Does United States v. Haymond Impact Probation and Post-Release Supervision in North Carolina?

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In United States v. Haymond, 139 S. Ct. 2369 (2019), a divided Supreme Court concluded that a federal statute was unconstitutional to the extent that it exposed the defendant to additional mandatory imprisonment based on a judicial finding that he had violated his supervised release. Does the case have implications for probation and post-release supervision hearings in North Carolina?

In Haymond, the defendant was convicted of possession of child pornography—a crime punishable by up to 10 years in prison under federal law—and sentenced to 38 months of imprisonment followed by 10 years of supervised release. Supervised release is term of community supervision somewhat similar to post-release supervision in North Carolina’s state system. While on supervised release, he “encountered trouble,” slip op. at 2, when government officers found apparent child pornography on his computer and cellphone and sought revocation of his supervised release.

A judge holding a supervised release violation hearing ordinarily would have discretion to revoke supervised release and order a defendant reimprisoned for a period up to a maximum period set by statute. 18 U.S.C. § 3583(e)(3). That period typically would have been two years in Mr. Haymond’s case. However, Haymond was subject to a separate supervised release rule that applies to certain sex offenders. That rule, codified in 18 U.S.C. § 3583(k), says a judge must revoke supervised release and must impose additional imprisonment of at least 5 years and up to life for covered supervisees who violate their conditions of release by committing certain enumerated offenses (including possession of child pornography). The finding of violation is made by a judge, not a jury, and by a mere preponderance of the evidence, not beyond a reasonable doubt.

And that is what happened in Mr. Haymond’s case: a federal district court judge found by a preponderance of the evidence that Haymond violated his supervised release by committing an offense covered under § 3583(k), and thus imposed an additional prison term of 5 years.

On appeal, the Tenth Circuit concluded that § 3583(k) violated the Fifth and Sixth Amendments to the extent that it exposed the defendant to a “new and higher mandatory minimum” based solely on facts found by a judge. Slip op. at 4. The Supreme Court granted cert.

Five justices agreed that § 3583(k) is unconstitutional. Justice Gorsuch wrote for a four-justice plurality (himself and Justices Ginsburg, Sotomayor, and Kagan), concluding that the mandatory 5-year term triggered by the district judge’s preponderance-of-the-evidence finding of violation was functionally indistinguishable from the type of non-jury factfinding triggering a mandatory minimum term of imprisonment at sentencing—a practice deemed unconstitutional in Alleyne v. United States, 570 U.S. 99 (2013). If the facts in question increase “the legally prescribed range of allowable sentences,” then they must, under the Fifth and Sixth Amendments, be proved to a jury beyond a reasonable doubt.

The plurality noted that supervised release is different from traditional probation and parole, in that violations of those forms of supervision expose a defendant only to the prison term already authorized by the jury’s initial determination of guilt (or plea). By contrast, under supervised release as governed by § 3583(k), a defendant’s mandatory sentence exposure is increased based on a judge-found fact.

Justice Breyer authored an opinion concurring in the judgment—that § 3583(k) is unconstitutional—but without applying Alleyne or any of the Apprendi v. New Jersey, 530 U.S. 466 (2000), line of cases to reach that result. Instead, he wrote that § 3583(k) is really functioning “less like ordinary revocation and more like punishment for a new offense”—to which the jury right would obviously attach. Slip op. at 2 (Breyer, J., concurring). A combination of three factors unique to § 3583(k) informed his thinking: (1) that it applies only when a defendant is found to have committed a discrete set of federal crimes, (2) that revocation is mandatory upon such a finding, and (3) that the period of the revocation is subject to a mandatory minimum term of imprisonment. The four-justice plurality and Justice Breyer agreed that the case should be remanded for the lower courts to address the question of the proper remedy for the constitutional infirmity.

As discussed in Justice Alito’s dissent, parts of the plurality opinion could leave all federal supervised release proceedings on somewhat shaky constitutional footing. But what impact—if any—might the decision have on North Carolina’s various forms of community-based supervision?

