24-935 United States v. Bradley
In the United States Court of Appeals for the Second Circuit
August Term 2024 Argued: October 7, 2024 Decided: December 23, 2024
No. 24-935
UNITED STATES OF AMERICA, Appellee, v. JOHN BRADLEY, Defendant-Appellant. *
Appeal from the United States District Court for the Southern District of New York
Before: NEWMAN, CABRANES, AND PÉREZ, Circuit Judges.
On appeal from a judgment of the United States District Court for the Southern District of New York (Sullivan, J.).
Defendant-Appellant John Bradley appeals a judgment revoking his supervised release and sentencing him to 18 months in prison, followed by 18 more months of supervised release. Bradley challenges the 2023 and 2024 orders (“Designation Orders”) that Chief Judge Livingston issued authorizing Judge Sullivan, who presided over Bradley’s initial criminal conviction as a district court judge, to sit by designation and conduct the revocation proceedings after his elevation to this Court of Appeals. We conclude that the statute authorizing Chief
* The Clerk of Court is respectfully directed to amend the official caption as set forth above. Judge Livingston to make such a designation, 28 U.S.C. § 291(b), is constitutional as applied to Judge Sullivan’s designation and that the Designation Orders conform to the dictates of § 291(b). We also hold that Bradley was not entitled to factfinding by a jury during his revocation proceedings. We therefore affirm the judgment of the district court.
AFFIRMED.
NATHAN REHN (Meredith C. Foster, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
SARAH BAUMGARTEL, Federal Defenders of New York, Inc., New York, NY. __________________________
MYRNA PÉREZ, Circuit Judge:
In this criminal appeal, Defendant-Appellant John Bradley challenges the
constitutional validity of two judicial practices: a circuit judge temporarily sitting
in a district court by designation and a district court conducting supervised-
release revocation proceedings without a jury when those proceedings do not
resemble punishment for a new offense. Each enjoys a long history in this country.
Neither is constitutionally infirm. Bradley also contends that Chief Judge
Livingston’s 2023 and 2024 orders designating Judge Sullivan to sit as a district
judge in the Southern District of New York (“Designation Orders” or “Orders”)
2 do not meet the requirements of the statute authorizing such designations, 28
U.S.C. § 291(b). We conclude that Chief Judge Livingston issued those Orders in
conformance with § 291(b). We therefore affirm in full the judgment of the district
court revoking Bradley’s supervised release.
BACKGROUND
In December 2013, Bradley pleaded guilty to one count of possessing a
firearm in violation of 18 U.S.C. § 922(g)(1), which circumscribes firearm access for
individuals who have been convicted of certain crimes. A previous felony
conviction for selling crack cocaine placed Bradley within the ambit of § 922(g)(1)’s
prohibition. Judge Sullivan, then a district judge on the United States District
Court for the Southern District of New York, presided over the criminal
proceedings. Following Bradley’s plea, Judge Sullivan sentenced Bradley to three
years in prison, followed by three years of supervised release. Five years later, the
Senate confirmed Judge Sullivan’s appointment to the Second Circuit Court of
Appeals.
Many members of this Court have sat by designation in cases over which
they presided as district court judges.1 Chief Judge Livingston issued the two
1See, e.g., United States v. Snype, No. 02 Cr. 939 (DC), 2023 WL 4622870 (S.D.N.Y. July 19, 2023) (Chin, J.); Wilson v. United States, No. 16 Civ. 4994 (AJN), 2023 WL 4131685 (S.D.N.Y. June 22, 2023) (Nathan, J.); United 3 Orders relevant here. She designated Judge Sullivan to sit in the Southern District
of New York “from January 1, 2023 through December 31, 2023 and for such
additional time as may be required to complete unfinished business,” and used
identical language to designate him again in calendar year 2024. Appellant’s
App’x 25, 196–97.
In November 2023, the Probation Office submitted the first of two reports
alleging Bradley had violated the terms of his supervised release. The Probation
Office alleged that Bradley had tested positive for marijuana, assaulted and
strangled a former romantic partner in violation of New York state law, and left
the judicial district without permission—for a total of six alleged violations.
