Legal Case Summary

United States v. Haymond


Date Argued: Tue Feb 26 2019
Case Number: 17-1672
Docket Number: 14579686
Judges:Not available
Duration: 57 minutes
Court Name: Supreme Court

Case Summary

**Case Summary: United States v. Haymond** **Docket Number:** 14-579686 **Court:** United States Court of Appeals **Facts of the Case:** The case revolves around the defendant, Haymond, who was convicted of possessing child pornography. Under the federal statute, a specific provision allows for enhanced sentences for individuals who are found to have violated certain conditions of supervised release, particularly in cases involving sex offenses against minors. **Legal Issues:** The central legal issue in this case was whether the sentencing enhancement under the federal statute constituted a violation of the defendant's Sixth Amendment rights, which assert that a defendant has the right to a jury trial. The contention was whether facts that could lead to an increased sentence should be determined by a jury rather than a judge. **Court's Decision:** The United States Supreme Court ruled in favor of Haymond, concluding that the application of the revocation statute in this context was unconstitutional as it allowed judges to impose a sentence based on facts that were not found by a jury beyond a reasonable doubt. The Court emphasized the importance of the Sixth Amendment in protecting defendants' rights and establishing that enhanced penalties based on facts not determined by a jury could not be constitutional. **Significance:** The ruling had broader implications for how sentencing enhancements are applied in federal cases, particularly for individuals with prior convictions of sex offenses. It reinforced the necessity for jury involvement in determining facts that could influence sentencing outcomes, thereby upholding constitutional protections under the Sixth Amendment. **Conclusion:** In United States v. Haymond, the Court's decision underscored the importance of jury trials in the federal sentencing process, particularly for enhanced penalties related to sex offenses. The case serves as a critical reference point for future cases involving the intersection of sentencing law and constitutional rights.

United States v. Haymond


Oral Audio Transcript(Beta version)

We'll hear argument first this morning, in case 17, 16, 72, the United States versus Heyman. Mr. Fagan. Thank you, Mr. Chief Justice, and may it please the Court. There's no dispute that the district judges finding by preponderance of the evidence that respondent possess child pornography was constitutionally sufficient to revoke his supervised release and re-imprison him under Section 3583E3. The Court of Appeal. There are any other area of the law in which we permit imprisonment by a preponderance of the evidence. Well, Your Honor, there are areas where I mean that are precisely analogous to this, for example, parole and probation investigation. Well, in parole, the original sentence was already x-number of years, and the state granted a benefit and said, instead of serving 10 years, will let you serve eight. If you behave, if you don't, you've got to finish serving the two that we imposed originally. But where do we ever permit someone to be jailed for an additional period of time other than their original sentence on a preponderance of the evidence? There was no jail for an additional period of time here. Petitioner's original sentence, which was authorized by the jury's verdict, included a 10-year period of supervised release, which is precisely analogous to a 10-year term of automatic parole. His re-imprisonment upon revocation of his supervised release was only five years which is less than a 10-year. That's almost like harmless error argument. If his term, there's no question now that his term of supervised release extends further than his original sentence, no? Your Honor, it does not extend further than his original sentence. His original sentence does. No, Your Honor, it does not. His original sentence was 38 months of imprisonment, which he served, to be followed by 10 years of supervised release. On revocation, he received a five-year term of re-imprisonment to be followed by five further years of supervised release, an exchange of 10 for 10. The Court was clear and moreseagance brewer, where it held that a jury finding beyond a reasonable doubt is not required for parole revocation, that a defendant whose parole is revoked doesn't get credit for time he spent out in the community on parole. The circumstances this is exactly analogous. We're still, no, it's not quite, because he was sentenced originally to the 38 months, not to in the term of jail

. Now we're adding on to that an additional term of incarceration and an additional term of supervised release, so we've stretched the maximum of his earlier term. But, Your Honor, I don't think we have any more than would be true under a parole system. Well, you're trying to mix to compare apples and oranges in the parole situation. The original sentence was the additional sentence that he got. Here he only got the 38 months. A jury didn't find facts sufficient to give him the additional years he received by the judges finding. Well, let me say two things about that, Justice Sotomayor. The first is that his original sentence, if you look at the judgment, does include the 10 years of supervised release. He was fully aware that supervised release could be re-invoked and he could be re-imprisoned for violating its conditions. And that is, in fact, what happened here. Well, let's talk about this. Could Congress impose a system that says, on the day of sentencing, you're going to be sentenced to X number of years. But if a judge finds that you committed X act, you can be sentenced to instead of 38 months to eight years. Can a judge do that under a printing? Well, Your Honor, I need to know a little bit more about not a charge crime. It's just an act, whatever the act is. So, Your Honor, if your question is, can a judge impose a sentence that says, you'll, for example, spend five years in prison and then there will be some period after that during which if you judge fines, if you commit a certain act. No, no, no. We know under a printing. I think it's pretty clear under a printing that if the sentence says you committed X crime, you get five years. But if you did it with Rachel hatred, a printing, and a judge finds that by a preponderance of the evidence, you get eight years. Aprendy says, no. You can't do that

. The jury has to find that you did that additional element, correct? That's right. I'm trying to figure out why a judge now gets to say after you've been sentenced to the five years, instead of five years for the original crime, I'm going to find by a preponderance of the evidence. After you've been sentenced to the five years, that we really should have given you eight years. Because you've now committed a new crime or not a new crime, but a new crime or a new act, whatever that act may be. Your Honor, and that's not what's happening here. What's happening here is that the judge is finding a violation of the sentence that the judge imposed. This is different from aprendy in that it is precisely analogous to parole, proceeding in with parole revocation, proceeding in which the court is poorly- I would like to understand what question we are deciding here. What Justice Sotomayor is raising is really a revolutionary argument that would bring down the entire system of supervised release, which has been the law for what, 35 years? Is that the issue that is before us in this case? No, Your Honor. I think that is- Is Mr. Dunn making that argument? No, Your Honor. And in fact, I don't think that issue is properly before the Court because the relief he sought in the Court of Appeals and the relief the Court appealed granted was re-imprisonment under Section 3583 E3. He didn't cross petition, so the only question before this Court is whether there's really some difference between re-imprisonment under 3583 E3 and Section 3583 K. And there really isn't any difference between those two. So what about the fact that without finding that he committed a violation of 3583 K, without that the minimum term of imprisonment, the minimum term would be zero years. But with that factual finding, it becomes five years. Well, let me say a few things about that. First of all, the Court held in Morrissey that these kinds of sentence administration proceedings were what the judge is looking at as whether there was a violation of the terms of the sentence is a proceeding to which the Sixth Amendment doesn't apply. So Apprendi is a Sixth Amendment-based rule, and therefore it doesn't apply by its terms in the circumstance. Would that be true if instead of a five-year minimum, a minimum sentence was a sentence of death? Would the government take the position that the Sixth Amendment doesn't apply there either? Your Honor, I think first of all, there might be some eighth Amendment. I did not ask about an eighth Amendment question, Mr. Fagan. I asked about the Sixth Amendment

. So assuming that the original sentence that was imposed that had the death condition on it for certain violations didn't itself violate the eighth Amendment, I don't think there would be necessarily a Sixth Amendment problem with this. I think that has to be your answer, right? Yeah. I could well your Honor, be due process issues or other eighth Amendment issues, but I don't think it would be a Sixth Amendment issue. The second issue, remind me what Apprendi said, because I kept dissenting. And is there, I thought that it says- Sotomayor, you look at the statute and you see if, in fact, there is a fact that permits doesn't require, but permits the judge to go higher than the statute says. Does it permit him if it does the jury has to find it? The question is, can he go beyond the ten years that the statute says, if it only if X exists? And if that's the case, you have to find it. Is that Apprendi? Well, there's an exception, Your Honor, for the fact of a prior conviction. That's because- That's because- And I think one thing that's the case- That's because- Forget the exception. I wrote- Pointing up is that Apprendi only applies in a context- because the Sixth Amendment base rule under the text of the Sixth Amendment, it would only applies in the context of a criminal prosecution. I'm not got to my question. I have to think, I'm a good follower of Apprendi now. I look at the statute. The statute says ten years. We can sentence more unless you find X than it's 15. So that X has to be found by a jury. That's Apprendi, as I understand it. Now, if that's the case, I look at the statute here. What does the statute say? I think it says ten years. Right. So, if in fact it's ten years, then because of tradition, cases, e, he served five, he has supervised release of five. And so you can send him back to jail because of fact X, as long as you don't go beyond ten. But if you go beyond ten, just as you needed to find the fact by a jury, in basic Apprendi, so you should have to find the fact by the jury here because there is no real distinction

. Now, is my argument make sense? Well, you're on a, that argument was raised in the Court of Appeals, and even the Court of Appeals rejected it because the ten year maximum is only for one part of the sentence for the original term of imprisonment. There's also a separate portion of sentence for supervised release. Now, in the sentence, let me just preface this by saying, even if you thought that was the rule, we should win because he spent 38 months, excuse me, in prison on his original sentence, and the re-imprisonment term is only 60 months or only 98 months. That might be, it might be, but I should, but I want to know the answer to my question. And the reason that I thought it was the same is once you revoke supervised release, that means he's right back in jail. And so if his total time in jail is greater than the statute allows because of the finding of the fact that wasn't found by the jury, no. And that's where the line should be drawn. Now, I have the problem of having to write or agree to an opinion, which is not yours. But I would like to know what your opinion is of that. Well, you know, I don't think that's the right way to think about it. And that's not even the argument they're making. That's not the argument any of the, they're making. And that's because I think they recognize consistent with this Court's decision in Morrissey against Brewer, which addressed the parole context, and it was reiterated in Gagnon against Scarpelli, which addressed the probation context. There are multiple parts to this sentence. One was the original term of imprisonment. Another was the term of supervised release. Mr. Vagan, you keep talking about the parole cases, but the parole cases are cases that are very different from Justice Breyer's hypothetical. Because by definition, in parole, you cannot serve longer than your original sentence. So you never get to the question in the parole cases that Justice Breyer is asking you about, which is whether, once the judge made finding takes you above the original authorized sentence, it creates an apprendi problem. Isn't that right? Isn't that the difference between parole cases? Is that you can never get into this problem of serving longer than the original authorized sentence? Well, two things, Justice Kagan. Once again, as I was saying to Justice Sotomayor, we don't actually have a re-imprisimate term here that is longer than the original sentence, because the original term of supervised release was 10 years, and his re-imprisimate is for five

