        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-40389                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
UNITED STATES OF AMERICA,                                        August 7, 2015
                                                                 Lyle W. Cayce
            Plaintiff – Appellee,                                     Clerk

v.

SANDRA RIVERA,

            Defendant – Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas



                    ON PETITION FOR REHEARING

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.
PER CURIAM:
      The petition for rehearing is DENIED.
      Applying our earlier decision in United States v. Miller, 634 F.3d 841
(5th Cir. 2011), our opinion held that a district court may not “rely upon the
seriousness of the offense and the need for just punishment when sentencing
a defendant for violation of the conditions of his supervised release.” United
States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015). In reaching that holding,
we observed that Congress’s decision to exclude the “seriousness of the offense”
from consideration in a district court’s decision to revoke supervised release
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“may be counterintuitive.” Id. This exclusion likely arises from the fact that
“construing revocation and reimprisonment as punishment for the violation of
the conditions of supervised release” would raise “serious constitutional
questions.” Johnson v. United States, 529 U.S. 694, 700 (2000). For example,
“[a]lthough such violations often lead to reimprisonment, the violative conduct
need not be criminal and need only be found by a judge under a preponderance
of the evidence standard, not by a jury beyond a reasonable doubt.”                         Id.
Further, “[w]here the acts of violation are criminal in their own right, they may
be the basis for separate prosecution, which would raise an issue of double
jeopardy if the revocation of supervised release were also punishment for the
same offense.” Id.; see also United States v. Johnson, 640 F.3d 195, 203 (6th
Cir. 2011) (“When the violations are criminal and the subject of a separate
prosecution, as in this case, the defendant may be placed in double jeopardy if
punished for the same conduct in both proceedings.”). 1                             “Treating
postrevocation sanctions as part of the penalty for the initial offense,” rather
than a penalty for the offense constituting a violation of the terms of supervised
release, “avoids these difficulties.” Johnson, 529 U.S. at 700.
       But at the same time, consideration of the “seriousness of the offense”
constituting a supervised release violation seems inevitable in the revocation
context. Indeed, the reason the exclusion of that factor is “counterintuitive” is
that there seems little else on which to base the revocation sentence aside from
the conduct constituting a violation of the conditions of supervised release.
Moreover, the other factors expressly referred to in section 3583 appear to
contemplate consideration of the seriousness of the supervised release



       1 Because of these constitutional issues, at least one of our sister circuits has read
“offense” in the cross-referenced section 3553(a) factors to refer to the offense of conviction,
not the offense constituting a supervised release violation. See, e.g., Johnson, 640 F.3d at
203.
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violation. See 18 U.S.C. § 3583(e) (instructing district courts to consider the
factors set forth in, inter alia, 18 U.S.C. § 3553(a)(1) and 18 U.S.C.
§ 3553(a)(2)(B) and (C) in determining the appropriate sanction for a violation
of supervised release); 18 U.S.C. § 3553(a)(1) (“the nature and circumstances
of the offense and the history and characteristics of the defendant”); 18 U.S.C.
§ 3553(a)(2)(B)–(C) (“the need for the sentence imposed—(B) to afford adequate
deterrence to criminal conduct; (C) to protect the public from further crimes of
the defendant”). Further, the policy statements regarding supervised release
in the United States Sentencing Guidelines Manual are centered around
grading the seriousness of the conduct constituting a violation of the conditions
of supervised release. The Guidelines begin by classifying supervised release
violations into Grade A, B, or C. U.S.S.G. § 7B1.1(a). Grade A violations are
those involving felonies that are crimes of violence, controlled substance
offenses, involve firearms or “destructive device[s],” or felonies punishable by
more than twenty years in prison. U.S.S.G. § 7B1.1(a)(1). Grade B violations
are all other felonies.    U.S.S.G. § 7B1.1(a)(2).     Grade C violations are
misdemeanors and all other supervised release violations.               U.S.S.G.
§ 7B1.1(a)(3). The Grade of the supervised release violation determines, in
combination with the defendant’s criminal history category, the Guidelines
sentencing range in the “Revocation Table.” U.S.S.G. § 7B1.4.
      As such, the Guidelines rely on the “seriousness” of the supervised
release violation, at least in some sense, in determining the appropriate
sentence. Moreover, one of the factors expressly included in the supervised
release statute is “any pertinent policy statement . . . issued by the Sentencing
Commission.” See 18 U.S.C. § 3583(e) (listing 18 U.S.C. § 3553(a)(5) as a factor
the court must consider in revoking supervised release); 18 U.S.C. § 3553(a)(5)
(“The court, in determining the particular sentence to be imposed, shall
consider . . . (5) any pertinent policy statement—(A) issued by the Sentencing
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Commission . . . .”). Section 3583 therefore contemplates, at least to some
degree, reliance on the seriousness of the supervised release violation insofar
as the grading of the violation in the Sentencing Guidelines is concerned.
      This dissonance may, in later cases, be mitigated by differentiating
between punishment for the offense constituting the supervised release
violation, and sanctioning the violation itself. See United States v. Miqbel, 444
F.3d 1173, 1182 (9th Cir. 2006) (“Although a court may consider the need to
sanction an individual for violating the conditions of probation or supervised
release when formulating its sentence at a revocation proceeding, that type of
‘sanction’ is distinct from the ‘just punishment’ referred to in § 3553(a)(2)(A).”);
Johnson, 640 F.3d at 203 (“But the sanction for failing to abide by conditions
of supervised release is to be distinguished from ‘the imposition of an
appropriate punishment for any new criminal conduct’ which may occur only
following a conviction in a separate criminal proceeding.” (quoting U.S.
Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. (U.S. Sentencing
Comm’n 2014)). Indeed, the Sentencing Manual contemplates exactly that
distinction.   The Introduction to the revocation section of the Guidelines
Manual indicates that the revoking court should not sentence the defendant
with an aim to punish the offense that constitutes the supervised release
violation. See U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory
cmt. (U.S. Sentencing Comm’n 2014).           Drawing a (very) fine line, the
Guidelines Manual states that the district court is instead punishing the
defendant’s breach of the court’s trust and that punishment of the offense
constituting the violation is best left to the court responsible for imposing the
sentence for the offense itself. Id. Nevertheless, the Manual also states that
“the nature of the conduct leading to the revocation [may] be considered in
measuring the extent of the breach of trust.” Id.


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      Our opinion holds only that “making the seriousness of the [offense
constituting the supervised release violation] and the need for just punishment
dominant factors in [the] revocation sentence” was error. Rivera, 784 F.3d at
1017. Determining precisely to what extent a district court may rely on the
“seriousness of the offense” in applying the other section 3583(e) factors, e.g.,
the “nature and circumstances of the offense,” and the Guidelines is an issue
left unaddressed by our opinion, and it is best left to future cases.




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