Whether in the context of probation, post-release supervision, or parole, we don’t have anything quite like § 3583(k). In North Carolina, a defendant’s maximum sentence exposure in any context is known at sentencing—whether through the suspended term of imprisonment in a probation case; the extra 9, 12, or 60 months baked into a defendant’s maximum sentence that constitute his or her revocation exposure during PRS; or the maximum term of imprisonment remaining at the point of an early parole. No law extends that maximum for any particular type of violation, and our courts have consistently held that the activation of a suspended term of imprisonment is not additional punishment. See, e.g., State v. Sparks, 182 N.C. App. 45, 48 (2007) (“[A] court’s determination that probation should be revoked does not constitute a new ‘punishment.’”). And no finding of violation triggers a mandatory minimum imposition of any part of the existing sentence. So our revocation law appear sound under the plurality’s application of Apprendi-Alleyne concepts.

That said, there is certainly language in the plurality opinion that could signal a broader application of trial rights to the post-conviction revocation context. The opinion begins with the sweeping statement that “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.” Slip op. at 1. Taken literally, that might suggest that any revocation proceeding could be viewed as requiring more than proof by a preponderance of the evidence to the judge—or to the judge’s “reasonable satisfaction,” which is the standard in North Carolina. As noted by the dissent, there is little functional difference between sentence exposure baked into a single maximum sentence and additional exposure tacked on by way of a separate statute.

The type of North Carolina case that strikes me as most likely to feel an impact from Haymond might be one that falls in a “C” or “C/I” cell on the sentencing grid. In those cases, where no active sentence is allowed at sentencing, it could be said that an additional finding of violation is required to enable the defendant’s full loss of liberty. It doesn’t take much of an extension of the plurality opinion to make the argument that the defendant is therefore entitled to have that finding made by a jury. On the other hand, our approach doesn’t really run afoul of any of the three factors identified in Justice Breyer’s concurrence—in response to a crime, triggering mandatory revocation, with a mandatory minimum imprisonment period—which really sets the limits of the Court’s holding in Haymond.

7 comments on “Does United States v. Haymond Impact Probation and Post-Release Supervision in North Carolina?

  1. There was a time when Bob Farb would answer questions for attorneys at the Institute of Government. He did not pontificate or extrapolate decisions, or dicta within opinions, based on theoretical questions. He really just answered your question. Wow.

    • Wow is right! Excellent summary of the case and possible implications on probation revocations. Thank you for this!!

    • Anyone can reiterate a higher court’s finding. It takes a real understanding of the law to evaluate the impact of that other court’s decision on local legal matters. As always, thanks for your thoughtful consideration and evaluation, Jamie. Well done.

  2. Contrary to jmr, above, I find this a perfectly suitable memorandum of a new SCOTUS case on their long-running struggle with these Apprendi-ish constitutional sentencing issues. There is no reason, that I find in reading the opinion, that a black and white answer to whether there are any implications for NC sentencing should be apparent. There is a lot of language in there. Lawyers could make substantive arguments that there are some problems, or they may concede that the opinion really isn’t trying to address NC style revocation. I’m struggling to envision Professor Farb offering anything different. One of the most helpful aspects of this service is knowing that the Court is messing with the issue at all. As opposed to just reading everything, which I no longer pretend to do…

  3. Didn’t the 4th circuit differentiate NC probationary sentences from the feds, more specifically, post supervision release and the feds supervised release in US v. Simmons? It ruled on possession of gun by felon, but it did analyze probationary sentences, right?

    • This case shot down the federal statutes that controlled the 5 year man minimum for this particular violation of supervised release. There’s not really a NC state equivalent to that but the opinion had to go into trial rights vs. judge found facts – like happens in state rev hearings also.

  4. If comparing to North Carolina procedures, wouldn’t it be advantageous to consider whether a 3-month reimprisonment on a Post-Release case is legal considering the 90 days is not credited to the maximum sentence time and essentially tolling the post-release time, therefore adding 90 additional days to a maximum sentence that has already been set by the sentencing judge?

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