USA v. Anthony Moore

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11215
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY MOORE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:07-cr-00090-JDW-TGW-1
____________________
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2 Opinion of the Court 20-11215, 20-11216
____________________
No. 20-11216
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY MOORE,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:07-cr-00090-JDW-TGW-1
____________________
Before N EWSOM , BRANCH, and LAGOA , Circuit Judges.
B RANCH, Circuit Judge:
Upon the third revocation of his supervised release, An-
thony Moore was sentenced to 18 months’ imprisonment and an
additional 18 months’ supervised release. During the revocation
proceedings, he was also sentenced to a consecutive term of 6
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20-11215, 20-11216 Opinion of the Court 3
months’ imprisonment for criminal contempt. On appeal, Moore
raises five challenges to his contempt conviction and his revocation
and contempt sentences.
First, he argues that the district court
plainly erred in imposing an additional term of supervised release
because it failed to account for the terms of imprisonment that
were imposed upon the prior revocations of his supervised release.
Second, he argues that 18 U.S.C. § 3583(e)—the statute under
which he was sentenced upon revocation—is unconstitutional be-
cause it allows the district court to extend Moore’s sentence be-
yond the authorized statutory maximum for his offense of convic-
tion based solely on “judge-found facts” in violation of the Fifth and
Sixth Amendments as set forth in
Apprendi v. New Jersey, 530 U.S.
466 (2000), and
Alleyne v. United States, 570 U.S. 99 (2013).1
Third,
he argues that his revocation sentence is substantively unreasona-
ble.
Fourth, he argues that the district court plainly erred in con-
victing him of criminal contempt without giving him an oppor-
tunity to allocute.
Fifth, he argues that we should exercise our “in-
herent supervisory authority” to modify the contempt sentence.
Although the district court plainly erred in imposing an
18-month term of supervised release for Moore’s third revocation,
§ 3583(e)(3) is not unconstitutional as applied to Moore, and the
1 In the alternative, Moore argues that any constitutional concerns can be
avoided by reading the text of § 3583(e)(3) as imposing an aggregate limitation
on post-revocation imprisonment that caps the total sentence a defendant may
serve for revocations and his original sentence at the statutory maximum term
authorized for the underlying offense.
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4 Opinion of the Court 20-11215, 20-11216
district court did not impose a substantively unreasonable sen-
tence. As to Moore’s contempt sentence, the district court did not
plainly err in convicting Moore of criminal contempt without giv-
ing him an opportunity to allocute, and we decline his request for
us to modify the contempt sentence. Accordingly, with the benefit
of oral argument, we affirm in part and vacate in part Moore’s con-
tempt conviction and sentences.
I. Background
In 2007, Moore was convicted of possession of several un-
registered destructive devices in violation of 26 U.S.C. §§ 5841,
5861(d), and 5871. He was sentenced to the statutory maximum
for his offense—120 months’ imprisonment to be followed by 36
months’ supervised release. He completed his term of imprison-
ment in 2016 and began serving the term of supervised release.
Since then, his supervised release has been revoked three times.
In October 2017, after finding Moore guilty of two violations
of the terms of his supervised release, the district court revoked
Moore’s supervised release and sentenced him to 6 months’ impris-
onment and 24 months’ supervised release.2 In December 2018,
the district court revoked Moore’s supervised release again due to
a new violation and sentenced him to 18 months’ imprisonment
and 18 months’ supervised release. Finally, in March 2020, the dis-
trict court revoked Moore’s supervised release a third time due to
2 Moore appealed the first revocation, and we affirmed the revocation and his
sentence.
See United States v. Moore, 716 F. App’x 934 (11th Cir. 2018).
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20-11215, 20-11216 Opinion of the Court 5
several new violations, and sentenced him to 18 months’ imprison-
ment and 18 months’ supervised release. The district court also
sentenced him to a consecutive six-month term of imprisonment
for criminal contempt for his conduct during the third revocation
hearing. The facts underlying the third revocation are as follows.
In early 2020, Moore was charged with eight violations of
the terms of his supervised release, most of which related to drug
or alcohol use. The third of the eight violations charged was for
failure to notify probation within 72 hours of being questioned by
the police. On January 7, 2020, Moore had been questioned by the
Tampa Police Department about excessive use of alcohol. Accord-
ing to the police report, Moore was drinking with his work crew
supervisor Steven Stearns and another individual on Stearns’s boat.
Moore drank excessively and later fell asleep on the couch in
Stearns’s living room. The next morning, Stearns’s 5-year-old
daughter told Stearns that Moore had “lifted her skirt and at-
tempted to touch her inappropriately.” Stearns went into his living
room, punched Moore in the face twice, and called the police.
When the police arrived, they found Moore lying on the ground
intoxicated. The officers interviewed Stearns’s daughter, who con-
firmed the details of the incident. The police declined to arrest
Moore at that time.
At the revocation hearing, Moore admitted to all the alleged
violations of the terms of his supervised release except the third
violation—the failure to notify probation within 72 hours of being
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6 Opinion of the Court 20-11215, 20-11216
questioned by the police. Moore explained that he did not remem-
ber seeing the police or being questioned but stated that he was
willing to admit to it. The government called Stearns as a witness
to testify about whether Moore was questioned by law enforce-
ment. The district court asked Stearns whether the police tried to
question Moore and Stearns responded that “they tried to,” but
Moore “scream[ed] out that he ain’t talking to them.” After the
district court confirmed with Moore’s probation officer that Moore
had failed to notify probation within 72 hours of the incident, it
found Moore guilty of all eight violations and revoked his super-
vised release.
The district court then turned to the question of Moore’s
sentence. The maximum sentence the district court could impose
was 24 months’ imprisonment, under 18 U.S.C. § 3583(e),3 and the
district court calculated Moore’s guidelines range to be an “8- to
3 Moore’s offense of conviction was punishable by up to ten years’ imprison-
ment, making it a Class C felony.
See 26 U.S.C. § 5871; 18 U.S.C. § 3559(a)(3).
Under § 3583(e), upon a finding of a violation of the conditions of supervised
release, a district court “may revoke a term of supervised release, and require
the defendant to serve in prison all or part of the term of supervised release
authorized by statute for the offense that resulted in such term of supervised
release without credit for time previously served on postrelease supervision.”
18 U.S.C. § 3583(e)(3). However, the statute further provides that “a defend-
ant whose term is revoked under this paragraph may not be required to serve
on any such revocation . . . more than 2 years in prison” for a Class C felony.
Id. Accordingly, the maximum term of imprisonment that the district court
could have imposed for the revocation of Moore’s supervised release was 24
months’ imprisonment.
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20-11215, 20-11216 Opinion of the Court 7
14-month term [of imprisonment] and an additional term of super-
vised release of 36 months, less any jail time.” After hearing from
Moore, the district court invited Stearns to make a victim impact
statement as the father of the victim. Stearns described how his
daughter was traumatized by Moore’s actions and testified that he
believed Moore needed additional supervision. During Stearns’s
testimony, Moore repeatedly interrupted, accusing Stearns of lying
and denying that he did anything to Stearns’s daughter.
The government requested an upward variance from the
guidelines range, as well as “some term of supervision.” After
speaking with Moore’s probation officer about treatment options,
the district court sentenced Moore:
The Court: All right. The factors under 3553(a) of Ti-
tle 18, to the extent applicable in a revocation hearing,
are considered as I determine the appropriate sanc-
tion.
It’s—it’s difficult, Mr. Moore, to determine what is a
fair sanction for someone like yourself who has alco-
hol and drug-abuse addiction. But you’ve now, be-
cause of those addictions, crossed that line that results
in you being hospitalized. You may not remember
what happened, and it may be something that you
can’t even conceive ever happened, but—
Moore: Yes, sir.
The Court: If you interrupt me, sir—
Moore: Oh, I’m sorry.
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8 Opinion of the Court 20-11215, 20-11216
The Court: —you’re going to spend a lot more time
in prison than what you think.
Moore: Yes, sir. I’m sorry.
The Court: Because I can sentence you to contempt
consecutive to the sentence. So it’s just time to be
quiet and listen.
Moore: I’m sorry.
The Court: The public needs to be protected. Some-
body who gets that drunk, that under the influence,
and does something, the public needs to be protected.
You need to get help, sir, but you got to want help.
Probation has done everything they can do for you,
and you’ve just basically thumbed your nose at it. I
doubt anything I do here today is going to change
you. The only thing I can hope for is that somehow
it gets your attention, and that you are willing to get
the help that you need. I don’t think you are. Some-
how that happens with people.
I do find that a sentence within the advisory range is
not sufficient. This is not just a matter of somebody
who’s suffering from addiction. This is someone
who’s abused drugs, abused alcohol regularly and
continuously, who’s been before the Court a number
of times for violating supervised release, and now
there’s an indication in evidence that he committed
a—or engaged in conduct which is very serious. May
not have constituted a crime, but it was dangerously
close. You traumatized a six-year-old.
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20-11215, 20-11216 Opinion of the Court 9
Having said all that and having considered all of these
circumstances, it is the judgment of the Court [that]
the defendant be committed to the custody of the Bu-
reau of Prisons for a term of 18 months. I varied up-
ward f[rom] the Guidelines for the reasons I articu-
lated. You will then be placed on supervision for 18
months, subject to the standard terms and conditions
adopted by this Court.
Moore: He’s full of shit. He shouldn’t have done that
to me, though. I didn’t do nothing to nobody.
The Court: Mr. Moore, I now find you in contempt,
direct contempt of the Court.
Moore: Your Honor, I didn’t touch nobody. Your
Honor, all I’m guilty of is being a drug addict. I’m
just—
The Court: Would you like to be bound and gagged?