Pursuant to the Orders, Judge Sullivan presided over Bradley’s revocation
proceedings.
During the pendency of the revocation proceedings, Bradley filed motions
requesting (1) Judge Sullivan’s recusal on the grounds that his designation to the
States v. Kalichenko, No. 14 Cr. 95 (JFB), 2023 WL 3688109 (E.D.N.Y. May 25, 2023) (Bianco, J.); United States v. David, No. 90 Cr. 424 (RR), 2004 WL 7323439 (E.D.N.Y. Dec. 30, 2004) (Raggi, J.); Samson v. N.Y. State Dep’t of Transp., No. 96 Civ. 1871 (RSP), 2000 WL 307380 (N.D.N.Y. Mar. 23, 2000) (Pooler, J.); Morales v. United States, No. 95 Civ. 2413 (JAC), 1996 WL 942428 (D. Conn. Aug. 9, 1996) (Cabranes, J.); United States v. Roland, No. 89 Cr. 341 (PNL), 1995 WL 450493 (S.D.N.Y. July 31, 1995) (Leval, J.); Alvarez-Perez v. United States, No. 88 Cr. 408 (JMM), 1991 WL 148514 (E.D.N.Y. July 12, 1991) (McLaughlin, J.); United States v. Helmsley, 760 F. Supp. 338 (S.D.N.Y. 1991) (Walker, J.); Cont’l Connector Corp. v. Cont’l Specialties Corp., 492 F. Supp. 1088 (D. Conn. 1979) (Newman, J.). 4 district court violated the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, and
the statute authorizing designation orders, 28 U.S.C. § 291(b); and (2) a jury trial
on Bradley’s alleged supervised-release violations. The district court denied the
motions orally and at greater length in a written order.
Thereafter, it conducted an evidentiary hearing on the allegations. During
the hearing, the court determined, by a preponderance of evidence, that Bradley
had used marijuana and left the judicial district without permission. It referenced
“two positive drugs tests, an admission to the probation officer, and . . . national
lab results” in support of the marijuana violations and “video” evidence of Bradley
in a different judicial district. Appellant’s App’x 188–89. After further review of
the remaining allegations, and based on the testimony of the victim, the court also
concluded that Bradley had committed assault and strangulation in violation of
New York law. Accordingly, on April 3, 2024, it sentenced him to 18 months in
prison and 18 months of supervised release for the six violations. Bradley timely
appealed.
DISCUSSION
Appellant contends that Chief Judge Livingston’s designation of Judge
Sullivan to the district court was unlawful and that he was entitled to a jury trial
5 before the revocation of his supervised release. We review de novo questions
involving interpretation of the Constitution and federal statutes. United States v.
Donziger, 38 F.4th 290, 295 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023); United
States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016).
I. The Designation Orders Are Constitutional
We begin by clarifying the relevant Designation Orders. While Bradley
points us to similar orders for periods other than 2023 and 2024, he appeals only
the judgment revoking his supervised release following proceedings initiated in
November 2023 and concluded in April 2024. And Bradley’s counsel explained at
oral argument that he challenges the designation statute, § 291(b), only as applied
to the Orders relevant to his case. See Oral Arg. Audio Recording at 00:52–01:51,
18:25–19:00, 20:13–20:19. We therefore focus exclusively on the 2023 and 2024
Orders. See Appellant’s App’x 25, 196–97.
Section 291(b) empowers “[t]he chief judge of a circuit” to “in the public
interest, designate and assign temporarily any circuit judge within the circuit . . .
to hold a district court in any district within the circuit.” 28 U.S.C. § 291(b).
Because acts of Congress are “presumed constitutional,” Bradley bears the burden
of demonstrating that as applied to him, § 291(b) contravenes the Appointments
6 Clause. See Lujan v. G&G Fire Sprinklers, Inc., 532 U.S. 189, 198 (2001). We conclude
that he falls short of his burden.