. And the second thing I'd say, I think, is more than a year. It incorporates a different argument about how the supervised release is baked into the original sentence. But I'm talking about in normal terms, people think, oh, this statute authorizes a punishment of up to 10 years. Now, what Justice Breyer is saying is, now maybe somebody might not be this person, but somebody, is serving 12 years instead because of a judge made finding. And I would have thought that that's a pretty simple case under apprendi. I also would have thought it's a pretty simple case under apprendi, if all of a sudden a mandatory minimum pops up as a result of a judge's finding. That's a pretty simple case under a lane, which was also a pretty simple case under apprendi. So you have two problems here. One is a mandatory minimum is suddenly popping up because of a judge made finding. And one is, a longer sentence than originally authorized is suddenly popping up because of a judge made finding. You know, I don't think this is a longer sentence than is originally authorized. Now, let me draw the analogy to parole more explicitly. I don't think there's any difference here between the 38-month term of imprisonment to be followed by 10 years of supervised release and a sentence to 158 months of imprisonment with mandatory parole after 38 months. Well, Counsel, Congress thought there was a difference, right? I mean, we had parole systems previously, probation systems previously. And Congress chose to ban in that system. And why doesn't that choice have consequences? And why isn't one of those consequences the jury right? And why is the government so anxious to avoid having the involvement of citizens in this process? Well, you're on a rather simple thing to convene a jury, wouldn't it? We don't think it would be simple to convene a jury, although that would be a better remedy than facially striking down the statute. But historically, there has never been a jury involved in this type of post-judgment And the historic administration has never been this kind of system before. Congress self-consciously created this system. And I guess I'm just struggling. I just don't understand why the government resists the involvement of a jury of a man's woman's peers. Well, first of all, Your Honor, we are relying on this course decisions in Morrissey and in Gagnon that make clear that there can be re-imprisonment for violation of conditions of a previously imposed sentence that was authorized by the jury's verdict. They don't even dispute that and maybe not explain it just to me

. I mean, we're just talking, there's a lot of words. But, you know, if you could, does the choice of Congress to move away from parole and probation have no consequence? It doesn't have any consequence that's relevant here. Okay. If we disagree with you, do you lose? Well, it would depend how you disagree with me, Your Honor. If you disagree with me such that you think that respondent here had a jury trial right, but they're not the same thing. But they are different. The Congress when it bothered to revamp sentencing in this country radically, it actually intended to and accomplished something as opposed to doing effectively nothing. So, Your Honor, one way in which I think supervised release is different, and this gets back to Justice Kagan's question, is that there is a way under the supervised release statute for the term of re-imprisonment to exceed even the period of conditional liberty that's represented by the supervised release itself. Well, that's an interesting question. It's an interesting question. And I think it's a hard one, and it's not briefed. And I just, I'm having enough trouble with what I understood to be the issue presented by this case, without deciding whether we should overrule an enormous amount of precedent and wipe out probation and parole, or decide this novel question, which isn't presented here. Mr. Hamond has to make an as-applied challenge to the part of the statute to which he objects. And he is not in this situation where he is required to serve a term of imprisonment that exceeds the statutory maximum. That's right, Your Honor, and I think that would be. He certainly in the situation of the mandatory minimum, you agree with that. So, let me say a few things about that, Your Honor. The first thing I would say is, again, because this is a context in which the Sixth Amendment doesn't apply, I don't think Apprendi would buy its own force apply. The second thing is that the jury's verdict authorizes re-imprisonment under K, just the same as the conceded authorization of re-imprisonment under E3. The third thing I would say is that what they're really asking for here, even if Apprendi applied, is a bespoke application of the Apprendi rule. Apprendi does not say that if you are subject to a heightened sentencing range that you are entitled to an even higher standard of proof than would apply to other kinds of fact findings, it says you receive the same standard of proof

. And they agree that the standard of proof in a revocation proceeding like this is a finding a fact by a judge by preponderance of the evidence. That's what they concede would be relevant under E3. And the fourth thing I would say, just very quickly, Your Honor, is there is no additional fact finding that is required under K, the exact same finding of fact that he possessed child pornography by a preponderance of the evidence is the same finding of fact that would lead to revocation under E3 as to revocation under K. The only reason for this legal consequence. I'm sorry. What I think was number two on your list, which is well, the jury found this and the jury's finding includes whatever K allows and therefore there's a, I mean, that's kind of a bitter with the sweet argument. You know, you're going to get supervised release, but if you do, you're going to have to buy into what might present constitutional problems. And simply because the jury found, I mean, it can't be the case that was at, whatever was provided sort of sentencing upon a conviction by the jury, it's, you know, home-free regardless of any constitutional problems it might, might entail. Well, Your Honor, there may be limits, but there, they concede in their brief that the jury's verdict authorized re-imprisonment under E3 based on a judicial finding by preponderance of the evidence. And I think they had to concede that under this Court's precedence. And what they're trying to do is to draw a distinction between E3 and K. And I don't think there's a distinction to the one. No, I'm not sure that's responsive. My question is, yes, of course, the jury's verdict did include this and this. That's how the statute reads. But that doesn't automatically mean that it's, it's blessed with sort of like a waiver. I mean, it's simply because the jury's sentence includes, it doesn't mean that everything that follows is necessarily constitutional. No, Your Honor, that's not our argument. But they're trying to make an argument that the jury didn't authorize these kinds of revocation proceedings. And our point is that if they're acknowledging that the jury's verdict does allow, does include this term of supervised release, which comes with conditions and consequences for violating those conditions, K is one of those conditions. Mr. Fagan, I have, I guess, a fundamental problem

. The way this provision reads, it basically says, if you commit X crime, you get a minimum of X number of years, re-imprisonment, and we lift the cap on your supervised release. You know, if it looks like a duck, quacks like a duck, walks like a duck, it's a duck. And what it seems to be saying is, if you commit this crime, you go to jail for this minimum number of years. I thought that it was baked into our criminal system that if a judge is going to make a finding like that, that you committed a crime, and that it's going to increase either your minimum or your maximum of whatever the original jury or whatever the jury found that you're entitled to a jury to find that fact beyond a reasonable doubt. So you say Apprendi was six-demendment, but Apprendi was both the fifth and sixth amendment, and the two interacted in the Apprendi decision was a due process concern as well. And so I have a due process concern as well as a sixth amendment concern, which is if we're asking a judge to find you committed a crime under the fifth amendment, how can we re-imprisonment something as drastic as re-imprisonment on such a low burden of proof? Well, Your Honor, as a due process matter, that's exactly the issue that was facing the Court in Morrissey against Brewer in the parole context, where someone who's on parole for life could potentially be re-imprisoned for life, and the Court set out some minimum due process. But we've already talked about the differences between parole in this. In parole, he was sentenced to life. He was given a benefit to be gotten out early or go back to jail to finish his term. It's a very different situation than being told, you're going to serve 10 years, 15, 20. You've done with the jail time, and now, if you go out, we can now re-imprison you for 50 years minimum as opposed to 20. So, Your Honor, let me explain a few reasons why you shouldn't consider this a new criminal prosecution. First, it arises in the context of active supervision by probation officers. They're not simply reacting to arrests. They're going out and supervising and trying to reintegrate these defendants into the community. Second, the revocation proceedings are initiated by probation officers, not by prosecutors. Prosecutors could ask the probation officers to do it, but it's ultimately up to the probation officers whether to do so. Third, there are both substantive and procedural limits baked into the statute, as well as possible as applied due process limits, that prohibit the judge from imposing a sanction for the violation of the supervised release conditions that is punishment for the offense that gave rise to the violation. But I don't see how a minimum can be anything but. Your Honor, I was here that judge very clearly, the judge and the Court of Appeals, very clearly said that if this had been a crime that would be determined beyond a reasonable doubt, they don't think the government could win. And the judge even said that he thought the sentence was inappropriate to the nature of the allegations and proof in this case. Well, your Honor, the question, the guidelines themselves adopt this philosophy that in sanctioning the violation of supervised release, there it goes on a breach of trust theory

. So what you're trying to do is to deter the violation. So how does a mandatory minimum, the AND problem, where we said that really should be determined by a jury, not a judge? How does an mandatory minimum deal with the breach of trust? Once you've tied a judge's hands in the sentence, then how does that promote the respect for the breach of trust? Is the judge doesn't believe that's the right sentence? Why would that promote the need for the breach? Well, I think Congress should have some leeway to decide that these are particularly egregious types of breaches of trust by defendants as to whom it's particularly concerned that when they get back into the community, will commit crimes that resemble their previous crime control? Well, but the question is where Congress's leeway stops because the Constitution kicks in. And that's what we've talked about in Apprendi and then in Elaine. And where we've said the Constitution kicks in is that judge made findings are not good enough to trigger mandatory minimums or to trigger changes in the statutorily authorized range. And both of these, at least mandatory minimums, is present in this case. And the arguments that you're presenting also raise questions about moving the statutory range. And it just seems if this isn't a clear cut violation of Apprendi in Elaine, like what is? A judge here is making a finding, and not only any old finding, a finding of a statutory violation, and he's making not a judge, not a jury, by a preponderance rather than by a reasonable doubt. And the result is somebody spends a very significant amount of time in prison. So, you're on a, let me just very quickly, before I reserve the remainder of my time, address the mandatory nature of this, which this Court has also addressed in the parole context. If you look at Black Against Romano, which has cited in our briefs, this Court has recognized that in some circumstances, but it depends on the facts and circumstances, a defendant might be able to claim that the mandatory revocation of a period of conditional liberty is substantive constitutional violation. And the Court in fact found one such a violation in Bearden against Georgia, where there is mandatory revocation of probation based on the failure of a defendant to pay fines that he just didn't have the means to pay. Revocation. There were a far cry from that here. Revocation of parole to me seems like a denied benefit, whereas revocation of supervised release seems like a penalty. I really don't think there is any difference between that. Because you're denying the period of liberty in reimposing the sentence up to, the prison sentence up to what it was, so denying that benefit. Here, though, by adding a chunk of time on, potentially, it seems more like a penalty rather than a denied benefit, at least if you look at it in that way. Well, is a period of conditional liberty that's included in the sentence? This is exactly like the type of automatic parole that existed at the time of Morrissey, as we pointed out in our brief. And this Court has considered things like revocation of good time credits to be the denial of a right and nevertheless not attached full protections to them. And it's considered the revocation of conditional liberty to implicate a defendant's liberty rights in the parole context and nevertheless not attached full due process let alone six amendment protections. If I might reserve the remainder of my time. Thank you, Council

