While on supervised release, the government discovered new child pornography images on Haymond’s computers and cellphone, which the district court – applying a preponderance of the evidence standard – found made it more likely than not that Haymond knowingly downloaded and possessed 13 of the images. On sentencing, the district court reluctantly imposed an additional term of five years, being bound by 18 U.S.C. §3583(k), which requires that if a judge finds by a preponderance of the evidence that a defendant on supervised release possessed child pornography, the judge must impose an additional prison term of at least five years and up to life without regard to the length of the prison term authorized for the initial crime of conviction. The Tenth Circuit found that §3583(k) violated the Fifth and Sixth Amendments by imposing a new prison term with a new and higher mandatory minimum based on facts found by a judge by a preponderance of the evidence.
Discretionary conditions of SR must meet three statutory requirements: (1) that they be “reasonably related to” the § 3553(a) sentencing factors, with the exception of “just punishment” (§ 3553(a)(2)(A))’ that they “involve no greater deprivation of liberty than is reasonably necessary” for the relevant sentencing purposes; and (3) that they be consistent with relevant USSC policy statements. 18 U.S.C. § 3583(d)(1)-(3). Recent appellate cases suggest that some discretionary conditions of SR may be vulnerable to challenge.Sex offender conditions in non-sex cases.
Hidden at the end of the statute that empowers district courts to impose a sentence of supervised release after a sentence of imprisonment is an enhancement that can did impose a life sentence for certain violations of supervised release. That statute, 18 U.S.C. § 3583(k)requires required a district court to impose "not less than five" years imprisonment when the defendant was on supervised release for certain offenses against minors when the government proves the defendant committed one of a number of sex offenses while under that supervision. The maximum sentence you might ask?
Probation is imposed in lieu of incarceration while supervised release concerns itself only with what the U.S. Sentencing Guidelines refer to as “facilitating the reintegration of a defendant into the community.”Federal law, 18 U.S.C. § 3583, requires supervised release in many cases, especially those of a violent or sexual nature. § 3583(a) authorizes a federal judge to order supervised release in all felony and Class A misdemeanor cases.
I say no, and here is why: On the search condition, the Court refused to rule out "unannounced and random searches where appropriate." The problem with this: the statutes -- 18 U.S.C. 3583(d) and 18 U.S.C. 3563(23)-- do not allow it. In plain terms, search conditions: (1) must include a reasonable suspicion requirement; and (2) may only be imposed in cases involving a defendant who has to register as a sex offender.
Just last year a U.S. District Court in the Eastern District of North Carolina in United States v. Bass joined this legal debate with the conclusion: “In the context of an Alford plea, where the Defendant does not admit guilt, ambiguous language indicating [he] agreed there were facts to support the plea is not sufficient to demonstrate that [he] committed a state crime.”The Ninth Circuit explained why it chose to follow the lead of these decisions into these newly charted legal waters:“The plain language of the condition of supervised release that Williams was alleged to have violated bears repeating:’”The defendant shall not commit another federal, state or local crime’ (emphasis added) — a mandatory condition under 18 U.S.C. § 3583(d). The same statute would permit a district court to impose as a discretionary condition of supervised release a requirement that the defendant not be convicted of another federal, state, or local crime, but no such condition was imposed on Williams here.
But the Tenth Circuit has recently spoken on this issue, aligning itself with all other circuits to preclude aggregation of prior sentences. Here is what the PROTECT Act did: it added language to 18 U.S.C. 3583(e)(3) that a defendant could not be sentenced to imprisonment beyond the statutory maximum "on any such revocation". (The statutory maximums are 5 years for a Class A felony, 3 years for a Class B, 2 years for a Class C or D, and one year for any other crime.)
If release conditions are violated, that court may “revoke [the] release, and require the person to serve in prison all or part of the [supervised release] term … without credit for time previously served on postrelease supervision … .” 18 U.S.C. § 3583(e)(3). In March 1994, the District Court sentenced petitioner Johnson to imprisonment followed by a term of supervised release.
United States v. Blair, ___F.3d___, 2019 WL 3793368 (No. 18-1220, 10th Cir. Aug. 13, 2019) (Special Condition of Supervised Release – computer/internet access). Short version: Special condition of supervised release that essentially allowed probation to ban all use of computers and the internet as impermissibly broad, and the district court abused its discretion by imposing it. Applies 18 USC 3583(d) and 3553(a) in our favor for once. Long version: Mr. Blair had a LOT of child porn on his computer. Pled to one count possession; anticipated a guideline level 28, crim. history 1, for a range of 78-97 months.
On Friday afternoon, October 26, 2018, the Supreme Court of the United States granted certiorari in three cases:Return Mail, Inc. v. USPS, No. 17-1594: Whether the government is a “person” who may petition to institute review proceedings under the Leahy-Smith America Invents Act.Mission Product Holdings, Inc. v. Tempnology, LLC, No. 17-1657: Whether, under §365 of the Bankruptcy Code, a debtor-licensor's "rejection" of a license agreement which "constitutes a breach of such contract," 11 U .S.C. §365(g) – terminates rights of the licensee that would survive the licensor's breach under applicable non-bankruptcy law.United States v. Haymond, No. 17-1672: Whether the court of appeals erred in holding "unconstitutional and unenforceable" the portions of 18 U.S.C. §3583(k) that required the district court to revoke respondent's ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography.