United States v. George Ward , 770 F.3d 1090 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4683
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE A. WARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:94-cr-00070-HCM-1)
Argued: September 19, 2014 Decided: November 3, 2014
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Robert Edward Bradenham,
II, OFFICE OF THE UNITED STATES ATTORNEY, Newport News,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Richard J.
Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Katharina J. Rienks,
Third Year Law Student, WILLIAM & MARY LAW SCHOOL, Williamsburg,
Virginia, for Appellee.
2
BARBARA MILANO KEENAN, Circuit Judge:
George A. Ward appeals from the district court’s judgment
sentencing him to a term of 20 months’ imprisonment for
violating the conditions of his supervised release. This
sentence was the mandatory minimum term required by a former
version of the supervised release statute, 18 U.S.C. § 3583(g),
which Congress amended in 1994 to eliminate the statute’s
mandatory minimum sentencing provision. The amended statute was
enacted after Ward committed the underlying offenses for which
he was originally convicted, but before he engaged in the
conduct that led to the revocation of his supervised release.
On appeal, Ward argues that the district court erred in
failing to apply the amended version of Section 3583(g). Ward
also argues that his mandatory minimum sentence violates the
Sixth Amendment, as construed in Alleyne v. United States, 133
S. Ct. 2151 (2013), because the sentence was imposed based on
factual findings made by a judge by a preponderance of the
evidence, rather than by a jury under the standard of beyond a
reasonable doubt.
Upon our review, we conclude that the district court
correctly applied the former version of Section 3583(g), because
that version of the statute was in effect when Ward committed
the underlying crimes. We further conclude that Alleyne, which
affords certain constitutional protections when a mandatory
3
minimum sentence is at issue in a criminal trial, does not apply
in the context of supervised release revocation proceedings.
Accordingly, we affirm the district court’s judgment.
I.
In December 1994, Ward pleaded guilty to several felony
charges, including three counts of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924,
two counts of distribution of crack cocaine, in violation of 21
U.S.C. § 841, and one count of use of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
The district court sentenced Ward to a prison term of 260
months, followed by a five-year period of supervised release.
Among other things, the conditions of Ward’s supervised release
prohibited him from illegally possessing a controlled substance.
Ward’s prison term ultimately was reduced by the district
court to 200 months, 1 but the court expressly left intact the
original duration and conditions of Ward’s supervised release.
When Ward was released from prison in October 2010, he began his
five-year term of supervised release.
1
The reduction in Ward’s prison sentence occurred as a
result of this Court’s unpublished order vacating Ward’s
conviction for violating 18 U.S.C. § 924(c), as well as the
district court’s application of 18 U.S.C. § 3582 concerning
retroactive amendments to the United States Sentencing
Guidelines for crack cocaine offenses.
4
In April 2013, the government filed a petition in the
district court seeking to revoke Ward’s supervised release. The
government alleged that Ward violated his conditions of release
by testing positive for cocaine on four occasions, and positive
for marijuana on two occasions. 2 The government later
supplemented its revocation petition, alleging three additional
instances in which Ward had tested positive for cocaine.
At a hearing on the government’s petition, Ward admitted
that he had possessed cocaine and marijuana on numerous
occasions during his supervised release term. At the conclusion
of the evidence, the district court revoked Ward’s supervised
release, finding that Ward had violated the conditions of his
release.
In determining Ward’s sentence, the district court first
addressed which version of 18 U.S.C. § 3583(g) applied. Under
the version of Section 3583(g) in effect when Ward committed the
underlying crimes, Ward was subject to a mandatory minimum
sentence of one-third of his supervised release term, because
his violation was based on his illegal possession of controlled
substances. See 18 U.S.C. § 3583(g) (1993 ed.) (“If the
defendant is found by the court to be in the possession of a
2
The government also alleged, and Ward admitted during the
revocation hearing, that he violated the conditions of his
supervised release by submitting untimely reports to his
probation officer.
5
controlled substance, the court shall terminate the term of
supervised release and require the defendant to serve in prison
not less than one-third of the term of supervised release.”).
Thus, in this case, application of former Section 3583(g)
required a sentence of at least 20 months’ imprisonment based on
the original five-year term of supervised release.