. Mr. Lund? Mr. Chief Justice, in May of pleased the Court. I'd like the verb that Justice Sotomayor used at the beginning stretches. What 3583K does is it stretches what the original conviction, the amount of sentence that was authorized by the jury's verdict in this case. It aggravates the punishment in the sense that where the original verdict allowed only a zero to ten-year sentence that a judge could have imposed, to a mandatory five-year sentence all the way up to life in prison. And I also think that Justice Gorsage's comment that if the sixth amendment didn't apply, would this also apply if you had a, if the sentence was a death penalty. And the potential life in prison without parole, which 3583K allows, is the second most serious punishment that's allowed in the law. And those types of heightened punishments that 3583K allows create tremendous due process problems. And they also create tremendous problems with regard to the right to a jury trial. What about the government's argument that you are conceding that revocation and re-imprisonment under E3 is OK? The E3 reads that the Court may revoke a defendant's supervised release to allow him to serve in prison all or part of the term of supervised release. The term of supervised release has a very minimal, it's a fairly minimal sanction in that it's designed to rehabilitate a prisoner who has just finished his prison sentence and to retransition that prisoner back into the community. Is E3 OK? E3 is OK to- Yes, just a yes or no on that, if you can. Yes, with regard to Mr. Hamon. And to the extent that it is a sanction that has the non-tunitive purpose of rehabilitation and reintegrating a defendant back into the community, then to- Just to understand what you mean there, yes, with regard to Mr. Hamon, because Mr. Hamon can't be brought, he's not going beyond the statutory maximum here. Is that what you mean? So he has no, he himself has no claim that the statutory maximum is being stretched. That's well, the statutory minimum is being stretched. Yes, that's why I said that. He has no claim that the statutory maximum is being stretched. That's correct. So that's when you said to Justice Cavanoir, yes, with respect to Mr. Hamon, that's why. Yes. So to the extent that E3 allows an effective supervised release, supervised release regime, it doesn't necessarily equate with criminal punishment. But when it does equate with criminal punishment, in other words, when you have a situation that there is no rational connection between the non-punitive purpose of supervised release and actual punishment for an underlying crime, which is what's happening in this situation, then you can have a situation that could include it. So why couldn't the remedy, instead of requiring a jury trial or striking down this part of this provision, which the Tenth Circuit did, why couldn't a simple remedy in your view be adequate that says the judge can do anything within the original sentence? Because. And if you're re-insent, if you're re-imposition requires a minimum of five years, and that's what you've got, we strike that down. The judge doesn't have to do that. He can do whatever he wants within the original imprisonment time or the original terms of supervised release, maximum terms. That would not be a violation of a printing, but it could be, you could still have due process problems with that type of situation. For instance, if someone had been sentenced to one year, and then the judge by proponderance of the evidence was allowed to impose a far more restrictive, far more punishment-related sentence, let's say, of nine years, he might very well have an argument that that was a violation of due process rights, because he's looking at a certainly a heightened incapacity as a result of that type of sentence. Let me try this again, apprending. Any fact that by law increases the penalty for a crime is an element that must be submitted to the jury. All right. Now, your basic argument is mandatory is something that increases the penalty for a crime. Yes, okay. Got that one. Whatever I say here would also affect E3, and I think it would for this reason, it would raise this question, statute, ten years imprisonment, five years supervised release. Okay? Now, he serves sentence, nine years, which he serves, supervised release. He then, after a year passes, supervised release is revoked on the basis of a fact. Now, it could be the fact he didn't report, it could be any fact

. That's correct. So that's when you said to Justice Cavanoir, yes, with respect to Mr. Hamon, that's why. Yes. So to the extent that E3 allows an effective supervised release, supervised release regime, it doesn't necessarily equate with criminal punishment. But when it does equate with criminal punishment, in other words, when you have a situation that there is no rational connection between the non-punitive purpose of supervised release and actual punishment for an underlying crime, which is what's happening in this situation, then you can have a situation that could include it. So why couldn't the remedy, instead of requiring a jury trial or striking down this part of this provision, which the Tenth Circuit did, why couldn't a simple remedy in your view be adequate that says the judge can do anything within the original sentence? Because. And if you're re-insent, if you're re-imposition requires a minimum of five years, and that's what you've got, we strike that down. The judge doesn't have to do that. He can do whatever he wants within the original imprisonment time or the original terms of supervised release, maximum terms. That would not be a violation of a printing, but it could be, you could still have due process problems with that type of situation. For instance, if someone had been sentenced to one year, and then the judge by proponderance of the evidence was allowed to impose a far more restrictive, far more punishment-related sentence, let's say, of nine years, he might very well have an argument that that was a violation of due process rights, because he's looking at a certainly a heightened incapacity as a result of that type of sentence. Let me try this again, apprending. Any fact that by law increases the penalty for a crime is an element that must be submitted to the jury. All right. Now, your basic argument is mandatory is something that increases the penalty for a crime. Yes, okay. Got that one. Whatever I say here would also affect E3, and I think it would for this reason, it would raise this question, statute, ten years imprisonment, five years supervised release. Okay? Now, he serves sentence, nine years, which he serves, supervised release. He then, after a year passes, supervised release is revoked on the basis of a fact. Now, it could be the fact he didn't report, it could be any fact. At that point, when he sent back, he will be on the basis of that fact in prison for more than ten years. But the statute said ten years. And so he is being put in prison on the basis of a fact that was not bound by a jury. Now, if I decide for you, this may be an unusual case, you know, E doesn't, isn't that serious? Normally, but, but, but, it would create a complication. You would have to do something like collageurie in those few cases. Now, what do you think of that? The Sensing Reform Act, when it was initially enacted in 1984, maybe the answer for you in that type of situation. Because the Sensing Reform Act allowed exclusively, if a person violated a new law, as a violation of their supervised release, the judge could hold them in contempt. So, if you have someone who's been sentenced to nine years, it would allow a judge, and they're on the brink of getting to the sentence that was authorized by the jury. The judge could still find them in contempt, but you wouldn't necessarily, he would not be in a situation where he would be finding facts that would go beyond the period of incarceration that was authorized by the jury's verdict. That would be how you would deal with that situation, I think. And how long could the contempt penalty be? Well, if you're dealing with contempt, there are rules under this Court's holding in bloom that if you're looking at more than six months, then you're entitled to a jury trial. What can I ask you about a lien? What a lien held is that the touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an element of the charged offense. So, you're saying that all of the conditions of supervised release are elements of the charged offense? Well, my understanding of a lien is that if you increase the mandatory minimum or you increase the maximum that was authorized by the jury, that in effect creates a, you aggravate the punishment by creating a new element, and that makes an entirely new crime. So, all of the conditions in Mr. Hamlin's supervised release were elements of the offense? Well, the conditions that are imposed are not unlike a contempt situation. You're told to do certain things. And if you don't do those certain things in a court order, then you may be found in contempt or in this instance. You may even be sentenced to prison if necessary for a very limited period of time. So long as it still is designed to reintegrate the former prisoner back into the community and is designed for rehabilitation purposes. But the grants are not. There are elements of offense in the standard case where ten years in prison is a statute. Yes

. At that point, when he sent back, he will be on the basis of that fact in prison for more than ten years. But the statute said ten years. And so he is being put in prison on the basis of a fact that was not bound by a jury. Now, if I decide for you, this may be an unusual case, you know, E doesn't, isn't that serious? Normally, but, but, but, it would create a complication. You would have to do something like collageurie in those few cases. Now, what do you think of that? The Sensing Reform Act, when it was initially enacted in 1984, maybe the answer for you in that type of situation. Because the Sensing Reform Act allowed exclusively, if a person violated a new law, as a violation of their supervised release, the judge could hold them in contempt. So, if you have someone who's been sentenced to nine years, it would allow a judge, and they're on the brink of getting to the sentence that was authorized by the jury. The judge could still find them in contempt, but you wouldn't necessarily, he would not be in a situation where he would be finding facts that would go beyond the period of incarceration that was authorized by the jury's verdict. That would be how you would deal with that situation, I think. And how long could the contempt penalty be? Well, if you're dealing with contempt, there are rules under this Court's holding in bloom that if you're looking at more than six months, then you're entitled to a jury trial. What can I ask you about a lien? What a lien held is that the touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an element of the charged offense. So, you're saying that all of the conditions of supervised release are elements of the charged offense? Well, my understanding of a lien is that if you increase the mandatory minimum or you increase the maximum that was authorized by the jury, that in effect creates a, you aggravate the punishment by creating a new element, and that makes an entirely new crime. So, all of the conditions in Mr. Hamlin's supervised release were elements of the offense? Well, the conditions that are imposed are not unlike a contempt situation. You're told to do certain things. And if you don't do those certain things in a court order, then you may be found in contempt or in this instance. You may even be sentenced to prison if necessary for a very limited period of time. So long as it still is designed to reintegrate the former prisoner back into the community and is designed for rehabilitation purposes. But the grants are not. There are elements of offense in the standard case where ten years in prison is a statute. Yes. Plus five years supervised release. That plus E makes clear that if supervised release is violated and the whole thing doesn't exceed ten years in prison, plus supervised release, you don't need a jury. You can eat a jury when you give him a punishment that exceeds because of a fact what the initial punishment was in the statute. That I thought was a print. Yes. So the answer I guess is... Alain obviously adds to that with regard to a mandatory minimum. So you have a situation in a lane and this is how this Alain applies directly to Mr. Hamon's situation. Alain holds that by aggravating the punishment at either the mandatory minimum or heightening the maximum that you create a situation that heightens the loss of liberty and it empowers the prosecutor to get the judge to do something that the judge wouldn't ordinarily do. And that's precisely what happened in this case. The judge did not want to impose a five year mandatory minimum. But what does the Sixth Amendment protect? Does it protect the rights of the rights of people to have a jury of their peers or does it protect the rights of judges to exercise discretion? The Sixth Amendment provides further assurances to the right to jury trial that had already been guaranteed in the Constitution under Article III Section 2, clause 3. And the Sixth Amendment in fact was not needed to ensure trial by jury in cases of crimes. That's the wood case. I mean, I thought the right, the reason for the jury trial right was fundamentally distrust of judges. They didn't want these things to be in the hands of judges who had historically been appointed by the Crown and were thought to be beholden to the Crown. They wanted it to be in the hands of ordinary citizens. So how does that get turned into a regime that protects the prerogatives of the judge to decide what the term of imprisonment should be? You're talking about supervised release. Well, you're saying that there's a problem with the mandatory five because it ought to be up to the discretion of the district judge based on the Sixth Amendment right to a jury trial