Because that’s what’s coming next.
Moore: No, sir.
The Court: Then be quiet.
Moore: But, I mean, fair is fair. I’m just no different
than any other drug addict.
The Court: You get six more months for contempt of
Court, sir, consecutive to the sanction I’ve just im-
posed. Do you have any other questions?
Moore: No, sir. I don’t want no trouble. I’m just try-
ing to explain to you I’m just a regular drug addict.
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10 Opinion of the Court 20-11215, 20-11216
The court then asked Moore’s counsel if she had “anything [she
would] like to say on behalf of Mr. Moore.” Moore’s counsel con-
sulted with Moore and then Moore addressed the court:
Moore: I didn’t mess with nobody when I was out
there. I just did drugs. I worked every day. I worked
six days a week. My apartment was paid for when I
left. I never did nothing to nobody. We went to party
at this guy’s house. I mean, come on. Fair is fair. I
mean, damn.
The district court then pronounced its judgment:
The Court: This is a case of direct criminal contempt.
Mr. Moore used a profanity when the Court was an-
nouncing the sanction. It may have been directed to
Mr. Stearns. It may have been directed to the Court.
But, nonetheless, it obstructed the Court’s proceed-
ing, and I find that a six-month sanction for direct
criminal contempt is appropriate consecutive to the
sanction that I’ve announced on the revocation.
The district court then asked Moore’s counsel whether she had
“any objections to the sanctions imposed in the manner in which it
has been pronounced,” and Moore’s counsel stated that she did
not.
In its judgment imposing the sentence for contempt, the dis-
trict court explained that Moore “obstruct[ed] the proceedings by
interrupting the court as it was announcing the sanction for violat-
ing the terms and conditions of supervised release, using profanity,
and disregarding direct orders of the court.” Moore subsequently
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20-11215, 20-11216 Opinion of the Court 11
appealed from both the revocation sentence and the contempt sen-
tence.
II. Discussion
A. Revocation Term of Supervised Release
Moore argues that the district court plainly erred in impos-
ing a term of supervised release because it failed to account for the
terms of imprisonment he had already served for prior revocations.
The government agrees and concedes that the district court plainly
erred.4
We review the district court’s imposition of a term of super-
vised release for plain error because Moore failed to object to it be-
low.
See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005). “The plain-error test has four prongs: there must be (1) an
error (2) that is plain and (3) that has affected the defendant’s sub-
stantial rights; and if the first three prongs are met, then a court
may exercise its discretion to correct the error if (4) the error seri-
ously affects the fairness, integrity or public reputation of judicial
proceedings.”
United States v. Madden, 733 F.3d 1314, 1320 (11th
Cir. 2013) (alteration adopted) (quotation omitted);
see Fed. R.
Crim. P. 52(b). Moore has demonstrated all four prerequisites
4 Although we are not required to accept the government’s concession,
see
United States v. Linville, 228 F.3d 1330, 1331 n.2 (11th Cir. 2000), we agree
with Moore and the government that the district court plainly erred in impos-
ing a term of supervised release here.
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12 Opinion of the Court 20-11215, 20-11216
here, and, therefore, the error warrants exercise of our discretion
to correct it.
Section 3583(h) provides:
When a term of supervised release is revoked and the
defendant is required to serve a term of imprison-
ment, the court may include a requirement that the
defendant be placed on a term of supervised release
after imprisonment. The length of such a term of su-
pervised release shall not exceed the term of super-
vised release authorized by statute for the offense that
resulted in the original term of supervised release,
less
any term of imprisonment that was imposed upon
revocation of supervised release.
18 U.S.C. § 3583(h) (emphasis added). In
United States v. Mazarky,
499 F.3d 1246, 1250 (11th Cir. 2007), we held that, under § 3583(h),
“the maximum allowable supervised release following multiple
revocations must be reduced by the aggregate length of any terms
of imprisonment that have been imposed upon revocation.”
Moore’s maximum term of supervised release upon his orig-
inal conviction was 36 months.
See 18 U.S.C. § 3583(b)(2), 26
U.S.C. § 5871. And he was sentenced to a total of 42 months’ im-
prisonment for his prior revocations. Thus, under § 3583(h), be-
cause he had already served a term of imprisonment for prior rev-
ocations in excess of the statutory maximum amount of supervised
release, the district court was not authorized to impose any addi-
tional supervised release and it was error for the district court to do
so.
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20-11215, 20-11216 Opinion of the Court 13
This error was plain in light of § 3583(h) and
Mazarky; it af-
fected Moore’s substantial rights because it exposed him to an un-
authorized term of supervised release (18 months), and it “under-
mines the fairness, integrity, or public reputation of judicial pro-
ceedings,” because it resulted in an “unnecessary deprivation of lib-
erty,”
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018).
Accordingly, we vacate the supervised release portion of Moore’s
sentence.
B. Revocation Term of Imprisonment
Moore also argues that § 3583(e) violates the Fifth and Sixth
Amendments as applied to him because it allows the district court
to extend Moore’s sentence beyond the authorized statutory max-
imum for his offense of conviction based solely on “judge-found
facts,” in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000),
and
Alleyne v. United States, 570 U.S. 99 (2013).5 Moore does not
5 Specifically, Moore argues that when his sentence is viewed in the aggre-
gate—meaning his original sentence combined with the sentence imposed
upon each revocation of supervised release—it totals 13.5 years which exceeds
the authorized statutory maximum of 13 years (based on combining the stat-
utory maximum term of imprisonment and the statutory maximum term of
supervised release). Thus, he argues that 18 U.S.C. § 3583(e)(3) is unconstitu-
tional, as applied to him, because it allows the district court to extend his sen-
tence beyond the authorized statutory maximum for his offense of conviction
based solely on “judge-found facts,” in violation of the Fifth and Sixth Amend-
ments as set forth in
Apprendi and
Alleyne.
Alternatively, he argues that the constitutional concerns he has identified can
be avoided if we interpret § 3583(e)(3) as imposing an aggregate limitation on
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14 Opinion of the Court 20-11215, 20-11216
dispute that he did not raise this argument in the district court;
therefore, we review for plain error.
Once again, “[t]he plain-error test has four prongs: there
must be (1) an error (2) that is plain and (3) that has affected the
defendant’s substantial rights; and if the first three prongs are met,
then a court may exercise its discretion to correct the error if (4) the
error seriously affects the fairness, integrity or public reputation of
judicial proceedings.”
Madden, 733 F.3d at 1320 (alteration
adopted) (quotation omitted). For an error to be plain:
[T]he legal rule [must be] clearly established at the
time the case is reviewed on direct appeal. Where the
explicit language of a statute or rule does not specifi-
cally resolve an issue, there can be no plain error
where there is no precedent from the Supreme Court
or this Court directly resolving it. Such error must be
so clearly established and obvious that it should not
have been permitted by the trial court even absent the
defendant’s timely assistance in detecting it.
United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (quo-
tations and internal citations omitted). For the reasons that follow,
Moore’s claim fails because he cannot establish that there was an
error, or that, even assuming that an error occurred, it was plain.
revocation sentences that caps the total sentence a defendant may serve at the
statutory maximum for the underlying offense.
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20-11215, 20-11216 Opinion of the Court 15
As always, our starting point is the statutory text. Section
3583(e)(3) provides, in relevant part:
The court may . . . revoke a term of supervised re-
lease, and require the defendant to serve in prison all
or part of the term of supervised release authorized
by statute for the offense that resulted in such term of
supervised release without credit for time previously
served on postrelease supervision, if the court, pur-
suant to the Federal Rules of Criminal Procedure ap-
plicable to revocation of probation or supervised re-
lease, finds by a preponderance of the evidence that
the defendant violated a condition of supervised re-
lease, except that a defendant whose term is revoked
under this paragraph may not be required to serve on
any such revocation . . . more than 2 years in prison if
such offense is a class C or D felony . . . .
Nothing in the text of § 3583(e) provides that the full panoply of
rights provided for in the Fifth or Sixth Amendments apply to
§ 3583(e) revocation proceedings. And nothing in the text provides
that the total time a defendant may serve for his original conviction
and revocations of supervised release cannot exceed the combined
statutory maximum terms of imprisonment and supervised release
for the original offense of conviction. Thus, the statutory text does
not establish that a plain error occurred in this case. Accordingly,
we must determine whether there is a Supreme Court case or a
case from this Court directly resolving the issue.
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16 Opinion of the Court 20-11215, 20-11216
In
Morrissey v. Brewer, the Supreme Court held that “the
revocation of parole is not part of a criminal prosecution and thus
the full panoply of rights due a defendant in such a proceeding does
not apply.” 408 U.S. 471, 480 (1972). The Court then went on to
hold that only minimal due process rights apply in revocation of
parole proceedings, such as notice, a hearing before a neutral deci-
sionmaker, and an opportunity for the defendant to be heard.
Id.
at 487–88. Thereafter, the Supreme Court held in
Johnson v.
United States, 529 U.S. 694, 700 (2000), that the Sixth Amendment
right to a jury trial is not applicable during revocation proceedings
because revocation of supervised release is treated “as part of the
penalty for the initial offense” and that “the violative conduct need
not be criminal and need only be found by a judge under a prepon-
derance of the evidence standard.”