The animating concern of the Appointments Clause is that the President
appoint “principal federal officers,” including judges, with the advice and consent
of the Senate. See Freytag v. Comm’r, 501 U.S. 868, 884 (1991). Principal officers not
provided for in the Constitution, such as district and circuit court judges, “shall be
established by Law.” U.S. Const. art. II, § 2, cl. 2. Thus, Congress plays a necessary
role in providing for circuit and district court judgeships through the exercise of
its legislative power. See also id. art. I, § 8, cl. 9 (authorizing Congress “[t]o
constitute Tribunals inferior to the [S]upreme Court”); id. art. III, § 1 (providing
that the judicial power shall be vested “in such inferior Courts as the Congress
may from time to time ordain and establish”).
Exercising this legislative power, Congress has authorized judges to sit by
designation for over two centuries—since at least 1814. See Marin K. Levy, Visiting
Judges, 107 Cal. L. Rev. 67, 77–78 (2019). In our modern era, the Supreme Court
has upheld a number of similarly worded designation statutes against
constitutional challenges. For example, the Supreme Court labeled a challenge to
a statute authorizing district court judges to sit in another district “absolute[ly]
7 unsound[].” Lamar v. United States, 241 U.S. 103, 117–18 (1916); see Glidden Co. v
Zdanok, 370 U.S. 530, 539–41 (1962) (upholding a designation statute authorizing
the Chief Justice to assign judges from the Court of Claims and the Court of
Customs and Patent Appeals to sit on district courts and courts of appeals). Our
sister circuits have followed suit. See, e.g., United States v. Cavanaugh, 807 F.2d 787,
792 (9th Cir. 1987) (holding constitutional a statute permitting Article III judges to
sit on the Foreign Intelligence Surveillance Court); In re Certain Complaints Under
Investigation by an Investigation Committee, 783 F.2d 1488, 1515 (11th Cir. 1986)
(holding lawful a statute permitting the chief judge of a circuit to appoint judges
to a judicial misconduct committee). We note that designation statutes abound in
some form for every level of the federal judiciary. See 28 U.S.C. §§ 291–294, 297.
We know of no circuit that has held that the relevant statutory provision in this
case, § 291(b), is unconstitutional. See N.L.R.B. v. Noel Canning, 573 U.S. 513, 524
(2014) (“[L]ong settled and established practice is a consideration of great weight
in a proper interpretation of constitutional provisions regulating the relationship
between Congress and the President.” (quoting The Pocket Veto Case, 279 U.S. 655,
689 (1929))).
8 Bradley’s as-applied challenge falters because he fails to distinguish the
designation of Judge Sullivan from the long-standing congressionally authorized
practice of sitting by designation in federal courts. First, as noted above, judges
from this Court have commonly sat by designation, many of them in order to
continue working on cases over which they presided originally as district court
judges. See supra note 1. Chief Judge Livingston’s designation of Judge Sullivan,
who presided over Bradley’s initial criminal conviction as a duly appointed
district court judge, fits squarely within this tradition.
Second, the relevant Designation Orders are each limited by date and the
completion of “unfinished business.” See Appellant’s App’x 25, 196–97. They
permit Judge Sullivan to assume the district judge’s role only temporarily. The
facts before us do not support Bradley’s claim that Judge Sullivan sits in
“perpetual” appointment on the district court. See Appellant’s Br. 19; cf. Oral Arg.
Audio Recording at 12:20—13:20, 18:45—19:40 (grappling with a hypothetical
involving a 40-year designation of a federal circuit judge to another court).
Consequently, we need not reach the outer bounds of permissible judicial
designation under the Appointments Clause to conclude that the Designation
Orders here withstand constitutional scrutiny.
9 In sum, the temporary Designation Orders here accord with our
constitutional practice and survive Bradley’s Appointments Clause challenge.
II. The Designation Orders Conform to § 291(b)
Section 291(b) provides that the chief judge of the circuit “may, in the public
interest, designate and assign temporarily any circuit judge within the circuit . . .
to hold a district court in any district within the circuit.” 28 U.S.C. § 291(b).
Appellant challenges whether the Designation Orders were “temporar[y]” within
the meaning of the designation statute and whether Chief Judge Livingston was
required to make a finding that their issuance would be “in the public interest.”