. Plus five years supervised release. That plus E makes clear that if supervised release is violated and the whole thing doesn't exceed ten years in prison, plus supervised release, you don't need a jury. You can eat a jury when you give him a punishment that exceeds because of a fact what the initial punishment was in the statute. That I thought was a print. Yes. So the answer I guess is... Alain obviously adds to that with regard to a mandatory minimum. So you have a situation in a lane and this is how this Alain applies directly to Mr. Hamon's situation. Alain holds that by aggravating the punishment at either the mandatory minimum or heightening the maximum that you create a situation that heightens the loss of liberty and it empowers the prosecutor to get the judge to do something that the judge wouldn't ordinarily do. And that's precisely what happened in this case. The judge did not want to impose a five year mandatory minimum. But what does the Sixth Amendment protect? Does it protect the rights of the rights of people to have a jury of their peers or does it protect the rights of judges to exercise discretion? The Sixth Amendment provides further assurances to the right to jury trial that had already been guaranteed in the Constitution under Article III Section 2, clause 3. And the Sixth Amendment in fact was not needed to ensure trial by jury in cases of crimes. That's the wood case. I mean, I thought the right, the reason for the jury trial right was fundamentally distrust of judges. They didn't want these things to be in the hands of judges who had historically been appointed by the Crown and were thought to be beholden to the Crown. They wanted it to be in the hands of ordinary citizens. So how does that get turned into a regime that protects the prerogatives of the judge to decide what the term of imprisonment should be? You're talking about supervised release. Well, you're saying that there's a problem with the mandatory five because it ought to be up to the discretion of the district judge based on the Sixth Amendment right to a jury trial. Yes. Okay. So what you want is the judge to have the discretion to impose something less than five. Yes. Can you connect that with the right to a jury trial? Again, a jury trial applies when someone has committed a serious or atrocious crime under Callum vs. Wilson going all the way back to 1888, or any public wrong, which is the Bloom case, which is a case that didn't necessarily involve a criminal prosecution because it dealt with the contempt. So the right to a jury trial is when you are looking at a what amounts to a prosecution for a serious or atrocious crime. And it doesn't matter what label you put on it, whether it's revocation or a synodic in guideline or contempt or whatever. That's what the holding in ring is. This is nothing more than a label for what really amounts to the trial of a crime. I thought of a way of putting this question for this case. Let's imagine a statute that says up to 10 years in prison for possession of drugs with intent, okay, certain amount. Then the statute adds the following. If the offender had a gun, there is a three year mandatory minimum, but in no event, will the total sentence exceed 10 years? If you got that, it says no more than 10 years no matter what, but it has to be at least three if there's a gun. Now, does the jury have to find whether or not there was the gun? I believe they do. Is there any authority on that? Well, to some extent it may be the oprient case, it's somewhat similar. It's a situation where there was a gun and then the issue became whether or not it was a machine gun. The court said that the drastic increase from five years to 30 years actually created a substantive offense and that needed to be presented to the jury. I think this is similar. If you have a drug offense and then there is the issue of whether or not you have a gun, then in that situation that has to be presented by the jury. If that's going to cause him to have a mandatory minimum three years. What do you think of the government's proposal as a fallback that rather than strike down the statute, you can be in a jury and have the jury make the finding? There are two responses

. Yes. Okay. So what you want is the judge to have the discretion to impose something less than five. Yes. Can you connect that with the right to a jury trial? Again, a jury trial applies when someone has committed a serious or atrocious crime under Callum vs. Wilson going all the way back to 1888, or any public wrong, which is the Bloom case, which is a case that didn't necessarily involve a criminal prosecution because it dealt with the contempt. So the right to a jury trial is when you are looking at a what amounts to a prosecution for a serious or atrocious crime. And it doesn't matter what label you put on it, whether it's revocation or a synodic in guideline or contempt or whatever. That's what the holding in ring is. This is nothing more than a label for what really amounts to the trial of a crime. I thought of a way of putting this question for this case. Let's imagine a statute that says up to 10 years in prison for possession of drugs with intent, okay, certain amount. Then the statute adds the following. If the offender had a gun, there is a three year mandatory minimum, but in no event, will the total sentence exceed 10 years? If you got that, it says no more than 10 years no matter what, but it has to be at least three if there's a gun. Now, does the jury have to find whether or not there was the gun? I believe they do. Is there any authority on that? Well, to some extent it may be the oprient case, it's somewhat similar. It's a situation where there was a gun and then the issue became whether or not it was a machine gun. The court said that the drastic increase from five years to 30 years actually created a substantive offense and that needed to be presented to the jury. I think this is similar. If you have a drug offense and then there is the issue of whether or not you have a gun, then in that situation that has to be presented by the jury. If that's going to cause him to have a mandatory minimum three years. What do you think of the government's proposal as a fallback that rather than strike down the statute, you can be in a jury and have the jury make the finding? There are two responses. First of all, it's just a simple question as to why you need to do it at all. If you really are looking at a situation that you want to prosecute someone by guilt beyond a reasonable doubt, why don't you just prosecute them by inditing them? But beyond that, if you then want to bring the jury trial system into the revocation system, it creates immense difficulties. It really does potentially transform. Well, that's what you want, though. You're saying the violation is the lack of a jury, yet you're saying as a remedy, you don't want a jury. I understand that. And we obviously believe that this type of situation based on the allegations that are being made or something that needs to be presented to a jury. If you're not satisfied with the jury's a remedy, that raises the suspicion that the mandatory minimum is really what you're objecting to, not the lack of a jury. But there are problems. And this Court has looked at that type of situation, for instance, in both the Jackson case and in the Pennsylvania Board of Probe versus Scott, where it describes what happens when the court tries to create that jury in the revocation process. You would have burden of proof issues, you would have confrontation issues, you would have potential double jeopardy issues that would rise. There would be potential self-incrimination issues. You'd be dealing with whether there needs to be something presented to the grand jury in the first place. So those are things that Congress really needs to deal with, rather than for this Court to try to create some type of remedy that the government is talking about. And frankly, if this Court gives its blessing to this statute, you look at all of the crimes that are included here. And they include A, B, C, and D crimes that are applied in 3583K. The lowest one here is 2425 under Title 18, which carries only a five-year sentence and a 10-year sentence if you committed a second crime. We're looking at a potential life without parole. And you're creating a situation that would transform revocations, which would be a situation that has always been highly discretionary, and it has been something that you are focused on the individual defendant and what he needs. And you would change it into a potential adversarial system. There's no reason to believe that if the Court were to agree that this Senate, that this 3583K was appropriate, that you wouldn't have, for instance, drug offenses find themselves as a 3583K to provision. But I mean, you can't argue with the proposition that such a system would cure the constitutional violation that you're complaining of, isn't that right? If you had a jury trial assuming that you get around these constitutional problems such as presentment to a grand jury, that the judge is the party that's in the Constitutional violation that you are complaining of, the Apprendialane constitutional problem

. First of all, it's just a simple question as to why you need to do it at all. If you really are looking at a situation that you want to prosecute someone by guilt beyond a reasonable doubt, why don't you just prosecute them by inditing them? But beyond that, if you then want to bring the jury trial system into the revocation system, it creates immense difficulties. It really does potentially transform. Well, that's what you want, though. You're saying the violation is the lack of a jury, yet you're saying as a remedy, you don't want a jury. I understand that. And we obviously believe that this type of situation based on the allegations that are being made or something that needs to be presented to a jury. If you're not satisfied with the jury's a remedy, that raises the suspicion that the mandatory minimum is really what you're objecting to, not the lack of a jury. But there are problems. And this Court has looked at that type of situation, for instance, in both the Jackson case and in the Pennsylvania Board of Probe versus Scott, where it describes what happens when the court tries to create that jury in the revocation process. You would have burden of proof issues, you would have confrontation issues, you would have potential double jeopardy issues that would rise. There would be potential self-incrimination issues. You'd be dealing with whether there needs to be something presented to the grand jury in the first place. So those are things that Congress really needs to deal with, rather than for this Court to try to create some type of remedy that the government is talking about. And frankly, if this Court gives its blessing to this statute, you look at all of the crimes that are included here. And they include A, B, C, and D crimes that are applied in 3583K. The lowest one here is 2425 under Title 18, which carries only a five-year sentence and a 10-year sentence if you committed a second crime. We're looking at a potential life without parole. And you're creating a situation that would transform revocations, which would be a situation that has always been highly discretionary, and it has been something that you are focused on the individual defendant and what he needs. And you would change it into a potential adversarial system. There's no reason to believe that if the Court were to agree that this Senate, that this 3583K was appropriate, that you wouldn't have, for instance, drug offenses find themselves as a 3583K to provision. But I mean, you can't argue with the proposition that such a system would cure the constitutional violation that you're complaining of, isn't that right? If you had a jury trial assuming that you get around these constitutional problems such as presentment to a grand jury, that the judge is the party that's in the Constitutional violation that you are complaining of, the Apprendialane constitutional problem. A jury would cure, is that right? A jury in a revocation hearing, if that's where the Court wanted to go, and if you thought that that is what Congress would do in this situation, it would be very well. I think that's right. I think it is what Congress wanted to do. I mean, that question should be thought of much in the way we think of whether to sever unconstitutional provisions as a question of congressional intent. Which system would Congress rather, would they want this whole, would they want this provision severed, or would they want the whole statute to fall? Similarly, would they want a jury in paneled, or would they want the statute to fall? And how can we think that Congress would not have rather in paneled a jury? Because the entire tradition of supervised release, and in fact, parole and probation, has always been highly discretionary. Because, and Congress has recognized that throughout the time, and in fact, in terms of when it enacted the Synodic and Reform Act in 1984. It seems to me that now you are arguing against yourself on the merits. I mean, you have all these objections to what the remedy be on goal. It's going to interfere with the discretion of the judge and all that. But if you made those arguments when you're talking about the merits, they would certainly cut against you. Klerley, the Court can say that a jury should be imposed in a revocation hearing, but it would fundamentally alter the way in which revocations have been handled. It would make it constitutional. Well, but it would create an adversarial system potentially that would be quite a bit different from what we've known for revocations proceeding. Do you have any idea how many revocation proceedings there are every year? There are numerous revocation proceedings. There aren't many revocation proceedings under 3583K, I don't believe. But the total number of revocation proceedings, maybe Mr. Fagan has an idea. So we know what we're dealing with with some of these potential arguments. And that's one of the problems that you have. If you put juries into those revocation proceedings, it would create immense problems. It's something that a court would really need to think about how all of the ramifications and how these would be done. That's really not something the court should be doing

