Submitted: January 14, 2019
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
Wilson's supervised release was revoked under 18 U.S.C.
§ 3583(g)(2) for possession of a firearm. Federal
charges were brought against Wilson for the same conduct that
led to revocation of his release. Wilson claims to raise two
double jeopardy issues on appeal. First, that the district
court erred when it failed to dismiss the indictment because
the sentence revoking Wilson's supervised release was
punishment for the 2017 offense rather than related to his
2009 conviction. Second, the district court erred when it
failed to dismiss the indictment as it subjected Wilson to
multiple punishments for the same conduct in violation of the
Fifth Amendment's protections against double jeopardy.
These claims actually raise a single issue, whether the
district court erred in denying Wilson's motion to
dismiss the indictment on double jeopardy grounds. We hold it
2010, Wilson pled guilty to being a felon in possession of a
firearm and was sentenced to 87 months' imprisonment to
be followed by three years of supervised release. Wilson
began his supervised release in 2016. In October 2017,
Wilson's supervising probation officer filed a petition
for revocation of Wilson's supervision based primarily on
Wilson's September 18, 2017 arrest for unlawful
possession of a firearm. The Grand Jury returned an
indictment charging Wilson with being a felon in possession
of a firearm related to the September 18, 2017 incident in
November 2017. Wilson's revocation proceeded to a hearing
in March 2018. Pursuant to the mandatory revocation provision
of 18 U.S.C. § 3583(g)(2), the district court revoked
Wilson's supervision and sentenced him to 18 months'
imprisonment to be followed by 18 months of supervised
receiving the supervised release revocation sentence, Wilson
moved to dismiss the indictment on double jeopardy grounds,
relying on the decision in United States v. Haymond,
869 F.3d 1153 (10th Cir. 2017), cert. granted, 139
S.Ct. 398 (2018), which concluded that 18 U.S.C. §
3583(k) was unconstitutional. Wilson argued that revocation
of his supervised release under § 3583(g) punished his
new offense rather than his crime of conviction and that the
subsequent criminal prosecution violated the Double Jeopardy
Clause of the Fifth Amendment. The motion to dismiss was
denied by the district court and Wilson appealed.
oral argument, we requested supplemental briefing from the
parties to address the application of the Supreme Court's
recent decision in United States v. Haymond, 139
S.Ct. 2369 (2019).
issue before us is whether the district court erred in
denying Wilson's motion to dismiss the indictment on
double jeopardy grounds. Wilson asserts that the new
prosecution unconstitutionally seeks to punish him for the
same conduct that led to the revocation of his supervised
release and accompanying incarceration. See United States
v. Dixon, 509 U.S. 688, 696 (1993) ("This
protection applies both to successive punishments and to
successive prosecutions for the same criminal
offense."). We review the denial of a motion to dismiss
an indictment de novo. United States v.
Lewis, 844 F.3d 1007, 1010 (8th Cir. 2017).
long been the jurisprudence of this court that the same
conduct can result in both a revocation of a defendant's
supervised release and a separate criminal conviction without
raising double jeopardy concerns. See United States v.
Dang, 907 F.3d 561, 567 (8th Cir. 2018); see also
United States v. Bennett, 561 F.3d 799, 802 (8th Cir.
2009). This is because "supervised release punishments
arise from and are 'treated as part of the penalty for
the initial offense.'" Haymond, 139 S.Ct.
at 2379-80 (quoting Johnson v. United States, 529
U.S. 694, 700 (2000)). "The consequences that flow from
violation of the conditions of supervised release are first
and foremost considered sanctions for the defendant's
'breach of trust' - his 'failure to follow the
court-imposed conditions' that followed his initial
conviction - not 'for the particular conduct triggering
the revocation as if that conduct were being sentenced as new
federal criminal conduct.'" Id. at 2386
(Breyer, J., concurring in the judgment) (quoting U.S.
Sentencing Guidelines Manual ch. 7, pt. A, cmt. 3(b) (U.S.
Sentencing Comm'n 2018)).
relying on Haymond, contends that because his
revocation of supervised release was based on his possession
of a firearm, any criminal prosecution for the same
possession would necessarily violate double jeopardy
prohibitions. See 869 F.3d 1153. This reliance is
misplaced. A plurality of the Supreme Court concluded that 18
U.S.C. § 3583(k) is unconstitutional because judicial
factfinding "increased 'the legally prescribed range
of allowable sentences' in violation of the Fifth and
Sixth Amendments." Haymond, 139 S.Ct. at 2378
(quoting Alleyne v. United States, 570 U.S. 99, 115
(2013)). The plurality did not "express a view" on
the mandatory term of imprisonment set forth in §
3583(g) for certain drug and gun violations. Id. at
2382 n.7. Justice Breyer concurred in the judgment that
§ 3583(k) is unconstitutional, because its features
"more closely resemble the punishment of new criminal
offenses, but without granting a defendant the rights,
including the jury right, that attend a new criminal
prosecution." Id. at 2386 (Breyer, J.,
concurring in the judgment).
18 U.S.C. § 3583(g), if the court finds by a
preponderance of the evidence that a defendant on supervised
release possessed a controlled substance or a firearm,
"the court shall revoke the term of supervised release
and require the defendant to serve a term of imprisonment not
to exceed the maximum term of imprisonment authorized under
subsection (e)(3)." Subsection (e)(3) restricts the term
of additional imprisonment based on the seriousness of the
underlying offense. Id. § 3583(e)(3)
("more than 5 years [for] a class A felony, more than 3
years [for] a class B felony, more than 2 years [for] a class
C or D felony, or more than one year in any other
case."). In contrast, under § 3583(k), if a judge
finds by a preponderance of the evidence that a defendant on
supervised release committed one of several specific offenses
listed in the statute, "the judge must 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, 139 S.Ct. at 2374
(emphasis in original). This type of violation can lead to a
defendant receiving a mandatory minimum sentence "well
beyond that authorized by the jury's
verdict." Id. at 2382 (emphasis in original).
Section 3583(k) is the only subsection requiring "a
substantial increase in the minimum ...