We find that the Orders here conform to the dictates of § 291(b).
The Designation Orders properly provide for “temporar[y]” appointment.
Id. A “temporary” order “last[s] for a limited time only, as distinguished from that
which is perpetual, or indefinite, in its duration.” See Temporary, Black’s Law
Dictionary (3d ed. 1933).2 Because the Orders set expiration upon a specific date
(December 31) or event (the completion of “unfinished business”), they are not
“perpetual.” See Appellant’s App’x 25, 196–97. Even if reference to the
termination of “unfinished business” is not especially specific, we are nevertheless
2 We refer to the version of Black’s Law Dictionary that was in circulation when Congress enacted § 291(b). 10 satisfied that the phrase cannot reasonably be understood as a permanent
authorization. And in any event, the Orders specify in the alternative that they
would expire on December 31, 2023, and on December 31, 2024, respectively.
Bradley’s revocation proceedings fell within the two bounded, one-year periods
delineated in the Orders.
“[N]earby statutory provisions” confirm the meaning of “temporar[y]” in
§ 291(b). See Unicolors, Inc. v. H&M Hennes & Mauritz, L. P., 595 U.S. 178, 185 (2022);
see also Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts
167–69 (2012) (approving “consider[ing] the entire text, in view of its structure and
of the physical and logical relation of its many parts”). Section 44(b) in the same
Title describes the permanent appointment of circuit judges, who “shall hold office
during good behavior.” 28 U.S.C. § 44(b) (emphasis added) (mirroring the language
of U.S. Const. art. III, § 1). It is most natural to read § 291(b) in contrast to the
permanent nature of judicial appointments described in § 44(b). Because the
Designation Orders here identify a discrete endpoint and do not authorize Judge
Sullivan to sit in the Southern District of New York perpetually or indefinitely,
they do not violate the statute.
11 Furthermore, Chief Judge Livingston’s decision to designate Judge
Sullivan is not “open to . . . attack” on the grounds that she failed to make an initial
finding of public interest, because “the decision as to requiring public interest is
left to the one having the power to assign.” See Johnson v. Manhattan Ry. Co., 289
U.S. 479, 501 (1933) (discussing § 291(b)’s predecessor statute). The Chief Judge is
empowered to designate this Circuit’s judges at her discretion. 3 To hold otherwise
would inject “intolerable uncertainty” into the cases heard before a designated
judge because a litigant could challenge a proceeding that is otherwise
procedurally sound on the grounds that the judge’s designation order contains an
insufficient finding of public interest. Id.
III. The Revocation Proceeding Did Not Require a Jury Trial
We next consider whether the Constitution entitles defendants to a jury trial
before a court revokes supervised release pursuant to 18 U.S.C. § 3583(e)(3) and
(g). A defendant may be entitled to a jury trial when aspects of the relevant statute
governing the supervised-release proceedings “in combination” render the
3This reading accords with the text of the statute. Congress has explicitly mandated a judicial “finding” in the criminal-procedure context when it has meant to require courts to perform one. Compare 28 U.S.C. § 291(b) (providing only that the designation order be “in the public interest”), with 18 U.S.C. § 3161(h)(7)(A) (providing that a continuance pursuant to the Speedy Trial Act is proper only upon “findings that the ends of justice [are] served”), and 18 U.S.C. § 5032 (permitting, upon the appropriate “find[ing]” that doing so is “in the interest of justice,” the trial of a juvenile as an adult). 12 proceedings more akin to “punishment for a new offense” than “ordinary
revocation.” United States v. Haymond, 588 U.S. 634, 659 (2019) (Breyer, J.,
concurring). 4 We do not find the requisite resemblance in Bradley’s case.