. A jury would cure, is that right? A jury in a revocation hearing, if that's where the Court wanted to go, and if you thought that that is what Congress would do in this situation, it would be very well. I think that's right. I think it is what Congress wanted to do. I mean, that question should be thought of much in the way we think of whether to sever unconstitutional provisions as a question of congressional intent. Which system would Congress rather, would they want this whole, would they want this provision severed, or would they want the whole statute to fall? Similarly, would they want a jury in paneled, or would they want the statute to fall? And how can we think that Congress would not have rather in paneled a jury? Because the entire tradition of supervised release, and in fact, parole and probation, has always been highly discretionary. Because, and Congress has recognized that throughout the time, and in fact, in terms of when it enacted the Synodic and Reform Act in 1984. It seems to me that now you are arguing against yourself on the merits. I mean, you have all these objections to what the remedy be on goal. It's going to interfere with the discretion of the judge and all that. But if you made those arguments when you're talking about the merits, they would certainly cut against you. Klerley, the Court can say that a jury should be imposed in a revocation hearing, but it would fundamentally alter the way in which revocations have been handled. It would make it constitutional. Well, but it would create an adversarial system potentially that would be quite a bit different from what we've known for revocations proceeding. Do you have any idea how many revocation proceedings there are every year? There are numerous revocation proceedings. There aren't many revocation proceedings under 3583K, I don't believe. But the total number of revocation proceedings, maybe Mr. Fagan has an idea. So we know what we're dealing with with some of these potential arguments. And that's one of the problems that you have. If you put juries into those revocation proceedings, it would create immense problems. It's something that a court would really need to think about how all of the ramifications and how these would be done. That's really not something the court should be doing. It's something that Congress should be doing. If that's what they really want to do. So you have questions. Who would be the prosecutor, for example? Well, you have the issues to whether or not if you allowed a jury trial, whether or not there would be any, you would still allow any type of contact between the probation office and the United States Attorney's Office. You have a lot of additional issues that may very well come up if you decide that a jury trial should be allowed in these cases. This is a case where the defendant in the initial with his, he was given a 38-month sentence in this under 35, 83K. He was given a five-year revocation sentence, which is more than what he received. He was looking at a 10-year maximum, but in this under 35, 83K, he's now looking at a sentence of life without parole. If the United States attorney had actually prosecuted Mr. Hamon under the recidivist statute of, he would have been looking at a maximum of 20 years in prison. This system under 35, 83K essentially circumvent the tried and true system of indictment and it makes it somewhat a dead letter in these types of situations. If there were no mandatory minimum here and everything else, those stayed the same in terms of what was imposed, would there be a constitutional problem? There would be because of the maximum penalty of life without parole. That creates immense problems under the due process clause. Under this court's holding in wind ship, you look at the permanency of the threatened loss. Obviously, you also consider the nature of the privacy interest. The most sacred privacy interest that a person has is their own liberty. Yet you're looking at a potential life without parole prison sentence. The same thing applies looking at the maximum sentence under the Sixth Amendment and Article 3 Section 2. Are you representing a client who was given life without parole? No, but he was, it doesn't matter. What does matter is that he was looking at a maximum sentence of life without parole. The court's cases in Frank Duncan and Blanton versus City of Las Vegas all point out to the fact that when you consider the right to jury trial, you look at what the maximum prison sentence could be. And the same thing applies with the due process right

. It's something that Congress should be doing. If that's what they really want to do. So you have questions. Who would be the prosecutor, for example? Well, you have the issues to whether or not if you allowed a jury trial, whether or not there would be any, you would still allow any type of contact between the probation office and the United States Attorney's Office. You have a lot of additional issues that may very well come up if you decide that a jury trial should be allowed in these cases. This is a case where the defendant in the initial with his, he was given a 38-month sentence in this under 35, 83K. He was given a five-year revocation sentence, which is more than what he received. He was looking at a 10-year maximum, but in this under 35, 83K, he's now looking at a sentence of life without parole. If the United States attorney had actually prosecuted Mr. Hamon under the recidivist statute of, he would have been looking at a maximum of 20 years in prison. This system under 35, 83K essentially circumvent the tried and true system of indictment and it makes it somewhat a dead letter in these types of situations. If there were no mandatory minimum here and everything else, those stayed the same in terms of what was imposed, would there be a constitutional problem? There would be because of the maximum penalty of life without parole. That creates immense problems under the due process clause. Under this court's holding in wind ship, you look at the permanency of the threatened loss. Obviously, you also consider the nature of the privacy interest. The most sacred privacy interest that a person has is their own liberty. Yet you're looking at a potential life without parole prison sentence. The same thing applies looking at the maximum sentence under the Sixth Amendment and Article 3 Section 2. Are you representing a client who was given life without parole? No, but he was, it doesn't matter. What does matter is that he was looking at a maximum sentence of life without parole. The court's cases in Frank Duncan and Blanton versus City of Las Vegas all point out to the fact that when you consider the right to jury trial, you look at what the maximum prison sentence could be. And the same thing applies with the due process right. If there are no more further questions, I'll be late. Thank you, Council. Thank you. Two minutes, Mr. Fagan. Thank you, Mr. Chief Justice. I just want to make two very important but fairly quick points. One is that they're defending a judgment under which this statute was struck down as facially unconstitutional. It cannot be applied no matter what the original offense was or what the supervised release violation was. So someone who kidnapped a minor and then kidnapped a minor again in offense that even have prosecuted under the criminal laws would subject the defendant to 20 years to life imprisonment would have to be treated the same way. What we're talking about in this case is an as applied, as applied in this case, and this is the second point, we're talking about just a five-year sentence, which is the only kind of, the only kind of re-imprisonment term we are familiar with under this statute with a few exceptions that are listed in our reply brief and there may be one more we're aware of. Everyone agrees that the jury's verdict authorized re-imprisonment for possessing child pornography. The only question is just what the legal significance of that fact was. When the judge was re-imprisoning, should the judge look at E3 or should the judge look at K? The only distinction respondent has drawn between E3 and K. The one that he's emphasizing, the only distinction applicable to him is the absence of discretion. As I was explaining earlier, that is an issue where you could potentially make a substantive claim that under particular circumstances, the application of a five-year minimum sentence would be unlawful under this Court's decision in Bearden as explained in Black against Romano. That's not the claim they're making. They're trying to defend the statute, the judgment under which the statute was struck down as facially unconstitutional by hypothesizing punishments to which he was never subjected, to which no defendant were aware of, has ever been subjected. On your case. Your Honor, if only K existed, I don't see how they'd have a claim. Let's just assume E3 didn't exist

. If there are no more further questions, I'll be late. Thank you, Council. Thank you. Two minutes, Mr. Fagan. Thank you, Mr. Chief Justice. I just want to make two very important but fairly quick points. One is that they're defending a judgment under which this statute was struck down as facially unconstitutional. It cannot be applied no matter what the original offense was or what the supervised release violation was. So someone who kidnapped a minor and then kidnapped a minor again in offense that even have prosecuted under the criminal laws would subject the defendant to 20 years to life imprisonment would have to be treated the same way. What we're talking about in this case is an as applied, as applied in this case, and this is the second point, we're talking about just a five-year sentence, which is the only kind of, the only kind of re-imprisonment term we are familiar with under this statute with a few exceptions that are listed in our reply brief and there may be one more we're aware of. Everyone agrees that the jury's verdict authorized re-imprisonment for possessing child pornography. The only question is just what the legal significance of that fact was. When the judge was re-imprisoning, should the judge look at E3 or should the judge look at K? The only distinction respondent has drawn between E3 and K. The one that he's emphasizing, the only distinction applicable to him is the absence of discretion. As I was explaining earlier, that is an issue where you could potentially make a substantive claim that under particular circumstances, the application of a five-year minimum sentence would be unlawful under this Court's decision in Bearden as explained in Black against Romano. That's not the claim they're making. They're trying to defend the statute, the judgment under which the statute was struck down as facially unconstitutional by hypothesizing punishments to which he was never subjected, to which no defendant were aware of, has ever been subjected. On your case. Your Honor, if only K existed, I don't see how they'd have a claim. Let's just assume E3 didn't exist. In the default penalty under E3 were five years to life. I don't see how they'd have a claim. They don't have some free-floating claim that a five-year minimum re-imprisonment term is too much for a violation of supervised release. Indeed, under some circumstances, E3 would allow a five-year term of re-imprisonment for a violation of supervised. It's too much for the original crime that didn't require it. Well, so your Honor, the original crime authorized the period of supervised authorizing it, but didn't require a minimum. Well, Your Honor, I don't understand what principle they're relying on to say that there is no, may I finish my speech, Justice, to say that there it is unconstitutional for Congress to prescribe a five-year minimum period of revocation for very serious crimes, for very serious defendants. I understand it. You didn't get to your second of the two points. I kind of weaved it in there, Your Honor, but the second, the main point I was trying to make on the second point is just that everyone agrees that re-imprisonment was authorized. And so a lot of the arguments that are being made here, as Justice Lido pointed out earlier, would call into question not only the constitutionality of supervised release in general, but also the constitutionality of parole and probation, which this Court has upheld in its precedence. Thank you. Thank you, Counsel. The case is submitted.

