                                PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 13-4683


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

GEORGE A. WARD,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:94-cr-00070-HCM-1)


Argued:   September 19, 2014                Decided:   November 3, 2014


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.


ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.    Robert Edward Bradenham,
II, OFFICE OF THE UNITED STATES ATTORNEY, Newport News,
Virginia, for Appellee.      ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Richard J.
Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Norfolk, Virginia, for Appellant.      Dana J.
Boente, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Katharina J. Rienks,
Third Year Law Student, WILLIAM & MARY LAW SCHOOL, Williamsburg,
Virginia, for Appellee.




                               2
BARBARA MILANO KEENAN, Circuit Judge:

      George A. Ward appeals from the district court’s judgment

sentencing      him     to   a    term      of     20    months’       imprisonment       for

violating      the     conditions      of     his       supervised      release.         This

sentence was the mandatory minimum term required by a former

version of the supervised release statute, 18 U.S.C. § 3583(g),

which      Congress     amended    in       1994    to       eliminate    the   statute’s

mandatory minimum sentencing provision.                       The amended statute was

enacted after Ward committed the underlying offenses for which

he   was    originally       convicted,       but       before    he     engaged    in    the

conduct that led to the revocation of his supervised release.

      On appeal, Ward argues that the district court erred in

failing to apply the amended version of Section 3583(g).                                 Ward

also argues that his mandatory minimum sentence violates the

Sixth Amendment, as construed in Alleyne v. United States, 133

S. Ct. 2151 (2013), because the sentence was imposed based on

factual     findings     made     by   a    judge       by   a   preponderance      of    the

evidence, rather than by a jury under the standard of beyond a

reasonable doubt.

      Upon     our     review,    we       conclude       that    the    district     court

correctly applied the former version of Section 3583(g), because

that version of the statute was in effect when Ward committed

the underlying crimes.            We further conclude that Alleyne, which

affords      certain     constitutional           protections       when    a   mandatory

                                              3
minimum sentence is at issue in a criminal trial, does not apply

in    the   context   of   supervised    release    revocation   proceedings.

Accordingly, we affirm the district court’s judgment.



                                        I.

       In December 1994, Ward pleaded guilty to several felony

charges, including three counts of being a felon in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924,

two counts of distribution of crack cocaine, in violation of 21

U.S.C. § 841, and one count of use of a firearm in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

The    district   court    sentenced    Ward   to   a   prison   term   of   260

months, followed by a five-year period of supervised release.

Among other things, the conditions of Ward’s supervised release

prohibited him from illegally possessing a controlled substance.

       Ward’s prison term ultimately was reduced by the district

court to 200 months, 1 but the court expressly left intact the

original duration and conditions of Ward’s supervised release.

When Ward was released from prison in October 2010, he began his

five-year term of supervised release.

       1
       The reduction in Ward’s prison sentence occurred as a
result of this Court’s unpublished order vacating Ward’s
conviction for violating 18 U.S.C. § 924(c), as well as the
district court’s application of 18 U.S.C. § 3582 concerning
retroactive   amendments   to   the  United States Sentencing
Guidelines for crack cocaine offenses.


                                        4
       In       April   2013,       the   government      filed       a    petition    in   the

district court seeking to revoke Ward’s supervised release.                                 The

government alleged that Ward violated his conditions of release

by testing positive for cocaine on four occasions, and positive

for    marijuana          on    two       occasions. 2        The         government     later

supplemented its revocation petition, alleging three additional

instances in which Ward had tested positive for cocaine.

       At a hearing on the government’s petition, Ward admitted

that       he    had    possessed         cocaine    and      marijuana        on     numerous

occasions during his supervised release term.                             At the conclusion

of the evidence, the district court revoked Ward’s supervised

release, finding that Ward had violated the conditions of his

release.

       In determining Ward’s sentence, the district court first

addressed which version of 18 U.S.C. § 3583(g) applied.                                  Under

the version of Section 3583(g) in effect when Ward committed the

underlying         crimes,      Ward      was   subject    to     a       mandatory    minimum

sentence of one-third of his supervised release term, because

his violation was based on his illegal possession of controlled

substances.             See    18    U.S.C.     §   3583(g)     (1993        ed.)   (“If    the

defendant is found by the court to be in the possession of a

       2
       The government also alleged, and Ward admitted during the
revocation hearing, that he violated the conditions of his
supervised release by submitting untimely reports to his
probation officer.


