18-3311-cr
United States v. Doka




                                 In the
              United States Court of Appeals
                        for the Second Circuit

                            AUGUST TERM 2019

                              No. 18-3311-cr

                        UNITED STATES OF AMERICA,
                                 Appellee,

                                    v.

                               ALBI DOKA,
                           Defendant-Appellant.



              On Appeal from the United States District Court
                  for the Southern District of New York



                        ARGUED: JANUARY 30, 2020
                         DECIDED: APRIL 8, 2020



Before: CABRANES, SACK, AND LOHIER, Circuit Judges.
       Defendant-Appellant Albi Doka (“Doka”) appeals from a
judgment of revocation of the United States District Court for the
Southern District of New York (Jed S. Rakoff, Judge) following three
violations of supervised release. On appeal, Doka challenges the
revocation of his term of supervised release and the reasonableness of
his revocation sentence. The question presented is whether judicial
factfinding authorized by 18 U.S.C. § 3583(e)(3) remains constitutional
as established by this Court’s well-settled precedent, despite the
Supreme Court’s recent decision in United States v. Haymond, 139 S. Ct.
2369 (2019), holding that judicial factfinding authorized by a different
supervised-release provision, 18 U.S.C. § 3583(k), violates the Fifth
Amendment’s Due Process Clause and the Sixth Amendment’s right
to jury trial.

       We conclude that Haymond did not undermine, let alone
overrule, our precedent on the validity of § 3583(e)(3), and thus hold
that judicial factfinding authorized under that statute remains lawful.
Accordingly, the October 18, 2018 judgment of the District Court is
AFFIRMED.




                         MATTHEW HELLMAN, Assistant United
                         States Attorney (Jordan Estes, Won S. Shin,
                         Assistant United States Attorneys, on the
                         brief), for Geoffrey S. Berman, United States
                         Attorney, Southern District of New York,
                         New York, NY, for Appellee.




                                   2
                                 JEREMIAH DONOVAN, Law Offices of
                                 Jeremiah Donovan, Old Saybrook, CT, for
                                 Defendant-Appellant.




JOSÉ A. CABRANES, Circuit Judge:

       Defendant-Appellant Albi Doka (“Doka”) appeals from a
judgment of revocation of the United States District Court for the
Southern District of New York (Jed S. Rakoff, Judge) following three
violations of supervised release. On appeal, Doka challenges the
constitutionality of the revocation of his term of supervised release,
the sufficiency of the evidence demonstrating the violations of his
conditions of supervised release, and the reasonableness of his
revocation sentence.

       Our opinion today addresses only Doka’s constitutional
challenge: whether judicial factfinding authorized by 18 U.S.C.
§ 3583(e)(3) remains constitutional as established by this Court’s well-
settled precedent, despite the Supreme Court’s recent decision in
United States v. Haymond 1 holding that judicial factfinding authorized
by a different supervised-release provision, 18 U.S.C. § 3583(k),
violates the Fifth Amendment’s Due Process Clause 2 and the Sixth

       1   139 S. Ct. 2369 (2019).
       2  The Fifth Amendment’s Due Process Clause provides that “[n]o person
shall be . . . deprived of life, liberty, or property, without due process of law.” U.S.
Const. amend. V.




                                           3
Amendment’s right to a jury trial. 3 We conclude that Haymond did not
undermine, let alone overrule, our precedent on the validity of
§ 3583(e) and thus hold that judicial factfinding authorized under that
statute remains lawful.

        In a summary order filed simultaneously herewith, we decide
Doka’s sufficiency-of-the-evidence challenge to the revocation of his
term of supervised release and the challenge to the reasonableness of
his revocation sentence.

        In sum, the October 18, 2018 judgment of the District Court is
AFFIRMED.

