United States v. Christopher Garner ( 2020 )

Case: 19-10884 Document: 00515526156 Page: 1 Date Filed: 08/13/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 13, 2020
No. 19-10884 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Brent Garner,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-147-1
Before Davis, Jones, and Willett, Circuit Judges.
W. Eugene Davis, Circuit Judge:
Appellant Christopher Garner argues that 18 U.S.C. § 3583(g), which
requires revocation of supervised release and a term of imprisonment for
certain drug and gun violations, is unconstitutional under United States v.
Haymond, 130 S. Ct. 2369 (2019), where the Supreme Court held that a
different mandatory revocation provision, § 3583(k), violates the Fifth and
Sixth Amendments. Because § 3583(g) lacks the three features which led the
Court to hold § 3583(k) unconstitutional, we AFFIRM the judgment of the
district court.
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No. 19-10884
I. BACKGROUND
Christopher Garner pled guilty to aiding and abetting possession with
intent to distribute methamphetamine. He was sentenced to 120 months
imprisonment, to be followed by a five-year term of supervised release. Soon
after his term of supervised release began, the United States Probation Office
filed a petition alleging that Garner had violated the conditions of his release
by possessing methamphetamine and attempting to falsify a drug test.
Garner was subject to mandatory revocation under 18 U.S.C.
§ 3583(g), which requires revocation and a term of imprisonment for
defendants found to have committed certain gun or drug violations. At his
revocation hearing, Garner argued that the mandatory revocation feature of
§ 3583(g) was unconstitutional under United States v. Haymond.1 The district
court rejected his argument, and sentenced Garner to 36 months
imprisonment to be followed by a 24-month term of supervised release.
On appeal, Garner again argues that mandatory revocation under
§ 3583(g) is unconstitutional. Because Garner preserved his challenge, our
review is de novo.2
II. DISCUSSION
Under the general revocation provision, 18 U.S.C. § 3583(e), a district
judge may revoke a defendant’s term of supervised release if it finds, by a
preponderance of the evidence, that the defendant violated a condition of
supervised release. And upon revocation, the district judge may impose a new
prison term, subject to a maximum of one to five years depending on the
severity of the original crime.
1
139 S. Ct. 2369 (2019).
2
United States v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010).
2
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Sometimes, though, revocation is mandatory. For example, 18 U.S.C.
§ 3583(g) requires revocation if a defendant (1) possesses a controlled
substance in violation of a supervised release condition; (2) possesses a
firearm in violation of federal law or a condition of supervised release;
(3) refuses to comply with drug testing imposed as a condition of supervised
release; or (4) tests positive for illegal controlled substances more than three
times in one year. And when Subsection (g) applies, the district judge must
impose a new prison term up to the maximum authorized by the general
revocation provision.
In United States v. Haymond, a divided Supreme Court held that a
different provision of the supervised release statute, § 3583(k), is
unconstitutional.3 Subsection (k) required a district judge to impose a new
prison term of at least five years and up to life if it found, by a preponderance
of the evidence, that the defendant committed an enumerated federal sex
crime while on supervised release.
A four-justice plurality concluded that Subsection (k) is
unconstitutional under Alleyne v. United States, where the Court held that any
fact that increases the mandatory minimum sentence for a crime must be
submitted to a jury and found beyond a reasonable doubt.4 Haymond’s
original conviction of possession of child pornography carried a prison term
of zero to ten years. But after the district judge found, by a preponderance of
the evidence, that Haymond engaged in additional conduct enumerated in
Subsection (k) while on supervised release, that triggered a new prison term
with a mandatory minimum of at least five years. The plurality reasoned that
Subsection (k) violates the Fifth and Sixth Amendments by increasing a
defendant’s statutory sentencing range based on facts found by a judge, and
3
139 S. Ct. 2369 (2019).
4
570 U.S. 99 (2013).
3
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only by a preponderance of the evidence. The plurality declined to “express
a view on the mandatory revocation provision for certain drug and gun
violations in § 3583(g),”5 the provision Garner challenges here.
Justice Breyer, concurring in the judgment, took a narrower approach.