Congress amended former Section 3583(g) in September 1994,
eliminating the mandatory minimum sentencing provision. See
Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
103-322, § 110505(3), 108 Stat. 1796. Ward argued that he
should be sentenced under the amended statute, which was in
effect both when the court imposed Ward’s original sentence and
when he violated the supervised release conditions.
The district court held that it was bound by the former
version of the statute. The court sentenced Ward to the
mandatory minimum prison term of 20 months, stating, “I’m not
imposing 20 months based on the fact that I have the discretion
to do that for this violation, I’m imposing it because the
[c]ourt believes it’s mandatory. And if it wasn’t mandatory I
wouldn’t impose a sentence that severe.” Ward filed a timely
notice of appeal.
6
II.
We first address Ward’s argument that the district court
erred in applying the former version of Section 3583(g) when
imposing the sentence for his supervised release violation.
Ward contends that the former version of the statute was not
applicable because the statute was amended before he originally
was sentenced and before he committed the acts in violation of
his conditions of release. We review de novo this issue of law.
See United States v. Fareed, 296 F.3d 243, 245 (4th Cir. 2002).
A.
We conclude that under the Supreme Court’s decision in
Johnson v. United States, 529 U.S. 694 (2000), the district
court properly applied former Section 3583(g) in determining
Ward’s revocation sentence. In Johnson, the Court addressed
whether a provision of former Section 3583 that had not been
enacted at the time of the petitioner’s underlying offense was
applicable in his supervised release revocation proceeding, when
his conduct in violation of the conditions of release occurred
after the statute was amended. 3 529 U.S. at 697-702. The Court
3
The decision in Johnson concerned subsection (h) of 18
U.S.C. § 3583, which was enacted at the same time subsection (g)
was amended in 1994. Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. 103-322, § 110505(3), 108 Stat. 1796.
Section 3583(h) expressly authorizes the district court to
impose an additional term of supervised release as part of the
sentence in a revocation proceeding. Johnson, 529 U.S. at 698.
7
held that the defendant was subject to the sentencing provisions
of the pre-amendment statute in effect when the initial offense
was committed. Id. at 701-02.
In reaching its conclusion in Johnson, the Court expressly
rejected the argument that revocation and reimprisonment should
be characterized as punishment for a violation of the conditions
of supervised release. Id. at 700-01. Instead, the Court held
that “postconviction penalties relate to the original offense.”
Id. at 701.
In light of this conclusion, the Court considered whether
Congress intended that the amended version of Section 3583 apply
retroactively. The Court analyzed this question under the well-
established presumption that legislation will not be given
retroactive effect unless Congress clearly manifested such an
intent. Id. The Court noted the absence of any clear
congressional intent, and accordingly held that amended Section
3583(h) “applies only to cases in which that initial offense
occurred after the effective date of the amendment.” Id. at
702.
In the present case, Ward committed his underlying offenses
between December 1993 and June 1994, before Congress amended
former Section 3583 in September 1994. Thus, absent clear
congressional intent to the contrary, the former version of
8
Section 3583(g) was controlling in Ward’s supervised release
revocation proceeding. See id.There is no evidence that Congress intended the amended
version of Section 3583(g) to have retroactive application.
Fareed, 296 F.3d at 245 n.2 (“Congress provided no indication
that it intended the 1994 amendments [to former Section 3583(g)]
to apply retroactively.”). 4 And, notably, Ward does not provide
any authority supporting a different conclusion.
The fact that Ward was not sentenced for his crimes until
after the statute was amended is immaterial because the
“relevant conduct” in determining whether former Section 3583(g)
applies is the “initial offense.” Johnson, 529 U.S. at 702.
The Second Circuit emphasized this point in a case involving the
same issue before us regarding mandatory minimum revocation
sentences required by former Section 3583(g). In United States
v. Smith, 354 F.3d 171, 174 (2d Cir. 2003), the Second Circuit
explained that it was irrelevant that the defendant’s
4
The issue in Fareed involved the district court’s
application of former Section 3583 as a basis for imposing an
additional period of supervised release as part of a sentence
for violating the conditions of the defendant’s initial period
of supervised release. 296 F.3d at 245. We observed that the
district court’s authority to impose an additional term of
supervised release was clear under Section 3583(g) as amended in
1994. Id. at 245 n.2. However, we held that the former version
of the statute, which was in effect when the defendants
committed the underlying offenses, applied because there was no
indication that Congress intended that the amended statute apply
retroactively. Id. (citing Johnson, 529 U.S. at 701-02).