                               I.      BACKGROUND

        On September 8, 2015, pursuant to a written cooperation
agreement with the Government, Doka pleaded guilty to three counts
of a Superseding Information: (1) conspiracy to distribute and
possession with intent to distribute oxycodone and cocaine; (2)
possession of a firearm in furtherance of a drug-trafficking crime; and
(3) false statements to the U.S. Pretrial Services Office. After pleading
guilty, Doka remained out on bail. On February 5, 2016, however,
Doka’s bail was revoked, and he was remanded to custody pending
sentencing. On February 9, 2017, the District Court sentenced Doka



        3The Trial by Jury Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial
jury of the state and district wherein the crime shall have been committed.” U.S.
Const. amend. VI.




                                            4
principally to time served (392 days’ imprisonment), to be followed by
three years of supervised release.

      On October 16, 2017, the U.S. Probation Office filed a violation
petition alleging that Doka had violated the conditions of his
supervised release. The petition identified three specifications of
alleged violations that occurred between May and October 2017: (1)
committing the state crime of second-degree assault, in violation of
New York Penal Law § 120.05; (2) committing the state crime of third-
degree criminal possession of a controlled substance, in violation of
New York Penal Law § 220.16(1); and (3) using controlled substances.

      On June 11, 2018, the District Court conducted an evidentiary
hearing on the violations, where the Government presented evidence
to establish that, among other things, Doka assaulted a police detective
while fleeing a lawful stop, possessed more than 300 pills of
oxycodone with the intent to sell them, and used oxycodone while on
supervised release.

      On August 14, 2018, the District Court issued a written decision
concluding that the Government proved all three violations by a
preponderance of the evidence. Then, on September 28, 2018, the
District Court revoked Doka’s term of supervised release and
sentenced Doka to forty-eight months’ imprisonment, to be followed
by ten years of supervised release. The instant appeal followed.




                                     5
                                      II.   DISCUSSION

        The statute at issue in this case, 18 U.S. C. § 3583(e)(3), authorizes
a district court to “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.” 4 The preponderance-of-
the-evidence standard “requires proof that the defendant’s violation
of supervision was more likely than not.” 5

        For the first time, Doka argues on appeal that this statute is
unconstitutional. Specifically, Doka contends that the District Court’s
revocation of his term of supervised release pursuant to § 3583(e)(3)
violates the Fifth Amendment due process guarantee that the charges
against him be proved beyond a reasonable doubt and the Sixth
Amendment right to a jury trial. We review de novo questions of law,
including questions of constitutional interpretation. 6



        4   18 U.S.C. § 3583(e)(3).

       United States v. Edwards, 834 F.3d 180, 199 (2d Cir. 2016) (internal quotation
        5

marks omitted).
        6See All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 911 F.3d 104,
109 (2d Cir. 2018) (citing ACORN v. United States, 618 F.3d 125, 133 (2d Cir. 2010)).
Because Doka apparently did not raise his constitutional challenge in the District
Court, our review is likely for “plain error.” Since we conclude that the District
Court did not err on this issue in any event and reversal for plain error includes a
requirement that there indeed be error, we affirm without reaching the issue of
whether “error” or “plain error” is the appropriate standard.




                                             6
        As Doka acknowledges, we have held on multiple occasions
that § 3583(e)(3)’s authorization of judicial factfinding by a
preponderance of the evidence is constitutional. 7 We have stated, for
example, that “[r]evocation proceedings are not deemed part of a
criminal prosecution” and that, as a result, “defendants in such
proceedings are not entitled to ‘the full panoply of rights’ that criminal
defendants generally enjoy,” including the constitutional right to have
the Government held to a burden of proof beyond a reasonable doubt
and the right to a jury trial. 8 Relatedly, we have pointed out that “a
violation of supervised release is not a separate basis for criminal
punishment that requires a jury verdict and all that that entails.” 9
Rather, “[i]mposition of supervised release is authorized by the
original conviction, and so too are the consequences of its violation.” 10




        7 See, e.g., United States v. Carthen, 681 F.3d 94, 99–100 (2d Cir. 2012); United
States v. Carlton, 442 F.3d 802, 807–10 (2d Cir. 2006); United States v. McNeil, 415 F.3d
273, 276–77 (2d Cir. 2005); United States v. Meeks, 25 F.3d 1117, 1123 (2d Cir. 1994),
abrogated on other grounds by Johnson v. United States, 529 U.S. 694 (2000).
        8 Carthen, 681 F.3d at 99 (quoting Morrissey v. Brewer, 408 U.S. 471, 480
(1972)); see also id. at 99–100 (stating that “at a [violation of supervised release]
hearing, the alleged violation of supervised[ ] release need only be proven by a
preponderance of the evidence, not beyond a reasonable doubt”) (citing McNeil,
415 F.3d at 277)).
        9   McNeil, 415 F.3d at 277 (citing Meeks, 25 F.3d at 1123).
        10   Id.




