United States v. Ewing ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5005
(D.C. No. 4:05-CR-00068-CVE-1)
WALTER BROWN EWING, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges.
_________________________________
After Walter Ewing admitted to violating conditions of his supervised release,
the district court revoked his supervised release and ordered him to serve eight
months in prison followed by fourteen months of supervised release. He appeals,
raising two arguments for the first time. First, he argues that the district court’s
revocation proceedings violated his Fifth and Sixth Amendment rights under
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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.
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Second, he argues that 18 U.S.C.
§ 3583(g) (“subsection (g)”) is unconstitutional. We affirm.
I. Procedural Background
In 2005, Mr. Ewing pled guilty to one count of conspiracy (18 U.S.C. § 371)
and one count of possession of stolen mail (18 U.S.C. § 1708). The district court
sentenced him to prison for the five-year statutory maximum on each count and
ordered that the two five-year terms be served consecutively. See 18 U.S.C. §§ 371,
1708. After finishing the prison terms in 2014, he began serving concurrent
three-year terms of supervised release. In 2016, Mr. Ewing stipulated that he had
violated conditions of his supervised release, and the district court then ordered him
to serve concurrent fourteen-month prison terms followed by twenty-two months of
supervised release.
The revocation proceedings underlying this appeal began in 2019, when the
probation department alleged that Mr. Ewing violated the conditions of his
supervised release by testing positive several times for methamphetamine, failing to
submit to drug tests as directed, and submitting a diluted sample as well as a
“substituted” sample for drug testing. R., Vol. I at 191–92. The district court
advised Mr. Ewing that he had a right to a hearing in which the court could make
findings on the allegations using the preponderance-of-the-evidence standard.
Mr. Ewing declined the hearing, opting instead to stipulate that the violations
occurred. The district court then found that Mr. Ewing violated the supervised-
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release conditions and later sentenced him to serve concurrent eight-month prison
terms followed by fourteen months of supervised release.
II. Legal Background
A. Supervised Release and Revocation
A district court imposing a prison sentence may (and sometimes must) require
the defendant to serve a term of supervised release after the defendant’s release from
prison. 18 U.S.C. § 3583(a). The maximum term of supervised release that the court
may impose depends on the severity of the crime of conviction. 18 U.S.C. § 3583(b).
Mr. Ewing’s convictions were for Class D felonies, which meant the court could
impose up to three years of supervised release. See 18 U.S.C. §§ 3559(a)(4),
3583(b). While on supervised release, a defendant must comply with certain
conditions; courts must impose some conditions and they have discretion to impose
others. 18 U.S.C. § 3583(d).
Violations of supervised-release conditions may lead to revocation
proceedings. See U.S. Sentencing Guidelines Manual § 7B1.2 (U.S. Sentencing
Comm’n 2020). If a district court finds by a preponderance of the evidence that a
defendant has violated a condition of supervised release, it typically has discretion to
revoke supervised release and impose incarceration, subject to limits on the amount
of incarceration tied to the severity of the crime of conviction. See 18 U.S.C.
§ 3583(e) (“subsection (e)”). But subsection (g) removes that discretion under some
circumstances, requiring revocation and incarceration if the defendant (1) unlawfully
possesses a controlled substance; (2) violates federal law or a supervised-release
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condition by possessing a firearm; (3) refuses to comply with a supervised-release
condition requiring drug testing; or (4) tests positive for illegal controlled substances
more than three times over the course of one year.1 18 U.S.C. § 3583(g). Although
subsection (g) requires revocation in those cases, it also limits the amount of
incarceration that the court may impose based on the severity of the crime of
conviction; for class D felonies, incarceration may not exceed two years. 18 U.S.C.
§§ 3583(e)(3), (g).
B. Revocation Proceedings and the Fifth and Sixth Amendments
“The Sixth Amendment provides that those accused of a crime have the right
to a trial by an impartial jury. This right, in conjunction with the Due Process
Clause, requires that each element of a crime be proved to the jury beyond a
reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104 (2013) (internal
quotation marks omitted). Any fact, other than the fact of a prior conviction, “that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S.
at 490. Similarly, “any fact that increases the mandatory minimum is an ‘element’
that must be submitted to the jury.” Alleyne, 570 U.S. at 103.
