US v. George Ward

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 4:94-cr-00070-HCM-1. [999467441]. [13-4683]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4683

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE A. WARD,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:94-cr-00070-HCM-1)

Argued:

September 19, 2014

Decided:

November 3, 2014

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.
Robert Edward Bradenham,
II, OFFICE OF THE UNITED STATES ATTORNEY, Newport News,
Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Richard J.
Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Norfolk, Virginia, for Appellant.
Dana J.
Boente, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Katharina J. Rienks,

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Third Year Law Student, WILLIAM & MARY LAW SCHOOL, Williamsburg,
Virginia, for Appellee.

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BARBARA MILANO KEENAN, Circuit Judge:
George A. Ward appeals from the district court’s judgment
sentencing
violating

him
the

to

a

term

conditions

of

of

20

his

months’

imprisonment

supervised

for

release.

This

sentence was the mandatory minimum term required by a former
version of the supervised release statute, 18 U.S.C. § 3583(g),
which

Congress

amended

in

1994

to

eliminate

mandatory minimum sentencing provision.

the

statute’s

The amended statute was

enacted after Ward committed the underlying offenses for which
he

was

originally

convicted,

but

before

he

engaged

in

the

conduct that led to the revocation of his supervised release.
On appeal, Ward argues that the district court erred in
failing to apply the amended version of Section 3583(g).

Ward

also argues that his mandatory minimum sentence violates the
Sixth Amendment, as construed in Alleyne v. United States, 133
S. Ct. 2151 (2013), because the sentence was imposed based on
factual

findings

made

by

a

judge

by

a

preponderance

of

the

evidence, rather than by a jury under the standard of beyond a
reasonable doubt.
Upon

our

review,

we

conclude

that

the

district

court

correctly applied the former version of Section 3583(g), because
that version of the statute was in effect when Ward committed
the underlying crimes.
affords

certain

We further conclude that Alleyne, which

constitutional

protections
3

when

a

mandatory

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minimum sentence is at issue in a criminal trial, does not apply
in

the

context

of

supervised

release

revocation

proceedings.

Accordingly, we affirm the district court’s judgment.

I.
In December 1994, Ward pleaded guilty to several felony
charges, including three counts of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924,
two counts of distribution of crack cocaine, in violation of 21
U.S.C. § 841, and one count of use of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
The

district

court

sentenced

Ward

to

a

prison

term

of

260

months, followed by a five-year period of supervised release.
Among other things, the conditions of Ward’s supervised release
prohibited him from illegally possessing a controlled substance.
Ward’s prison term ultimately was reduced by the district
court to 200 months, 1 but the court expressly left intact the
original duration and conditions of Ward’s supervised release.
When Ward was released from prison in October 2010, he began his
five-year term of supervised release.
1

The reduction in Ward’s prison sentence occurred as a
result of this Court’s unpublished order vacating Ward’s
conviction for violating 18 U.S.C. § 924(c), as well as the
district court’s application of 18 U.S.C. § 3582 concerning
retroactive
amendments
to
the
United
States
Sentencing
Guidelines for crack cocaine offenses.
4

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In

April

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2013,

the

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government

filed

a

petition

in

the

district court seeking to revoke Ward’s supervised release.

The

government alleged that Ward violated his conditions of release
by testing positive for cocaine on four occasions, and positive
for

marijuana

on

two

occasions. 2

The

government

later

supplemented its revocation petition, alleging three additional
instances in which Ward had tested positive for cocaine.
At a hearing on the government’s petition, Ward admitted
that

he

had

possessed

cocaine

and

marijuana

occasions during his supervised release term.

on

numerous

At the conclusion

of the evidence, the district court revoked Ward’s supervised
release, finding that Ward had violated the conditions of his
release.
In determining Ward’s sentence, the district court first
addressed which version of 18 U.S.C. § 3583(g) applied.

Under

the version of Section 3583(g) in effect when Ward committed the
underlying

crimes,

Ward

was

subject

to

a

mandatory

minimum

sentence of one-third of his supervised release term, because
his violation was based on his illegal possession of controlled
substances.

