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United States v. Wilson

United States District Court, E.D. Missouri, Eastern Division

June 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY RUSSELL WILSON Defendant.

          REPORT AND RECOMMENDATION AND MEMORANDUM OPINION OF UNITED STATES MAGISTRATE JUDGE

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge for all pretrial matters pursuant to 28 U.S.C.§ 636(b), and is currently before the undersigned on Defendant Anthony Russell Wilson's Motion to Dismiss the Indictment on Grounds of Double Jeopardy (Doc. 43). Specifically, on September 18, 2017, Wilson was arrested for, among other things, felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On November 15, 2017, Wilson was charged in an indictment with one count of being a felon in possession of a firearm based on the September 18th arrest. At the time he was indicted, Wilson was completing a term of supervised release in this Court, Case No. 4:09CR583JAR.[1] As a result of the conduct alleged in the indictment, on March 21, 2018, Wilson's supervised release was revoked pursuant to 18 U.S.C. § 3583(g)(2), which mandates revocation and reimprisonment if a defendant under supervision possesses a firearm in violation of federal law or “otherwise violates a condition of supervised release prohibiting the defendant from possessing a firearm.” Upon revocation, Wilson was sentenced to eighteen months in prison, followed by eighteen months of supervised release.

         In moving to dismiss the indictment on double jeopardy grounds, Wilson argues, first, that his reincarceration pursuant to § 3583(g)(2)'s mandatory revocation provision was a new and separate punishment for his September 2017 conduct. Wilson further argues that the current indictment pending before this Court seeks to punish him for the same September 2017 conduct that resulted in the revocation of his supervised release and, therefore, this prosecution runs afoul of the Double Jeopardy Clause of the Fifth Amendment. The issue of whether the mandatory revocation provision under § 3583(g)(2) constitutes new and separate punishment such that a subsequent prosecution for the same conduct would result in a double jeopardy violation appears to be a matter of first impression in the Eighth Circuit. Because the issue raised by Wilson's motion appears to be novel, and because it appears that Wilson may immediately appeal the denial of a pretrial double jeopardy motion under Abney v. United States, 431 U.S. 651, 660-61 (1977), I agreed with the parties that it seemed prudent to take up Wilson's motion to dismiss on double jeopardy grounds before addressing any of the remaining pending pretrial motions in this case.[2]

         After carefully considering the written submissions of the parties, for the reasons set out below, I find that Defendant has failed to establish that his reincarceration pursuant to § 3583(g)(2) renders the current prosecution violative of the Fifth Amendment's double jeopardy clause.

         I. Discussion

         The Fifth Amendment guarantees that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. “The Fifth Amendment guarantee against double jeopardy . . . has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted). While not explicitly stated, it appears that Wilson maintains that this indictment implicates the third of these protections. However, the state of the law has long been that a violation of the conditions of supervised release does not constitute a new crime, and the revocation of supervised release is not properly considered a new punishment. See Johnson v. United States, 529 U.S. 694, 700 (2000) (“[P]ostrevocation sanctions [are] part of the penalty for the initial offense . . ..”). As the court in United States v. Wyatt stated, “[j]ust as revocation of parole is not intended to serve as punishment for the subsequent misconduct that results in the revocation, revocation of supervised release is similarly designed to meet objectives entirely distinct from punishing the subsequent misconduct.” Wyatt, 102 F.3d 241, 244 (7th Cir. 1996).

         The United States Sentencing Commission has explained that a violation of the conditions of supervised release is considered to be a “breach of trust” and “the sentence imposed upon revocation [of supervised release] is intended to sanction the violator for failing to abide by the conditions of the court-ordered supervision, leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense.” United States Sentencing Commission, Guidelines Manual, Ch. 7 Pt. A § 3(b). Therefore, “because revocation of supervised release amounts only to a modification of the terms of the defendant's original sentence, and does not constitute punishment for the revocation-triggering offense, the Double Jeopardy Clause is not violated by a subsequent prosecution for that offense.”[3] Wyatt, 102 F.3d at 244.

         Moreover, it is well-settled that this maxim does not change if “punishment for a violation of supervised release, when combined with punishment for the original offense, may exceed the statutory maximum for the underlying substantive offense.” United States v. Wirth, 250 F.3d 165, 170 n.3 (2d Cir.2001). In sum, Wilson's Motion stated the law correctly and succinctly when he said that, “jeopardy will not attach if a supervised release revocation causes a modification of the original sentence based on a breach of trust or failure to abide by court supervised conditions because modifying an original sentence for those purposes is not equivalent to punishment for the ‘triggering offense.'” (Doc. 43 at p. 7).

         Although it appears to be well settled that the double jeopardy clause does not apply to post-conviction proceedings such as probation, parole or supervised release revocation hearings, Wilson argues, with some force, that the Tenth Circuit's decision in United States v. Haymond, 869 F.3d 1153 (10th Cir. 2017) calls that well-settled maxim into doubt.[4]

A. United States v. Haymond

         The defendant in Haymond was convicted by a jury of one count of possession and attempted possession of child pornography and was sentenced to thirty-eight months of imprisonment and ten years of supervised release. Haymond, 869 F.3d at 1156. Approximately two years after Haymond began his supervised release, a surprise search of his apartment revealed, among other things, that he possessed child pornography. Id. The district court revoked Haymond's supervised release and, pursuant to 18 U.S.C. § 3583(k), sentenced him to five years' reincarceration to be followed by a five-year term of supervised release. Id.

         Haymond appealed arguing that the evidence was insufficient to show by a preponderance of the evidence that he possessed child pornography and that § 3583(k) violated due process. Id. at 1157. The Tenth Circuit rejected Haymond's argument challenging the sufficiency of the evidence but agreed that § 3583(k) was unconstitutional. Specifically, the court in Haymond held that § 3583(k) “strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range” in violation of the Sixth Amendment. Id. at 1164. This is so, held the Tenth Circuit, because

when Haymond was originally convicted by a jury, the sentencing judge was authorized to impose a term of imprisonment between zero and ten years. After the judge found, by a preponderance of the evidence, however, that Haymond had violated a particular condition of his supervised release, the mandatory provision in ยง 3583(k) required that Haymond be sentenced to a term of reincarceration of at least five years, up to a maximum term of life. This unquestionably increased the mandatory minimum sentence of incarceration ...

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