court 

sentenced Periard to ten years’ imprisonment and lifetime supervised release in the childpornography case, with the imprisonment to run concurrently with a two-year sentence 

for violating his supervised-release conditions. 

In April 2020, Periard filed identical motions in both cases (CR-15-13-HE and 

CR-19-170-HE), asking for resentencing based on the Supreme Court’s ruling in United 

States v. Haymond, 139 S. Ct. 2369 (2019).3 The district court notified Periard that it 

would view the motions as 28 U.S.C. § 2255 motions and gave him an opportunity to 

withdraw or amend them. Periard elected to proceed with them. In a consolidated order, 

the district court denied both motions and denied a COA, noting that it had not sentenced 

Periard under 18 U.S.C. § 3583(k), which is what the Court had declared unconstitutional 

in Haymond. Periard then filed a consolidated Motion for the Court’s Reconsideration of 

the Judgment and a consolidated Motion for Issuance of Certificate of Appealability, both 

of which the district court denied. Periard appealed in both cases. After the clerk’s office 

consolidated the appeals for briefing, he filed an Appellant’s Combined Opening Brief 

and Application for a Certificate of Appealability.

3 In the Discussion section, we describe Haymond in detail.
4

DISCUSSION

The question is whether to grant Periard a COA. This is so because “there can be 

no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues 

a certificate of appealability.” Welch v. United States, 136 S. Ct. 1257, 1263 (2016) 

(citation omitted); see 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge issues 

a certificate of appealability, an appeal may not be taken to the court of appeals 

from . . . the final order in a proceeding under section 2255.”). We will grant a COA only 

if Periard “has made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2). To make this showing when, as here, a district court has denied a 

§ 2255 motion on the merits, a plaintiff “must demonstrate that reasonable jurists would 

find the district court’s assessment of the constitutional claims debatable or wrong.” 

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation omitted).

Periard argues that his sentences are unconstitutional under Haymond. As the 

district court explained in its well-reasoned decision, Haymond addressed the 

constitutionality of one of the two provisions in 18 U.S.C. § 3583(k).4 See Haymond, 139 

4 Section 3583(k) provides:

(k) Notwithstanding subsection (b), the authorized term of 

supervised release for any offense under section 1201 involving a minor 

victim, and for any offense under section 1591, 1594(c), 2241, 2242, 2243, 

2244, 2245, 2250, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 

2425, is any term of years not less than 5, or life. If a defendant required to 

register under the Sex Offender Registration and Notification Act commits 

any criminal offense under chapter 109A, 110, or 117, or section 1201 or 

1591, for which imprisonment for a term longer than 1 year can be 

imposed, the court shall revoke the term of supervised release and require 
5

S. Ct. at 2384–85. The first provision directs that when sentencing a defendant who has 

committed one of several listed offenses, including violation of SORNA and possession 

of child pornography, a judge must impose a term of supervised release of between five 

years and life. 18 U.S.C. § 3583(k). The second provision mandates that if during 

supervised release, a defendant required to register under SORNA commits an offense 

from a different list, which also includes possession of child pornography, the judge must 

revoke the term of supervised release and “impose an additional prison term of at least 

five years and up to life.” Haymond, 139 S. Ct. at 2374; see 18 U.S.C. § 3583(k). The 

Court found that this second provision violated the Fifth and Sixth Amendments because 

it allowed imprisonment beyond the maximum term allowed by the original offense

without a jury trial or proof beyond a reasonable doubt. See Haymond, 139 S. Ct. at 

2374–79. 

Periard has not made a substantial showing that Haymond establishes that he was 

denied a constitutional right. As the district court correctly concluded, the supervisedrelease-revocation sentence (in CR-15-13-HE) is constitutional. Contrary to Periard’s 

beliefs, Haymond addresses a provision of § 3583 unrelated to his sentence. If the 

sentence were issued under § 3583(k), which was at issue in Haymond, the sentence 

would be for five years or more. See 18 U.S.C. § 3583(k). The sentence is for less than 

the defendant to serve a term of imprisonment under subsection (e)(3) 

without regard to the exception contained therein. Such term shall be not 

less than 5 years.