We'll hear argument first this morning, in case 17, 16, 72, the United States versus Heyman. Mr. Fagan. Thank you, Mr. Chief Justice, and may it please the Court. There's no dispute that the district judges finding by preponderance of the evidence that respondent possess child pornography was constitutionally sufficient to revoke his supervised release and re-imprison him under Section 3583E3. The Court of Appeal. There are any other area of the law in which we permit imprisonment by a preponderance of the evidence. Well, Your Honor, there are areas where I mean that are precisely analogous to this, for example, parole and probation investigation. Well, in parole, the original sentence was already x-number of years, and the state granted a benefit and said, instead of serving 10 years, will let you serve eight. If you behave, if you don't, you've got to finish serving the two that we imposed originally. But where do we ever permit someone to be jailed for an additional period of time other than their original sentence on a preponderance of the evidence? There was no jail for an additional period of time here. Petitioner's original sentence, which was authorized by the jury's verdict, included a 10-year period of supervised release, which is precisely analogous to a 10-year term of automatic parole. His re-imprisonment upon revocation of his supervised release was only five years which is less than a 10-year. That's almost like harmless error argument. If his term, there's no question now that his term of supervised release extends further than his original sentence, no? Your Honor, it does not extend further than his original sentence. His original sentence does. No, Your Honor, it does not. His original sentence was 38 months of imprisonment, which he served, to be followed by 10 years of supervised release. On revocation, he received a five-year term of re-imprisonment to be followed by five further years of supervised release, an exchange of 10 for 10. The Court was clear and moreseagance brewer, where it held that a jury finding beyond a reasonable doubt is not required for parole revocation, that a defendant whose parole is revoked doesn't get credit for time he spent out in the community on parole. The circumstances this is exactly analogous. We're still, no, it's not quite, because he was sentenced originally to the 38 months, not to in the term of jail. Now we're adding on to that an additional term of incarceration and an additional term of supervised release, so we've stretched the maximum of his earlier term. But, Your Honor, I don't think we have any more than would be true under a parole system. Well, you're trying to mix to compare apples and oranges in the parole situation. The original sentence was the additional sentence that he got. Here he only got the 38 months. A jury didn't find facts sufficient to give him the additional years he received by the judges finding. Well, let me say two things about that, Justice Sotomayor. The first is that his original sentence, if you look at the judgment, does include the 10 years of supervised release. He was fully aware that supervised release could be re-invoked and he could be re-imprisoned for violating its conditions. And that is, in fact, what happened here. Well, let's talk about this. Could Congress impose a system that says, on the day of sentencing, you're going to be sentenced to X number of years. But if a judge finds that you committed X act, you can be sentenced to instead of 38 months to eight years. Can a judge do that under a printing? Well, Your Honor, I need to know a little bit more about not a charge crime. It's just an act, whatever the act is. So, Your Honor, if your question is, can a judge impose a sentence that says, you'll, for example, spend five years in prison and then there will be some period after that during which if you judge fines, if you commit a certain act. No, no, no. We know under a printing. I think it's pretty clear under a printing that if the sentence says you committed X crime, you get five years. But if you did it with Rachel hatred, a printing, and a judge finds that by a preponderance of the evidence, you get eight years. Aprendy says, no. You can't do that. The jury has to find that you did that additional element, correct? That's right. I'm trying to figure out why a judge now gets to say after you've been sentenced to the five years, instead of five years for the original crime, I'm going to find by a preponderance of the evidence. After you've been sentenced to the five years, that we really should have given you eight years. Because you've now committed a new crime or not a new crime, but a new crime or a new act, whatever that act may be. Your Honor, and that's not what's happening here. What's happening here is that the judge is finding a violation of the sentence that the judge imposed. This is different from aprendy in that it is precisely analogous to parole, proceeding in with parole revocation, proceeding in which the court is poorly- I would like to understand what question we are deciding here. What Justice Sotomayor is raising is really a revolutionary argument that would bring down the entire system of supervised release, which has been the law for what, 35 years? Is that the issue that is before us in this case? No, Your Honor. I think that is- Is Mr. Dunn making that argument? No, Your Honor. And in fact, I don't think that issue is properly before the Court because the relief he sought in the Court of Appeals and the relief the Court appealed granted was re-imprisonment under Section 3583 E3. He didn't cross petition, so the only question before this Court is whether there's really some difference between re-imprisonment under 3583 E3 and Section 3583 K. And there really isn't any difference between those two. So what about the fact that without finding that he committed a violation of 3583 K, without that the minimum term of imprisonment, the minimum term would be zero years. But with that factual finding, it becomes five years. Well, let me say a few things about that. First of all, the Court held in Morrissey that these kinds of sentence administration proceedings were what the judge is looking at as whether there was a violation of the terms of the sentence is a proceeding to which the Sixth Amendment doesn't apply. So Apprendi is a Sixth Amendment-based rule, and therefore it doesn't apply by its terms in the circumstance. Would that be true if instead of a five-year minimum, a minimum sentence was a sentence of death? Would the government take the position that the Sixth Amendment doesn't apply there either? Your Honor, I think first of all, there might be some eighth Amendment. I did not ask about an eighth Amendment question, Mr. Fagan. I asked about the Sixth Amendment. So assuming that the original sentence that was imposed that had the death condition on it for certain violations didn't itself violate the eighth Amendment, I don't think there would be necessarily a Sixth Amendment problem with this. I think that has to be your answer, right? Yeah. I could well your Honor, be due process issues or other eighth Amendment issues, but I don't think it would be a Sixth Amendment issue. The second issue, remind me what Apprendi said, because I kept dissenting. And is there, I thought that it says- Sotomayor, you look at the statute and you see if, in fact, there is a fact that permits doesn't require, but permits the judge to go higher than the statute says. Does it permit him if it does the jury has to find it? The question is, can he go beyond the ten years that the statute says, if it only if X exists? And if that's the case, you have to find it. Is that Apprendi? Well, there's an exception, Your Honor, for the fact of a prior conviction. That's because- That's because- And I think one thing that's the case- That's because- Forget the exception. I wrote- Pointing up is that Apprendi only applies in a context- because the Sixth Amendment base rule under the text of the Sixth Amendment, it would only applies in the context of a criminal prosecution. I'm not got to my question. I have to think, I'm a good follower of Apprendi now. I look at the statute. The statute says ten years. We can sentence more unless you find X than it's 15. So that X has to be found by a jury. That's Apprendi, as I understand it. Now, if that's the case, I look at the statute here. What does the statute say? I think it says ten years. Right. So, if in fact it's ten years, then because of tradition, cases, e, he served five, he has supervised release of five. And so you can send him back to jail because of fact X, as long as you don't go beyond ten. But if you go beyond ten, just as you needed to find the fact by a jury, in basic Apprendi, so you should have to find the fact by the jury here because there is no real distinction. Now, is my argument make sense? Well, you're on a, that argument was raised in the Court of Appeals, and even the Court of Appeals rejected it because the ten year maximum is only for one part of the sentence for the original term of imprisonment. There's also a separate portion of sentence for supervised release. Now, in the sentence, let me just preface this by saying, even if you thought that was the rule, we should win because he spent 38 months, excuse me, in prison on his original sentence, and the re-imprisonment term is only 60 months or only 98 months. That might be, it might be, but I should, but I want to know the answer to my question. And the reason that I thought it was the same is once you revoke supervised release, that means he's right back in jail. And so if his total time in jail is greater than the statute allows because of the finding of the fact that wasn't found by the jury, no. And that's where the line should be drawn. Now, I have the problem of having to write or agree to an opinion, which is not yours. But I would like to know what your opinion is of that. Well, you know, I don't think that's the right way to think about it. And that's not even the argument they're making. That's not the argument any of the, they're making. And that's because I think they recognize consistent with this Court's decision in Morrissey against Brewer, which addressed the parole context, and it was reiterated in Gagnon against Scarpelli, which addressed the probation context. There are multiple parts to this sentence. One was the original term of imprisonment. Another was the term of supervised release. Mr. Vagan, you keep talking about the parole cases, but the parole cases are cases that are very different from Justice Breyer's hypothetical. Because by definition, in parole, you cannot serve longer than your original sentence. So you never get to the question in the parole cases that Justice Breyer is asking you about, which is whether, once the judge made finding takes you above the original authorized sentence, it creates an apprendi problem. Isn't that right? Isn't that the difference between parole cases? Is that you can never get into this problem of serving longer than the original authorized sentence? Well, two things, Justice Kagan. Once again, as I was saying to Justice Sotomayor, we don't actually have a re-imprisimate term here that is longer than the original sentence, because the original term of supervised release was 10 years, and his re-imprisimate is for five. And the second thing I'd say, I think, is more than a year. It incorporates a different argument about how the supervised release is baked into the original sentence. But I'm talking about in normal terms, people think, oh, this statute authorizes a punishment of up to 10 years. Now, what Justice Breyer is saying is, now maybe somebody might not be this person, but somebody, is serving 12 years instead because of a judge made finding. And I would have thought that that's a pretty simple case under apprendi. I also would have thought it's a pretty simple case under apprendi, if all of a sudden a mandatory minimum pops up as a result of a judge's finding. That's a pretty simple case under a lane, which was also a pretty simple case under apprendi. So you have two problems here. One is a mandatory minimum is suddenly popping up because of a judge made finding. And one is, a longer sentence than originally authorized is suddenly popping up because of a judge made finding. You know, I don't think this is a longer sentence than is originally authorized. Now, let me draw the analogy to parole more explicitly. I don't think there's any difference here between the 38-month term of imprisonment to be followed by 10 years of supervised release and a sentence to 158 months of imprisonment with mandatory parole after 38 months. Well, Counsel, Congress thought there was a difference, right? I mean, we had parole systems previously, probation systems previously. And Congress chose to ban in that system. And why doesn't that choice have consequences? And why isn't one of those consequences the jury right? And why is the government so anxious to avoid having the involvement of citizens in this process? Well, you're on a rather simple thing to convene a jury, wouldn't it? We don't think it would be simple to convene a jury, although that would be a better remedy than facially striking down the statute. But historically, there has never been a jury involved in this type of post-judgment And the historic administration has never been this kind of system before. Congress self-consciously created this system. And I guess I'm just struggling. I just don't understand why the government resists the involvement of a jury of a man's woman's peers. Well, first of all, Your Honor, we are relying on this course decisions in Morrissey and in Gagnon that make clear that there can be re-imprisonment for violation of conditions of a previously imposed sentence that was authorized by the jury's verdict. They don't even dispute that and maybe not explain it just to me. I mean, we're just talking, there's a lot of words. But, you know, if you could, does the choice of Congress to move away from parole and probation have no consequence? It doesn't have any consequence that's relevant here. Okay. If we disagree with you, do you lose? Well, it would depend how you disagree with me, Your Honor. If you disagree with me such that you think that respondent here had a jury trial right, but they're not the same thing. But they are different. The Congress when it bothered to revamp sentencing in this country radically, it actually intended to and accomplished something as opposed to doing effectively nothing. So, Your Honor, one way in which I think supervised release is different, and this gets back to Justice Kagan's question, is that there is a way under the supervised release statute for the term of re-imprisonment to exceed even the period of conditional liberty that's represented by the supervised release itself. Well, that's an interesting question. It's an interesting question. And I think it's a hard one, and it's not briefed. And I just, I'm having enough trouble with what I understood to be the issue presented by this case, without deciding whether we should overrule an enormous amount of precedent and wipe out probation and parole, or decide this novel question, which isn't presented here. Mr. Hamond has to make an as-applied challenge to the part of the statute to which he objects. And he is not in this situation where he is required to serve a term of imprisonment that exceeds the statutory maximum. That's right, Your Honor, and I think that would be. He certainly in the situation of the mandatory minimum, you agree with that. So, let me say a few things about that, Your Honor. The first thing I would say is, again, because this is a context in which the Sixth Amendment doesn't apply, I don't think Apprendi would buy its own force apply. The second thing is that the jury's