18 U.S.C. § 3583(k) Struck Down

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. Ordinarily the maximum prison term upon revocation of supervised release for Mr. Haymond's original Class C felony was two years under § 3583(e)(3). The 10th finds two constitutional problems with § 3583(k). First, while ordinarily the 6th Amendment doesn't apply to revocation proceedings Booker does impose limits. § 3583(k) deprives the district court of Booker discretion and requires a sentence above Mr. Haymond's minimum of zero prison time for his original offense to a 5-year mandatory minimum based on a judicial finding of fact. Second, § 3583(k) effectively turns a revocation proceeding into a new prosecution without any of the 5th and 6th Amendment protections, like the right to a jury and a finding of guilt beyond a reasonable doubt. Ordinarily, a defendant doesn't have all those protections in a revocation proceeding but § 3583(k) largely punishes the commission of a new criminal offense and requires punishment based on a judicial finding of guilt of a new offense. The maximum punishment is based on the severity of the new crime, not the original crime. The 10th severs § 3583(k) from the rest of the supervised release revocation statute.

The 10th holds that, although this was a close case, there was sufficient evidence to find by a preponderance that Mr. Haymond violated his supervised release conditions by knowingly possessing child porn. The defense expert testified there were several ways the 59 child porn images could have gotten on Mr. Haymond's phone without his knowledge or volitional act: But the evidence the 10th finds sufficient is that Mr. Haymond had nearly exclusive use and possession of the phone; 13 child porn images were accessible on the phone; and the images are child porn consistent with images that formed the basis of Mr. Haymond's original conviction [boys-and-boys or boys-and-men sexual activity]. The 10th points to the expert's testimony that he couldn't rule out the possibility Mr. Haymond saved the images to the gallery cache. The 10th finds it more likely Mr. Haymond downloaded and saved the images, rather than some automatic process caused the child porn to appear on the phone. The 10th does find the district court clearly erred when it found the expert's testimony established Mr. Haymond necessarily took some volitional act related to the gallery images resulting in the images being on the phone.

Judge Kelly dissents. He disagrees with what he considers the majority's clearly erroneous holding. He also is willing to believe § 3583(k) is still just punishing for the breach of trust related to the original conviction. He thinks the majority's reasoning would mean all revocation proceedings are subject to all aspects of the Fifth and Sixth Amendments. Judge Kelly says the 10th shouldn't "jump ahead" of the Supreme Court when it already said in Johnson v. U.S., 529 U.S. 694, 700 (2000), that supervised release revocation proceedings need not be criminal and the judge need only find facts by a preponderance. Such a philosophy would certainly cramp lower courts' ability to address the constitutionality of federal statutes.