See

18

U.S.C.

§

3583(g)

(1993

ed.)

(“If

the

defendant is found by the court to be in the possession of a
2

The government also alleged, and Ward admitted during the
revocation hearing, that he violated the conditions of his
supervised release by submitting untimely reports to his
probation officer.
5

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controlled

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substance,

the

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court

shall

terminate

the

term

of

supervised release and require the defendant to serve in prison
not less than one-third of the term of supervised release.”).
Thus,

in

this

case,

application

of

former

Section

3583(g)

required a sentence of at least 20 months’ imprisonment based on
the original five-year term of supervised release.
Congress amended former Section 3583(g) in September 1994,
eliminating

the

mandatory

minimum

sentencing

provision.

See

Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
103-322,
should

§

be

110505(3),
sentenced

108

under

Stat.
the

1796.

Ward

amended

argued

statute,

which

that

he

was

in

effect both when the court imposed Ward’s original sentence and
when he violated the supervised release conditions.
The district court held that it was bound by the former
version

of

the

statute.

The

court

sentenced

Ward

to

the

mandatory minimum prison term of 20 months, stating, “I’m not
imposing 20 months based on the fact that I have the discretion
to

do

that

for

this

violation,

[c]ourt believes it’s mandatory.

I’m

imposing

6

because

the

And if it wasn’t mandatory I

wouldn’t impose a sentence that severe.”
notice of appeal.

it

Ward filed a timely

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II.
We first address Ward’s argument that the district court
erred in applying the former version of Section 3583(g) when
imposing

the

sentence

for

his

supervised

release

violation.

Ward contends that the former version of the statute was not
applicable because the statute was amended before he originally
was sentenced and before he committed the acts in violation of
his conditions of release.

We review de novo this issue of law.

See United States v. Fareed, 296 F.3d 243, 245 (4th Cir. 2002).
A.
We
Johnson
court

conclude
v.

United

properly

that

under

States,

applied

the

529

former

Ward’s revocation sentence.

Supreme

U.S.

694

Section

Court’s
(2000),

3583(g)

decision
the

in

in

district

determining

In Johnson, the Court addressed

whether a provision of former Section 3583 that had not been
enacted at the time of the petitioner’s underlying offense was
applicable in his supervised release revocation proceeding, when
his conduct in violation of the conditions of release occurred
after the statute was amended. 3

529 U.S. at 697-702.

3

The Court

The decision in Johnson concerned subsection (h) of 18
U.S.C. § 3583, which was enacted at the same time subsection (g)
was amended in 1994. Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. 103-322, § 110505(3), 108 Stat. 1796.
Section 3583(h) expressly authorizes the district court to
impose an additional term of supervised release as part of the
sentence in a revocation proceeding. Johnson, 529 U.S. at 698.
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held that the defendant was subject to the sentencing provisions
of the pre-amendment statute in effect when the initial offense
was committed.

Id. at 701-02.

In reaching its conclusion in Johnson, the Court expressly
rejected the argument that revocation and reimprisonment should
be characterized as punishment for a violation of the conditions
of supervised release.

Id. at 700-01.

Instead, the Court held

that “postconviction penalties relate to the original offense.”
Id. at 701.
In light of this conclusion, the Court considered whether
Congress intended that the amended version of Section 3583 apply
retroactively.
established

The Court analyzed this question under the well-

presumption

that

legislation

will

not

be

given

retroactive effect unless Congress clearly manifested such an
intent.

Id.

The

Court

noted

the

absence

of

any

clear

congressional intent, and accordingly held that amended Section
3583(h) “applies only to cases in which that initial offense
occurred after the effective date of the amendment.”

Id. at

702.
In the present case, Ward committed his underlying offenses
between December 1993 and June 1994, before Congress amended
former

Section

congressional

3583

in

September

intent

to

the

1994.

contrary,

8

the

Thus,

absent

former

clear

version

of

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Section

3583(g)

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was

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controlling

revocation proceeding.

in

Ward’s

supervised

release

See id.