                                                5
controlled         substance,      the    court      shall    terminate       the     term    of

supervised release and require the defendant to serve in prison

not less than one-third of the term of supervised release.”).

Thus,     in       this    case,    application        of     former    Section       3583(g)

required a sentence of at least 20 months’ imprisonment based on

the original five-year term of supervised release.

      Congress amended former Section 3583(g) in September 1994,

eliminating         the    mandatory      minimum      sentencing       provision.           See

Violent Crime Control and Law Enforcement Act of 1994, Pub. L.

103-322,       §    110505(3),      108   Stat.       1796.      Ward    argued       that    he

should    be       sentenced      under   the       amended    statute,       which    was   in

effect both when the court imposed Ward’s original sentence and

when he violated the supervised release conditions.

      The district court held that it was bound by the former

version    of       the    statute.        The       court    sentenced       Ward    to     the

mandatory minimum prison term of 20 months, stating, “I’m not

imposing 20 months based on the fact that I have the discretion

to   do   that       for   this    violation,        I’m     imposing    it    because       the

[c]ourt believes it’s mandatory.                      And if it wasn’t mandatory I

wouldn’t impose a sentence that severe.”                         Ward filed a timely

notice of appeal.




                                                6
                                         II.

     We first address Ward’s argument that the district court

erred in applying the former version of Section 3583(g) when

imposing    the   sentence      for     his     supervised     release    violation.

Ward contends that the former version of the statute was not

applicable because the statute was amended before he originally

was sentenced and before he committed the acts in violation of

his conditions of release.            We review de novo this issue of law.

See United States v. Fareed, 296 F.3d 243, 245 (4th Cir. 2002).

                                          A.

     We    conclude      that   under    the      Supreme    Court’s     decision    in

Johnson    v.   United    States,     529       U.S.   694   (2000),    the    district

court    properly   applied     former        Section    3583(g)   in    determining

Ward’s revocation sentence.               In Johnson, the Court addressed

whether a provision of former Section 3583 that had not been

enacted at the time of the petitioner’s underlying offense was

applicable in his supervised release revocation proceeding, when

his conduct in violation of the conditions of release occurred

after the statute was amended. 3                529 U.S. at 697-702.          The Court


     3
       The decision in Johnson concerned subsection (h) of 18
U.S.C. § 3583, which was enacted at the same time subsection (g)
was amended in 1994. Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. 103-322, § 110505(3), 108 Stat. 1796.
Section 3583(h) expressly authorizes the district court to
impose an additional term of supervised release as part of the
sentence in a revocation proceeding. Johnson, 529 U.S. at 698.


                                            7
held that the defendant was subject to the sentencing provisions

of the pre-amendment statute in effect when the initial offense

was committed.       Id. at 701-02.

       In reaching its conclusion in Johnson, the Court expressly

rejected the argument that revocation and reimprisonment should

be characterized as punishment for a violation of the conditions

of supervised release.            Id. at 700-01.        Instead, the Court held

that “postconviction penalties relate to the original offense.”

Id. at 701.

       In light of this conclusion, the Court considered whether

Congress intended that the amended version of Section 3583 apply

retroactively.       The Court analyzed this question under the well-

established     presumption        that    legislation        will    not    be    given

retroactive effect unless Congress clearly manifested such an

intent.       Id.      The   Court        noted   the     absence     of    any    clear

congressional intent, and accordingly held that amended Section

3583(h) “applies only to cases in which that initial offense

occurred after the effective date of the amendment.”                              Id. at

702.

       In the present case, Ward committed his underlying offenses

between December 1993 and June 1994, before Congress amended

former    Section    3583    in    September      1994.       Thus,    absent      clear

congressional       intent   to    the     contrary,    the    former       version   of



                                            8
Section      3583(g)      was    controlling         in     Ward’s    supervised   release

revocation proceeding.               See id.

       There is no evidence that Congress intended the amended

version       of   Section       3583(g)      to     have    retroactive      application.

Fareed, 296 F.3d at 245 n.2 (“Congress provided no indication

that it intended the 1994 amendments [to former Section 3583(g)]

to apply retroactively.”). 4                 And, notably, Ward does not provide

any authority supporting a different conclusion.

       The fact that Ward was not sentenced for his crimes until

after       the    statute       was       amended    is     immaterial       because   the

“relevant conduct” in determining whether former Section 3583(g)

applies is the “initial offense.”                         Johnson, 529 U.S. at 702.

The Second Circuit emphasized this point in a case involving the

same       issue   before       us    regarding       mandatory       minimum   revocation

sentences required by former Section 3583(g).                           In United States

v. Smith, 354 F.3d 171, 174 (2d Cir. 2003), the Second Circuit

explained          that    it        was    irrelevant         that     the     defendant’s

       4
        The issue in Fareed involved the district court’s
application of former Section 3583 as a basis for imposing an
additional period of supervised release as part of a sentence
for violating the conditions of the defendant’s initial period
of supervised release.   296 F.3d at 245.   We observed that the
district court’s authority to impose an additional term of
supervised release was clear under Section 3583(g) as amended in
1994. Id. at 245 n.2. However, we held that the former version
of the statute, which was in effect when the defendants
committed the underlying offenses, applied because there was no
indication that Congress intended that the amended statute apply
retroactively. Id. (citing Johnson, 529 U.S. at 701-02).


                                                9
resentencing      occurred     after     the     enactment    of     the       amendment

because, under Johnson, “the date on which the original offense

is committed, not the date on which the defendant is sentenced

for   that    offense,     determines          which    version      of    a     statute

applies.” 5      We   agree    with     the    Second   Circuit’s     reasoning        in

Smith, which expressly applied the Supreme Court’s directive in

Johnson that the “relevant conduct is the initial offense” in

assessing which version of Section 3583 governs at a supervised

release revocation proceeding.                529 U.S. at 702; see also United

States v. Perry, 743 F.3d 238, 240 (7th Cir. 2014) (holding that

the statute in effect on the date the defendant commits the

underlying       offense      governs     the     sentence     available          in   a

supervised release revocation hearing).

                                          B.

      We next conclude that the federal Savings Statute, 1 U.S.C.

§ 109,    also    required     that     the     district     court    apply      former



      5
       Ward further attempts to distinguish Johnson on the basis
that application of the amended Section 3583(h) in Johnson would
have burdened that defendant, thus raising potential issues
concerning the Constitution’s Ex Post Facto Clause, whereas the
amended version of Section 3583(g) at issue here would benefit
Ward.   However, as noted by the Second Circuit in Smith, the
Supreme Court acknowledged but did not reach the ex post facto
issue in Johnson.    See Smith, 354 F.3d at 174.    Instead, the
Court decided the issue based on the lack of congressional
intent   concerning   retroactivity  and   the   principle  that
supervised release sanctions are part of the punishment for the
original offense. Johnson, 529 U.S. at 700-03.


                                          10
Section    3583(g).            The   Savings          Statute   provides,      in   relevant

part:

     The repeal of any statute shall not have the effect to
     release or extinguish any penalty, forfeiture, or
     liability incurred under such statute, unless the
     repealing Act shall so expressly provide, and such
     statute shall be treated as still remaining in force
     for the purpose of sustaining any proper action or
     prosecution for the enforcement of such penalty,
     forfeiture, or liability.

1 U.S.C. § 109 (emphasis added).                           Under the Savings Statute,

absent     a        clear     indication            from    Congress      of   retroactive

application,         a    defendant       is    not     entitled   to     “application      of

ameliorative criminal sentencing laws repealing harsher ones in

force at the time of the commission of an offense.”                                  Warden,

Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974).

Although       the    language       of    the      Savings     Statute    refers    to    the

“repeal”       of    statutes,       the       Savings      Statute     also   applies      in

considering         the     application        of     statutory    amendments.           United

States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011).