And because he provided the “narrowest grounds” in a case where “no
single rationale explaining the result enjoys the assent of five justices,” his
concurrence represents “the holding of the Court.”6 Justice Breyer
concluded that Subsection (k) violates the Fifth and Sixth Amendments due
to three features that, “considered in combination,” make it “less like
ordinary revocation and more like punishment for a new offense, to which
the jury right would typically attach:”7
First, § 3583(k) applies only when a defendant commits a
discrete set of federal criminal offenses specified in the statute.
Second, § 3583(k) takes away the judge’s discretion to decide
whether violation of a condition of supervised release should
result in imprisonment and for how long. Third, § 3583(k)
limits the judge’s discretion in a particular manner: by
imposing a mandatory minimum term of imprisonment of “not
less than 5 years” upon a judge’s finding that a defendant has
“commit[ted] any” listed “criminal offense.”8
Garner argues that Subsection (g) is unconstitutional under Haymond
because it shares at least two of those features: it applies to a discrete set of
specified violations, and it requires the district judge to impose at least some
term of imprisonment. We disagree.
5
Haymond, 139 S. Ct. at 2382 n.7.
6
Marks v. United States, 430 U.S. 188, 193 (1977).
7
Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).
8
Id.
4
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First, while Subsection (g) singles out certain conduct, only some of it
is criminal. Indeed, Subsection (g) applies more generally to violations of
common release conditions and non-criminal behavior the court expects
prisoners to avoid during supervision:
(g) Mandatory revocation for possession of controlled
substance or firearm or refusal to comply with drug
testing.—If the defendant—
(1) possesses a controlled substance in violation of the
conditions [of supervised release];
(2) possesses a firearm . . . in violation of Federal law, or
otherwise violates a condition of supervised release
prohibiting the defendant from possessing a firearm;
(3) refuses to comply with drug testing imposed as a
condition of supervised release; or
(4) as a part of drug testing, tests positive for illegal
controlled substances more than 3 times over the course
of 1 year;
the court shall revoke the term of supervised release and
require the defendant to serve a term of imprisonment not to
exceed the maximum term of imprisonment authorized under
subsection (e)(3).9
Second, although Subsection (g) takes away the judge’s discretion to
decide whether a violation should result in imprisonment, it doesn’t dictate
the length of the sentence.
Third, Subsection (g) doesn’t limit the judge’s discretion in the same
“particular manner” as Subsection (k). Instead of prescribing a mandatory
minimum, Subsection (g) grants the judge discretion to impose any sentence
up to the maximum authorized under § 3583(e) (which depends on the
9
18 U.S.C. § 3583(g).
5
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severity of the initial offense). Unlike Subsection (k), then, any sentence
imposed under Subsection (g) is “limited by the severity of the original crime
of conviction, not the conduct that results in revocation.”10 That looks more
like revocation as it is “typically understood”—as “part of the penalty for
the initial offense,” rather than punishment for a new crime.11
Because of these key differences, we hold that Subsection (g) is not
unconstitutional under Haymond, and the district court did not err in its
revocation decision.12
III. CONCLUSION
For these reasons, the judgment of the district court is AFFIRMED.
10
Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).
11
Id. (quotations omitted).
12
Garner also argues that the district court erred in increasing his revocation
sentence in order to “promote respect for the law.” This argument is foreclosed by United
States v. Illies, 805 F.3d 607 (5th Cir. 2015), where we held that no plain, clear, or obvious
error attends a district court’s consideration of the retributive factors set forth in § 3553(a)
when revocation is mandatory under § 3583(g). Contrary to Garner’s argument, Holguin-
Hernandez v. United States, 140 S. Ct. 762 (5th Cir. 2020), did not change this court’s
standard of review for revocation sentences. See, e.g., United States v. Chappell, 801 F.
App’x 306, 307 (5th Cir. 2020). Although an unpublished opinion issued on or after January
1, 1996 is generally not controlling precedent, it may be considered as persuasive authority.
See Ballard v. Burton, 444 F.3d 391, 401 (5th Cir. 2006).
6