Tenth Circuit splits in holding revocation enhancements for SOs unconstitutional

By Robin . . . Splitting two-to-one in a case out of Oklahoma, a panel of the Tenth Circuit Court of Appeals has held that 18. U.S.C. 3583 (k) violates the 5th and 6th Amendments by requiring a revocation judge to impose a longer sentence for the original conviction based on the facts presented for purposes of revocation (and upon which revocation relied). This peculiar enhancement only applied to individuals who were originally convicted of a sexually-based offense and subsequently revoked while serving time on probation.

The italicized language is what the Court struck from 3583 (k):

If a defendant required to register under the Sex Offender Registration and Notification Act commits any criminal offense under chapter 109A, 110, or 117, or section 1201 or 1591, for which imprisonment for a term longer than 1 year can be imposed, the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment under subsection (e)(3) without regard to the exception contained therein. Such term shall be not less than 5 years.  18 U.S.C. § 3583(k) (emphasis added).

The italicized language violates the Constitution by increasing the term of imprisonment authorized by statute based on facts found by a judge, not by a jury beyond a reasonable doubt, and by tying the available punishment to subsequent conduct, rather than the original crime of conviction.  U.S. v. Haymond, No. 16-5156 (10th Cir. 2017) at 25.

For additional analysis by the Court, please visit Sentencing Law and Policy.  

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Robin Vander Wall

As vice chair of NARSOL, Robin is the managing editor of the Digest, director of development, and provides assistance to the webmaster in keeping our websites running smoothly. He also serves as founder and president of Vivante Espero, NARSOL's 501(c)(3) foundation and legal fund.

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    • #20522 Reply

      Basically that provision of law was saying, “We’re going to put the screws to you much more harshly simply because you’re a sex offender (child molester, rapist, etc.) and because we can and get away with it.

      It seems the chokehold the states have on sex offenders is being weakened bit by bit as courts around the nation start applying some long overdue honest jurisprudence.

    • #20549 Reply
      Lori/OK VOICES

      More good news! We should all be encouraged that the Tenth Circuit is addressing the unconstitutionality of laws. This gives me great hope that we are going to see the wording on the Oklahoma driver’s license go away, keep your head up everyone!

    • #20547 Reply
      ronald shaffer

      these draconian laws being imposed requiring one to be imprisoned with out due cause and legal due process is taking our legal system back to the dark ages. Remember the inquisitions? That’s where you are right now. And the lies that we’re told to get our judiciary to inflict these cruel laws were mis interpreted and embellished just to get a conviction. What a shame and what mess you’ve made of things, SHAME ON YOU ALL!

    • #20589 Reply

      You know I often wonder who said ” The truth will set you free” was it man’s instrument to flaw that statement. I will have to agree with that Lori person as this court has found that these sex offenses need some adjustment. Sure they are in themselves trampling on the constitution . Man has always wanted to be right. Even with me arguing with my sister she has always wanted to be right. Would we call all this divisions?
      As time goes by you will find out this decision by this court will be a foot in democracy for the United States and will help those that are under this sex offender curse move on in life to life, liberty, & the pursuit of happiness.

    • #21347 Reply

      Wow thank god atleast now Sex Offenders can walk and live without fear for themselves or their families . Great job guys, when is this ever going to happen for NYC? People with homes are living in shelters because of this problem. Next stop Help NYC take Sex Offenders off the registry for good. God bless the people who fought to make this happen.

    • #28043 Reply

      Can someone tell me what the next step is? Obviously, with the current state of political chaos in Washington, there are no new pieces of legislation coming forward.
      Any idea about the Supreme Court hearing this case? We witnessed an expedited jump to SCOTUS in the 2000 election. Any thoughts on when they may pick up the gauntlet and end this madness once and for all?

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