But the Supreme Court has attributed “postrevocation penalties to the original
conviction.” Johnson v. United States, 529 U.S. 694, 701 (2000). So in response to a
1
An exception to subsection (g)’s mandatory revocation may exist for “a
defendant who fails a drug test.” 18 U.S.C. § 3583(d). We need not decide if this
exception applies in this case because it would not affect the outcome.
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challenge based on Apprendi and its progeny to 18 U.S.C. § 3583(e)(3)—which
allows district courts to revoke supervised release and impose prison after finding a
violation by a preponderance of the evidence—we have held that a “defendant in a
supervised release revocation proceeding is not entitled to indictment by a grand jury,
to a jury trial, or to be found ‘guilty’ of violating the terms of his supervised release
beyond a reasonable doubt.” United States v. Cordova, 461 F.3d 1184, 1190
(10th Cir. 2006).
The Supreme Court recently found unconstitutional a supervised-release
provision not at issue in this case, 18 U.S.C. § 3583(k) (“subsection (k)”). United
States v. Haymond, 139 S. Ct. 2369 (2019) (Haymond II). Under subsection (k), if a
district court finds by a preponderance of the evidence that a defendant (who must
register as a sex offender) committed one of several enumerated crimes, it must
revoke supervised release and “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
defendant’s initial crime of conviction.” Haymond II, 139 S. Ct. at 2374 (plurality
opinion).
Although five Justices in Haymond II agreed that subsection (k) is
unconstitutional, not all five shared the same reasoning. Writing for a four-Justice
plurality, Justice Gorsuch concluded that subsection (k) is unconstitutional under
Alleyne because it requires “a substantial increase in the minimum sentence to which
a defendant may be exposed based only on judge-found facts under a preponderance
standard.” Id. at 2382. Justice Gorsuch explicitly did not decide whether
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subsection (k) implicates Apprendi, explicitly did not decide whether subsection (e)
is consistent with Apprendi, and explicitly did not express a view on subsection (g).
Id. at 2382 n.7. Justice Breyer concurred in the judgment. Although he “would not
transplant the Apprendi line of cases to the supervised-release context,” id. at 2385,
he nevertheless agreed that subsection (k) is unconstitutional, citing the combination
of three of its aspects:
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 committed any listed criminal
offense.
Id. at 2386 (internal quotation marks omitted).
In their discussions of Haymond II, the parties dispute whether, and to what
extent, Justice Breyer’s concurrence represents Haymond II’s holding. “When a
fragmented Court decides a case and no single rationale explaining the result enjoys
the assent of five Justices, the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrowest grounds.”
Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted).
The Marks rule yields a determinate holding, however, “only when one opinion is a
logical subset of other, broader opinions.” United States v. Carrizales-Toledo,
454 F.3d 1142, 1151 (10th Cir. 2006) (internal quotation marks omitted). “When the
plurality and concurring opinions take distinct approaches, and there is no narrowest
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opinion representing the common denominator of the Court’s reasoning,
then Marks becomes problematic.” Id. (internal quotation marks omitted). And we
“do not apply Marks when the various opinions supporting the Court’s decision are
mutually exclusive.” Id.
Justice Gorsuch’s plurality opinion and Justice Breyer’s concurring opinion
are not mutually exclusive. Justice Gorsuch opined that Justice Breyer’s second and
third reasons for his concurrence “amount to the same thing,” which Justice Gorsuch
agreed “is indeed a problem.” Haymond II, 139 S. Ct. at 2384 n.9. But he wondered
why Justice Breyer’s first reason should matter. Id. Because Justice Gorsuch’s
opinion agreed that two of Justice Breyer’s reasons revealed a problem with
subsection (k) and that his other reason should not matter, Justice Breyer’s opinion is
narrower than Justice Gorsuch’s. We therefore conclude, as have several other
opinions, that Justice Breyer’s opinion controls. See id. at 2386 (Alito, J., dissenting)
(stating that the holding “is set out in” Justice Breyer’s opinion); United States v.
Garner, 969 F.3d 550, 552 (5th Cir. 2020); United States v. Seighman, 966 F.3d 237,
242 (3d Cir. 2020); United States v. Coston, 964 F.3d 289, 295 (4th Cir. 2020);
United States v. Doka, 955 F.3d 290, 296 (2d Cir. 2020); United States v. Watters,
947 F.3d 493, 497 (8th Cir. 2020).
With these principles in mind, we turn to Mr. Ewing’s arguments.