verdict authorizes re-imprisonment under K, just the same as the conceded authorization of re-imprisonment under E3. The third thing I would say is that what they're really asking for here, even if Apprendi applied, is a bespoke application of the Apprendi rule. Apprendi does not say that if you are subject to a heightened sentencing range that you are entitled to an even higher standard of proof than would apply to other kinds of fact findings, it says you receive the same standard of proof. And they agree that the standard of proof in a revocation proceeding like this is a finding a fact by a judge by preponderance of the evidence. That's what they concede would be relevant under E3. And the fourth thing I would say, just very quickly, Your Honor, is there is no additional fact finding that is required under K, the exact same finding of fact that he possessed child pornography by a preponderance of the evidence is the same finding of fact that would lead to revocation under E3 as to revocation under K. The only reason for this legal consequence. I'm sorry. What I think was number two on your list, which is well, the jury found this and the jury's finding includes whatever K allows and therefore there's a, I mean, that's kind of a bitter with the sweet argument. You know, you're going to get supervised release, but if you do, you're going to have to buy into what might present constitutional problems. And simply because the jury found, I mean, it can't be the case that was at, whatever was provided sort of sentencing upon a conviction by the jury, it's, you know, home-free regardless of any constitutional problems it might, might entail. Well, Your Honor, there may be limits, but there, they concede in their brief that the jury's verdict authorized re-imprisonment under E3 based on a judicial finding by preponderance of the evidence. And I think they had to concede that under this Court's precedence. And what they're trying to do is to draw a distinction between E3 and K. And I don't think there's a distinction to the one. No, I'm not sure that's responsive. My question is, yes, of course, the jury's verdict did include this and this. That's how the statute reads. But that doesn't automatically mean that it's, it's blessed with sort of like a waiver. I mean, it's simply because the jury's sentence includes, it doesn't mean that everything that follows is necessarily constitutional. No, Your Honor, that's not our argument. But they're trying to make an argument that the jury didn't authorize these kinds of revocation proceedings. And our point is that if they're acknowledging that the jury's verdict does allow, does include this term of supervised release, which comes with conditions and consequences for violating those conditions, K is one of those conditions. Mr. Fagan, I have, I guess, a fundamental problem. The way this provision reads, it basically says, if you commit X crime, you get a minimum of X number of years, re-imprisonment, and we lift the cap on your supervised release. You know, if it looks like a duck, quacks like a duck, walks like a duck, it's a duck. And what it seems to be saying is, if you commit this crime, you go to jail for this minimum number of years. I thought that it was baked into our criminal system that if a judge is going to make a finding like that, that you committed a crime, and that it's going to increase either your minimum or your maximum of whatever the original jury or whatever the jury found that you're entitled to a jury to find that fact beyond a reasonable doubt. So you say Apprendi was six-demendment, but Apprendi was both the fifth and sixth amendment, and the two interacted in the Apprendi decision was a due process concern as well. And so I have a due process concern as well as a sixth amendment concern, which is if we're asking a judge to find you committed a crime under the fifth amendment, how can we re-imprisonment something as drastic as re-imprisonment on such a low burden of proof? Well, Your Honor, as a due process matter, that's exactly the issue that was facing the Court in Morrissey against Brewer in the parole context, where someone who's on parole for life could potentially be re-imprisoned for life, and the Court set out some minimum due process. But we've already talked about the differences between parole in this. In parole, he was sentenced to life. He was given a benefit to be gotten out early or go back to jail to finish his term. It's a very different situation than being told, you're going to serve 10 years, 15, 20. You've done with the jail time, and now, if you go out, we can now re-imprison you for 50 years minimum as opposed to 20. So, Your Honor, let me explain a few reasons why you shouldn't consider this a new criminal prosecution. First, it arises in the context of active supervision by probation officers. They're not simply reacting to arrests. They're going out and supervising and trying to reintegrate these defendants into the community. Second, the revocation proceedings are initiated by probation officers, not by prosecutors. Prosecutors could ask the probation officers to do it, but it's ultimately up to the probation officers whether to do so. Third, there are both substantive and procedural limits baked into the statute, as well as possible as applied due process limits, that prohibit the judge from imposing a sanction for the violation of the supervised release conditions that is punishment for the offense that gave rise to the violation. But I don't see how a minimum can be anything but. Your Honor, I was here that judge very clearly, the judge and the Court of Appeals, very clearly said that if this had been a crime that would be determined beyond a reasonable doubt, they don't think the government could win. And the judge even said that he thought the sentence was inappropriate to the nature of the allegations and proof in this case. Well, your Honor, the question, the guidelines themselves adopt this philosophy that in sanctioning the violation of supervised release, there it goes on a breach of trust theory. So what you're trying to do is to deter the violation. So how does a mandatory minimum, the AND problem, where we said that really should be determined by a jury, not a judge? How does an mandatory minimum deal with the breach of trust? Once you've tied a judge's hands in the sentence, then how does that promote the respect for the breach of trust? Is the judge doesn't believe that's the right sentence? Why would that promote the need for the breach? Well, I think Congress should have some leeway to decide that these are particularly egregious types of breaches of trust by defendants as to whom it's particularly concerned that when they get back into the community, will commit crimes that resemble their previous crime control? Well, but the question is where Congress's leeway stops because the Constitution kicks in. And that's what we've talked about in Apprendi and then in Elaine. And where we've said the Constitution kicks in is that judge made findings are not good enough to trigger mandatory minimums or to trigger changes in the statutorily authorized range. And both of these, at least mandatory minimums, is present in this case. And the arguments that you're presenting also raise questions about moving the statutory range. And it just seems if this isn't a clear cut violation of Apprendi in Elaine, like what is? A judge here is making a finding, and not only any old finding, a finding of a statutory violation, and he's making not a judge, not a jury, by a preponderance rather than by a reasonable doubt. And the result is somebody spends a very significant amount of time in prison. So, you're on a, let me just very quickly, before I reserve the remainder of my time, address the mandatory nature of this, which this Court has also addressed in the parole context. If you look at Black Against Romano, which has cited in our briefs, this Court has recognized that in some circumstances, but it depends on the facts and circumstances, a defendant might be able to claim that the mandatory revocation of a period of conditional liberty is substantive constitutional violation. And the Court in fact found one such a violation in Bearden against Georgia, where there is mandatory revocation of probation based on the failure of a defendant to pay fines that he just didn't have the means to pay. Revocation. There were a far cry from that here. Revocation of parole to me seems like a denied benefit, whereas revocation of supervised release seems like a penalty. I really don't think there is any difference between that. Because you're denying the period of liberty in reimposing the sentence up to, the prison sentence up to what it was, so denying that benefit. Here, though, by adding a chunk of time on, potentially, it seems more like a penalty rather than a denied benefit, at least if you look at it in that way. Well, is a period of conditional liberty that's included in the sentence? This is exactly like the type of automatic parole that existed at the time of Morrissey, as we pointed out in our brief. And this Court has considered things like revocation of good time credits to be the denial of a right and nevertheless not attached full protections to them. And it's considered the revocation of conditional liberty to implicate a defendant's liberty rights in the parole context and nevertheless not attached full due process let alone six amendment protections. If I might reserve the remainder of my time. Thank you, Council. Mr. Lund? Mr. Chief Justice, in May of pleased the Court. I'd like the verb that Justice Sotomayor used at the beginning stretches. What 3583K does is it stretches what the original conviction, the amount of sentence that was authorized by the jury's verdict in this case. It aggravates the punishment in the sense that where the original verdict allowed only a zero to ten-year sentence that a judge could have imposed, to a mandatory five-year sentence all the way up to life in prison. And I also think that Justice Gorsage's comment that if the sixth amendment didn't apply, would this also apply if you had a, if the sentence was a death penalty. And the potential life in prison without parole, which 3583K allows, is the second most serious punishment that's allowed in the law. And those types of heightened punishments that 3583K allows create tremendous due process problems. And they also create tremendous problems with regard to the right to a jury trial. What about the government's argument that you are conceding that revocation and re-imprisonment under E3 is OK? The E3 reads that the Court may revoke a defendant's supervised release to allow him to serve in prison all or part of the term of supervised release. The term of supervised release has a very minimal, it's a fairly minimal sanction in that it's designed to rehabilitate a prisoner who has just finished his prison sentence and to retransition that prisoner back into the community. Is E3 OK? E3 is OK to- Yes, just a yes or no on that, if you can. Yes, with regard to Mr. Hamon. And to the extent that it is a sanction that has the non-tunitive purpose of rehabilitation and reintegrating a defendant back into the community, then to- Just to understand what you mean there, yes, with regard to Mr. Hamon, because Mr. Hamon can't be brought, he's not going beyond the statutory maximum here. Is that what you mean? So he has no, he himself has no claim that the statutory maximum is being stretched. That's well, the statutory minimum is being stretched. Yes, that's why I said that. He has no claim that the statutory maximum is being stretched. That's correct. So that's when you said to Justice Cavanoir, yes, with respect to Mr. Hamon, that's why. Yes. So to the extent that E3 allows an effective supervised release, supervised release regime, it doesn't necessarily equate with criminal punishment. But when it does equate with criminal punishment, in other words, when you have a situation that there is no rational connection between the non-punitive purpose of supervised release and actual punishment for an underlying crime, which is what's happening in this situation, then you can have a situation that could include it. So why couldn't the remedy, instead of requiring a jury trial or striking down this part of this provision, which the Tenth Circuit did, why couldn't a simple remedy in your view be adequate that says the judge can do anything within the original sentence? Because. And if you're re-insent, if you're re-imposition requires a minimum of five years, and that's what you've got, we strike that down. The judge doesn't have to do that. He can do whatever he wants within the original imprisonment time or the original terms of supervised release, maximum terms. That would not be a violation of a printing, but it could be, you could still have due process problems with that type of situation. For instance, if someone had been sentenced to one year, and then the judge by proponderance of the evidence was allowed to impose a far more restrictive, far more punishment-related sentence, let's say, of nine years, he might very well have an argument that that was a violation of due process rights, because he's looking at a certainly a heightened incapacity as a result of that type of sentence. Let me try this again, apprending. Any fact that by law increases the penalty for a crime is an element that must be submitted to the jury. All right. Now, your basic argument is mandatory is something that increases the penalty for a crime. Yes, okay. Got that one. Whatever I say here would also affect E3, and I think it would for this reason, it would raise this question, statute, ten years imprisonment, five years supervised release. Okay? Now, he serves sentence, nine years, which he serves, supervised release. He then, after a year passes, supervised release is revoked on the basis of a fact. Now, it could be the fact he didn't report, it could be any fact. At that point, when he sent back, he will be on the basis of that fact in prison for more than ten years. But the statute said ten years. And so he is being put in prison on the basis of a fact that was not bound by a jury. Now, if I decide for you, this may be an unusual case, you know, E doesn't, isn't that serious? Normally, but, but, but, it would create a complication. You would have to do something like collageurie in those few cases. Now, what do you think of that? The Sensing Reform Act, when it was initially enacted in 1984, maybe the answer for you in that type of situation. Because the Sensing Reform Act allowed exclusively, if a person violated a new law, as a violation of their supervised release, the judge could hold them in contempt. So, if you have someone who's been sentenced to nine years, it would allow a judge, and they're on the brink of getting to the sentence that was authorized by the jury. The judge could still find them in contempt, but you wouldn't necessarily, he would not be in a situation where he would be finding facts that would go beyond the period of incarceration that was authorized by the jury's verdict. That would be how you would deal with that situation, I think. And how long could the contempt penalty be? Well, if you're dealing with contempt, there are rules under this Court's holding in bloom that if you're looking at more than six months, then you're entitled to a jury trial. What can I ask you about a lien? What a lien held is that the touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an element of the charged offense. So, you're saying that all of the conditions of supervised release are elements of the charged offense? Well, my understanding of a lien is that if you increase the mandatory minimum or you increase the maximum that was authorized by the jury, that in effect creates a, you aggravate