                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                 Nos. 17-3368 and 19-3203
                       ___________

             UNITED STATES OF AMERICA

                             v.

                    ERIC SEIGHMAN,
                             Appellant
                      ___________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
               (D.C. No. 2-14-cr-00206-004)
         District Judge: Honorable Cathy Bissoon
                       ___________

                Argued May 28, 2020
  Before: HARDIMAN, PHIPPS, and NYGAARD, Circuit
                      Judges.

                   (Filed: July 21, 2020)


Jacob Schuman [Argued]
Brett G. Sweitzer
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
      Counsel for Appellant

Adam N. Hallowell [Argued]
Laura S. Irwin
Office of United States Attorney
Western District of Pennsylvania
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee

                       ____________

                OPINION OF THE COURT
                     ____________

HARDIMAN, Circuit Judge.

        In United States v. Haymond, 139 S. Ct. 2369 (2019),
the Supreme Court held that subsection (k) of the supervised
release statute (18 U.S.C. § 3583) violated the Fifth and Sixth
Amendments to the United States Constitution. Appellant Eric
Seighman claims subsection (g) of that statute must suffer the
same fate. Because there are pivotal differences between the
two subsections, we disagree and reject Seighman’s challenge
to the constitutionality of 18 U.S.C. § 3583(g).




                              2
                              I

       In 2014, Seighman pleaded guilty to a counterfeiting
conspiracy in violation of 18 U.S.C. § 371, a Class D felony
carrying a maximum prison term of 60 months. The District
Court sentenced him to 30 months’ imprisonment with 36
months of supervised release to follow. As a condition of that
release, Seighman was prohibited from “unlawfully
possess[ing] a controlled substance.” App. 30.

       Soon after he left prison, Seighman went astray by
buying heroin, testing positive for opiates, and failing to
comply with drug treatment. Upon petition of the United States
Probation Office, the District Court revoked Seighman’s
supervision and sentenced him to another 24 months’
imprisonment plus 12 months of supervised release. The
District Court also strongly recommended significant and
intensive drug treatment for Seighman.

        After his second release from prison, Seighman
transitioned to Renewal, Inc., a residential reentry center.
There he violated his supervised release once again. On August
7, 2019, the day after Seighman’s second term of supervised
release began, the Probation Office petitioned the District
Court to issue a warrant for Seighman because he brought
heroin into Renewal. The next week, the Probation Office filed
supplemental petitions alleging that Seighman had committed
two more violations: leaving Renewal without permission and
buying illegal drugs.

       The Probation Office calculated Seighman’s revocation
sentencing range as 21–27 months’ imprisonment. But because
Seighman’s crime of conviction was a Class D felony, 18
U.S.C. § 3583(e)(3) limited his maximum term of




                              3
imprisonment to 24 months. The Government concurred with
the Probation Office.

       Seighman objected to the Probation Office’s
calculation. He argued that because his counterfeiting
conspiracy conviction permitted a maximum of 60 months in
prison, he could be sentenced to no more than six months in
prison (since he had served 54 months already). On
Seighman’s view, any sentence of more than six months would
require a jury trial under the Supreme Court’s decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000) and Haymond.

       The District Court held a sentencing hearing, at which
Seighman argued his objection. The prosecutor responded that
“revocation and a term of imprisonment are mandatory under
[subsection (g)] because of drug possession.” App. 98–99. He
also asked the Court to “place on the record if it agrees it would
revoke and impose a term of imprisonment even if that was not
mandatory under the statute.” App. 99. The Court found by a
preponderance of the evidence that Seighman possessed a
controlled substance. It then “agree[d] with the government
that supervised release both must and should be revoked” and
sentenced Seighman to 24 months’ imprisonment. App. 4, 103–
04.