9
resentencing occurred after the enactment of the amendment
because, under Johnson, “the date on which the original offense
is committed, not the date on which the defendant is sentenced
for that offense, determines which version of a statute
applies.” 5 We agree with the Second Circuit’s reasoning in
Smith, which expressly applied the Supreme Court’s directive in
Johnson that the “relevant conduct is the initial offense” in
assessing which version of Section 3583 governs at a supervised
release revocation proceeding. 529 U.S. at 702; see also United
States v. Perry, 743 F.3d 238, 240 (7th Cir. 2014) (holding that
the statute in effect on the date the defendant commits the
underlying offense governs the sentence available in a
supervised release revocation hearing).
B.
We next conclude that the federal Savings Statute, 1 U.S.C.
§ 109, also required that the district court apply former
5
Ward further attempts to distinguish Johnson on the basis
that application of the amended Section 3583(h) in Johnson would
have burdened that defendant, thus raising potential issues
concerning the Constitution’s Ex Post Facto Clause, whereas the
amended version of Section 3583(g) at issue here would benefit
Ward. However, as noted by the Second Circuit in Smith, the
Supreme Court acknowledged but did not reach the ex post facto
issue in Johnson. See Smith, 354 F.3d at 174. Instead, the
Court decided the issue based on the lack of congressional
intent concerning retroactivity and the principle that
supervised release sanctions are part of the punishment for the
original offense. Johnson, 529 U.S. at 700-03.
10
Section 3583(g). The Savings Statute provides, in relevant
part:
The repeal of any statute shall not have the effect to
release or extinguish any penalty, forfeiture, or
liability incurred under such statute, unless the
repealing Act shall so expressly provide, and such
statute shall be treated as still remaining in force
for the purpose of sustaining any proper action or
prosecution for the enforcement of such penalty,
forfeiture, or liability.
1 U.S.C. § 109 (emphasis added). Under the Savings Statute,
absent a clear indication from Congress of retroactive
application, a defendant is not entitled to “application of
ameliorative criminal sentencing laws repealing harsher ones in
force at the time of the commission of an offense.” Warden,
Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974).
Although the language of the Savings Statute refers to the
“repeal” of statutes, the Savings Statute also applies in
considering the application of statutory amendments. United
States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011).
Ward maintains, however, that the Savings Statute did not
apply in his case, because he had not “incurred” any penalty
before the mandatory minimum provision of former Section 3583(g)
was eliminated. We disagree.
Under the Savings Statute, a penalty is “incurred” under a
former statute “when an offender becomes subject to [the
penalty], i.e., commits the underlying conduct that makes the
11
offender liable.” Dorsey v. United States, 132 S. Ct. 2321,
2331 (2012). As discussed above, in the context of a supervised
release revocation proceeding, the “relevant conduct” is the
initial offense, not the conduct in violation of the conditions
of supervised release. Johnson, 529 U.S. at 701-02; see also
Smith, 354 F.3d at 175 (citing United States v. Ross, 464 F.2d
376, 379 (2d Cir. 1972)). Thus, Ward “incurred” all penalties
relating to his offenses, including the penalties imposed
because he later violated the conditions of his supervised
release, at the time he committed his original offenses between
December 1993 and June 1994 when former Section 3583(g) was in
effect. Accordingly, we conclude that, in the present case, the
Savings Statute preserved the mandatory minimum punishment
provision of former Section 3583(g). See Smith, 354 F.3d at
175.
Our conclusion is not altered by the Supreme Court’s
holding in Dorsey. There, the Court held that the Savings
Statute did not bar application of reduced penalties for
defendants who were convicted of crack cocaine offenses before
the enactment of the Fair Sentencing Act (FSA), but who were not
sentenced until after its enactment. 6 132 S. Ct. at 2326. The
6
The FSA increased the amount of crack cocaine required to
impose certain mandatory minimum sentences, thereby reducing the
crack-to-powder cocaine disparity from 100-to-1 to 18-to-1.
(Continued)
12
Court in Dorsey applied the principle, consistent with the
Savings Statute itself, that a new criminal law providing more
lenient penalties may be applied retroactively if it is clear
that Congress intended this result. 132 S. Ct. at 2331-32. The
Court explained that the ameliorative provision of the FSA could
be applied in sentencing such defendants, given “congressional
intent as revealed in the Fair Sentencing Act’s language,
structure, and basic objectives.” 7 Id. at 2326.