Following
Johnson, however, in the context of initial crimi-
nal proceedings, the Supreme Court held that, under the Due Pro-
cess Clause of the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime be-
yond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S.
at 490. Subsequently, in
Alleyne, the Supreme Court extended
Ap-
prendi and held that any facts that increase a mandatory minimum
sentence must be submitted to a jury and proved beyond a reason-
able doubt. 570 U.S. at 116. Thus, Moore argues that § 3583(e)
plainly violates the Fifth and Sixth Amendments as applied to him
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20-11215, 20-11216 Opinion of the Court 17
because the district court imposed a sentence beyond the statutory
maximum based solely on judge-found facts in violation of
Ap-
prendi and
Alleyne.6 But neither
Apprendi nor
Alleyne dealt with
revocation proceedings, and, therefore, those decisions do not di-
rectly resolve the issue presented in this case for purposes of estab-
lishing plain error. Furthermore, Moore concedes that, in
United
States v. R. Scott Cunningham, we joined several of our sister cir-
cuits in holding that
Apprendi does not apply to revocation pro-
ceedings under § 3583(e)(3), and that “§ 3583(e)(3) is constitutional
under the Fifth and Sixth Amendments.” 607 F.3d 1264, 1265, 1268
(11th Cir. 2010) (per curiam). Specifically, after examining pre- and
post-
Apprendi precedent from the Supreme Court and other cir-
cuits, we held that “3583(e)(3) does not violate the Fifth or Sixth
Amendments because the violation of supervised release need only
be proven by a preponderance of the evidence, and there is no right
to trial by jury in a supervised release revocation hearing.”
Id. Un-
der our prior-precedent rule,
Cunningham binds us unless it is
overruled or undermined to the point of abrogation by this Court
sitting en banc or by the Supreme Court.
See United States v.
Brown, 342 F.3d 1245, 1246 (11th Cir. 2003).
6 Section 3583(e)(3) does not present any
Alleyne problem because it does not
impose any mandatory minimum term of imprisonment based on judicial fact-
finding.
See 18 U.S.C. § 3583(e)(3);
see also United States v. Haymond, 139 S.
Ct. 2369, 2383–84 (2019) (“Section § 3583(e), which governs supervised release
revocation proceedings generally, does not contain any similar mandatory
minimum triggered by judge-found facts.”). Thus, although Moore cites both
Apprendi and
Alleyne, his argument revolves solely around
Apprendi.
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18 Opinion of the Court 20-11215, 20-11216
Notwithstanding
Cunningham’s holding that
Apprendi does
not apply to § 3583(e)(3) proceedings and that § 3583(e)(3) does not
violate the Fifth and Sixth Amendments, Moore argues that the Su-
preme Court’s more recent, fractured decision in
United States v.
Haymond, 139 S. Ct. 2369 (2019) (plurality opinion), establishes
that a § 3583(e)(3) revocation sentence that results in a total sen-
tence that exceeds the statutory maximum is plainly unconstitu-
tional under the Fifth and Sixth Amendments. Moore’s argument
fails, as
Haymond addressed a different subsection of § 3583, and,
therefore, does not directly resolve the issue at hand for purposes
of plain error review.
Specifically, in
Haymond, the Supreme Court struck down
18 U.S.C. § 3583(k), which required a district court to impose a
minimum term of incarceration upon a finding of certain violations
of supervised release. 139 S. Ct. at 2374. However, the plurality
clarified that its “decision [was] limited to § 3583(k) . . . and the
Al-
leyne problem raised by [§ 3583(k)’s] 5-year mandatory minimum
term of imprisonment.”
Id. at 2383.
Haymond did not address
whether § 3583(k), much less § 3583(e), was consistent with
Ap-
prendi.
Id. at 2382 n.7 (“[W]e have no occasion to decide whether
§ 3583(k) implicates
Apprendi . . . [and] we do not pass judgment
one way or the other on § 3583(e)’s consistency with
Apprendi.”).
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20-11215, 20-11216 Opinion of the Court 19
Thus,
Haymond has no direct application to the issue before us
which involves § 3583(e).7
And perhaps more importantly, while the
Haymond plural-
ity relied on
Alleyne—an
Apprendi progeny case—to conclude that
§ 3583(k) was unconstitutional, Justice Breyer’s concurrence in
Haymond, which is the controlling opinion, did not.8
Id. at 2385–
86 (Breyer, J., concurring). Justice Breyer’s concurrence in
Hay-
mond is narrower than the plurality opinion because he does not
“transplant the
Apprendi line of cases to the supervised-release con-
text”—therefore, it is the controlling opinion.
Id. Thus,
Haymond
does not establish that plain error occurred in Moore’s case.9
7 The concurrence agrees that
Haymond does not implicate § 3583(e), and,
therefore, cannot establish plain error in this case for purposes of Moore’s
Ap-
prendi claim.
8
See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented
Court decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as the position
taken by those Members who concurred in the judgment[] on the narrowest
grounds.”);
see also Haymond, 139 S. Ct. at 2386 (Alito, J., dissenting) (stating
that Justice Breyer’s concurrence contains “today’s holding”);
United States v.
Watters, 947 F.3d 493, 497 (8th Cir. 2020) (“Justice Breyer’s opinion is the nar-
rower opinion[ ] and therefore controls.”).
9 Despite the dissent’s arguments that there was an
Apprendi violation here, if
the Supreme Court itself did not see fit to “transplant” the entire body of
Ap-
prendi jurisprudence to the supervised release criminal scheme in
Haymond,
we do not see how we could do so under these circumstances given our
Cun-
ningham decision
and that we are on plain error review.
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20 Opinion of the Court 20-11215, 20-11216
The concurrence and dissent argue that
Cunningham does
not “control” here because the
Apprendi argument before the
Cun-
ningham panel was different and it did not have the opportunity to
consider the argument Moore presents—whether
Apprendi and its
progeny apply to § 3583(e)(3) proceedings where the revocation of
supervised release and imposition of a new term of imprisonment
results in a combined sentence that exceeds the statutory maxi-
mum for the original offense.
As we explained previously, however,
Cunningham an-
nounced a broad ruling that “3583(e)(3) does not violate the Fifth
or Sixth Amendments because the violation of supervised release
need only be proven by a preponderance of the evidence, and there
is no right to trial by jury in a supervised release revocation hear-
ing.” 607 F.3d at 1268. Thus, we rejected the application of
Ap-
prendi in the context of § 3583(e)(3) proceedings. To be sure, the
dissent is correct that the
Cunningham court did not have the ben-
efit of the particular
Apprendi argument raised here, but that
makes no difference under the prior-panel-precedent rule.
See In
re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (“We have held that
a prior panel precedent cannot be circumvented or ignored on the
basis of arguments not made to or considered by the prior
panel. . . . In short, we have categorically rejected an overlooked
reason or argument exception to the prior-panel-precedent rule.”
(quotations and internal citations omitted));
Cohen v. Office De-
pot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000) (“Unless and until the
holding of a prior decision is overruled by the Supreme Court or
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20-11215, 20-11216 Opinion of the Court 21
by the en banc court, that holding is the law of this Circuit regard-
less of what might have happened had other arguments been made
to the panel that decided the issue first.”).
Regardless, even if the concurrence and dissent are correct
that
Cunningham did not address Moore’s precise claim, neither
did
Apprendi or
Haymond. And Moore has not presented us with
any authority—much less controlling authority—directly resolving
the issue in this case. It is this absence of controlling authority that
is fatal to Moore’s claim because an error cannot be plain if there is
“no precedent from the Supreme Court or this Court directly re-
solving [the issue].”
Hesser, 800 F.3d at 1325.
Accordingly, for all of these reasons, Moore’s claim fails on
plain error review.10
C. Reasonableness of the Revocation Sentence
Next, Moore argues that his revocation sentence was sub-
stantively unreasonable. We review the substantive reasonable-
ness of a sentence imposed upon revocation of supervised release
for abuse of discretion, based on the totality of circumstances.
10 Alternatively, Moore also argues that § 3583(e) should be construed to im-
pose an aggregate limit on post-revocation imprisonment—meaning that a de-
fendant’s aggregate post-revocation sentence is capped at the statutory maxi-
mum term for the underlying offense. But as discussed above, nothing in the
text of § 3583(e) expressly imposes an aggregate limit on post-revocation im-
prisonment, and once again Moore fails to cite to any controlling authority
from the Supreme Court or this Court that resolves this issue. Thus, he has
failed to demonstrate plain error.
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22 Opinion of the Court 20-11215, 20-11216
United States v. Trailer, 827 F.3d 933, 935–36 (11th Cir. 2016) (per
curiam). “A district court abuses its discretion when it (1) fails to
afford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.”
United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc) (quotation omitted). We will vacate a sentence
“if, but only if, we are left with the definite and firm conviction that
the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the
range of reasonable sentences dictated by the facts of the case.”
Id.
at 1190 (quotation omitted). A district court may vary upward
from the guidelines range “when the court determines that a guide-
lines sentence will not adequately further the purposes reflected in
18 U.S.C. § 3553(a).”
United States v. Hall, 965 F.3d 1281, 1295
(11th Cir. 2020);
see United States v. Shaw, 560 F.3d 1230, 1240
(11th Cir. 2009).
The guidelines range for Moore’s offenses was 8 to 14
months’ imprisonment and the district court sentenced him to 18
months’ imprisonment—a 4-month upward variance. But we can-
not say that Moore’s revocation sentence was an abuse of discre-
tion. As the district court noted, Moore had “abused drugs, abused
alcohol regularly and continuously” and had “been before the
Court a number of times for violating supervised release.” He had
committed eight violations of supervised release within a few
months of starting his third term of supervised release. And the
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20-11215, 20-11216 Opinion of the Court 23
district court noted that there was “an indication in evidence that
he committed a—or engaged in conduct which is very serious.
May not have constituted a crime, but it was dangerously close.
[Moore] traumatized a six-year-old.” In other words, he continued
to re-offend after already having served 6- and 18-month terms of
imprisonment for prior revocations. The district court was within
its discretion to determine that a 4-month upward variance was
necessary to deter Moore and to protect the public.