        Ward maintains, however, that the Savings Statute did not

apply in his case, because he had not “incurred” any penalty

before the mandatory minimum provision of former Section 3583(g)

was eliminated.           We disagree.

     Under the Savings Statute, a penalty is “incurred” under a

former     statute          “when    an    offender         becomes     subject     to    [the

penalty], i.e., commits the underlying conduct that makes the


                                                 11
offender liable.”             Dorsey v. United States, 132 S. Ct. 2321,

2331 (2012).        As discussed above, in the context of a supervised

release      revocation      proceeding,         the   “relevant         conduct”     is   the

initial offense, not the conduct in violation of the conditions

of supervised release.               Johnson, 529 U.S. at 701-02; see also

Smith, 354 F.3d at 175 (citing United States v. Ross, 464 F.2d

376, 379 (2d Cir. 1972)).                Thus, Ward “incurred” all penalties

relating      to    his      offenses,      including        the    penalties         imposed

because      he    later     violated      the    conditions        of    his    supervised

release, at the time he committed his original offenses between

December 1993 and June 1994 when former Section 3583(g) was in

effect.      Accordingly, we conclude that, in the present case, the

Savings      Statute       preserved       the    mandatory        minimum       punishment

provision of former Section 3583(g).                         See Smith, 354 F.3d at

175.

       Our    conclusion       is    not    altered         by   the     Supreme      Court’s

holding      in    Dorsey.        There,    the    Court     held      that     the   Savings

Statute      did    not     bar     application        of    reduced       penalties       for

defendants who were convicted of crack cocaine offenses before

the enactment of the Fair Sentencing Act (FSA), but who were not

sentenced until after its enactment. 6                      132 S. Ct. at 2326.            The


       6
       The FSA increased the amount of crack cocaine required to
impose certain mandatory minimum sentences, thereby reducing the
crack-to-powder cocaine disparity from 100-to-1 to 18-to-1.
(Continued)
                                             12
Court    in     Dorsey    applied        the    principle,       consistent    with   the

Savings Statute itself, that a new criminal law providing more

lenient penalties may be applied retroactively if it is clear

that Congress intended this result.                    132 S. Ct. at 2331-32.         The

Court explained that the ameliorative provision of the FSA could

be applied in sentencing such defendants, given “congressional

intent     as    revealed        in    the     Fair    Sentencing    Act’s     language,

structure, and basic objectives.” 7                   Id. at 2326.

      Unlike the clear intent of Congress expressed in the FSA,

the   amendments         to   Section        3583     do   not   evidence     any   clear

congressional      intent        providing       for   retroactive     application    of

the amended statute.              See Johnson, 529 U.S. at 701-02; Fareed,

296 F.3d at 245 n.2.                  Accordingly, the district court did not

err   in      applying     the     former       version     of   Section    3583(g)   in




Dorsey, 132 S. Ct. at 2326, 2329.      The FSA thus resulted in
lesser sentences for many defendants convicted of crack cocaine
offenses than under the law before the FSA’s enactment.
     7
       The Court examined six factors in Dorsey, several of which
were particular to the FSA, and concluded that these factors
taken together showed clear congressional intent that the FSA
apply to defendants who committed an offense before, but were
sentenced after, the FSA’s enactment.     132 S. Ct. at 2331-35.
Included among these factors was language in the FSA that gave
the    United   States    Sentencing    Commission   “[e]mergency
[a]uthority” quickly to promulgate amendments to the sentencing
guidelines that would “achieve consistency” with the more
lenient penalties for crack cocaine offenses under the FSA. Id.
at 2332-33 (citations and internal quotation marks omitted).


                                               13
determining Ward’s sentence at the supervised release revocation

proceeding.



                                        III.

       Ward next argues that the district court’s application of

the     mandatory    minimum       provision    in     former    Section      3583(g)

violated     his     Sixth   Amendment        rights,    because        the   factual

findings required to impose that sentence were not made by a

jury applying the standard of beyond a reasonable doubt.                              We

review de novo this question of law.                   See Fareed, 296 F.3d at

245.

       At the outset, we observe that the Supreme Court in Johnson

stated that a violation of the conditions of supervised release

“need only be found by a judge under a preponderance of the

evidence standard, not by a jury beyond a reasonable doubt.”