        The District Court rejected Seighman’s objection for
three reasons. First, it cited a “swath of court decisions
[rejecting] the notion that we should aggregate the sentences,
both original and on supervised release, to ensure that the
underlying statutory maximum sentence is not breached.” App.
105. Second, it noted “the Haymond [C]ourt took pains to limit
its decision to [subsection (k)].” Id. Finally, it explained
“Section 3583(e) . . . governs supervised release revocation
proceedings generally, including [Seighman’s], . . . [and] does




                                4
not contain any similar mandatory minimums triggered by
judge-found facts.” App. 105–06. In sum, the District Court
said it was “not willing to go where the Supreme Court refused
to.” App. 106.

       Seighman timely appealed.

                               II

       The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over purely legal questions. See United
States v. Ware, 694 F.3d 527, 531 (3d Cir. 2012).

       In this appeal, Seighman principally argues that the
mandatory imprisonment aspect of subsection (g) is
unconstitutional. But he never raised that argument in the
District Court, so we review for plain error. See United States
v. Lopez, 650 F.3d 952, 959 (3d Cir. 2011). Plain error exists
when an error is clear at the time it was made and it affected
the defendant’s substantial rights. United States v. Olano, 507
U.S. 725, 732–33 (1993). If those conditions are met, we may
reverse only if the error affected the fairness, integrity, or
public reputation of the proceeding. Id. at 732.

                               III

       We begin by briefly summarizing the role of supervised
release in the federal criminal justice system. Under the
Sentencing Reform Act of 1984, whenever a federal court
sentences a criminal defendant to a term of imprisonment, it
may include “a requirement that the defendant be placed on a
term of supervised release.” 18 U.S.C. § 3583(a). Federal
courts do just that in almost all criminal cases. In a multi-year




                               5
study of federal sentences imposed after the Supreme Court’s
landmark decision in United States v. Booker, 543 U.S. 220
(2005), the United States Sentencing Commission reported that
over 99 percent of federal sentences for over one year’s
imprisonment also included a term of supervised release. See
Federal Offenders Sentenced to Supervised Release, U.S.
Sentencing            Comm’n             (July          2010),
https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/research-publications/2010/20100722_
Supervised_Release.pdf. The maximum length of a
defendant’s supervised release term usually depends on the
seriousness of his crime of conviction. See 18 U.S.C.
§ 3583(b). For example, a defendant who committed a Class D
felony cannot be sentenced to a term of supervised release
exceeding three years. See id. § 3583(b)(2).

        Because supervised release is a system of post-
conviction monitoring intended to facilitate the offender’s
reintegration into society, probation officers have discretion
over whether to report an offender’s violations of supervised
release. If violations are severe or pervasive enough, the
probation officer will alert the district court. In those cases, if
the court finds by a preponderance of the evidence that the
defendant violated his supervised release, the court may revoke
it and “require the defendant to serve in prison all or part of the
term of supervised release authorized by statute” for his crime
of conviction. See id. § 3583(e)(3). Generally, the court has
discretion whether to sentence the defendant to imprisonment,
and the maximum length of a defendant’s sentence depends on
the seriousness of his crime of conviction. See id. For example,
a defendant who committed a Class D felony cannot be




                                6
sentenced to “more than 2 years in prison” for violating his
supervised release. See id.

       Having explained federal supervised release generally,
we turn to the Supreme Court’s decision last year in Haymond.
There, the Court declared 18 U.S.C. § 3583(k) unconstitutional
under the Fifth and Sixth Amendments. Subsection (k) states:

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

Id. § 3583(k) (emphasis added).

       In Haymond, a jury found Andre Haymond guilty of
possessing child pornography in violation of 18 U.S.C. §
2252(b)(2), which authorizes up to ten years in prison. See 139
S. Ct. at 2373. The judge sentenced Haymond to 38 months’
imprisonment, followed by 120 months of supervised release.