A. Revocation Proceedings Pursuant to 18 U.S.C. § 3583(e)(3) Survive Haymond
For four of Bradley’s six violations, the district court presided over
revocation proceedings pursuant to § 3583(e)(3) of Title 18. Subsection (e)(3)
authorizes a court to revoke supervised release if the court finds the defendant
violated the conditions of his supervised release. This Circuit has repeatedly held
that “the right to a jury trial . . . do[es] not attach to supervised release hearing in
the same way that [it] do[es] to criminal prosecutions.” United States v. Peguero, 34
F.4th 143, 157 (2d Cir. 2022); accord United States v. Diaz, 986 F.3d 202, 208–09 (2d
Cir. 2021); United States v. Doka, 955 F.3d 290, 293–94 (2d Cir. 2020). Rather,
revocation requires “only a finding ‘by a judge under a preponderance of the
4In Haymond, a majority of Justices agreed to the judgment, “but no single rationale explaining the result” was shared amongst five Justices. United States v. Doka, 955 F.3d 290, 296 (2d Cir. 2020) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)). So, because “Justice Breyer’s opinion concurring in the judgment represents the narrowest ground supporting the judgment,” it supplies “the controlling rule.” Id. And as Justice Breyer has explained, “consistent with traditional parole,” “[t]he consequences that flow from violation of the conditions of supervised release are first and foremost considered sanctions for the defendant's breach of trust—his failure to follow the court-imposed conditions that followed his initial conviction.” Haymond, 588 U.S. at 658 (Breyer, J., concurring) (internal quotation marks and citation omitted).
13 evidence standard.’” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005)
(quoting Johnson v. United States, 529 U.S. 694, 700 (2000)); accord 18 U.S.C. §
3583(e)(3).
Bradley invites us to reconsider this approach in light of the Supreme
Court’s decision in Haymond, 588 U.S. 634, but this Court has already undertaken
that exercise. Haymond held unconstitutional subsection (k) of § 3583, which
provides that if a judge finds by a preponderance of evidence that a defendant on
supervised release committed one of the enumerated offenses set forth in the
subsection, the judge “must impose an additional prison term of at least five years
and up to life without regard to the length of the prison term authorized for the
defendants’ initial crime of conviction.” 588 U.S. at 639 (emphasis in original).
In United States v. Doka, we determined that revocation of supervised release
pursuant to § 3583(e)(3) remains constitutional following Haymond. 955 F.3d at
296–98. We concluded that none of the three features that the Haymond
concurrence determined rendered subsection (k) suspect apply to subsection
(e)(3). Id. Specifically, we stated that “Section 3583(e)(3) does not (1) apply to a
discrete set of [federal criminal] offenses; (2) eliminate the trial judge’s discretion
in a revocation proceeding; and (3) impose a mandatory minimum term of
14 imprisonment for the violation of a condition of supervised release.” Id. at 296.
We believe Doka’s reasoning remains sound. In accordance with that decision,
Judge Sullivan properly presided over the fact-finding during the revocation
hearing.
B. Revocation Proceedings Pursuant to 18 U.S.C. § 3583(g) Survive Haymond
For two of the supervised release violations, both of which relate to
Bradley’s marijuana usage, the district court relied on § 3583(g). Subsection (g)
provides for “[m]andatory [r]evocation” for, as relevant here, “possess[ion] [of] a
controlled substance.” 18 U.S.C. § 3583(g)(1); see Appellant’s App’x 239–40.
Subsection (g) incorporates by reference the maximum lengths of imprisonment
set forth in subsection (e)(3), whose imposition without a jury trial was the subject
of this Court’s Doka decision, as described above.
We now join our sister circuits in explicitly holding that subsection (g) also
survives Haymond. See, e.g., United States v. Seighman, 966 F.3d 237, 243–44 (3d Cir.
2020); United States v. Coston, 964 F.3d 289, 296 (4th Cir. 2020); United States v.
Garner, 969 F.3d 550, 551, 553 (5th Cir. 2020); United States v. Robinson, 63 F.4th 530,
532, 540 (6th Cir. 2023); United States v. Wilson, 939 F.3d 929, 932-33 (8th Cir. 2019);
15 United States v. Richards, 52 F.4th 879, 884 (9th Cir. 2022). 5 All three factors that “in
combination” convinced the Haymond Court, as expressed in Justice Breyer’s
concurrence, that subsection (k) is unconstitutional are absent here. See 588 U.S.
at 659 (Breyer, J., concurring).