the punishment by creating a new element, and that makes an entirely new crime. So, all of the conditions in Mr. Hamlin's supervised release were elements of the offense? Well, the conditions that are imposed are not unlike a contempt situation. You're told to do certain things. And if you don't do those certain things in a court order, then you may be found in contempt or in this instance. You may even be sentenced to prison if necessary for a very limited period of time. So long as it still is designed to reintegrate the former prisoner back into the community and is designed for rehabilitation purposes. But the grants are not. There are elements of offense in the standard case where ten years in prison is a statute. Yes. Plus five years supervised release. That plus E makes clear that if supervised release is violated and the whole thing doesn't exceed ten years in prison, plus supervised release, you don't need a jury. You can eat a jury when you give him a punishment that exceeds because of a fact what the initial punishment was in the statute. That I thought was a print. Yes. So the answer I guess is... Alain obviously adds to that with regard to a mandatory minimum. So you have a situation in a lane and this is how this Alain applies directly to Mr. Hamon's situation. Alain holds that by aggravating the punishment at either the mandatory minimum or heightening the maximum that you create a situation that heightens the loss of liberty and it empowers the prosecutor to get the judge to do something that the judge wouldn't ordinarily do. And that's precisely what happened in this case. The judge did not want to impose a five year mandatory minimum. But what does the Sixth Amendment protect? Does it protect the rights of the rights of people to have a jury of their peers or does it protect the rights of judges to exercise discretion? The Sixth Amendment provides further assurances to the right to jury trial that had already been guaranteed in the Constitution under Article III Section 2, clause 3. And the Sixth Amendment in fact was not needed to ensure trial by jury in cases of crimes. That's the wood case. I mean, I thought the right, the reason for the jury trial right was fundamentally distrust of judges. They didn't want these things to be in the hands of judges who had historically been appointed by the Crown and were thought to be beholden to the Crown. They wanted it to be in the hands of ordinary citizens. So how does that get turned into a regime that protects the prerogatives of the judge to decide what the term of imprisonment should be? You're talking about supervised release. Well, you're saying that there's a problem with the mandatory five because it ought to be up to the discretion of the district judge based on the Sixth Amendment right to a jury trial. Yes. Okay. So what you want is the judge to have the discretion to impose something less than five. Yes. Can you connect that with the right to a jury trial? Again, a jury trial applies when someone has committed a serious or atrocious crime under Callum vs. Wilson going all the way back to 1888, or any public wrong, which is the Bloom case, which is a case that didn't necessarily involve a criminal prosecution because it dealt with the contempt. So the right to a jury trial is when you are looking at a what amounts to a prosecution for a serious or atrocious crime. And it doesn't matter what label you put on it, whether it's revocation or a synodic in guideline or contempt or whatever. That's what the holding in ring is. This is nothing more than a label for what really amounts to the trial of a crime. I thought of a way of putting this question for this case. Let's imagine a statute that says up to 10 years in prison for possession of drugs with intent, okay, certain amount. Then the statute adds the following. If the offender had a gun, there is a three year mandatory minimum, but in no event, will the total sentence exceed 10 years? If you got that, it says no more than 10 years no matter what, but it has to be at least three if there's a gun. Now, does the jury have to find whether or not there was the gun? I believe they do. Is there any authority on that? Well, to some extent it may be the oprient case, it's somewhat similar. It's a situation where there was a gun and then the issue became whether or not it was a machine gun. The court said that the drastic increase from five years to 30 years actually created a substantive offense and that needed to be presented to the jury. I think this is similar. If you have a drug offense and then there is the issue of whether or not you have a gun, then in that situation that has to be presented by the jury. If that's going to cause him to have a mandatory minimum three years. What do you think of the government's proposal as a fallback that rather than strike down the statute, you can be in a jury and have the jury make the finding? There are two responses. First of all, it's just a simple question as to why you need to do it at all. If you really are looking at a situation that you want to prosecute someone by guilt beyond a reasonable doubt, why don't you just prosecute them by inditing them? But beyond that, if you then want to bring the jury trial system into the revocation system, it creates immense difficulties. It really does potentially transform. Well, that's what you want, though. You're saying the violation is the lack of a jury, yet you're saying as a remedy, you don't want a jury. I understand that. And we obviously believe that this type of situation based on the allegations that are being made or something that needs to be presented to a jury. If you're not satisfied with the jury's a remedy, that raises the suspicion that the mandatory minimum is really what you're objecting to, not the lack of a jury. But there are problems. And this Court has looked at that type of situation, for instance, in both the Jackson case and in the Pennsylvania Board of Probe versus Scott, where it describes what happens when the court tries to create that jury in the revocation process. You would have burden of proof issues, you would have confrontation issues, you would have potential double jeopardy issues that would rise. There would be potential self-incrimination issues. You'd be dealing with whether there needs to be something presented to the grand jury in the first place. So those are things that Congress really needs to deal with, rather than for this Court to try to create some type of remedy that the government is talking about. And frankly, if this Court gives its blessing to this statute, you look at all of the crimes that are included here. And they include A, B, C, and D crimes that are applied in 3583K. The lowest one here is 2425 under Title 18, which carries only a five-year sentence and a 10-year sentence if you committed a second crime. We're looking at a potential life without parole. And you're creating a situation that would transform revocations, which would be a situation that has always been highly discretionary, and it has been something that you are focused on the individual defendant and what he needs. And you would change it into a potential adversarial system. There's no reason to believe that if the Court were to agree that this Senate, that this 3583K was appropriate, that you wouldn't have, for instance, drug offenses find themselves as a 3583K to provision. But I mean, you can't argue with the proposition that such a system would cure the constitutional violation that you're complaining of, isn't that right? If you had a jury trial assuming that you get around these constitutional problems such as presentment to a grand jury, that the judge is the party that's in the Constitutional violation that you are complaining of, the Apprendialane constitutional problem. A jury would cure, is that right? A jury in a revocation hearing, if that's where the Court wanted to go, and if you thought that that is what Congress would do in this situation, it would be very well. I think that's right. I think it is what Congress wanted to do. I mean, that question should be thought of much in the way we think of whether to sever unconstitutional provisions as a question of congressional intent. Which system would Congress rather, would they want this whole, would they want this provision severed, or would they want the whole statute to fall? Similarly, would they want a jury in paneled, or would they want the statute to fall? And how can we think that Congress would not have rather in paneled a jury? Because the entire tradition of supervised release, and in fact, parole and probation, has always been highly discretionary. Because, and Congress has recognized that throughout the time, and in fact, in terms of when it enacted the Synodic and Reform Act in 1984. It seems to me that now you are arguing against yourself on the merits. I mean, you have all these objections to what the remedy be on goal. It's going to interfere with the discretion of the judge and all that. But if you made those arguments when you're talking about the merits, they would certainly cut against you. Klerley, the Court can say that a jury should be imposed in a revocation hearing, but it would fundamentally alter the way in which revocations have been handled. It would make it constitutional. Well, but it would create an adversarial system potentially that would be quite a bit different from what we've known for revocations proceeding. Do you have any idea how many revocation proceedings there are every year? There are numerous revocation proceedings. There aren't many revocation proceedings under 3583K, I don't believe. But the total number of revocation proceedings, maybe Mr. Fagan has an idea. So we know what we're dealing with with some of these potential arguments. And that's one of the problems that you have. If you put juries into those revocation proceedings, it would create immense problems. It's something that a court would really need to think about how all of the ramifications and how these would be done. That's really not something the court should be doing. It's something that Congress should be doing. If that's what they really want to do. So you have questions. Who would be the prosecutor, for example? Well, you have the issues to whether or not if you allowed a jury trial, whether or not there would be any, you would still allow any type of contact between the probation office and the United States Attorney's Office. You have a lot of additional issues that may very well come up if you decide that a jury trial should be allowed in these cases. This is a case where the defendant in the initial with his, he was given a 38-month sentence in this under 35, 83K. He was given a five-year revocation sentence, which is more than what he received. He was looking at a 10-year maximum, but in this under 35, 83K, he's now looking at a sentence of life without parole. If the United States attorney had actually prosecuted Mr. Hamon under the recidivist statute of, he would have been looking at a maximum of 20 years in prison. This system under 35, 83K essentially circumvent the tried and true system of indictment and it makes it somewhat a dead letter in these types of situations. If there were no mandatory minimum here and everything else, those stayed the same in terms of what was imposed, would there be a constitutional problem? There would be because of the maximum penalty of life without parole. That creates immense problems under the due process clause. Under this court's holding in wind ship, you look at the permanency of the threatened loss. Obviously, you also consider the nature of the privacy interest. The most sacred privacy interest that a person has is their own liberty. Yet you're looking at a potential life without parole prison sentence. The same thing applies looking at the maximum sentence under the Sixth Amendment and Article 3 Section 2. Are you representing a client who was given life without parole? No, but he was, it doesn't matter. What does matter is that he was looking at a maximum sentence of life without parole. The court's cases in Frank Duncan and Blanton versus City of Las Vegas all point out to the fact that when you consider the right to jury trial, you look at what the maximum prison sentence could be. And the same thing applies with the due process right. If there are no more further questions, I'll be late. Thank you, Council. Thank you. Two minutes, Mr. Fagan. Thank you, Mr. Chief Justice. I just want to make two very important but fairly quick points. One is that they're defending a judgment under which this statute was struck down as facially unconstitutional. It cannot be applied no matter what the original offense was or what the supervised release violation was. So someone who kidnapped a minor and then kidnapped a minor again in offense that even have prosecuted under the criminal laws would subject the defendant to 20 years to life imprisonment would have to be treated the same way. What we're talking about in this case is an as applied, as applied in this case, and this is the second point, we're talking about just a five-year sentence, which is the only kind of, the only kind of re-imprisonment term we are familiar with under this statute with a few exceptions that are listed in our reply brief and there may be one more we're aware of. Everyone agrees that the jury's verdict authorized re-imprisonment for possessing child pornography. The only question is just what the legal significance of that fact was. When the judge was re-imprisoning, should the judge look at E3 or should the judge look at K? The only distinction respondent has drawn between E3 and K. The one that he's emphasizing, the only distinction applicable to him is the absence of discretion. As I was explaining earlier, that is an issue where you could potentially make a substantive claim that under particular circumstances, the application of a five-year minimum sentence would be unlawful under this Court's decision in Bearden as explained in Black against Romano. That's not the claim they're making. They're trying to defend the statute, the judgment under which the statute was struck down as facially unconstitutional by hypothesizing punishments to which he was never subjected, to which no defendant were aware of, has ever been subjected. On your case. Your Honor, if only K existed, I don't see how they'd have a claim. Let's just assume E3 didn't exist. In the default penalty under E3 were five years to life. I don't see how they'd have a claim. They don't have some free-floating claim that a five-year minimum re-imprisonment term is too much for a violation of supervised release. Indeed, under some circumstances, E3 would allow a five-year term of re-imprisonment for a violation of supervised. It's too much for the original crime that didn't require it. Well, so your Honor, the original crime authorized the period of supervised authorizing it, but didn't require a minimum. Well, Your Honor, I don't understand what principle they're relying on to say that there is no, may I finish my speech, Justice, to say that there it is unconstitutional for Congress to prescribe a five-year minimum period of revocation for very serious crimes, for very serious defendants. I understand it. You didn't get to your second of the two points. I kind of weaved it in there, Your Honor, but the second, the main point I was trying to make on the second point is just that everyone agrees that re-imprisonment was authorized. And so a lot of the arguments that are being made here, as Justice Lido pointed out earlier, would call into question not only the constitutionality of supervised release in general, but also the constitutionality of parole and probation, which this Court has upheld in its precedence. Thank you. Thank you, Counsel. The case is submitted