See United
States v. Hunt, 941 F.3d 1259, 1264 (11th Cir. 2019);
United States
v. Rosales-Bruno, 789 F.3d 1249, 1256–57 (11th Cir. 2015).
Moore argues that the district court erred by giving “dispos-
itive weight” to Stearns’s testimony. But the sentencing transcript
reveals that the district court considered the other § 3553(a) factors
and did not give Stearns’s testimony dispositive weight.11 Nor has
Moore demonstrated that the district court committed a clear error
of judgment in considering the § 3553(a) factors. Accordingly,
Moore’s sentence was not substantively unreasonable.
11 Moore also argues that the district court erred in admitting Stearns’s testi-
mony without finding that it was reliable or providing him an opportunity to
cross-examine Stearns under
United States v. Frazier, 26 F.3d 110, 114 (11th
Cir. 1994). Federal Rule of Criminal Procedure 52(a) provides that a harmless
error—an “error, defect, irregularity, or variance that does not affect substan-
tial rights”—“must be disregarded.” Regardless of whether the district court’s
decision to admit Stearns’s testimony was error, we conclude that any such
error was harmless because “the properly considered evidence overwhelm-
ingly demonstrated that [Moore] breached the terms of his supervised re-
lease.”
Frazier, 26 F.3d at 114.
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24 Opinion of the Court 20-11215, 20-11216
D. Contempt Conviction
Next, Moore contends that the district court plainly erred in
convicting him for criminal contempt because it failed to give him
an opportunity to allocute before it sentenced him. Because Moore
failed to object below, we review the district court’s decision for
plain error.
Rodriguez, 398 F.3d at 1298.
The Federal Rules of Criminal Procedure provide that a dis-
trict court may punish criminal contempt committed in its pres-
ence “summarily”—that is, “without delaying to provide for for-
mal charges or a formal trial,”
United States v. Browne, 318 F.3d
261, 265 (1st Cir. 2003)—if the court “saw or heard the contemptu-
ous conduct and so certifies,”
see Fed. R. Crim. P. 42(b);
see also 18
U.S.C. § 401(1) (“A court of the United States shall have the power
to punish by fine or imprisonment, or both, at its discretion, such
contempt of its authority, and none other, as . . . [m]isbehavior of
any person in its presence or so near thereto as to obstruct the ad-
ministration of justice.”). In
Ex parte Terry, 128 U.S. 289, 307–14
(1888), the Supreme Court held that a court may hold a defendant
in summary contempt without notice or a prior opportunity to be
heard.
Moore argues that
United States v. Brannon, 546 F.2d 1242
(5th Cir. 1977), and
Taylor v. Hayes, 418 U.S. 488 (1974), establish
that the district court was required to provide him an opportunity
to allocute before it sentenced him. In
Brannon, we wrote that
“notice and at least a brief opportunity to be heard should be af-
forded as a matter of course” in criminal contempt proceedings.
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20-11215, 20-11216 Opinion of the Court 25
546 F.2d at 1249;
see id. (“[E]ven if the trial judge here had not
waited as long as he did but had proceeded immediately to find the
appellant in contempt, he should have first explicitly warned the
appellant of the consequences of his continued refusals and should
have afforded him the right of allocution.”). And in
Taylor, the
Supreme Court wrote that:
[R]easonable notice of a charge and an opportunity to
be heard in defense before punishment is imposed are
basic in our system of jurisprudence. Even where
summary punishment for contempt is imposed dur-
ing trial, the contemnor has normally been given an
opportunity to speak in his own behalf in the nature
of a right of allocution.
418 U.S. at 498 (quotations and internal citation omitted).
But
Brannon and
Taylor speak of norms, not absolute rules.
See Brannon, 546 F.2d at 1249 (stating “notice and at least a brief
opportunity to be heard
should be afforded as a matter of course”
(emphasis added));
see also Taylor, 418 U.S. at 498 (“Even where
summary punishment for contempt is imposed during trial, the
contemnor
has normally been given an opportunity to speak in his
own behalf in the nature of a right of allocution.” (emphasis added)
(quotations and internal citations omitted)). Because no precedent
from the Supreme Court or this Court directly establishes that
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26 Opinion of the Court 20-11215, 20-11216
Moore had the right to allocute before being held in summary con-
tempt, he has failed to demonstrate plain error.
See Hesser, 800
F.3d at 1325.12
E. Moore’s Contempt Sentence
Finally, Moore argues that we should exercise our “inherent
supervisory authority” to reduce his contempt sentence.13 Moore
contends that a sentence of six months’ imprisonment—the maxi-
mum punishment that the district court could impose without a
jury trial,
see Cheff v. Shnackenberg, 384 U.S. 373, 380 (1966)—was
unreasonable because he had “accepted responsibility for his viola-
tions, had been respectful before the court in the past, and had apol-
ogized for his minor interruption.”
But the district court did not abuse its discretion in impos-
ing a six-month sentence. Moore admits that he interrupted the
proceedings to interject: “He’s full of shit. He shouldn’t have done
12 The government contends that the district court gave Moore an opportunity
to speak on his own behalf before imposing punishment. Because we con-
clude that Moore failed to demonstrate plain error, we do not address this ar-
gument.
13
See Cheff v. Shnackenberg, 384 U.S. 373, 380 (1966) (describing “the peculiar
power of federal courts to revise sentences in contempt cases”). The govern-
ment maintains that Moore must still demonstrate plain error irrespective of
this “peculiar power.” We need not resolve whether plain error review applies
here because, even under the lower abuse-of-discretion standard, the district
court did not abuse its discretion in imposing the contempt sentence.
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20-11215, 20-11216 Opinion of the Court 27
that to me, though. I didn’t do nothing to nobody.” And his dis-
ruptions were not as he asserts limited to a “single isolated use of
street vernacular.” Rather, he had already interrupted the court
several times, and persisted in arguing with the district court even
after he had been convicted of criminal contempt. The district
court was in the best position to evaluate the disruptive effect of
Moore’s conduct,
cf. Messer v. Kemp, 760 F.2d 1080, 1087 (11th
Cir. 1985), and the Supreme Court has affirmed longer sentences
for contempt (albeit, following a jury trial),
see Green v. United
States, 356 U.S. 165, 188–89 (1958) (three-year sentence). Because
Moore has failed to demonstrate that the district court abused its
discretion in imposing a six-month sentence for contempt, we de-
cline his request for us to modify that sentence.
III. Conclusion
For these reasons, we affirm Moore’s 18-month revocation
sentence and six-month contempt sentence but vacate the term of
post-revocation supervised release.
AFFIRMED IN PART AND VACATED IN PART.
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 1
L AGOA , Circuit Judge, Concurring in part and in the result:
I concur in full in Parts II.A., II.C., II.D., and II.E. of the ma-
jority opinion. However, I concur in result only as to Part II.B. of
the majority opinion, which affirms the district court’s decision to
sentence Moore to 18 months’ imprisonment for the third revoca-
tion of his supervised release, resulting in a cumulative total of 162
months’ imprisonment for both the underlying offense and the
three revocations of supervised release. That holding raises two
issues: (1) whether district courts can impose a term of imprison-
ment for the revocation of supervised release that, together with
the term of imprisonment already served for the underlying crime,
exceeds the statutory maximum sentence the defendant faced at
the time of sentencing—i.e., the statutory maximum term of im-
prisonment for the underlying offense (in this case, 120 months)
plus the statutory maximum period of supervised release (in this
case, 36 months); and (2) whether the district court plainly erred in
sentencing Moore to such 18 months’ imprisonment.
Moore’s counsel did not preserve these issues for appeal, and
both the majority and the dissent therefore agree that the district
court’s sentence is reviewed for plain error. I agree that this is the
proper standard of review. And, as explained below, I believe that
the standard of review makes the difference in this case. While the
majority opinion also concludes that the district court did not
plainly err, I write separately because, unlike the majority opinion,
I believe that the issues Moore has raised are issues of first impres-
sion without controlling precedent from this Court.
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2 L AGOA , J., Concurring in part and in result 20-11215, 20-11216
As noted in
Andrews v.
Warden, a ‘“sentence,’ refers to all
sanctions imposed for a crime, and a sentence can have multiple
components, including imprisonment, supervised release, and
fines.” 958 F.3d 1072, 1080 (11th Cir. 2020). Thus, when we talk
about a statutory maximum sentence, we must consider the maxi-
mum potential sentence a defendant faced when taking into con-
sideration the various components of the sentence. As relevant
here, it is the term of imprisonment and the term of supervised re-
lease.
In 2007, Moore was convicted of possession of several un-
registered destructive devices in violation of 26 U.S.C. §§ 5841,
5861(d), and 5871. Pursuant to these violations, Moore faced, and
was sentenced to, the statutory maximum sentence consisting of a
120-month term of imprisonment followed by a 36-month term of
supervised release—in other words, a maximum sentence of 156
months. Moore completed his term of imprisonment in 2016 and
then began serving the 36 months’ term of supervised release.
In October 2017, the district court revoked Moore’s super-
vised release and sentenced him to 6 months’ imprisonment. In
December 2018, the district court again revoked Moore’s super-
vised release and sentenced Moore to 18 months’ imprisonment.
And in March 2020, the district court revoked Moore’s supervised
release for a third time and sentenced him to 18 months’ imprison-
ment. Thus, as a result of this most recent revocation, Moore now
faced a total of 162 months in prison—his initial 120-month term
of imprisonment plus a total of 48 months’ imprisonment arising
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 3
from the three separate revocations. That exceeds by 6 months the
statutory maximum sentence Moore faced for the underlying of-
fense.
