U.S. v. Haymond, 869 F.3d 1153 (8/31/17) (Okl. - Published) - The 10th strikes down 18 U.S.C. § 3583(k) as unconstitutional. Under § 3583(k), a defendant on supervised release who is required to register under SORNA and who commits almost any federal child sex crime, including possessing child porn, is subject to a prison term of 5 years up to life.

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. § 3583(b), however, stipulates that supervised release shall not be imposed for “petty offenses,” those punishable by less than six months of imprisonment.

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.

Supervised Release for Sex OffendersThere are two kinds of offenders on supervised release: sex offenders and all other offenders. There are a number of mandatory conditions for all offenders on supervised release as set forth in 18 U.S.C. § 3583(d) which are: 1) must not commit another offense while on parole; 2) refrain from unlawful use of controlled substances and submit to drug testing; 3) make restitution to the victim of the offense; and 4) submit to the collection of a DNA sample, among others.In 2006, with the Adam Walsh Child Protection and Safety Act, Congress enacted a mandatory condition explicitly for all federal sex offenders: the requirement that they register under the Sex Offender Registration and Notification Act (SORNA) and abide by all the requirements of that Act.

Those factors---the need for the sentence to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment---are omitted from the factors a district court is supposed to consider in determining a supervised release revocation sentence. See 18 U.S.C. § 3583(e). The 10th notes that several circuits have ruled that consideration of § 3553(a)(2)(A) factors does not automatically render a revocation sentence procedurally unreasonable.

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.

United States v. Collins, 2017 WL 586436 (February 14, 2017) (KS, published): Following a second revocation of supervised release, Collins argued that the relevant “offense” referred to in 18 U.S.C. § 3583(e)(3) is the violative conduct that gave rise to the first revocation. If he was right, the district court properly sentenced him to only one year in prison.

At the revocation hearing, he admitted possessing images of child pornography. The probation officer stated in the report that Perry was subject to the statutory minimum sentence of five years under 18 U.S.C. § 3583(k). Perry appealed the sentence he received upon violation of his term of supervised release for the second time.

But see Morales, 514 U.S. 499, discussed above, which implicitly overruled this holding.United States v. Parriett, 974 F.2d 523 (4th Cir. 1992)18 U.S.C. §3583(g) provided that a person on supervised release who is found in possession of drugs will automatically have one-third of his term of supervised release revoked. The defendant committed the offense in this case in August 1988.

pdf Unanimous decision: Porter (writing), Ambro, and RothBACKGROUNDAfter pleading guilty and serving a sentence for firearms offenses, the Defendant began a term of supervised release. The Defendant moved for early termination of his supervised release pursuant to 18 U.S.C. § 3583(e). The district court denied the motion, and the Defendant appealed.