United States v. Michael Roy Sharpe

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 29, 2021
• Docket: 20-13808
• Status: Unpublished

Opinion

USCA11 Case: 20-13808 Date Filed: 09/29/2021 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13808 Non-Argument Calendar ________________________

D.C. Docket No. 4:09-cr-00405-LSC-HNJ-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL ROY SHARPE,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(September 29, 2021)

Before BRASHER, ANDERSON, and EDMONDSON, Circuit Judges. USCA11 Case: 20-13808 Date Filed: 09/29/2021 Page: 2 of 8

PER CURIAM:

Michael Sharpe appeals the sentence imposed -- pursuant to 18 U.S.C. §

3583(e)(3) -- upon revocation of Sharpe’s supervised release. Sharpe contends that

the imposition of an additional prison sentence violates his Fifth and Sixth

Amendment rights to due process and a jury trial. No reversible error has been

shown; we affirm.

In 2010, Sharpe pleaded guilty to possession of a cell phone containing child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Sharpe was sentenced to

a statutory-maximum sentence of 10 years in prison, followed by 10 years’

supervised release.1

Sharpe’s supervised release began in May 2018. In August 2020, a

probation officer petitioned the district court to revoke Sharpe’s supervised release.

In the petition, the probation officer alleged that Sharpe had been charged with

practicing medicine or osteopathy without a license: a felony under Alabama law.

In addendums to the petition for revocation, the probation officer charged Sharpe

with these additional violations of his supervised-release conditions: (1) failing to

comply with the sex-offender registration requirements, (2) failing to submit

1 According to the Presentence Investigation Report, Sharpe was subject to a term of supervised release between 5 years and life. 2 USCA11 Case: 20-13808 Date Filed: 09/29/2021 Page: 3 of 8

truthful and complete written reports, (3) accessing the internet without

authorization, (4) volunteering in an activity that placed him in a position of trust

with minors, and (5) associating with a convicted felon.

After considering the arguments and witness testimony presented at the

revocation hearing, the district court found it “abundantly clear” that Sharpe had

violated the conditions of his supervised release. The district court thus revoked

Sharpe’s supervised release and sentenced Sharpe to 24 months’ imprisonment,

followed by a life term of supervised release.

In a separate written order, the district court rejected -- based on our decision

in United States v. Cunningham, 607 F.3d 1264 (11th Cir. 2010) -- Sharpe’s

argument that an additional prison sentence violated the Fifth and Sixth

Amendments. The district court concluded that the revocation proceeding

implicated no Fifth or Sixth Amendment protections and that an additional term of

imprisonment could be imposed without a jury and based upon the district court’s

finding by a preponderance-of-the-evidence that Sharpe violated the conditions of

his supervised release.

On appeal, Sharpe contends that, as applied to him, section 3583(e)(3)

violates the Fifth and Sixth Amendments and the Supreme Court’s decision in

Apprendi.2 Sharpe says that -- because he has already served the statutory

2 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (concluding that “[o]ther than the fact of a 3 USCA11 Case: 20-13808 Date Filed: 09/29/2021 Page: 4 of 8

maximum sentence for his offense of conviction -- any additional term of

imprisonment would increase the penalty for his crime beyond the maximum

penalty authorized by his guilty plea. As a result, Sharpe argues that all factfinding

resulting in reimprisonment must be found by a jury beyond a reasonable doubt.

We review de novo challenges to the constitutionality of a statute. See

Cunningham, 607 F.3d at 1266.

Under section 3583(e)(3), a district court may revoke a term of supervised

release if the court “finds by a preponderance of the evidence that the defendant

violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3). About

reimprisonment, section 3583(e)(3) provides that the district court may “require the

defendant to serve in prison all or part of the term of supervised release authorized

by statute for the offense that resulted in such term of supervised release without

credit for time previously served on postrelease supervision.” Id. (subject to a 2-

year maximum sentence when the underlying offense-of-conviction is a class C or

D felony).

That section 3583(e)(3) purports to authorize the district court to impose a

new prison sentence upon violation of a condition of supervised release even when

the defendant has already been sentenced to the statutory maximum sentence is

prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). 4 USCA11 Case: 20-13808 Date Filed: 09/29/2021 Page: 5 of 8

clear. See Andrews v. Warden, 958 F.3d 1072, 1080 (11th Cir. 2020) (explaining

that a district court “would be well within its power” under section 3583(e)(3) to

order a defendant who has already completed the statutory maximum sentence for

his offense to serve the remainder of his supervised-release term in prison); United

States v. Proctor, 127 F.3d 1311, 1313 (11th Cir. 1997) (concluding that a district

court had authority under section 3583(e)(3) to sentence a defendant to an

additional prison term upon revocation of supervised release even though the

defendant had already served the maximum statutory prison sentence). We have

said that -- because the original term of imprisonment and a term of

reimprisonment following revocation of supervised release under section

3583(e)(3) are “distinct components” of a defendant’s original sentence -- the

combined time served in prison may exceed the statutory maximum sentence for

the underlying crime. See Andrews, 958 F.3d at 1080.