Unlike the clear intent of Congress expressed in the FSA,
the amendments to Section 3583 do not evidence any clear
congressional intent providing for retroactive application of
the amended statute. See Johnson, 529 U.S. at 701-02; Fareed,
296 F.3d at 245 n.2. Accordingly, the district court did not
err in applying the former version of Section 3583(g) in
Dorsey, 132 S. Ct. at 2326, 2329. The FSA thus resulted in
lesser sentences for many defendants convicted of crack cocaine
offenses than under the law before the FSA’s enactment.
7
The Court examined six factors in Dorsey, several of which
were particular to the FSA, and concluded that these factors
taken together showed clear congressional intent that the FSA
apply to defendants who committed an offense before, but were
sentenced after, the FSA’s enactment. 132 S. Ct. at 2331-35.
Included among these factors was language in the FSA that gave
the United States Sentencing Commission “[e]mergency
[a]uthority” quickly to promulgate amendments to the sentencing
guidelines that would “achieve consistency” with the more
lenient penalties for crack cocaine offenses under the FSA. Id.
at 2332-33 (citations and internal quotation marks omitted).
13
determining Ward’s sentence at the supervised release revocation
proceeding.
III.
Ward next argues that the district court’s application of
the mandatory minimum provision in former Section 3583(g)
violated his Sixth Amendment rights, because the factual
findings required to impose that sentence were not made by a
jury applying the standard of beyond a reasonable doubt. We
review de novo this question of law. See Fareed, 296 F.3d at
245.
At the outset, we observe that the Supreme Court in Johnson
stated that a violation of the conditions of supervised release
“need only be found by a judge under a preponderance of the
evidence standard, not by a jury beyond a reasonable doubt.”
529 U.S. at 700 (citing 18 U.S.C. § 3583(e)(3)). However, the
decision in Johnson was issued about two months before the
Supreme Court released its seminal decision in Apprendi v. New
Jersey, in which the Court held that any fact in a criminal
trial that increases the statutory maximum penalty must be
submitted to a jury and proved beyond a reasonable doubt. 530
U.S. 466, 476 (2000). The decision in Johnson also was issued
twelve years before the decision in Alleyne, in which the Court
extended the Apprendi holding to require a jury determination
14
under the standard of beyond a reasonable doubt for any factual
finding in a criminal trial that requires imposition of a
statutory mandatory minimum sentence. 133 S. Ct. at 2162-63.
We therefore turn to consider whether the holding in
Alleyne applies in the context of a supervised release
revocation hearing. This issue presents a question of first
impression in the federal courts of appeal.
One of the most fundamental constitutional protections
afforded to a defendant in a criminal trial is the right to a
trial by jury, in which the government bears the burden of
proving its case beyond a reasonable doubt. See Sullivan v.
Louisiana, 508 U.S. 275, 277-78 (1993) (characterizing the right
to a trial by jury under the standard of beyond a reasonable
doubt as central to the “American scheme of justice” and noting
the origin of the right in the Fifth and Sixth Amendments).
This fundamental protection is the basis of the Supreme Court’s
holdings in Apprendi and Alleyne. In those cases, the Court
recognized the core principle that, in a criminal prosecution,
each “element of a crime” must be submitted to a jury and proved
beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2156;
Apprendi, 530 U.S. at 490.
In Apprendi, the Court applied that principle in holding
that any fact increasing the statutory maximum penalty to which
a defendant is exposed is an element of the offense and, thus,
15
must be submitted to a jury and proved beyond a reasonable
doubt. 530 U.S. at 477, 490. The decision in Alleyne relied
almost exclusively on Apprendi, and extended the Apprendi
holding to require that a jury determine beyond a reasonable
doubt any fact requiring imposition of a mandatory minimum
sentence. Alleyne, 133 S. Ct. at 2158 (holding that “Apprendi’s
definition of ‘elements’ necessarily includes not only facts
that increase the ceiling, but also those that increase the
floor”).