                                             7
       It is well settled then that, under the law of this Circuit, 11 the
Constitution permits judges to revoke a defendant’s term of
supervised release after finding, under a preponderance-of-the-
evidence standard, that the defendant violated his or her conditions of
supervised release. Doka relies on the Supreme Court’s recent decision
in United States v. Haymond in support of his argument that his
revocation pursuant to § 3583(e)(3) must now be regarded as
unconstitutional and that our longstanding precedent on this subject
is no longer valid. We disagree.

       A. United States v. Haymond and Revocation Proceedings

       The Supreme Court held in Haymond that § 3583(k) is
unconstitutional. Under that statute, “if a judge finds by a
preponderance of the evidence that a defendant on supervised
release”—who is also required to register as a sex offender—
“committed one of several enumerated offenses . . . 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
defendant’s initial crime of conviction.” 12


       11   We are also not aware of any decisions to the contrary by our sister
Circuits.
       12 Haymond, 139 S. Ct. at 2374 (plurality opinion) (emphasis in original).
Section 3583(k) provides:

                Notwithstanding subsection (b), the authorized
                term of supervised release for any offense
                under section[s] 1201 involving a minor victim, and




                                         8
       The facts in Haymond were straightforward and typical of a
revocation hearing: a trial judge, acting without a jury, found that it
was more likely than not (i.e., the preponderance-of-the-evidence
standard) that a defendant had violated one or more conditions of
supervised release. 13 Ordinarily, once that determination is made, the
judge must consider whether to revoke the term of supervised release
and “impose a new prison term up to the maximum period of
supervised release authorized by statute for the defendant’s original
crime of conviction, subject to certain limits.” 14

       Notably, however, the defendant’s situation in Haymond
presented a circumstance that is not present in all revocations of


                  for any offense under section 1591, 1594(c), 2241,
                  2242, 2243, 2244, 2245, 2250, 2251, 2251A, 2252,
                  2252A, 2260, 2421, 2422, 2423, or 2425, is any term of
                  years not less than 5, or life. If a defendant required
                  to register under the Sex Offender Registration and
                  Notification Act commits any criminal offense
                  under chapter 109A, 110, or 117, or section 1201 or
                  1591, for which imprisonment for a term longer than
                  1 year can be imposed, the court shall revoke the
                  term of supervised release and require the
                  defendant to serve a term of imprisonment under
                  subsection (e)(3) without regard to the exception
                  contained therein. Such term shall be not less than 5
                  years.

18 U.S.C. § 3583(k).
       13   Haymond, 139 S. Ct. at 2374 (plurality opinion).
       14   Id. (citing 18 U.S.C. § 3583(e)(3)).




                                              9
supervised release—and certainly not present in the instant case.
Haymond was originally convicted of possessing child pornography,
an offense covered by § 3583(k) 15 that carries a statutory maximum of
ten years. 16 Because the defendant in that case was a registered sex
offender on supervised release, who in turn was charged with
committing one of the offenses listed in § 3583(k), at the violation of
supervised release proceedings the trial judge was “bound [by
§ 3583(k)] to impose an additional prison term of at least five years”
and up to life imprisonment. 17

      The Supreme Court held that the statute’s application of an
additional five-year prison term violated the defendant’s rights under
the Fifth and Sixth Amendments. Although a majority of five Justices
concluded that the statute was unconstitutional, they were unable to
agree on a single or consistent rationale. Justice Gorsuch, in a plurality
opinion joined by Justice Ginsburg, Justice Sotomayor, and Justice
Kagan (hereafter, the “Gorsuch plurality”), offered one rationale for
the Court’s holding. Justice Breyer, the author of a separate opinion
concurring in the judgment, offered another.