529 U.S. at 700 (citing 18 U.S.C. § 3583(e)(3)).                        However, the

decision    in     Johnson   was     issued    about    two    months    before      the

Supreme Court released its seminal decision in Apprendi v. New

Jersey, in which the Court held that any fact in a criminal

trial    that    increases     the    statutory      maximum    penalty       must    be

submitted to a jury and proved beyond a reasonable doubt.                            530

U.S. 466, 476 (2000).          The decision in Johnson also was issued

twelve years before the decision in Alleyne, in which the Court

extended the Apprendi holding to require a jury determination

                                         14
under the standard of beyond a reasonable doubt for any factual

finding       in    a    criminal         trial     that     requires     imposition        of    a

statutory mandatory minimum sentence.                        133 S. Ct. at 2162-63.

     We       therefore            turn     to    consider      whether       the    holding     in

Alleyne       applies          in     the        context   of     a     supervised      release

revocation hearing.                  This issue presents a question of first

impression in the federal courts of appeal.

     One       of       the    most       fundamental        constitutional          protections

afforded to a defendant in a criminal trial is the right to a

trial    by    jury,          in    which    the    government        bears    the    burden     of

proving its case beyond a reasonable doubt.                                   See Sullivan v.

Louisiana, 508 U.S. 275, 277-78 (1993) (characterizing the right

to a trial by jury under the standard of beyond a reasonable

doubt as central to the “American scheme of justice” and noting

the origin of the right in the Fifth and Sixth Amendments).

This fundamental protection is the basis of the Supreme Court’s

holdings in Apprendi and Alleyne.                            In those cases, the Court

recognized the core principle that, in a criminal prosecution,

each “element of a crime” must be submitted to a jury and proved

beyond    a    reasonable            doubt.          Alleyne,     133     S.    Ct.    at   2156;

Apprendi, 530 U.S. at 490.

     In Apprendi, the Court applied that principle in holding

that any fact increasing the statutory maximum penalty to which

a defendant is exposed is an element of the offense and, thus,

                                                    15
must    be    submitted     to     a    jury     and      proved         beyond     a     reasonable

doubt.       530 U.S. at 477, 490.                   The decision in Alleyne relied

almost       exclusively      on       Apprendi,          and    extended           the     Apprendi

holding to require that a jury determine beyond a reasonable

doubt    any    fact    requiring            imposition         of       a    mandatory     minimum

sentence.       Alleyne, 133 S. Ct. at 2158 (holding that “Apprendi’s

definition      of    ‘elements’            necessarily         includes        not     only     facts

that    increase      the   ceiling,          but    also       those        that   increase      the

floor”).

       In considering whether the Alleyne holding applies to a

mandatory      minimum      sentence          imposed       in       a       supervised     release

revocation      proceeding,            we    observe       that       in       contrast     to    the

criminal trials at issue in Alleyne and Apprendi, supervised

release      revocation       proceedings           are    not       considered         part     of   a

criminal prosecution.              See, e.g., United States v. Phillips, 640

F.3d 154, 157 (6th Cir. 2011); United States v. House, 501 F.3d

928, 931 (8th Cir. 2007); United States v. Carlton, 442 F.3d

802, 807-08 (2d Cir. 2006); United States v. Tippens, 39 F.3d

88, 89 (5th Cir. 1994); see also Morrissey v. Brewer, 408 U.S.

471, 480 (1972) (noting that a parole revocation hearing is not

part of a criminal prosecution); Gagnon v. Scarpelli, 411 U.S.

778,     781-82      (1973)      (discussing           Morrissey             and    holding       that

probation revocation is not a stage of a criminal prosecution);

United States v. Ferguson, 752 F.3d 613, 616 (4th Cir. 2014)

                                                16
(applying      Morrissey        in   the    context        of    supervised      release

revocation).         Accordingly,      the       present    question      arises    in     a

critically different context than the criminal prosecutions at

issue in Apprendi and Alleyne.