In considering whether the Alleyne holding applies to a
mandatory minimum sentence imposed in a supervised release
revocation proceeding, we observe that in contrast to the
criminal trials at issue in Alleyne and Apprendi, supervised
release revocation proceedings are not considered part of a
criminal prosecution. See, e.g., United States v. Phillips, 640
F.3d 154, 157 (6th Cir. 2011); United States v. House, 501 F.3d
928, 931 (8th Cir. 2007); United States v. Carlton, 442 F.3d
802, 807-08 (2d Cir. 2006); United States v. Tippens, 39 F.3d
88, 89 (5th Cir. 1994); see also Morrissey v. Brewer, 408 U.S.
471, 480 (1972) (noting that a parole revocation hearing is not
part of a criminal prosecution); Gagnon v. Scarpelli, 411 U.S.
778, 781-82 (1973) (discussing Morrissey and holding that
probation revocation is not a stage of a criminal prosecution);
United States v. Ferguson, 752 F.3d 613, 616 (4th Cir. 2014)
16
(applying Morrissey in the context of supervised release
revocation). Accordingly, the present question arises in a
critically different context than the criminal prosecutions at
issue in Apprendi and Alleyne.
The distinction between a criminal prosecution and a
supervised release revocation proceeding extends beyond mere
labels. In contrast to a criminal trial, a supervised release
revocation hearing is a less formal proceeding in which the
violative conduct need not be criminal in nature. See Johnson,
529 U.S. at 700; Ferguson, 752 F.3d at 616 (stating that
“[r]evocation hearings are less formal than trials of guilt”);
United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991)
(observing that “revocation hearings are more flexible than a
criminal trial”); see also Black v. Romano, 471 U.S. 606, 613
(1985) (discussing “flexible, informal nature” of revocation
hearings for probation violations).
Courts consistently have held that the constitutional
protections afforded in a criminal trial are not co-extensive
with the rights applicable in post-conviction proceedings such
as supervised release revocation hearings. For example, courts
have held that the Sixth Amendment’s Confrontation Clause, as
construed in Crawford v. Washington, 541 U.S. 36 (2004), does
not apply in supervised release revocation proceedings. See,
e.g., United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008);
17
United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006).
Likewise, courts have held that the Sixth Amendment right to a
speedy trial does not apply in the context of a supervised
release revocation hearing. 8 See, e.g., House, 501 F.3d at 931;
Tippens, 39 F.3d at 89.
These holdings are grounded in the Supreme Court’s decision
in Morrissey, in which the Court held that “the full panoply of
rights due a defendant in [a criminal prosecution] does not
apply to parole revocations” because such revocation proceedings
are not part of a criminal prosecution. 9 408 U.S. at 480.
Instead, the Court identified a limited set of constitutional
protections that apply in a revocation proceeding. 10 Id. at 489.
8
Although there is no constitutional basis for these rights
in a revocation proceeding, we note that these rights are
addressed to some degree by Rule 32.1 of the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 32.1(b)(2) (specifying
that the revocation hearing should be held “within a reasonable
time,” and allowing a limited right to question adverse
witnesses “unless the court determines that the interest of
justice does not require the witness to appear”).
9
See also United States v. Woodrup, 86 F.3d 359, 361-62
(4th Cir. 1996) (citing Morrissey and stating that “the full
panoply of constitutional protections afforded a criminal
defendant is not required for the revocation of supervised
release”); Ray, 530 F.3d at 668 (same); Kelley, 446 F.3d at 691(same); Carlton, 442 F.3d at 807 (same).
10
The constitutional protections identified by the Court in
Morrissey include: “(a) written notice of the claimed violations
of parole; (b) disclosure to the parolee of evidence against
him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront
(Continued)
18
This limited set of constitutional protections identified in
Morrissey does not include the right to have a jury determine
relevant facts beyond a reasonable doubt. Cf. Minnesota v.
Murphy, 465 U.S. 420, 435 n.7 (1984) (stating that “there is no
right to a jury trial before probation may be revoked”).
In addition to the distinction the Court drew in Morrissey
between the nature of a criminal prosecution and a revocation
hearing, the Court also recognized that “[r]evocation deprives
an individual, not of the absolute liberty to which every
citizen is entitled, but only of the conditional liberty
properly dependent on observance” of the conditions imposed upon
the individual’s release from prison. 408 U.S. at 480 (emphasis
added). Like parolees, individuals on supervised release also
enjoy only “conditional liberty” because they already have been
convicted of the underlying criminal offense. See Carlton, 442
F.3d at 810; see also United States v. McIntosh, 630 F.3d 699,
703 (7th Cir. 2011); United States v. Cunningham, 607 F.3d 1264,
1268 (11th Cir. 2010); United States v. Cordova, 461 F.3d 1184,
1187 (10th Cir. 2006). In contrast, the criminal defendants in
and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation);
(e) a ‘neutral and detached’ hearing body such as a traditional
parole board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking parole.” 408
U.S. at 489.