I. Do Prior Precedents Address Whether District Courts Can Im-
pose a Cumulative Sentence of Imprisonment that Exceeds the
Statutory Maximum Sentence the Defendant Faced at the
Time of Sentencing?
Moore asserts that 18 U.S.C. § 3583(e) is unconstitutional to
the extent that it allowed the district court to extend his “cumula-
tive sentence of imprisonment”—i.e., imprisonment for the under-
lying offense plus the cumulative imprisonment for all revocations
of supervised release—beyond the statutory maximum sentence of
156 months, based solely on “judge found facts.” The relevant pro-
vision is 18 U.S.C. § 3583(e)(3), which states that:
The court may . . . revoke a term of supervised re-
lease, and require the defendant to serve in prison all
or part of the term of supervised release authorized
by statute for the offense that resulted in such term of
supervised release without credit for time previously
served on postrelease supervision, if the court, pursu-
ant to the Federal Rules of Criminal Procedure appli-
cable to revocation of probation or supervised re-
lease, finds by a preponderance of the evidence that
the defendant violated a condition of supervised re-
lease, except that a defendant whose term is revoked
under this paragraph may not be required to serve on
any such revocation more than 5 years in prison if the
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4 L AGOA , J., Concurring in part and in result 20-11215, 20-11216
offense that resulted in the term of supervised release
is a class A felony, more than 3 years in prison if such
offense is a class B felony, more than 2 years in prison
if such offense is a class C or D felony, or more than
one year in any other case . . . .
The majority opinion suggests that this Court’s decision in
United States v. R. Scott Cunningham, 607 F.3d 1264 (11th Cir.
2010) forecloses Moore’s argument. Maj. Op. at 17. I agree with
the dissent that this Court’s decision in
R. Scott Cunningham does
not address the issue Moore raises and therefore is not grounds for
affirming the 18-month sentence at issue. Diss. Op. at 8–10. In
R.
Scott Cunningham, the defendant contended that § 3583(e)(3) is
unconstitutional because “there is no principled basis to exempt
§ 3583(e)(3) from
Apprendi’s mandates because the revocation of
supervised release commonly results in substantial terms of incar-
ceration unsupported by a jury’s findings.” 607 F.3d at 1267. This
Court noted that the pre-
Apprendi1 revocation of parole was “not
part of a criminal prosecution” implicating “the full panoply of
rights” and that the Supreme Court has held that revocation pro-
ceedings do not implicate the Sixth Amendment “because revoca-
tion of supervised release is treated ‘as part of the penalty for the
initial offense.’”
Id. (first quoting
Morrissey v. Brewer, 408 U.S.
471, 480 (1972); then quoting
Johnson v. United States, 529 U.S.
694, 700 (2000)). This Court concluded, consistent with other cir-
1
See Apprendi v. New Jersey, 530 U.S. 466 (2000).
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 5
cuits, that because the defendant was “already convicted of the un-
derlying offense . . . and was granted only conditional liberty, the
existence of which depend[ed] on [the defendant’s] observation of
the limits of his supervised release” imprisonment for the revoca-
tion of supervised release pursuant to § 3583(e)(3) “does not violate
the Fifth or Sixth Amendments.”
Id. at 1268.
But that is not the issue addressed here. Moore does not
contend that he was entitled to full due process and a jury trial be-
cause the court revoked his supervised release and sentenced him
to additional imprisonment. Instead, Moore challenges the district
court’s ability to impose a cumulative sentence, for multiple viola-
tions of supervised release and the underlying offense, that exceeds
the statutory maximum sentence he faced for the underlying of-
fense. This Court did not address that issue in
R. Scott Cunning-
ham, and I therefore believe that the majority opinion’s reliance on
R. Scott Cunningham is misplaced.
Post-
R. Scott Cunningham, this Court has stated that courts
have the “power under [§] 3583(e)(3) to impose an additional term
of imprisonment even though [the defendant] had already served
the maximum statutory sentence for his offense.”
United States v.
Sharpe, No. 20-13808, 2021 WL 4452532, at *2–3 (11th Cir. Sept. 29,
2021). But in
Sharpe, like in
R. Scott Cunningham, this Court was
not faced with a revocation sentence that resulted in a cumulative
sentence of imprisonment that exceeded the statutory maximum
sentence—which is different from the maximum statutory sen-
tence for the underlying offense because the maximum potential
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6 L AGOA , J., Concurring in part and in result 20-11215, 20-11216
sentence is inclusive of both the maximum statutory sentence and
the maximum term of supervised release. In
Sharpe, the defendant
faced a statutory maximum sentence consisting of a 10-year term
of imprisonment plus a lifetime term of supervised release—i.e., a
potential lifetime statutory maximum sentence.
Id. at *1. And,
upon revocation of his supervised release, the defendant was sen-
tenced to 24 months’ imprisonment.
Id.
Nor do other post-
R. Scott Cunningham cases from this
Court resolve the issue. For example, in
United States v.
John A.
Cunningham,2 this Court interpreted § 3583(e)(3)—specifically the
phrase “
on any such revocation”—to mean “that upon each revo-
cation of supervised release a defendant may be sentenced to the
felony class limits contained within § 3583(e)(3) without regard to
imprisonment previously served for revocation of supervised re-
lease.”3 800 F.3d 1290, 1293 (11th Cir. 2015). The defendant in
John A. Cunningham faced a statutory maximum sentence of 156
months—a maximum term of imprisonment of 120 months and a
maximum term of supervised release of 36 months. 800 F.3d at
2 References to this case use the defendant’s full name to distinguish this case
from the
R. Scott Cunningham case.
3 While one could argue that the phrase “
serve . . .
all or part of the term of
supervised release authorized by statute for the offense that resulted in such
term of supervised release” creates an upper limit,
see § 3583(e)(3) (emphasis
added), whereby the maximum imprisonment for all violations of supervised
release is the maximum supervised release authorized by statute for the un-
derlying offense, the facts and conclusion reached in
John A. Cunningham are
contrary to that interpretation.
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 7
1290–91;
see 18 U.S.C. § 2250(a). The defendant was sentenced to
a term of imprisonment of 30 months, but, as a result of three vio-
lations of his supervised release, he received revocation sentences
totaling 46 months’ imprisonment. Although the revocation sen-
tences cumulatively exceeded the statutory maximum term of su-
pervised release for the underlying sentence,4
id. at 1291, the de-
fendant’s cumulative sentence of imprisonment (76 months) was
less than the statutory maximum sentence (156 months).
Id. at
1291. Therefore, this Court did not reach the issue presented here:
whether the cumulative sentence of imprisonment—inclusive of
all sentences for revocation of supervised release—can exceed the
statutory maximum sentence.
A few additional cases touch upon the issue raised here, but
none conclusively address the issue. For example, in
Andrews v.
Warden, this Court explained that:
18 U.S.C. § 3583(e)[] allows the reimprisonment of de-
fendants who violate conditions of supervised release
4 Moreover, in rejecting the defendant’s argument that § 3583(e)(3) implicitly
contains an aggregation limitation, this Court held that Ҥ 3583(h) places an
indirect constraint upon the total amount of revocation imprisonment a de-
fendant may receive . . . by limiting post-imprisonment supervision.” 800 F.3d
at 1293. In other words, the majority opinion’s holding in II.A. that “the dis-
trict court was not authorized to impose any additional supervised release”
because Moore “already served a term of imprisonment for prior revocations
in excess of the statutory maximum amount” is the cap that “ensures that a
defendant is not at risk for an unlimited cycle of imprisonment and supervised
release.”
John A. Cunningham, 800 F.3d at 1292.
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8 L AGOA , J., Concurring in part and in result 20-11215, 20-11216
even when they were initially sentenced to the statu-
tory maximum term. For example, a defendant
might initially be sentenced to the statutory maxi-
mum term of 15 years of imprisonment and to a term
of two years of supervised release. Upon completing
his 15-year term of imprisonment, the defendant
might then commit another crime a year into serving
his supervised release. A district court would be well
within its power to order that defendant to serve the
remainder of his supervised release in prison, which
would be a term of imprisonment that is part of his
original sentence but not his original term of impris-
onment. That defendant would then serve 16 years
in prison despite that the statutory maximum for his
underlying crime allowed for only 15 years of impris-
onment. The terms of imprisonment are distinct
components of his sentence.
958 F.3d at 1080 (citations omitted). This statement endorses the
dissent’s assertion that “pursuant to a single conviction” a court can
impose both a term of imprisonment and a term of supervised re-
lease and later convert “all or part of the defendant’s supervised-
release term into a prison term.”
See Diss. Op. at 4. But it does not
go a step further and explicitly stand for the proposition that the
initial term of supervised release plus the prison term for the un-
derlying offense act as a ceiling for the defendant’s total period of
confinement.
Next, in
United States v.
Cameron, the defendant argued
that a post-revocation sentence of 24 months was unconstitutional
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 9
because, together with the 108 months imprisonment he served for
the underlying offense, he would serve 132 months’ imprisonment
for an underlying offense that carried a statutory maximum of 120
months’ imprisonment. 808 F. App’x 1020, 1020–21 (11th Cir.
2020). This Court found that the defendant invited the alleged er-
ror by specifically requesting a term of imprisonment (18 months)
that resulted in a sentence exceeding the statutory maximum for
the underlying offense.
Id. This Court also held that: (1) the de-
fendant could not prevail because in
R. Scott Cunningham the
Court found that § 3583(e)(3) is constitutional; and (2) the Supreme
Court’s ruling in
United States v. Haymond, 139 S. Ct. 2369 (2019),
was limited to § 3583(k).
Id. This Court was not asked, and there-
fore did not address, whether a sentence could exceed the statutory
maximum sentence.
