Tuesday, June 08, 2021

US v. Henderson, No. 19-30209 (6-3-21)(Callahan w/Christen; Rakoff dissenting). See below regarding this SR and Apprendi case (Keith Hilzendeger acts occasionally as a “guest” commentator). 

Adhering to circuit precedent, the Ninth Circuit held today that there is no right under Apprendi v. New Jersey, 530 U.S. 466 (2000), to a jury trial upon revocation of supervised release where the revocation sentence would make the total term of imprisonment for the crime (including the initial term) exceed the statutory maximum.  A divided panel said that United States v. Haymond, 139 S. Ct. 2369 (2019), did not implicitly overrule circuit precedent that foreclosed the argument.

Judge Rakoff, sitting by designation from the Southern District of New York, dissented.  Vigorously.  His dissent is worth a read.  He questions the majority’s deployment of stare decisis rules and would rule in the defendant’s favor on the merits of the 6A challenge.

To quote from the opinion:

Patrick Lawrence Henderson appeals his fifteen-month sentence for violating the terms of his supervised release, arguing that it violates his Fifth and Sixth Amendment rights because it extends his incarceration beyond the maximum term of imprisonment for his underlying conviction, without findings of fact proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466 (2000). However, Henderson’s argument is based on the plurality opinion in United States v. Haymond, 139 S.Ct. 2369 (2019), and Justice Breyer’s controlling concurring opinion did not adopt the plurality’s position. Thus, Haymond did not overrule or undermine our prior opinion in United States v. Purvis, 940 F.2d 1276 (9th Cir. 1991), which held a term of supervised release may extend beyond the statutory maximum for the underlying substantive offense. Nor does Haymond hold that the right to jury findings proved beyond a reasonable doubt recognized in Apprendi extends to a revocation of supervised release hearing. Indeed, as the dissent concedes, when district courts revoke supervised release, the new sentences they impose are treated, for constitutional purposes, “as part of the penalty for the initial offense,” Johnson v. United States, 529 U.S. 694, 700 (2000). Neither our circuit nor any of our sister circuits has adopted or endorsed Henderson’s argument that the terms of imprisonment and the terms of reimprisonment must be aggregated and may not exceed the maximum term of the statute of conviction. Accordingly, we affirm the district court’s sentence.

The decision is here:




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