There is no evidence that Congress intended the amended
version

of

Section

3583(g)

to

have

retroactive

application.

Fareed, 296 F.3d at 245 n.2 (“Congress provided no indication
that it intended the 1994 amendments [to former Section 3583(g)]
to apply retroactively.”). 4

And, notably, Ward does not provide

any authority supporting a different conclusion.
The fact that Ward was not sentenced for his crimes until
after

the

statute

was

amended

is

immaterial

because

the

“relevant conduct” in determining whether former Section 3583(g)
applies is the “initial offense.”

Johnson, 529 U.S. at 702.

The Second Circuit emphasized this point in a case involving the
same

issue

before

us

regarding

mandatory

sentences required by former Section 3583(g).

minimum

revocation

In United States

v. Smith, 354 F.3d 171, 174 (2d Cir. 2003), the Second Circuit
explained

that

it

was

irrelevant

4

that

the

defendant’s

The issue in Fareed involved the district court’s
application of former Section 3583 as a basis for imposing an
additional period of supervised release as part of a sentence
for violating the conditions of the defendant’s initial period
of supervised release.
296 F.3d at 245.
We observed that the
district court’s authority to impose an additional term of
supervised release was clear under Section 3583(g) as amended in
1994. Id. at 245 n.2. However, we held that the former version
of the statute, which was in effect when the defendants
committed the underlying offenses, applied because there was no
indication that Congress intended that the amended statute apply
retroactively. Id. (citing Johnson, 529 U.S. at 701-02).
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resentencing

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occurred

after

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the

enactment

of

the

amendment

because, under Johnson, “the date on which the original offense
is committed, not the date on which the defendant is sentenced
for

that

offense,

applies.” 5

We

determines

agree

with

which
Second

the

version

of

Circuit’s

a

statute

reasoning

in

Smith, which expressly applied the Supreme Court’s directive in
Johnson that the “relevant conduct is the initial offense” in
assessing which version of Section 3583 governs at a supervised
release revocation proceeding.

529 U.S. at 702; see also United

States v. Perry, 743 F.3d 238, 240 (7th Cir. 2014) (holding that
the statute in effect on the date the defendant commits the
underlying

offense

governs

the

sentence

available

in

a

supervised release revocation hearing).
B.
We next conclude that the federal Savings Statute, 1 U.S.C.
§ 109,

also

required

that

the

5

district

court

apply

former

Ward further attempts to distinguish Johnson on the basis
that application of the amended Section 3583(h) in Johnson would
have burdened that defendant, thus raising potential issues
concerning the Constitution’s Ex Post Facto Clause, whereas the
amended version of Section 3583(g) at issue here would benefit
Ward.
However, as noted by the Second Circuit in Smith, the
Supreme Court acknowledged but did not reach the ex post facto
issue in Johnson.
See Smith, 354 F.3d at 174.
Instead, the
Court decided the issue based on the lack of congressional
intent
concerning
retroactivity
and
the
principle
that
supervised release sanctions are part of the punishment for the
original offense. Johnson, 529 U.S. at 700-03.
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Section

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3583(g).

The

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Savings

Statute

provides,

in

relevant

part:
The repeal of any statute shall not have the effect to
release or extinguish any penalty, forfeiture, or
liability incurred under such statute, unless the
repealing Act shall so expressly provide, and such
statute shall be treated as still remaining in force
for the purpose of sustaining any proper action or
prosecution for the enforcement of such penalty,
forfeiture, or liability.
1 U.S.C. § 109 (emphasis added).
absent

a

clear

application,

a

indication

defendant

is

Under the Savings Statute,

from
not

Congress

entitled

of

to

retroactive

“application

of

ameliorative criminal sentencing laws repealing harsher ones in
force at the time of the commission of an offense.”

Warden,

Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974).
Although

the

language

“repeal”

of

statutes,

considering

the

of

the

the

Savings

Savings

application

of

Statute

Statute

statutory

refers

also

to

the

applies

amendments.

in

United

States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011).
Ward maintains, however, that the Savings Statute did not
apply in his case, because he had not “incurred” any penalty
before the mandatory minimum provision of former Section 3583(g)
was eliminated.