      The    distinction        between      a     criminal      prosecution       and     a

supervised     release     revocation        proceeding         extends    beyond      mere

labels.      In contrast to a criminal trial, a supervised release

revocation     hearing     is    a   less    formal     proceeding        in   which     the

violative conduct need not be criminal in nature.                          See Johnson,

529   U.S.    at    700;   Ferguson,        752    F.3d    at    616   (stating        that

“[r]evocation hearings are less formal than trials of guilt”);

United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991)

(observing that “revocation hearings are more flexible than a

criminal trial”); see also Black v. Romano, 471 U.S. 606, 613

(1985)    (discussing      “flexible,        informal      nature”     of      revocation

hearings for probation violations).

      Courts       consistently      have        held   that     the   constitutional

protections afforded in a criminal trial are not co-extensive

with the rights applicable in post-conviction proceedings such

as supervised release revocation hearings.                       For example, courts

have held that the Sixth Amendment’s Confrontation Clause, as

construed in Crawford v. Washington, 541 U.S. 36 (2004), does

not apply in supervised release revocation proceedings.                                See,

e.g., United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008);

                                            17
United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006).

Likewise, courts have held that the Sixth Amendment right to a

speedy      trial    does   not   apply      in   the   context    of   a    supervised

release revocation hearing. 8             See, e.g., House, 501 F.3d at 931;

Tippens, 39 F.3d at 89.

      These holdings are grounded in the Supreme Court’s decision

in Morrissey, in which the Court held that “the full panoply of

rights     due   a   defendant    in    [a    criminal    prosecution]        does   not

apply to parole revocations” because such revocation proceedings

are   not    part    of a    criminal     prosecution. 9          408 U.S.     at    480.

Instead, the Court identified a limited set of constitutional

protections that apply in a revocation proceeding. 10                       Id. at 489.


      8
       Although there is no constitutional basis for these rights
in a revocation proceeding, we note that these rights are
addressed to some degree by Rule 32.1 of the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 32.1(b)(2) (specifying
that the revocation hearing should be held “within a reasonable
time,” and allowing a limited right to question adverse
witnesses “unless the court determines that the interest of
justice does not require the witness to appear”).
      9
       See also United States v. Woodrup, 86 F.3d 359, 361-62
(4th Cir. 1996) (citing Morrissey and stating that “the full
panoply of constitutional protections afforded a criminal
defendant is not required for the revocation of supervised
release”); Ray, 530 F.3d at 668 (same); Kelley, 446 F.3d at 691
(same); Carlton, 442 F.3d at 807 (same).
      10
       The constitutional protections identified by the Court in
Morrissey include: “(a) written notice of the claimed violations
of parole; (b) disclosure to the parolee of evidence against
him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront
(Continued)
                                             18
This   limited    set   of    constitutional            protections       identified   in

Morrissey does not include the right to have a jury determine

relevant   facts    beyond        a    reasonable       doubt.      Cf.    Minnesota   v.

Murphy, 465 U.S. 420, 435 n.7 (1984) (stating that “there is no

right to a jury trial before probation may be revoked”).

       In addition to the distinction the Court drew in Morrissey

between the nature of a criminal prosecution and a revocation

hearing, the Court also recognized that “[r]evocation deprives

an   individual,    not      of       the   absolute      liberty    to    which   every

citizen    is    entitled,        but       only   of    the     conditional    liberty

properly dependent on observance” of the conditions imposed upon

the individual’s release from prison.                    408 U.S. at 480 (emphasis

added).    Like parolees, individuals on supervised release also

enjoy only “conditional liberty” because they already have been

convicted of the underlying criminal offense.                       See Carlton, 442

F.3d at 810; see also United States v. McIntosh, 630 F.3d 699,

703 (7th Cir. 2011); United States v. Cunningham, 607 F.3d 1264,

1268 (11th Cir. 2010); United States v. Cordova, 461 F.3d 1184,

1187 (10th Cir. 2006).                In contrast, the criminal defendants in



and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation);
(e) a ‘neutral and detached’ hearing body such as a traditional
parole board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking parole.”    408
U.S. at 489.


                                              19
Apprendi      and    Alleyne    had       not    been   made    subject    to     such

“conditional liberty.”