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III. Analysis
A. Standard of Review
The parties agree that Mr. Ewing did not raise his arguments in the district
court and that, as a result, we should review the arguments for plain error. The
plain-error standard requires us to vacate a sentence only if “(1) there is error;
(2) that is plain; (3) that affects substantial rights, or in other words, affects the
outcome of the proceeding; and (4) substantially affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Chavez, 723 F.3d 1226,
1232 (10th Cir. 2013). “An error is plain if it is clear or obvious under current,
well-settled law. In general, for an error to be contrary to well-settled law, either the
Supreme Court or this court must have addressed the issue.” United States v.
DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012) (internal quotation marks
omitted).
B. Mr. Ewing’s Apprendi Argument
Mr. Ewing contends that the district court violated his Fifth and Sixth
Amendment rights under Apprendi by conducting his revocation proceedings
according to 18 U.S.C. § 3583, which permitted the court to impose prison terms that,
combined with his prior prison sentences, exceed the statutory maximum for his
offenses of conviction without requiring a jury to find violations beyond a reasonable
doubt. In his opening brief, Mr. Ewing leans on Haymond II, asserting that his
argument “is consistent with the plurality’s opinion.” Aplt. Opening Br. at 15. In his
reply brief, however, he concedes that Haymond II contains no binding precedent
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establishing that Apprendi applies to supervised-release revocations. Aplt. Reply Br.
at 10. In the end, Mr. Ewing has not presented any binding authority holding that
Apprendi applies to revocation proceedings even when, as here, the initial and
post-revocation sentences add up to a term that exceeds the statutory maximum term
for the crime of conviction. We are left, then, with our precedent declining to apply
Apprendi to supervised-release proceedings and holding that a defendant in
revocation proceedings under 18 U.S.C. § 3583(e)(3) is not entitled to a jury
trial or to have violations proved beyond a reasonable doubt. Cordova, 461 F.3d
at 1186–90.2 So Mr. Ewing has not shown that the district court committed error at
all, much less obvious error, by conducting his revocation proceedings according to
18 U.S.C. § 3583.
C. Mr. Ewing’s Challenge to Subsection (g)
Mr. Ewing contends that subsection (g) is unconstitutional because it required
the district court to revoke his supervised release and impose incarceration based on
facts not found by a jury beyond a reasonable doubt.
2
To the extent Mr. Ewing argues otherwise, our decision in United States v.
Haymond, 869 F.3d 1153 (10th Cir. 2017) (Haymond I), vacated by Haymond II,
139 S. Ct. at 2385, does not give him a path around Cordova. For one thing, the
Supreme Court vacated our judgment, 139 S. Ct. at 2385, thereby depriving our
“opinion of precedential effect,” O’Connor v. Donaldson, 422 U.S. 563, 577 n.12
(1975). And for another, Haymond I did not conclude that Apprendi governs
supervised-release proceedings. See Haymond I, 869 F.3d at 1163 (concluding that
Apprendi and Alleyne apply to “criminal prosecutions” while United States v. Booker,
543 U.S. 220 (2005), “applies to sentencing”).
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Applying Justice Breyer’s analysis from Haymond II, we conclude that
Mr. Ewing has not shown plain error because of significant differences between
subsection (k) and subsection (g). Although subsection (g) applies to some conduct
that amounts to a federal crime—such as possessing a firearm in violation of federal
law—in contrast to subsection (k), it does not apply “only when a defendant commits
a discrete set of federal criminal offenses.” Haymond II, 139 S. Ct. at 2386 (Breyer,
J., concurring). Moreover, subsection (g) curtails a district court’s discretion to
impose incarceration to a much smaller degree, and in a different way, than does
subsection (k). Subsection (k) requires a prison sentence of at least five years.
Subsection (g), however, requires a prison sentence of only one day and limits the
prison term based on the seriousness of the crime of conviction. For these reasons,
Justice Breyer’s analysis of subsection (k) does not make it clear or obvious that
subsection (g) is unconstitutional. See Garner, 969 F.3d at 553 (holding
“that Subsection (g) is not unconstitutional under Haymond”); Seighman, 966 F.3d
at 242–44 (applying Justice Breyer’s analysis of subsection (k) and rejecting a
constitutional challenge to subsection (g)); Coston, 964 F.3d at 296 (rejecting the
defendant’s plain-error challenge to subsection (g) because it “likely does not meet
Justice Breyer’s controlling test”). For these reasons, we reject Mr. Ewing’s
plain-error challenge to subsection (g).
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IV. Conclusion
We affirm the district court’s judgment.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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