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United States v. Haymond

United States Court of Appeals, Tenth Circuit

August 23, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ANDRE RALPH HAYMOND, Defendant-Appellant.

          On Remand from the United States Supreme Court ( S.Ct. No. 17-1672) Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:08-CR-00201-TCK-1)

          William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant.

          R. Trent Shores, United States Attorney, Northern District of Oklahoma, and Leena Alam, Assistant United States Attorney, Northern District of Oklahoma, Office of the United States Attorney for the Northern District of Oklahoma, Tulsa, Oklahoma; Brian A. Benczkowski, Assistant Attorney General, and Matthew S. Miner, Deputy Assistant Attorney General, Office of the Attorney General for the State of Oklahoma, Tulsa, Oklahoma; and Ross B. Goldman, Criminal Division, Appellate Section, United States Department of Justice, Washington, D.C., for Plaintiff-Appellee.

          Before BRISCOE, KELLY, and McHUGH, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         This matter is before us upon remand from the Supreme Court. See United States v. Haymond (Haymond III), 139 S.Ct. 2369 (2019).

         This court had previously held 18 U.S.C. § 3583(k) unconstitutional, vacated Haymond's sentence, and remanded for resentencing. United States v. Haymond (Haymond II), 869 F.3d 1153, 1156 (10th Cir. 2017). Following the issuance of our mandate, the district court resentenced Haymond under 18 U.S.C. § 3583(e)(3) to time served on February 14, 2018. After granting certiorari, the Supreme Court agreed that § 3583(k) is unconstitutional, but "decline[d] to tangle with the parties' competing remedial arguments." Haymond III, 139 S.Ct. at 2385 (plurality opinion). Instead, it remanded to give this court "the opportunity to address the government's remedial argument in the first instance, including any question concerning whether that argument was adequately preserved in this case." Id.

         After the case was remanded, we directed the parties to file supplemental briefing to address issue preservation and what, if any, remedial options remain. After receiving our supplemental briefing order, the government filed a motion to dismiss this appeal. The parties have also filed their supplemental briefs. We recount the background of this case and the Supreme Court's opinion before addressing the government's motion to dismiss.

         I

         On January 21, 2010, Andrew Ralph Haymond was convicted by a jury of one count of possession and attempted possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). See United States v. Haymond (Haymond I), 672 F.3d 948, 950 (10th Cir. 2012). Under 18 U.S.C. § 2252(b)(2), he faced a statutory term of imprisonment between zero and ten years, making his crime of conviction a Class C felony. See 18 U.S.C. § 3559(a)(3). Ultimately, the district court sentenced Haymond to a thirty-eight-month term of imprisonment and a ten-year term of supervised release.[1]Haymond's conditions of supervised release contained special sex offender and computer restrictions. We affirmed his conviction on direct appeal, see generally Haymond I, 672 F.3d 948, and Haymond began serving his term of supervised release on April 24, 2013.

         On October 22, 2015, at 6:00 a.m., probation officers conducted a surprise search of Haymond's apartment. The officers seized a password-protected Samsung cellular Android phone belonging to Haymond, a personal computer belonging to Haymond, a personal computer belonging to Haymond's roommate, and two other computers found in the kitchen area. A probation officer conducted a forensic examination of Haymond's phone using a Cellebrite device. A Cellebrite device extracts the flash memory of a phone for examination. This examination revealed web history for only October 21, 2015, suggesting that prior web history had been deleted. Still, the web history for October 21, 2015, contained numerous websites with titles indicative of sexually explicit material. The forensic examination of Haymond's phone also revealed fifty-nine images that the FBI's Internet Crime Task Force identified as child pornography.

         Based on these findings, Haymond's probation officer alleged that Haymond had committed five violations of his supervised release: (1) possession of fifty-nine images of child pornography, in violation of the mandatory condition that Haymond not commit another federal, state, or local crime; (2) failure to disclose to the probation office all internet devices he possessed, in violation of a special computer restriction; (3) possession of numerous sexually explicit images on his phone, in violation of a special condition that he not view or possess pornography; (4) failure to install and pay for computer monitoring software, in violation of a special monitoring condition; and (5) failure to attend sex offender treatment on fifteen occasions, in violation of a special condition that he participate in treatment.

         The district court found that Haymond had committed all five violations by a preponderance of the evidence.[2] Ordinarily, a district court has discretion to determine what action it will take after a defendant violates the terms of supervised release. See 18 U.S.C. § 3583(e) (statute governing most revocation of supervised release proceedings, including options available to the sentencing court). If the district court had revoked Haymond's term of supervised release and sentenced him to a term of imprisonment under § 3583(e)(3), the maximum authorized term of imprisonment would have been two years because his original crime of conviction was a Class C felony. See id. § 3583(e)(3). However, under 18 U.S.C. § 3583(k), [3] Haymond's violation of his conditions of supervised release triggered a mandatory revocation of his supervised release and a mandatory sentence to an additional term of imprisonment of at least five years and, at most, life. The district court sentenced Haymond to a new five-year term of imprisonment followed by a new five-year term of supervised release.

         Haymond appealed the revocation of his supervised release and five-year mandatory minimum sentence on two grounds. First, he argued that the presence of images in his phone cache was insufficient to show by a preponderance of the evidence that he knowingly possessed child pornography. Second, he asserted that 18 U.S.C. § 3583(k) is unconstitutional because it deprived him of due process and jury trial protections. In response, the government argued that there was sufficient evidence for the district court to conclude by a preponderance of the evidence that Haymond violated the terms of his supervised release. The government also asserted that the district court could, consistent with the Fifth and Sixth Amendments, sentence Haymond to a mandatory five-year term of imprisonment pursuant to § 3583(k) after making findings of fact by a preponderance of the evidence. See Gov't Resp. Br. at 28 (explaining that procedural ...


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