First, subsection (g) does not “appl[y] only when a defendant commits a
discrete set of federal criminal offenses,” id. (Breyer, J., concurring) (emphasis
added), because it also covers conduct that is otherwise legal—namely, refusing
to comply with a drug test or repeatedly testing positive for controlled substances.
See 18 U.S.C. § 3583(g)(3)–(4). 6
Second, the presiding judge retains “discretion to decide whether violation
of a condition of supervised release should result in imprisonment and for how
long.” Haymond, 588 U.S. at 659 (Breyer, J., concurring). Unlike subsection (k),
subsection (g) does not mandate a statutory minimum. Rather, the judge may
impose a sentence of any length upon revocation, subject only to statutory maxima
5 Two additional circuits have approved of § 3583(g) post-Haymond in unpublished decisions. See United States v. Ewing, 829 F. App’x 325, 330 (10th Cir. 2020); United States v. Walton, 819 F. App’x 731, 734 (11th Cir. 2020). 6 Even if we were to consider in isolation subsection (g)(1), which mandates revocation for conduct that
also constitutes a federal crime—that is, possession of a controlled substance—we would still find the revocation proceedings constitutional. The other two factors that were “in combination” central to the Justice Breyer’s reasoning are absent here. See Haymond, 588 U.S. at 659 (Breyer, J., concurring). And in any event, Justice Breyer did not take each of the listed offenses in subsection (k) in turn, but evaluated subsection (k) as a whole, see id. (Breyer, J., concurring), as we do with subsection (g). 16 that depend on the class of the underlying offense (here, Bradley’s underlying
firearm conviction). See 18 U.S.C. § 3583(g) (mandating that the court “require the
defendant to serve a term of imprisonment” without specifying any length except
the maxima contained within 18 U.S.C. § 3583(e)(3)). Judge Sullivan could have
satisfied subsection (g) by, for example, sentencing Bradley only to time served.
So, even though subsection (g) describes “[m]andatory” revocation, it does not
command a comparable “punishment” to flow from that revocation as if for a
“new criminal offense[],” as subsection (k) did. Haymond, 588 U.S. at 659 (Breyer,
J., concurring); cf. id. (Breyer, J., concurring) (“Revocation of supervised release is
typically understood as part of the penalty for the initial offense.” (emphasis
added) (internal quotation marks and citation omitted)).
Third, and relatedly, subsection (g) does not require imposition of a lengthy
mandatory minimum. Subsection (k) provided that the judge must set a sentence
of “not less than 5 years” upon finding that the defendant had committed certain
enumerated crimes. See 18 U.S.C. § 3583(k). Subsection (g) does not limit the
judge’s discretion in this manner. Cf. Haymond, 588 U.S. at 659 (Breyer, J.,
concurring) (discussing the length of the mandatory minimum under subsection
(k) as a factor rendering it unconstitutional).
17 In sum, “the consequences for violation of conditions of supervised release”
under subsection (g) “are limited by the severity of the original crime of
conviction,” which determines the statutory maxima to which the defendant can
be subject upon revocation in accordance with subsection (g). Id. at 658 (Breyer, J.,
concurring). “[T]he conduct that results in revocation” does not compel a lengthy
prison sentence—or, indeed, an additional prison sentence of any length—
pursuant to a mandatory minimum. Id. (Breyer, J., concurring). Subsection (g) is
constitutional.
CONCLUSION
Having canvassed binding and persuasive case law, we are satisfied that the
statutes (1) authorizing Chief Judge Livingston to temporarily designate Judge
Sullivan, 28 U.S.C. § 291(b); and (2) authorizing Judge Sullivan to conduct
revocation proceedings without a jury trial, 18 U.S.C. § 3583(e)(3), (g)(1), both pass
constitutional muster. We further hold that the Designation Orders at issue in this
case conform to § 291(b)’s dictates. For these reasons, the judgment of the district
court revoking Bradley’s supervised release is AFFIRMED.