And, in
United States v.
Horne, the defendant similarly ar-
gued that a 21-month sentence for violating supervised release, to-
gether with the time served for the underlying offense, exceeded
the statutory maximum sentence. 789 F. App’x 139, 142 (11th Cir.
2019). This Court rejected this argument, again holding that there
is “no violation of [the defendant’s] Fifth and Sixth Amendment
rights when the district court imposed a new term of imprisonment
that exceeded the statutory maximum sentence available for his
original crime of conviction without conducting a jury trial.”
Id. at
143. In
Horne, the defendant was initially sentenced to 180
months’ imprisonment and 60 months’ supervised release.
Id. at
140. After serving 132 months, he successfully sought to vacate his
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10 L AGOA , J., Concurring in part and in result 20-11215, 20-11216
remaining sentence because the Supreme Court invalidated the
Armed Career Criminal Act’s (“ACCA”) residual clause, and his
sentence was reduced to time served and 36 months’ supervised
release.
Id. Upon violating supervised release, the defendant was
sentenced to 21 months’ imprisonment, resulting in a cumulative
total imprisonment of 153 months.
Id. at 140–41. Assuming that,
without the ACCA’s enhancement, the statutory maximum sen-
tence for the underlying offense was 156 months—a 120 month
term of imprisonment and a 36 month term of supervised release—
defendant’s cumulative sentence was still below the statutory max-
imum sentence.
As these cases indicate, it is well settled that: (1) a court may
impose a sentence of imprisonment for violating supervised re-
lease, that together with the term of imprisonment initially im-
posed for the underlying offense, exceeds the statutory maximum
term of imprisonment for the underlying offense; and (2) upon
each revocation of supervised release a defendant may be sen-
tenced to the felony class limits specific to the underlying offense.
But these cases do not address whether the cumulative sentence of
imprisonment—inclusive of all sentences for revocation of super-
vised release and for the underlying offense—can exceed the statu-
tory maximum sentence consisting of both the maximum term of
imprisonment plus the maximum term of supervised release.
The dissent raises two arguments based on Supreme Court
decisions as to why we should find plain error here: (1) that sub-
jecting Moore to a sentence in excess of the statutory maximum
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 11
sentence “violated foundational American law, embodied (most re-
cently, but hardly exclusively) in
Apprendi and its progeny,”
see
Diss. Op. at 8; and (2) that the three
Haymond opinions (plurality,
concurrence, and dissent) all agree “that a judge can’t impose a to-
tal prison term exceeding the maximum prison term
plus the max-
imum supervised-release term,”
see Diss. Op. at 5–7.
The question presented in
Apprendi was “whether the Due
Process Clause of the Fourteenth Amendment requires that a fac-
tual determination authorizing an increase in the maximum prison
sentence for an offense from 10 to 20 years be made by a jury on
the basis of proof beyond a reasonable doubt.” 530 U.S. at 469. The
Supreme Court explained that:
“under the Due Process Clause of the Fifth Amend-
ment and the notice and jury trial guarantees of the
Sixth Amendment, any fact (other than prior convic-
tion) that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a
jury, and proven beyond a reasonable doubt[,]” [and]
[t]he Fourteenth Amendment commands the same
answer.”
Id. at 476 (citation omitted) (quoting
Jones v. United States, 526
U.S. 227, 243 n.6 (1999)). The Supreme Court further noted that
the statutory scheme at issue was problematic because it “ex-
pose[d] the criminal defendant to a penalty
exceeding the maxi-
mum he would receive if punished according to the facts reflected
in the jury verdict alone.”
Id. at 482–83. The Supreme Court also
identified the following guiding principle: “practice must at least
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12 L AGOA , J., Concurring in part and in result 20-11215, 20-11216
adhere to the basic principles undergirding the requirements of try-
ing to a jury all facts necessary to constitute a statutory offense, and
proving those facts beyond reasonable doubt.”
Id. at 483–84. But
Apprendi did not address whether a defendant is entitled to a trial
by jury for imprisonment imposed due to a violation of supervised
release.5
This Court has repeatedly held that
Apprendi and its prog-
eny do not implicate additional post-revocation safeguards because
“a defendant in a supervised-release revocation proceeding ‘stands
already convicted’ of the underlying criminal offense and ‘was
granted only conditional liberty’ dependent upon the defendant's
compliance with the conditions of supervised release.”
E.g.,
Sharpe, 2021 WL 4452532, at *3 (quoting
R. Scott Cunningham,
607 F.3d at 1268). Under these cases,
Apprendi does not apply to
5 After
Apprendi, the Supreme Court held that “[t]he decision to impose sen-
tences consecutively is not within the jury function.”
Oregon v.
Ice, 555 U.S.
160, 168 (2009). In so holding, the Supreme Court explained that “
Apprendi’s
core concern [is] a legislative attempt to ‘remove from the [province of the]
jury’ the determination of facts that warrant punishment for a specific statu-
tory offense” and that legislative reforms regarding the imposition of multiple
sentences do not implicate that core concern because “[t]here [was] no en-
croachment here by the judge upon facts historically found by the jury, nor
any threat to the jury’s domain as a bulwark at trial between the State and the
accused.”
Id. at 169–70 (second alteration in original) (quoting
Apprendi, 530
U.S. at 490. The Supreme Court also identified “the length of supervised re-
lease” as an example of where trial judges “find facts about the nature of the
offense or the character of the defendant.”
Id. at 171–72. But that statement
neither supports, nor weighs against, the majority opinion.
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 13
post-revocation proceedings because guilt for the underlying of-
fense has already been established and supervised release is a com-
ponent of the penalty for that offense. That view is supported by
the plurality opinion in
Haymond, in which the plurality
“acknowledge[d] that an accused’s final sentence includes any su-
pervised release sentence he may receive” and noted that the Court
had “already recognized that supervised release punishments arise
from and are ‘treat[ed] . . .as part of the penalty for the initial of-
fense.’”
Haymond, 139 S. Ct. at 2379–80 (plurality opinion) (quot-
ing
Johnson, 529 U.S. at 700).
The question that remains is whether cumulative sentences
for violating supervised release, that result in a term of imprison-
ment that exceeds the statutory maximum sentence, constitute a
“penalty
exceeding the maximum [the defendant] would receive if
punished according to the facts reflected in the jury verdict alone.”
Apprendi, 530 U.S. at 482–83. But
Apprendi does not directly re-
solve this question, which is what is required for us to find plain
error.
As this Court has already found in other cases, the plurality
opinion in
Haymond was “‘limited to § 3583(k) . . . and the
Alleyne
[
v. United States, 570 U.S. 99 (2013),] problem raised by its 5-year
mandatory minimum term of imprisonment,’ and declined ex-
pressly to address the constitutionality of section 3583(e).”
See,
e.g.,
Sharpe, 2021 WL 445232, at *3 (quoting
Haymond, 139 S. Ct.
at 2383 (plurality opinion));
Cameron, 808 F. App’x at 1021 (“[I]n
Haymond, the Supreme Court invalidated only § 3583(k).”);
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14 L AGOA , J., Concurring in part and in result 20-11215, 20-11216
Horne, 789 F. App’x at 143 (“
Haymond explicitly reserved the
question whether § 3583(e)(3) violates
Apprendi.”). And as the ma-
jority opinion correctly notes,
see Maj. Op. at 19, Justice Breyer’s
concurrence which, together with the plurality, forms the majority
opinion in
Haymond on that issue, is “specific [to the § 3583(k) pro-
vision] of the supervised-release statute” and specifically states that
it does not “transplant the
Apprendi line of cases to the supervised-
release context.” 138 S. Ct. 2385–86 (Breyer, J., concurring).
Therefore, it cannot be said that
Haymond limits sentences im-
posed under § 3583(e)(3) to the statutory maximum sentence.
The issue raised here appears to be a question of first impres-
sion and the precedents cited to by both the majority opinion and
the dissent are unavailing regarding how this Court should rule. As
noted, the panel all agree that the proper standard of review in this
case is plain error. I will therefore address whether the district
court plainly erred by sentencing Moore to 18 months’ imprison-
ment for his third violation of supervised release.
II. Did the District Court Plainly Err by Sentencing Moore to 18
Months’ Imprisonment for His Third Violation of Supervised
Release?
As this Court has explained:
“To find plain error, there must be: (1) error, (2) that
is plain, and (3) that has affected the defendant's sub-
stantial rights.” If we find that these conditions are
met, we may exercise our discretion to recognize a
forfeited error, but only if the error “seriously affect[s]
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 15
the fairness, integrity or public reputation of judicial
proceedings.” . . . “Plain” error means that the legal
rule is clearly established at the time the case is re-
viewed on direct appeal. “[W]here the explicit lan-
guage of a statute or rule does not specifically resolve
an issue, there can be no plain error where there is no
precedent from the Supreme Court or this Court di-
rectly resolving it.’”
United States v.
Hesser, 800 F.3d 1310, 1324–25 (11th Cir. 2015)
(first quoting
United States v. Khan, 794 F.3d 1288, 1300 (11th Cir.
2015); then quoting
United States v. Moriarty, 429 F.3d 1012, 1019
(11th Cir. 2005) (per curiam); and then quoting
United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam)).
Therefore, pursuant to this standard, there is no plain error
if: (1) the explicit language of the statute does not specifically re-
solve the issue; (2) no precedent from the Supreme Court directly
resolves the issue; and (3) no precedent from this Court directly
resolves the issue. And reviewing the relevant statutory language
as well as precedent from the Supreme Court and this Court, I con-
clude that there is no plain error established in this case.
