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United States v. Shakespeare.

No. 21-8010. D.Wyo. Judge Murphy. Revocation of Probation—Supervised Release—Jury Trial Rights—Double Jeopardy—Plain Error Review.

April 29, 2022

Defendant sexually assaulted a 14-year-old girl while serving the 10-year supervised release portion of his sentence from a 2018 conviction. Pursuant to a plea agreement, defendant pleaded guilty to abusive sexual contact with a minor (2020 conviction). The plea agreement contained a binding provision that defendant would receive a sentence between 240 and 360 months’ imprisonment. The government then moved to revoke defendant’s supervised release on the 2018 conviction for a new sex offense against a minor. At the combined sentencing hearing, the district court first sentenced defendant to a term of imprisonment of 293 months on the 2020 conviction. It then advised defendant of the rights he would be waiving if he admitted to violating the supervised release terms for the 2018 conviction, and defendant admitted the alleged violation. The district court revoked defendant’s supervised release on the 2018 conviction and imposed a mandatory minimum five-year term of imprisonment under 18 USC § 3583(k). Defendant did not object under the Fifth or Sixth Amendments.

For the first time on appeal, defendant argued that the district court’s application of § 3583(k) violated (1) his Fifth and Sixth Amendment jury trial rights and (2) his Fifth Amendment right to be free of double jeopardy. Based on Justice Breyer’s concurring opinion in United States v. Haymond, 139 S.Ct. 2369 (2019), defendant maintained that no penalty could be imposed under § 3583(k) unless it was initiated by indictment and tried to a jury, with jeopardy attaching. However, Justice Breyer’s analysis in Haymond is not applicable here. Defendant’s jury trial rights claim fails because he admitted all the facts necessary for the application of § 3583(k), and his double jeopardy claim fails because revocation proceedings are part of the punishment for the initial offense, not a new prosecution. Therefore, the district court did not err, much less plainly err, in applying § 3583(k) to the revocation of defendant’s supervised release.

The judgment and sentenced were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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