We disagree.

Under the Savings Statute, a penalty is “incurred” under a
former

statute

“when

an

offender

becomes

subject

to

[the

penalty], i.e., commits the underlying conduct that makes the

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offender liable.”
2331 (2012).
release

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Dorsey v. United States, 132 S. Ct. 2321,

As discussed above, in the context of a supervised

revocation

proceeding,

the

“relevant

conduct”

is

the

initial offense, not the conduct in violation of the conditions
of supervised release.

Johnson, 529 U.S. at 701-02; see also

Smith, 354 F.3d at 175 (citing United States v. Ross, 464 F.2d
376, 379 (2d Cir. 1972)).
relating
because

to
he

his

Thus, Ward “incurred” all penalties

offenses,

later

violated

including
the

the

penalties

conditions

of

his

imposed

supervised

release, at the time he committed his original offenses between
December 1993 and June 1994 when former Section 3583(g) was in
effect.

Accordingly, we conclude that, in the present case, the

Savings

Statute

preserved

the

mandatory

provision of former Section 3583(g).

minimum

punishment

See Smith, 354 F.3d at

175.
Our

conclusion

holding

in

Statute

did

is

Dorsey.
not

bar

not

There,

altered
the

by

Court

application

of

the

held

Supreme
that

reduced

the

Court’s
Savings

penalties

for

defendants who were convicted of crack cocaine offenses before
the enactment of the Fair Sentencing Act (FSA), but who were not
sentenced until after its enactment. 6

6

132 S. Ct. at 2326.

The

The FSA increased the amount of crack cocaine required to
impose certain mandatory minimum sentences, thereby reducing the
crack-to-powder cocaine disparity from 100-to-1 to 18-to-1.
(Continued)
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in

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Dorsey

applied

the

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principle,

consistent

with

the

Savings Statute itself, that a new criminal law providing more
lenient penalties may be applied retroactively if it is clear
that Congress intended this result.

132 S. Ct. at 2331-32.

The

Court explained that the ameliorative provision of the FSA could
be applied in sentencing such defendants, given “congressional
intent

as

revealed

in

the

Fair

structure, and basic objectives.” 7

Sentencing

Act’s

language,

Id. at 2326.

Unlike the clear intent of Congress expressed in the FSA,
the

amendments

congressional

to

Section

intent

the amended statute.

3583

providing

for

do

not

evidence

retroactive

any

clear

application

of

See Johnson, 529 U.S. at 701-02; Fareed,

296 F.3d at 245 n.2.

Accordingly, the district court did not

err

former

in

applying

the

version

of

Section

3583(g)

in

Dorsey, 132 S. Ct. at 2326, 2329.
The FSA thus resulted in
lesser sentences for many defendants convicted of crack cocaine
offenses than under the law before the FSA’s enactment.
7
The Court examined six factors in Dorsey, several of which
were particular to the FSA, and concluded that these factors
taken together showed clear congressional intent that the FSA
apply to defendants who committed an offense before, but were
sentenced after, the FSA’s enactment.
132 S. Ct. at 2331-35.
Included among these factors was language in the FSA that gave
the
United
States
Sentencing
Commission
“[e]mergency
[a]uthority” quickly to promulgate amendments to the sentencing
guidelines that would “achieve consistency” with the more
lenient penalties for crack cocaine offenses under the FSA. Id.
at 2332-33 (citations and internal quotation marks omitted).
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determining Ward’s sentence at the supervised release revocation
proceeding.

III.
Ward next argues that the district court’s application of
the

mandatory

violated

his

minimum
Sixth

provision

Amendment

in

former

rights,

Section

because

the

3583(g)
factual

findings required to impose that sentence were not made by a
jury applying the standard of beyond a reasonable doubt.
review de novo this question of law.