19
Apprendi and Alleyne had not been made subject to such
“conditional liberty.”
We conclude that the conditional liberty to which those
under supervised release are subject entails the surrender of
certain constitutional rights, including any right to have the
alleged supervised release violation proved to a jury beyond a
reasonable doubt. See Carlton, 442 F.3d at 809 (holding that “a
sentence of supervised release by its terms involves a surrender
of certain constitutional rights and this includes surrender of
the due process rights articulated in Apprendi and its
progeny”); see also McIntosh, 630 F.3d at 703 (an individual on
supervised release enjoys only “conditional liberty” and has no
right to a jury trial in a supervised release revocation
proceeding); Cunningham, 607 F.3d at 1268 (same). We are
unaware of any court that has reached a different conclusion.
On the contrary, our sister circuits uniformly have rejected
arguments seeking to extend the holding in Apprendi to require
trial by jury under the standard of beyond a reasonable doubt in
a supervised release revocation hearing. See McIntosh, 630 F.3d
at 702-03; Cunningham, 607 F.3d at 1267-68; United States v.
Dees, 467 F.3d 847, 854-55 (3d Cir. 2006); Cordova, 461 F.3d at
1186-88; United States v. Huerta-Pimental, 445 F.3d 1220, 1222-
25 (9th Cir. 2006); Carlton, 442 F.3d at 807-10; United States
20
v. Hinson, 429 F.3d 114, 118-19 (5th Cir. 2005); United States
v. Work, 409 F.3d 484, 489-92 (1st Cir. 2005).
We acknowledge that these cases were decided before Alleyne
and do not involve the imposition of a mandatory minimum
sentence. 11 Nevertheless, because the Alleyne decision is based
almost entirely on the reasoning and holding in Apprendi, we
conclude that our decision here properly is informed by the
holdings of our sister circuits rejecting application of
Apprendi in the supervised release revocation context.
Our sister circuits’ decisions also are consistent with
Morrissey and Johnson by holding that a defendant in a post-
conviction revocation proceeding does not have a constitutional
right to trial by jury under the standard of beyond a reasonable
doubt. The core principle of Alleyne is that such a
constitutional right exists as a fundamental protection in a
11
As Ward observes, our sister circuits additionally noted
in a few of these cases that a judicial finding that the
defendant violated the conditions of supervised release does not
require application of Apprendi and its progeny because a judge
generally retains discretion under 18 U.S.C. § 3583(e)(3) to
determine the appropriate sentence. Although there was no such
judicial discretion in the present case, we nevertheless rely on
those decisions of our sister circuits because their reasoning
primarily involved the limited “panoply of rights” applicable in
supervised release revocation proceedings. See Dees, 467 F.3d
at 854-55; Cordova, 461 F.3d at 1186-88; Carlton, 442 F.3d at
807-10; Hinson, 429 F.3d at 118-19; Work, 409 F.3d at 489-92;
see also McIntosh, 630 F.3d at 702-03 (not mentioning district
court’s general discretion under Section 3583(e)); Cunningham,
607 F.3d at 1267-68 (same).
21
criminal trial, 133 S. Ct. at 2156, and the Court’s holding
providing for a jury determination of facts required for
imposition of a mandatory minimum sentence was a straightforward
application of that principle. Because a supervised release
revocation proceeding is not a criminal prosecution, we conclude
that Alleyne’s protections are inapplicable in the present
context. 12
IV.
In sum, we hold that the district court did not err in
applying the former version of Section 3583(g) in Ward’s
supervised release revocation proceeding. We further hold that
Ward’s Sixth Amendment rights were not violated when the court,
rather than a jury, determined that Ward possessed a controlled
substance in violation of his supervised release conditions.
Accordingly, we affirm the district court’s judgment.
AFFIRMED
12
We find no merit in Ward’s contention that we should
construe former Section 3583(g) as merely advisory for remedial
purposes.
22