First, the language of § 3583(e)(3) does not indicate that the
total amount of time a defendant spends in prison for the underly-
ing offense and subsequent violations of supervised release is lim-
ited to the statutory maximum sentence. Indeed, in
John A. Cun-
ningham, this Court interpreted § 3583(e)(3) to mean “that upon
each revocation of supervised release a defendant may be sen-
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16 L AGOA , J., Concurring in part and in result 20-11215, 20-11216
tenced to the felony class limits contained within § 3583(e)(3) with-
out regard to imprisonment previously served for revocation of su-
pervised release.” 800 F.3d at 1293. And the only limitations the
Court found with respect to subsequent sentences for violating su-
pervised release were: (1) the limits provided for the specific felony
classes; and (2) that Ҥ 3583(h) places an indirect constraint upon
the total amount of revocation imprisonment a defendant may re-
ceive . . . by limiting post-imprisonment supervision,” such that
there is not a “risk for an unlimited cycle of imprisonment and su-
pervised release.”
Id. at 1292–93.
Both the majority opinion and dissent agree that the district
court’s sentence of additional supervised release after the third
post-revocation imprisonment violates this latter limitation. But
the plain language of the statute does not impose any further rele-
vant limitations, including that the total amount of time a defend-
ant spends in prison cannot exceed the statutory maximum sen-
tence.
Second, as explained above, neither the Supreme Court’s de-
cision in
Apprendi nor the plurality decision in
Haymond directly
resolves this issue. The dissent argues that, based on
Haymond, it
is common ground that the justices of the Supreme Court would
not uphold a sentence that exceeds the statutory maximum sen-
tence. But the plurality and concurring decisions in
Haymond
were expressly limited to § 3583(k), and therefore
Haymond does
not create any binding precedent regarding the constitutionality of
a sentence of imprisonment imposed under § 3583(e).
See Marks
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20-11215, 20-11216 L AGOA , J., Concurring in part and in result 17
v.
United States, 430 U.S. 188, 193 (1977) (“When a fragmented
Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, ‘the holding of the Court may be
viewed as that position taken by those Members who concurred in
the judgments on the narrowest ground.” (quoting
Gregg v. Geor-
gia, 428 U.S. 153, 169 n.15 (1976))). And the fact that the justices
indicated how they may vote on the issue raised here is not prece-
dent “directly resolving [the issue].”
Hesser, 800 F.3d at 1325 (quot-
ing
Lejarde-Rada, 319 F.3d at 1291).
Third, as summarized above, there is no Eleventh Circuit
precedent that directly addresses whether the cumulative sentence
of imprisonment—inclusive of all sentences for revocation of su-
pervised release and for the underlying offense—can exceed the
statutory maximum sentence. Because no such case exists, I con-
clude that the district court could not have plainly erred because
“the explicit language of [the] statute . . . does not specifically re-
solve [the] issue” and “there is no precedent from the Supreme
Court or this Court directly resolving it.”
Id. (quoting
Lejarde-
Rada, 319 F.3d at 1291). I therefore concur in result only as to Part
II.B. of the majority opinion, which affirms the district court’s de-
cision to sentence Moore to 18 months’ imprisonment for the third
revocation of his supervised release, resulting in a cumulative total
of 162 months’ imprisonment for both the underlying offense and
the three revocations of supervised release. And I concur in full as
to Parts II.A., II.C., II.D., and II.E. of the majority’s opinion.
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20-11215, 20-11216 NEWSOM , J., dissenting in part 1
N EWSOM , Circuit Judge, dissenting in part:
The defendant here was convicted of a federal crime that
carried a statutory maximum penalty of 10 years in prison plus
three years of supervised release. Because any supervised release
time can (upon the occurrence of certain conditions) be converted
into prison time, the defendant’s total statutory maximum penalty
was 13 years in prison. Without convicting him of any new crimes,
the district court sentenced the defendant to a total of 13
and a half
years in prison. Because that sentence plainly violated the Fifth and
Sixth Amendments inasmuch as it exceeded the statutory maxi-
mum of 13 years, I respectfully dissent from Part II.B. of the Court’s
opinion.1
I
After Anthony Moore made pipe bombs for an undercover
agent, the federal government charged and convicted him under
26 U.S.C. § 5861(d). By statute, the district court was authorized to
impose a maximum prison term of 10 years plus a maximum su-
pervised-release term of three years.
See 26 U.S.C. § 5871; 18
U.S.C. §§ 3559(a)(3), 3583(b)(2). The district court imposed the
maximum terms. After serving his 10-year prison sentence, Moore
violated his conditions of supervised release, and the district court
1 For the balance of my dissent, I will use the term “principal opinion” to refer
to Part II.B. Because Judge Lagoa concurs “in result only” with respect to Part
II.B.,
see Lagoa Op. at 1, the discussion there represents only Judge Branch’s
view.
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2 N EWSOM , J., dissenting in part 20-11215, 20-11216
imposed a six-month revocation sentence. After serving that six-
month sentence, Moore violated his conditions again, and the dis-
trict court imposed a second revocation sentence of 18 months.
Moore then violated his conditions yet again, and the district court
imposed a third revocation sentence of another 18 months. All
told, then—10 years plus six months, plus 18 months, plus 18
months—the district court sentenced Moore to a total of 13 and a
half years in prison, all pursuant to his original conviction. On ap-
peal, Moore challenges (among other issues) the constitutionality
of the final revocation sentence.
II
A
It is bedrock American law that a defendant may be “consti-
tutionally deprived of his liberty” as punishment for a crime only
insofar as authorized by a “valid conviction.”
Meachum v. Fano,
427 U.S. 215, 224 (1976). In order to secure such a valid conviction,
the government must first afford the defendant due process of law
and provide him the right to a jury trial.
See U.S. Const. amends.
V, VI;
see also, e.g.,
Bell v. Wolfish, 441 U.S. 520, 535 (1979). And
once the government secures a valid conviction, a court can im-
prison the defendant only to the extent authorized by law. So if (as
here) the government convicts a defendant of a crime carrying a
statutory maximum sentence of 13 years, then a court can imprison
him for no longer than 13 years.
Although the parties and my colleagues discuss this principle
by reference to the Supreme Court’s decision in
Apprendi v. New
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20-11215, 20-11216 NEWSOM , J., dissenting in part 3
Jersey, 530 U.S. 466 (2000), and its progeny—and not erroneously
so—we should be clear that the principle itself dates back much
further. As the Supreme Court put it 42 years ago, a defendant has
a “constitutional right to be deprived of liberty as punishment for
criminal conduct only to the extent authorized by Congress.”
Whalen v. United States, 445 U.S. 684, 690 (1980). It is “axiomatic,”
we said about a decade later, that a court may not impose a prison
term “beyond that which is authorized by statute.”
United States
v. Bushert, 997 F.2d 1343, 1350 n.18 (11th Cir. 1993);
see also United
States v. Masters, 978 F.2d 281, 286 (7th Cir. 1992) (explaining that
“[c]onviction at trial” constitutionally authorizes “depriving the de-
fendant of liberty for any term up to the maximum prescribed by
statute”). Ultimately, this foundational rule derives from the Fifth
and Sixth Amendments and the common-law history out of which
they arose.
See U.S. Const. amends. V, VI;
see also Magna Carta
ch. 29 (1215); Thomas Cooley,
The General Principles of Constitu-
tional Law in the United States of America 224 (1880).
In
Apprendi, the Supreme Court applied this principle in a
new context and gave it fuller meaning.
Apprendi concerned a leg-
islative scheme that explicitly authorized a judge—as opposed to a
jury—to increase a defendant’s maximum sentence upon making
additional findings by a mere preponderance of the evidence—as
opposed to beyond a reasonable doubt. 530 U.S. at 468–69. The
Court held that even that scheme was unconstitutional.
Id. at 497.
Nothing but a conviction supported by a finding of guilt beyond a
reasonable doubt or a valid plea, the Court held, can “increase[] the
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4 N EWSOM , J., dissenting in part 20-11215, 20-11216
penalty for a crime beyond the prescribed statutory maximum.”
Id. at 490. Importantly, the Court later clarified that for constitu-
tional purposes the “statutory maximum” that a judge can’t ex-
ceed, even with express legislative sanction, is “the maximum sen-
tence [he] may impose
solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.”
Blakely v. Wash-
ington, 542 U.S. 296, 303 (2004) (emphasis in original). Thus, even
when authorized by the legislature, a judge alone cannot effect any
increase in the defendant’s maximum penalty. Once the conviction
is in, the maximum penalty is fixed, and nothing but a new, valid
conviction can extend it.
B
In the federal system, a court may, pursuant to a single con-
viction, impose a two-part sentence: (1) a prison term, followed by
(2) a term of supervised release.
See 18 U.S.C. § 3583(a);
Mont v.
United States, 139 S. Ct. 1826, 1834 (2019). If, during the super-
vised-release term, a defendant violates his conditions of release,
the court can, through an abbreviated procedure, “revoke” the re-
lease and “require the defendant to serve in prison all or part of the
term of supervised release.” 18 U.S.C. § 3583(e)(3). Such a “revo-
cation sentence” converts all or part of the defendant’s supervised-
release term into a prison term.
The constitutionality of revocation sentences has recently
generated a split at the Supreme Court. One side holds that revo-
cation sentences can be—and routinely are—unconstitutional,
even when imposed within the bounds authorized by Congress.
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20-11215, 20-11216 NEWSOM , J., dissenting in part 5
Under this view, represented by Justice Gorsuch’s four-Justice plu-
rality opinion in
United States v. Haymond, a valid conviction can
support the defendant’s incarceration for the maximum original
prison term, but no longer.