      According to the Gorsuch plurality, § 3583(k) is unconstitutional
under Apprendi v. New Jersey 18 and its progeny—particularly, under

      15   Id.
      16   Id. at 2373.
      17   Id. at 2375.
      18   530 U.S. 466 (2000).




                                   10
Alleyne v. United States. 19 The Gorsuch plurality relied on this line of
cases to explain that a fact that increases a mandatory minimum
sentence authorized by statute must be found by a jury on the basis of
proof beyond a reasonable doubt. 20 The Gorsuch plurality concluded
that § 3583(k) is constitutionally infirm because it “increased the
legally prescribed range of allowable sentences” on the basis of facts
found by a judge by a preponderance of the evidence. 21

       By contrast, Justice Breyer’s separate opinion offered a narrower
rationale. On the one hand, Justice Breyer agreed with the four
dissenting Justices—which for convenience may be styled the “Alito
plurality” 22—that “the Apprendi line of cases,” Alleyne included,




       19   570 U.S. 99 (2013).
       20 See Haymond, 139 S. Ct. at 2376–78 (plurality opinion). Other than the fact
of a defendant’s prior conviction, see Almendarez-Torres v. United States, 523 U.S. 224
(1998), or facts that affect how a defendant serves multiple sentences, see Oregon v.
Ice, 555 U.S. 160 (2009), “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” or admitted by the defendant, Apprendi, 530 U.S. at 490.
Similarly, the Supreme Court in Alleyne stated, in the context of sentencing
enhancements at the initial sentencing hearing, that when “a finding of fact alters
the legally prescribed punishment so as to aggravate it,” the finding must be made
by a jury beyond a reasonable doubt. 570 U.S. at 114.
       21   Haymond, 139 S. Ct. at 2378 (plurality opinion).
       22The four dissenting justices were Chief Justice Roberts, Justice Thomas,
Justice Alito (the author of the dissenting opinion), and Justice Kavanaugh. See
Haymond, 139 S. Ct. at 2369–2400 (Alito, J., dissenting).




                                           11
should not be extended to the “supervised-release context.” 23 On the
other hand, he agreed with Justice Gorsuch’s plurality holding that
§ 3583(k) is unconstitutional. Rather than relying on Apprendi and
Alleyne, Justice Breyer explains that there are “three aspects of this
provision” that are problematic when “considered in combination”
because they more closely resemble the punishment of new criminal
offenses and thus depart from the ordinary revocation context—
specifically, that § 3583(k): (1) “applies only when a defendant
commits a discrete set of federal criminal offenses specified in the
statute”; (2) “takes away the judge’s discretion to decide whether
violation of a condition of supervised release should result in
imprisonment and for how long”; and (3) “limits the judge’s discretion
in a particular manner[ ] by imposing a mandatory minimum term of
imprisonment” upon the judge’s finding that it is more likely than not
that the defendant committed a criminal offense listed in the statute. 24

       When a majority of the Supreme Court agrees on the judgment,
such as here, “but no single rationale explaining the result enjoys the
assent of five Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on
the narrowest grounds.’” 25 In Haymond, Justice Breyer’s opinion
concurring in the judgment represents the narrowest ground

       23   Haymond, 139 S. Ct. at 2385 (Breyer, J., concurring in the judgment).
       24   Id. at 2386 (internal quotation marks omitted).
       25 Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia,
428 U.S. 153, 169 n.15 (1976) (plurality opinion)).




                                           12
supporting the judgment, and therefore provides the controlling
rule. 26

           With this important background in mind, we turn to Doka’s
challenge to the constitutionality of § 3583(e)(3).

           B. The Constitutionality of § 3583(e)(3) After Haymond

           Haymond did not undermine our clear precedent on the
constitutionality of § 3583(e)(3). We reach this conclusion primarily for
two reasons.