We have upheld section 3583(e)(3) as constitutional under the Fifth and

Sixth Amendments as those rights have been interpreted by Apprendi and its

progeny. See Cunningham, 607 F.3d at 1268. In Cunningham, we noted that the

Supreme Court considers revocation proceedings as separate from a criminal

prosecution that would trigger the full panoply of due process rights under the

Sixth Amendment. See 607 F.3d at 1267 (citing Morrissey v. Brewer, 406 U.S.

471, 480 (1972), and Johnson v. United States, 529 U.S. 694, 700 (2000)). We

5 USCA11 Case: 20-13808 Date Filed: 09/29/2021 Page: 6 of 8

recognized that the Supreme Court concluded (pre-Apprendi) that the Sixth

Amendment right to a jury trial and to a reasonable-doubt standard is inapplicable

to supervised-release revocation proceedings “because revocation of supervised

release is treated ‘as part of the penalty for the initial offense.’” See 607 F.3d at

1267 (citing Johnson, 529 U.S. at 700).

In considering the impact of Apprendi on supervised-release proceedings,

we found persuasive the reasoning from other circuit courts that had addressed the

issue. We noted the Second Circuit’s determination that “the full panoply of

procedural safeguards, including those due process rights articulated in Apprendi

and Blakely, ‘does not attach to revocation proceedings because the Supreme

Court has distinguished revocation proceedings from criminal prosecutions on the

ground that a probationer already stands convicted of a crime.’” Id. at 1267-68

(emphasis in original) (citing United States v. Carlton, 442 F.3d 802, 807 (2nd Cir.

2006)).

In the light of this persuasive authority, we said that -- unlike the criminal

defendant in Apprendi -- a defendant in a supervised-release revocation proceeding

“stands already convicted” of the underlying criminal offense and “was granted

only conditional liberty” dependent upon the defendant’s compliance with the

conditions of supervised release. Id. at 1268. As a result, we determined that the

defendant in a supervised-release revocation proceeding is entitled only to the

6 USCA11 Case: 20-13808 Date Filed: 09/29/2021 Page: 7 of 8

limited procedural safeguards identified by the Supreme Court in Morrissey:

safeguards that do not include a jury trial or a beyond-a-reasonable-doubt standard.

See id. “[B]ecause the violation of supervised release need only be proven by a

preponderance of the evidence, and there is no right to trial by jury in a supervised

release revocation hearing,” we concluded that section 3583(e)(3) constituted no

violation of the Fifth or Sixth Amendments. Id.

Guided by our precedent in this area, we reject Sharpe’s arguments on

appeal. The district court had power under section 3583(e)(3) to impose an

additional term of imprisonment even though Sharpe had already served the

maximum statutory sentence for his offense. See Andrews, 958 F.3d at 1080;

Proctor, 127 F.3d at 1313. Because the revocation of Sharpe’s supervised release

and the resulting prison sentence are considered a part of the penalty for Sharpe’s

original offense -- not a separate criminal proceeding or penalty -- Sharpe was

unentitled to a jury trial or to factfinding beyond a reasonable doubt. See

Cunningham, 607 F.3d at 1267-68.

On appeal, Sharpe contends that Cunningham has been abrogated by the

Supreme Court’s recent decision in United States v. Haymond, 139 S. Ct. 2369

(2019). In Haymond, the Supreme Court concluded that section 3583(k) violates

the Fifth and Sixth Amendments because it imposes a new mandatory minimum

sentence upon revocation of supervised release based on additional judge-found

7 USCA11 Case: 20-13808 Date Filed: 09/29/2021 Page: 8 of 8

facts. See 139 S. Ct. at 2373, 2378 (plurality opinion); id. at 2386 (Breyer, J.,

concurring in the judgment). The Supreme Court stressed, however, that its

decision was “limited to § 3583(k) . . . and the Alleyne problem raised by its 5-year

mandatory minimum term of imprisonment,” and declined expressly to address the

constitutionality of section 3583(e). Id. at 2383 (plurality opinion), 2382 n.7

(“[W]e do not pass judgment one way or the other on § 3583(e)’s consistency with

Apprendi.”). Given this express language, Haymond does not overrule or abrogate

our decision in Cunningham: a case dealing only with section 3583(e)(3).

Cunningham thus remains binding precedent. See United States v. Archer, 531

F.3d 1347, 1352 (11th Cir. 2008) (under our prior-panel-precedent rule, we are

bound by a prior panel’s decision “unless and until it is overruled or undermined to

the point of abrogation by the Supreme Court or by this court sitting en banc.”);

see also United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (for

purposes of our prior-panel-precedent rule, “the Supreme Court decision ‘must be

clearly on point’” and must “actually abrogate or directly conflict with, as opposed

to merely weaken, the holding of the prior panel.”).

The district court committed no error in imposing a new term of

imprisonment upon revocation of Sharpe’s supervised release; we affirm.

AFFIRMED.