We

See Fareed, 296 F.3d at

245.
At the outset, we observe that the Supreme Court in Johnson
stated that a violation of the conditions of supervised release
“need only be found by a judge under a preponderance of the
evidence standard, not by a jury beyond a reasonable doubt.”
529 U.S. at 700 (citing 18 U.S.C. § 3583(e)(3)).
decision

in

Johnson

was

issued

about

two

months

However, the
before

the

Supreme Court released its seminal decision in Apprendi v. New
Jersey, in which the Court held that any fact in a criminal
trial

that

increases

the

statutory

maximum

penalty

must

submitted to a jury and proved beyond a reasonable doubt.
U.S. 466, 476 (2000).

be
530

The decision in Johnson also was issued

twelve years before the decision in Alleyne, in which the Court
extended the Apprendi holding to require a jury determination
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under the standard of beyond a reasonable doubt for any factual
finding

in

a

criminal

trial

that

requires

statutory mandatory minimum sentence.
We

therefore

Alleyne

applies

turn
in

revocation hearing.

to

the

of

a

133 S. Ct. at 2162-63.

consider
context

imposition

whether

of

a

the

holding

supervised

in

release

This issue presents a question of first

impression in the federal courts of appeal.
One

of

the

most

fundamental

constitutional

protections

afforded to a defendant in a criminal trial is the right to a
trial

by

jury,

in

which

the

government

bears

proving its case beyond a reasonable doubt.

the

burden

of

See Sullivan v.

Louisiana, 508 U.S. 275, 277-78 (1993) (characterizing the right
to a trial by jury under the standard of beyond a reasonable
doubt as central to the “American scheme of justice” and noting
the origin of the right in the Fifth and Sixth Amendments).
This fundamental protection is the basis of the Supreme Court’s
holdings in Apprendi and Alleyne.

In those cases, the Court

recognized the core principle that, in a criminal prosecution,
each “element of a crime” must be submitted to a jury and proved
beyond

a

reasonable

doubt.

Alleyne,

133

S.

Ct.

at

2156;

Apprendi, 530 U.S. at 490.
In Apprendi, the Court applied that principle in holding
that any fact increasing the statutory maximum penalty to which
a defendant is exposed is an element of the offense and, thus,
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be

doubt.

Filed: 11/03/2014

submitted

to

a

jury

Pg: 16 of 22

and

530 U.S. at 477, 490.

almost

exclusively

on

proved

beyond

a

reasonable

The decision in Alleyne relied

Apprendi,

and

extended

the

Apprendi

holding to require that a jury determine beyond a reasonable
doubt

any

sentence.
definition
that

fact

requiring

imposition

of

a

mandatory

minimum

Alleyne, 133 S. Ct. at 2158 (holding that “Apprendi’s
of

increase

‘elements’
the

necessarily

ceiling,

but

also

includes
those

not

that

only

facts

increase

the

floor”).
In considering whether the Alleyne holding applies to a
mandatory
revocation

minimum

sentence

proceeding,

we

imposed
observe

in
that

a

supervised
in

contrast

release
to

the

criminal trials at issue in Alleyne and Apprendi, supervised
release

revocation

proceedings

criminal prosecution.

are

not

considered

part

of

a

See, e.g., United States v. Phillips, 640

F.3d 154, 157 (6th Cir. 2011); United States v. House, 501 F.3d
928, 931 (8th Cir. 2007); United States v. Carlton, 442 F.3d
802, 807-08 (2d Cir. 2006); United States v. Tippens, 39 F.3d
88, 89 (5th Cir. 1994); see also Morrissey v. Brewer, 408 U.S.
471, 480 (1972) (noting that a parole revocation hearing is not
part of a criminal prosecution); Gagnon v. Scarpelli, 411 U.S.
778,

781-82

(1973)

(discussing

Morrissey

and

holding

that

probation revocation is not a stage of a criminal prosecution);
United States v. Ferguson, 752 F.3d 613, 616 (4th Cir. 2014)
16

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(applying

Filed: 11/03/2014

Morrissey

revocation).

in

the

Accordingly,

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context

the

of

present

supervised

question

release

arises

in

a

critically different context than the criminal prosecutions at
issue in Apprendi and Alleyne.
The

distinction

supervised
labels.