           First, § 3583(e)(3) does not contain any of the three features that,
in combination, render § 3583(k) unconstitutional. Section 3583(e)(3)
does not: (1) apply to a discrete set of offenses; (2) eliminate the trial
judge’s discretion in a revocation proceeding; and (3) impose a
mandatory minimum term of imprisonment for the violation of a
condition of supervised release. 27 To the contrary, § 3583(e)(3) applies
generally to violations of a condition of supervised release and
authorizes the court to exercise its discretion in determining whether
to revoke a term of supervised release and, if so, whether to impose a




           Indeed, the dissenting opinion for four Justices acknowledges that
           26

Haymond’s “holding . . . is set out in Justice Breyer’s opinion.” Haymond, 139 S. Ct.
at 2386 (Alito, J., dissenting). The Eighth Circuit has also concluded recently that
“Justice Breyer’s opinion [in Haymond] is the narrower opinion, and therefore
controls.” United States v. Watters, 947 F.3d 493, 497 (8th Cir. 2020).
           27   See Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).




                                               13
term of imprisonment at all. 28 Accordingly, § 3583(e)(3) governs
revocation proceedings generally and does not mandate a
“punishment for a new offense, to which the jury right would typically
attach.” 29

       Second, none of the Justices in Haymond appear to suggest that
§ 3583(e)(3)’s authorization of judicial factfinding violates the
Constitution. For example, Justice Breyer and the four dissenting
Justices agree that, because revocations are “typically understood as
‘part of the penalty for the initial offense’” and not part of an
additional punishment for a new offense, 30 “Congress did not intend
the [role of the judge in the] system of supervised release to differ from
[that in traditional] parole.” 31 As a result, these five Justices expressly




       28 18 U.S.C. § 3583(e) (“The court may . . . (3) revoke a term of supervised
release, and require the defendant to serve in prison all or part of the term of
supervised release authorized by statute . . . .”) (emphasis added). Although the
statute does restrict the trial judge’s discretion to impose a revocation sentence, it
does so in favor of the defendant. Far from imposing a mandatory minimum
sentence, § 3583(e)(3) provides “that a defendant whose term is revoked under this
paragraph may not be required to serve on any such revocation more than 5 years
in prison if the offense that resulted in the term of supervised release is a class A
felony, more than 3 years in prison if such offense is a class B felony, more than 2
years in prison if such offense is a class C or D felony, or more than one year in any
other case.” Id.
       29   Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).
       30   Id. (quoting Johnson v. United States, 529 U.S. 694, 700 (2000)).
       31   Id. at 2385; see also id. at 2390–91 (Alito, J., dissenting).




                                              14
rejected any attempt to “transplant the Apprendi line of cases to the
supervised-release context.” 32

        By the same token, when faced with Justice Alito’s claims that
the Gorsuch plurality’s opinion appears to “strongly suggest that the
Sixth Amendment right to a jury trial applies to any supervised-release
revocation         proceeding,” 33       the     Gorsuch         four-Justice   plurality
disclaimed any such result. More specifically, the Gorsuch plurality
“emphasized” that its “decision is limited to § 3583(k)—an unusual
provision enacted little more than a decade ago—and the Alleyne
problem raised by its 5-year mandatory minimum term of
imprisonment.” 34              The   Gorsuch         plurality    further   noted    that
“[§] 3583(e), which governs supervised release revocation proceedings
generally, does not contain any similar mandatory minimum triggered
by judge-found facts.” 35 Accordingly, the Gorsuch plurality did not
second-guess a judge’s discretionary authority to revoke a term of
supervised release on the basis of facts found by the judge under a
preponderance-of-the-evidence standard 36—at least to the extent those


        32  Id. at 2385 (Breyer, J., concurring in the judgment); see also id. at 2388–89
(Alito, J., dissenting).
        33   Id. at 2387 (Alito, J., dissenting) (emphasis in original).
        34   Id. at 2383 (plurality opinion).
        35   Id. at 2383–84.
        36  See United States v. Watters, 947 F.3d 493, 497 (8th Cir. 2020) (“The plurality
. . . characterized its holding as limited in scope to § 3583(k) and not extending more
generally to § 3583(e).”).




