Tenth Circuit splits in holding revocation enhancements for SOs unconstitutional

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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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