release

between

revocation

a

criminal

proceeding

prosecution
extends

beyond

a

mere

In contrast to a criminal trial, a supervised release

revocation

hearing

is

a

less

formal

proceeding

violative conduct need not be criminal in nature.
529

and

U.S.

at

700;

Ferguson,

752

F.3d

at

616

in

which

the

See Johnson,
(stating

that

“[r]evocation hearings are less formal than trials of guilt”);
United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991)
(observing that “revocation hearings are more flexible than a
criminal trial”); see also Black v. Romano, 471 U.S. 606, 613
(1985)

(discussing

“flexible,

informal

nature”

of

revocation

hearings for probation violations).
Courts

consistently

have

held

that

the

constitutional

protections afforded in a criminal trial are not co-extensive
with the rights applicable in post-conviction proceedings such
as supervised release revocation hearings.

For example, courts

have held that the Sixth Amendment’s Confrontation Clause, as
construed in Crawford v. Washington, 541 U.S. 36 (2004), does
not apply in supervised release revocation proceedings.

See,

e.g., United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008);
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United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006).
Likewise, courts have held that the Sixth Amendment right to a
speedy

trial

does

not

apply

release revocation hearing. 8

in

the

context

of

a

supervised

See, e.g., House, 501 F.3d at 931;

Tippens, 39 F.3d at 89.
These holdings are grounded in the Supreme Court’s decision
in Morrissey, in which the Court held that “the full panoply of
rights

due

a

defendant

in

[a

criminal

prosecution]

does

not

apply to parole revocations” because such revocation proceedings
are

not

part

of a

criminal

prosecution. 9

408 U.S.

at

480.

Instead, the Court identified a limited set of constitutional
protections that apply in a revocation proceeding. 10

Id. at 489.

8

Although there is no constitutional basis for these rights
in a revocation proceeding, we note that these rights are
addressed to some degree by Rule 32.1 of the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 32.1(b)(2) (specifying
that the revocation hearing should be held “within a reasonable
time,” and allowing a limited right to question adverse
witnesses “unless the court determines that the interest of
justice does not require the witness to appear”).
9

See also United States v. Woodrup, 86 F.3d 359, 361-62
(4th Cir. 1996) (citing Morrissey and stating that “the full
panoply of constitutional protections afforded a criminal
defendant is not required for the revocation of supervised
release”); Ray, 530 F.3d at 668 (same); Kelley, 446 F.3d at 691
(same); Carlton, 442 F.3d at 807 (same).
10

The constitutional protections identified by the Court in
Morrissey include: “(a) written notice of the claimed violations
of parole; (b) disclosure to the parolee of evidence against
him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront
(Continued)
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limited

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set

of

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constitutional

protections

identified

in

Morrissey does not include the right to have a jury determine
relevant

facts

beyond

a

reasonable

doubt.

Cf.

Minnesota

v.

Murphy, 465 U.S. 420, 435 n.7 (1984) (stating that “there is no
right to a jury trial before probation may be revoked”).
In addition to the distinction the Court drew in Morrissey
between the nature of a criminal prosecution and a revocation
hearing, the Court also recognized that “[r]evocation deprives
an

individual,

citizen

is

not

of

entitled,

the
but

absolute
only

of

liberty
the

to

which

conditional

every

liberty

properly dependent on observance” of the conditions imposed upon
the individual’s release from prison.
added).

408 U.S. at 480 (emphasis

Like parolees, individuals on supervised release also

enjoy only “conditional liberty” because they already have been
convicted of the underlying criminal offense.

See Carlton, 442

F.3d at 810; see also United States v. McIntosh, 630 F.3d 699,
703 (7th Cir. 2011); United States v. Cunningham, 607 F.3d 1264,
1268 (11th Cir. 2010); United States v. Cordova, 461 F.3d 1184,
1187 (10th Cir. 2006).

In contrast, the criminal defendants in

and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation);
(e) a ‘neutral and detached’ hearing body such as a traditional
parole board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking parole.”
408
U.S. at 489.
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Apprendi

and

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Alleyne

had

not

Pg: 20 of 22

been

made

subject

to

such

“conditional liberty.”
We conclude that the conditional liberty to which those
under supervised release are subject entails the surrender of
certain constitutional rights, including any right to have the
alleged supervised release violation proved to a jury beyond a
reasonable doubt.