      We conclude that the conditional liberty to which those

under supervised release are subject entails the surrender of

certain constitutional rights, including any right to have the

alleged supervised release violation proved to a jury beyond a

reasonable doubt.          See Carlton, 442 F.3d at 809 (holding that “a

sentence of supervised release by its terms involves a surrender

of certain constitutional rights and this includes surrender of

the     due   process      rights     articulated       in     Apprendi    and    its

progeny”); see also McIntosh, 630 F.3d at 703 (an individual on

supervised release enjoys only “conditional liberty” and has no

right    to   a     jury   trial    in     a    supervised     release    revocation

proceeding);        Cunningham,     607    F.3d    at   1268    (same).      We   are

unaware of any court that has reached a different conclusion.

On the contrary, our sister circuits uniformly have rejected

arguments seeking to extend the holding in Apprendi to require

trial by jury under the standard of beyond a reasonable doubt in

a supervised release revocation hearing.                 See McIntosh, 630 F.3d

at 702-03; Cunningham, 607 F.3d at 1267-68; United States v.

Dees, 467 F.3d 847, 854-55 (3d Cir. 2006); Cordova, 461 F.3d at

1186-88; United States v. Huerta-Pimental, 445 F.3d 1220, 1222-

25 (9th Cir. 2006); Carlton, 442 F.3d at 807-10; United States



                                           20
v. Hinson, 429 F.3d 114, 118-19 (5th Cir. 2005); United States

v. Work, 409 F.3d 484, 489-92 (1st Cir. 2005).

      We acknowledge that these cases were decided before Alleyne

and   do    not     involve   the   imposition      of     a    mandatory       minimum

sentence. 11      Nevertheless, because the Alleyne decision is based

almost entirely on the reasoning and holding in Apprendi, we

conclude     that    our   decision    here    properly        is    informed   by     the

holdings     of     our    sister     circuits    rejecting           application      of

Apprendi in the supervised release revocation context.

      Our    sister    circuits’      decisions    also    are       consistent      with

Morrissey and Johnson by holding that a defendant in a post-

conviction revocation proceeding does not have a constitutional

right to trial by jury under the standard of beyond a reasonable

doubt.      The     core   principle      of     Alleyne        is     that     such     a

constitutional right exists as a fundamental protection in a


      11
        As Ward observes, our sister circuits additionally noted
in a few of these cases that a judicial finding that the
defendant violated the conditions of supervised release does not
require application of Apprendi and its progeny because a judge
generally retains discretion under 18 U.S.C. § 3583(e)(3) to
determine the appropriate sentence. Although there was no such
judicial discretion in the present case, we nevertheless rely on
those decisions of our sister circuits because their reasoning
primarily involved the limited “panoply of rights” applicable in
supervised release revocation proceedings.   See Dees, 467 F.3d
at 854-55; Cordova, 461 F.3d at 1186-88; Carlton, 442 F.3d at
807-10; Hinson, 429 F.3d at 118-19; Work, 409 F.3d at 489-92;
see also McIntosh, 630 F.3d at 702-03 (not mentioning district
court’s general discretion under Section 3583(e)); Cunningham,
607 F.3d at 1267-68 (same).


                                         21
criminal trial, 133 S. Ct. at 2156, and the Court’s holding

providing     for    a   jury     determination       of    facts    required    for

imposition of a mandatory minimum sentence was a straightforward

application of that principle.                   Because a supervised release

revocation proceeding is not a criminal prosecution, we conclude

that    Alleyne’s     protections      are       inapplicable   in     the   present

context. 12



                                          IV.

       In sum, we hold that the district court did not err in

applying      the   former      version     of    Section    3583(g)    in    Ward’s

supervised release revocation proceeding.                   We further hold that

Ward’s Sixth Amendment rights were not violated when the court,

rather than a jury, determined that Ward possessed a controlled

substance     in    violation    of   his      supervised    release    conditions.

Accordingly, we affirm the district court’s judgment.

                                                                             AFFIRMED




       12
        We find no merit in Ward’s contention that we should
construe former Section 3583(g) as merely advisory for remedial
purposes.


                                          22
