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.
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.
BRISCOE, KELLY, and McHUGH, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
matter is before us upon remand from the Supreme Court.
See United States v. Haymond (Haymond III),
139 S.Ct. 2369 (2019).
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.
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.
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.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,
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.
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.
district court found that Haymond had committed all five
violations by a preponderance of the evidence. 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),
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
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