See Carlton, 442 F.3d at 809 (holding that “a

sentence of supervised release by its terms involves a surrender
of certain constitutional rights and this includes surrender of
the

due

process

rights

articulated

in

Apprendi

and

its

progeny”); see also McIntosh, 630 F.3d at 703 (an individual on
supervised release enjoys only “conditional liberty” and has no
right

to

a

proceeding);

jury

trial

Cunningham,

in
607

a

supervised

F.3d

at

1268

release
(same).

revocation
We

are

unaware of any court that has reached a different conclusion.
On the contrary, our sister circuits uniformly have rejected
arguments seeking to extend the holding in Apprendi to require
trial by jury under the standard of beyond a reasonable doubt in
a supervised release revocation hearing.

See McIntosh, 630 F.3d

at 702-03; Cunningham, 607 F.3d at 1267-68; United States v.
Dees, 467 F.3d 847, 854-55 (3d Cir. 2006); Cordova, 461 F.3d at
1186-88; United States v. Huerta-Pimental, 445 F.3d 1220, 122225 (9th Cir. 2006); Carlton, 442 F.3d at 807-10; United States

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v. Hinson, 429 F.3d 114, 118-19 (5th Cir. 2005); United States
v. Work, 409 F.3d 484, 489-92 (1st Cir. 2005).
We acknowledge that these cases were decided before Alleyne
and

do

not

sentence. 11

involve

the

imposition

of

a

mandatory

minimum

Nevertheless, because the Alleyne decision is based

almost entirely on the reasoning and holding in Apprendi, we
conclude

that

holdings

of

our
our

decision
sister

here

properly

circuits

is

rejecting

informed

by

the

application

of

Apprendi in the supervised release revocation context.
Our

sister

circuits’

decisions

also

are

consistent

with

Morrissey and Johnson by holding that a defendant in a postconviction revocation proceeding does not have a constitutional
right to trial by jury under the standard of beyond a reasonable
doubt.

The

core

principle

of

Alleyne

is

that

such

a

constitutional right exists as a fundamental protection in a

11

As Ward observes, our sister circuits additionally noted
in a few of these cases that a judicial finding that the
defendant violated the conditions of supervised release does not
require application of Apprendi and its progeny because a judge
generally retains discretion under 18 U.S.C. § 3583(e)(3) to
determine the appropriate sentence. Although there was no such
judicial discretion in the present case, we nevertheless rely on
those decisions of our sister circuits because their reasoning
primarily involved the limited “panoply of rights” applicable in
supervised release revocation proceedings.
See Dees, 467 F.3d
at 854-55; Cordova, 461 F.3d at 1186-88; Carlton, 442 F.3d at
807-10; Hinson, 429 F.3d at 118-19; Work, 409 F.3d at 489-92;
see also McIntosh, 630 F.3d at 702-03 (not mentioning district
court’s general discretion under Section 3583(e)); Cunningham,
607 F.3d at 1267-68 (same).
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criminal trial, 133 S. Ct. at 2156, and the Court’s holding
providing

for

a

jury

determination

of

facts

required

for

imposition of a mandatory minimum sentence was a straightforward
application of that principle.

Because a supervised release

revocation proceeding is not a criminal prosecution, we conclude
that

Alleyne’s

protections

are

inapplicable

in

the

present

context. 12

IV.
In sum, we hold that the district court did not err in
applying

the

former

version

of

Section

supervised release revocation proceeding.

3583(g)

in

Ward’s

We further hold that

Ward’s Sixth Amendment rights were not violated when the court,
rather than a jury, determined that Ward possessed a controlled
substance

in

violation

of

his

supervised

release

conditions.

Accordingly, we affirm the district court’s judgment.
AFFIRMED

12

We find no merit in Ward’s contention that we should
construe former Section 3583(g) as merely advisory for remedial
purposes.
22