                                                15
facts do not “trigger a new mandatory minimum prison term”
exceeding the range of punishments authorized by the jury’s verdict. 37

       In sum, the principal disagreement among the nine Justices was
the applicability of Apprendi and its progeny specifically to § 3583(k).
Indeed, the Gorsuch plurality asserted that the unconstitutionality of
supervised release proceedings outside of the § 3583(k) context was
not presented in Haymond. 38

       Finally, it may well be true that Haymond’s “plurality opinion
appears to have been carefully crafted for the purpose of laying the
groundwork for later decisions of much broader scope,” 39 including
the broad proposition that “[o]nly a jury, acting on proof beyond a


       37   Haymond, 139 S. Ct. at 2380 (plurality opinion) (emphasis in original).
       38   Id. at 2383 (“[W]hat agitates the dissent so much is an issue not presented
here: whether all supervised release proceedings comport with Apprendi.”
(emphasis in original)). Even putting aside the fact that there is no Supreme Court
case applying Apprendi and its progeny to revocation proceedings, there is no
Apprendi concern here. Doka’s case falls within “the vast majority of supervised
release revocation proceedings under subsection (e)(3) [that] would likely be
unaffected” by an application of Apprendi because “combining a defendant’s initial
and post-revocation sentences issued under § 3583(e) will not yield a term of
imprisonment that exceeds the statutory maximum term of imprisonment the jury
has authorized for the original crime of conviction.” Haymond, 139 S. Ct. at 2384
(plurality opinion). Here, the sum of Doka’s initial and post-revocation sentences
(i.e., 392 days plus 48 months’ imprisonment) is well within the range of allowable
sentences as prescribed by Congress and authorized by the jury’s verdict of his
underlying conviction under 18 U.S.C. § 924(c) (i.e., sentence of up to life
imprisonment).
       39   Id. at 2386 (Alito, J., dissenting) (emphasis in original).




                                             16
reasonable doubt, may take a person’s liberty.” 40 But as an inferior
federal court “we are not at liberty to browse through these tea leaves
and vaticinate what future holdings the Supreme Court may (or may
not) make.” 41 Where, as here, the Supreme Court has not undermined,
our Court’s clear precedent on the vitality of § 3583(e)(3), we must
apply        that    longstanding         precedent      and    thus       reject   Doka’s
constitutional challenge.

        Because the District Court did not err, let alone plainly err, by
adhering to Congress’s clear authorization under § 3583(e)(3) and the
law of this Circuit on this subject, we reject Doka’s constitutional
challenge to the revocation of his term of supervised release.

                                   III.    CONCLUSION

        To summarize, we hold that:

        (1) The Supreme Court’s decision in United States v. Haymond
              holding that a different supervised-released provision, 18
              U.S.C. § 3583(k), is unconstitutional, did not undermine our
              well-settled precedent acknowledging that the Constitution
              permits a sentencing judge to find facts under a
              preponderance-of-the-evidence               standard         in   revocation
              proceedings as authorized by 18 U.S.C. § 3583(e)(3).




        40   Id. at 2373 (plurality opinion).
        41   United States v. Gonzalez, 949 F.3d 30, 42 (1st Cir. 2020).




                                                17
     (2) Haymond’s holding is limited to § 3583(k) and does not
        extend to § 3583(e)(3).

     (3) Under the controlling rule in Haymond set forth in Justice
        Breyer’s opinion concurring in the judgment, § 3583(e)(3)
        does not present any of the three factors that, in combination,
        render § 3583(k) unconstitutional. Specifically, § 3583(e)(3)
        does not apply to a discrete set of offenses; eliminate the
        sentencing judge’s discretion in revocation proceedings; or
        impose a mandatory minimum term of imprisonment for the
        violation of a condition of supervised release.

     (4) In sum, § 3583(e)(3) remains constitutional under our well-
        settled Circuit precedent, and the District Court’s revocation
        of Doka’s term of supervised release based on its findings by
        a preponderance of the evidence did not violate Doka’s
        rights under the Fifth and Sixth Amendments.

     For the foregoing reasons, the District Court’s October 18, 2018
judgment is AFFIRMED.




                                  18