See 139 S. Ct. 2369, 2378 (2019) (plu-
rality op.). On this account, any revocation sentence beyond that
maximum original prison term—again, even one within the terms
authorized by Congress for the original conviction—constitutes a
“new punishment” requiring full due-process and jury-trial rights.
Id. So, to use the particulars of this case as an example, if a federal
statute authorizes a maximum prison term of 10 years plus a max-
imum supervised-release term of three years, the maximum total
constitutional prison term is 10 years, not 13.
See id.
The other side of the split holds that revocation sentences
are generally constitutional, so long as they don’t cause the total
sentence to exceed the maximum prison term
plus the maximum
supervised-release term. On this view—which, I’ll say, seems right
to me—although a revocation of supervised release may look like
a new punishment, it was actually already baked into the original
sentence.
See Mont, 139 S. Ct. at 1834 (“Supervised release is a
form of punishment that Congress prescribes along with a term of
imprisonment as part of the same sentence.”);
see also Johnson v.
United States, 529 U.S. 694, 701 (2000). As Justice Alito put it in
Haymond, “[w]hen a jury finds a federal defendant guilty of violat-
ing a particular criminal statute, the maximum period of confine-
ment authorized is the maximum term of imprisonment
plus the
maximum term of supervised release.” 139 S. Ct. at 2391 (Alito, J.,
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6 N EWSOM , J., dissenting in part 20-11215, 20-11216
dissenting) (emphasis added). Thus, he explained, “a defendant
sentenced to x years of imprisonment followed by y years of super-
vised release is really sentenced to a maximum punishment of x +
y years of confinement, with the proviso that any time beyond x
will be excused if the defendant abides by the terms of supervised
release.”
Id. at 2390. So, to carry the example forward, under a
federal statute that authorizes a maximum prison term of 10 years
and a maximum supervised-release term of three years, the defend-
ant’s total maximum prison term is 13 years, not 10. Notably, alt-
hough Justice Alito wrote in
Haymond on behalf of four dissenters,
Justice Breyer’s separate concurring opinion expressed agreement
with Justice Alito’s assessment of how total sentence maximums
should be computed.
See id. at 2385 (Breyer, J., concurring).
Although I read Justice Breyer’s opinion to mean that Justice
Alito’s analysis of revocation sentences represented a majority
view, we don’t have to resolve the disagreement to decide this case.
It is common ground—at least at the Supreme Court—that a judge
can’t impose a total prison term exceeding the maximum prison
term
plus the maximum supervised-release term
. See Haymond,
139 S. Ct. at 2378 (plurality op.), 2390 (Alito, J., dissenting). Some
of the Justices would have further curtailed a court’s sentencing
power, but all seemed to agree that a sentence cannot exceed the
combined terms of imprisonment and supervised release.
C
The Court here defies this common ground—and, in so do-
ing, carries us beyond where any Justice appears prepared to go.
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20-11215, 20-11216 NEWSOM , J., dissenting in part 7
The government lawfully convicted Anthony Moore under 26
U.S.C. § 5861(d). As the principal opinion acknowledges, that stat-
ute authorized a maximum prison term of 10 years plus a maxi-
mum supervised-release term of three years.
See Branch Op. at 4;
26 U.S.C. § 5871; 18 U.S.C. §§ 3559(a)(3), 3583(b)(2). Accordingly,
setting aside the dispute that divided the Justices in
Haymond,
Moore’s maximum total prison term was, at the very most, 13
years. Indeed, even the government conceded at oral argument in
this case that “the statutory maximum for [Moore’s] underlying
firearm offense” was 13 years.
See Oral Arg. at 21:30–55.
And yet, pursuant to a single § 5681(d) conviction, the dis-
trict court sentenced Moore to 13
and a half years in prison. It did
so by imposing the following four consecutive sentences: (1) 10
years on his original sentence; (2) six months for his first violation
of supervised release; (3) 18 months for his second violation of su-
pervised release; and (4) 18 months for his third violation of super-
vised release. Those four sentences totaled 13 and a half years—six
months beyond the highest possible aggregate term of total impris-
onment. The district court didn’t afford Moore due process or the
right to a jury trial before imposing the fourth sentence, nor did the
government secure a new conviction. Therefore, to the extent that
it caused Moore’s total term of imprisonment to exceed 13 years,
the fourth sentence was unconstitutional. It imposed a penalty be-
yond “the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the
defendant,”
Blakely, 542 U.S. at 303, and therefore violated
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8 N EWSOM , J., dissenting in part 20-11215, 20-11216
Moore’s “constitutional right to be deprived of liberty as punish-
ment for criminal conduct only to the extent authorized by Con-
gress,”
Whalen, 445 U.S. at 690.
To be sure, we review here only for plain error.
See Branch
Op. at 13–14; Lagoa Op. at 1. But just as surely, the district court’s
error
was “plain” inasmuch as it violated foundational American
law, embodied (most recently, but hardly exclusively) in
Apprendi
and its progeny. The district court’s error also affected Moore’s
substantial rights by subjecting him to an additional six months in
prison, and it undermined the “fairness, integrity, or public reputa-
tion” of judicial proceedings by causing an “unnecessary depriva-
tion of liberty.”
Rosales-Mireles v. United States, 138 S. Ct. 1897,
1908 (2018);
see also Fed. R. Civ. P. 52(b).
D
The principal opinion rejects this analysis and upholds
Moore’s six-months-too-long sentence because it says that we held
in a past case that “
Apprendi does not apply to revocation proceed-
ings.”
See Branch Op. at 17. But in the case on which the principal
opinion relies,
United States v. R. Scott Cunningham, 607 F.3d 1264
(11th Cir. 2010), we had no reason to contemplate, let alone decide,
the question before us today: whether a revocation sentence can
be used to extend a prisoner’s total imprisonment beyond his com-
bined statutory maximums. The government in
Cunningham se-
cured a conviction authorizing—as here—a maximum prison term
of 10 years plus a maximum supervised-release term of three years.
See id. at 1265–66;
see also 18 U.S.C. §§ 1957, 3559(a)(3), 3583(b)(2).
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20-11215, 20-11216 NEWSOM , J., dissenting in part 9
Pursuant to that conviction, the district court sentenced the de-
fendant to two years in prison plus three years of supervised re-
lease.
Cunningham, 607 F.3d
. at 1266. After the defendant violated
the conditions of his supervised release, the court imposed a four-
month revocation sentence, bringing his total prison term to two
years and four months, well within the combined statutory maxi-
mum of 13 years.
Id. The defendant challenged his revocation sen-
tence on a theory that outflanked even Justice Gorsuch’s
Haymond
plurality. Any sentence based on the revocation of supervised re-
lease, the defendant argued, constituted new punishment requiring
full due-process and jury-trial rights.
Id. at 1266. We (sensibly) re-
jected that sweeping argument and adhered to the conventional
view of supervised release that Justice Alito would later embrace in
Haymond.
See id. at 1268.
But again, Moore doesn’t ask us to hold that all revocation
sentences are unconstitutional. Rather, he accepts the conven-
tional, less defendant-friendly view that revocation sentences are
generally constitutional, and argues only that they can’t cause a de-
fendant’s total prison time to exceed the combined maximum
terms of imprisonment and supervised release. The
Cunningham
panel never even adverted to (or seemingly even imagined) the
possibility of extending a defendant’s total sentence beyond the
combined statutory maximums, and so its decision doesn’t control
here.
See, e.g.,
Crocker v. Beatty, 995 F.3d 1232, 1255 (11th Cir.
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10 N EWSOM , J., dissenting in part 20-11215, 20-11216
2021) (Newsom, J., concurring) (“[A] decision doesn’t answer ques-
tions that aren’t asked.”).2
Tellingly, when asked point blank at oral argument for ex-
amples of other cases in which courts had blessed sentences exceed-
ing the combined maximum terms of imprisonment and super-
vised release, the government could muster only
one—an un-
published, two-paragraph, out-of-circuit case that was decided
based on an
Anders brief and over a dissent.
See United States v.
Two Crow, 781 F. App’x 562 (8th Cir. 2019). For its part, the prin-
cipal opinion cites exactly
none. And with good reason: Over-
whelmingly—and to their great credit—district court judges have
known not to impose revocation sentences that cause a defendant’s
2 The principal opinion doubles down on
Cunningham by invoking the unre-
markable proposition that one three-judge panel can’t overrule another’s de-
cision just because the parties before it make new arguments.
See Branch Op.
at 20–21. But the principal opinion misses the point. As I hope I’ve made clear,
I’m not out to overrule
Cunningham, which I think was rightly decided. I’m
just saying that today’s case presents an altogether new and different ques-
tion—one that wasn’t, and couldn’t have been, presented in
Cunningham:
whether a revocation sentence can be used to extend a prisoner’s total impris-
onment
beyond his combined statutory maximums. Had the
Cunningham
panel reached out beyond the four corners of its case to answer the question
presented in this one—by (oddly) proclaiming that the district court there
could have sentenced the defendant not only to two years and four months,
but also to more than 13 years—its proclamation would have constituted the
most aggressive form of non-binding dicta.
See Lebron v. Sec’y of Fla. Dep’t
of Child. & Fams., 772 F.3d 1352, 1360 (11th Cir. 2014).
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20-11215, 20-11216 NEWSOM , J., dissenting in part 11
total prison time to exceed the aggregate maximum prison and su-
pervised-release terms. Moore’s sentence in this case was aberrant
in the extreme—and unlawful.
III
The district court deprived Anthony Moore of his liberty for
longer than was authorized by his combined maximum terms of
imprisonment and supervised release. Because that was lawless, I
would have vacated the final six months of Moore’s sentence. I
respectfully dissent from the Court’s refusal to do so.
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