18 U.S.C. § 3583(k).
6

this—twenty-four months. It was ordered under § 3583(e), which is the general provision 

on revocation of supervised release.

5 In Haymond, the Supreme Court did not rule that 

§ 3583(e) was unconstitutional, 139 S. Ct. at 2384 (explicitly clarifying this), and the 

Court has not done so elsewhere. 

The 2019 child-pornography sentence (in CR-19-170-HE) is also constitutional. 

This sentence has two components: (1) ten years’ imprisonment and (2) lifetime 

supervised release. The first component is constitutional because it was imposed under 

18 U.S.C. § 2252A, not under § 3583(k) as Periard suggests. The ten years’ 

imprisonment is the mandatory minimum imprisonment for the child-pornography 

sentence. 

The second component of the child-pornography sentence—lifetime supervised 

release—is also constitutional. This is true even though the sentence was ordered under 

§ 3583(k). It was imposed under the first provision of § 3583(k), left untouched by

Haymond. Periard is wrong that Haymond “zeroed out” all of § 3583(k) and that 

§ 3583(k)’s provisions are not severable. Several courts have found that the first 

provision is still constitutional and in effect. See, e.g., Jones v. United States, 

No. 2:14-CR-616-TC, 2020 WL 5663390, at *1–2 (D. Utah Sept. 23, 2020), certificate of

5 This sentence complies with § 3583(e). See 18 U.S.C. § 3583(e)(3) (allowing 

imprisonment for no “more than 2 years” when the original offense was a class C felony

and the supervised-release term authorized for the original offense is over 2 years);

§ 3583(k) (authorizing lifetime supervised release for SORNA failure-to-register 

offenses); 18 U.S.C.A. § 2250(a) (permitting a maximum ten years’ imprisonment for 

these offenses); 18 U.S.C. § 3559(a)(3) (defining class C felonies as offenses with 

maximum imprisonment terms of “less than twenty-five years but ten or more years”).
7

appealability denied, No. 2:14-CR-616-TC, 2020 WL 5659381 (D. Utah Sept. 23, 2020); 

United States v. Goodall, No. 1:16-CR-00010-JAW, 2019 WL 7340133, at *2 (D. Me. 

Dec. 30, 2019); Harmon v. True, No. 19-CV-00461-SMY, 2019 WL 6615422, at *2 

(S.D. Ill. Dec. 5, 2019); Jividen v. Streeval, No. CV 19-060-HRW, 2019 WL 3976509, 

at *4 (E.D. Ky. Aug. 22, 2019); cf. United States v. Aguirre, 776 F. App’x 866, 867 (5th 

Cir. 2019) (“[T]he Haymond plurality emphasized that its decision was limited to 

§ 3583(k) and its mandatory minimum provision.”), cert. denied, 140 S. Ct. 943 (2020); 

United States v. Austin, No. 06-CR-991 (JSR), 2020 WL 6735074, at *3 (S.D.N.Y. Nov. 

17, 2020) (“[T]he Court held unconstitutional the last two sentences of 

18 U.S.C. § 3583(k)[.]”). We have not located a case deciding otherwise. And as the 

district court observed, in Headley v. United States, 804 F. App’x 973 (10th Cir. 2020), 

decided after Haymond, we assumed that § 3583(k) authorized up to lifetime supervised 

release. Id. at 981. Although in Headley we did not address Haymond, our decision there 

still counsels that the first provision of § 3583(k) is valid.

6 Id. Thus, Periard has not made 

a substantial showing of the denial of a constitutional right and we deny a COA. 

6 Moreover, we have concluded, albeit in a non-binding decision, that Haymond is 

not retroactively applicable on collateral review. See United States v. Salazar, 784 

F. App’x 579, 583–84 (10th Cir. 2019), cert. denied, 140 S. Ct. 1232 (2020).
8

CONCLUSION

For the foregoing reasons, we deny a COA.

Entered for the Court

Gregory A. Phillips

Circuit Judge