                               7
See id. Haymond completed his prison sentence, but shortly
thereafter, the government searched his computers and
cellphone and found “59 images that appeared to be child
pornography.” Id. at 2374. A judge found by a preponderance
of the evidence that Haymond “knowingly downloaded and
possessed” thirteen of the images and, because subsection (k)
applies to possession of child pornography, imposed the
mandatory minimum prison term of five years. Id. at 2374–75.
The sentencing judge did so unwillingly, noting that “[w]ere it
not for [subsection (k)’s] mandatory minimum, . . . he
‘probably would have sentenced in the range of two years or
less.’” Id. at 2375. Under subsection (k), Haymond could have
been sentenced to life in prison even though his crime of
conviction that triggered his supervised release violation
carried a ten-year maximum. Id. at 2373.

        Haymond appealed to the United States Court of
Appeals for the Tenth Circuit, which concluded subsection (k)
violated his right to trial by jury because it imposed “a new and
higher mandatory minimum resting only on facts found by a
judge by a preponderance of the evidence.” Id. at 2375. A
divided Supreme Court affirmed. See id. at 2373. Writing for a
plurality, Justice Gorsuch defined a “prosecution” as “the
process of exhibiting formal charges against an offender before
a legal tribunal,” and a “crime” as an “act[] to which the law
affixes . . . punishment.” Id. at 2376 (internal quotation marks
and citations omitted). He then observed that historically the
jury has “exercise[d] supervisory authority over the judicial
function by limiting the judge’s power to punish.” Id. And
since Apprendi, the Court has “not hesitated to strike
down . . . innovations that fail to respect the jury’s supervisory
function.” Id. at 2377. For example, in Alleyne, the Court held
that facts increasing a defendant’s minimum punishment must




                                8
be proven to a jury beyond a reasonable doubt. Id. at 2378.
Applying Alleyne, Justice Gorsuch concluded that the “facts
the judge found [in Haymond’s case] increased the legally
prescribed range of allowable sentences in violation of the
Fifth and Sixth Amendments.” Id. (quotation marks and
citation omitted).

       Justice Gorsuch limited his analysis to the
constitutionality of subsection (k) under Alleyne. See id. at
2383 (“As we have emphasized, our decision is limited to
[subsection (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.”). He declined to
address the constitutionality of subsection (k) under Apprendi,
or the constitutionality of subsection (g). See id. at 2379 n.4,
2382 n.7.

        Justice Breyer concurred in the judgment. His opinion
is the Court’s holding because it supplies the narrowest ground
supporting the judgment. See Marks v. United States, 430 U.S.
188, 193 (1977). Justice Breyer agreed with the dissent that
“the role of the judge in a supervised-release proceeding is
consistent with traditional parole.” Haymond, 139 S. Ct. at
2385 (Breyer, J., concurring in the judgment). He also
cautioned against “transplant[ing] the Apprendi line of cases to
the supervised-release context,” citing “potentially
destabilizing consequences.” Id. He nevertheless agreed with
the plurality that subsection (k) is unconstitutional. His
succinct concurrence merits quotation at length because it
governs our analysis below:

       Revocation of supervised release is typically
       understood as ‘‘part of the penalty for the initial
       offense.’’ Johnson v. United States, 529 U.S. 694,




                               9
700, 120 S. Ct. 1795, 146 L.Ed.2d 727 (2000).
The 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—not ‘‘for the
particular conduct triggering the revocation as if
that conduct were being sentenced as new federal
criminal conduct.’’ United States Sentencing
Commission, Guidelines Manual ch. 7, pt. A,
intro. 3(b) (Nov. 2018); see post, at 2392 – 2393.
Consistent with that view, the consequences for
violation of conditions of supervised release
under § 3583(e), which governs most
revocations, are limited by the severity of the
original crime of conviction, not the conduct that
results in revocation. See § 3583(e)(3)
(specifying that a defendant may as a
consequence of revocation serve no ‘‘more than
5 years in prison if the offense that resulted in the
term of supervised release is a class A felony,
[no] more than 3 years in prison if . . . a class B
felony,’’ and so on).

[Subsection (k)] is difficult to reconcile with this
understanding of supervised release. In
particular, three aspects of this provision,
considered in combination, lead me to think it is
less like ordinary revocation and more like
punishment for a new offense, to which the jury
right would typically attach. First, [subsection
(k)] applies only when a defendant commits a




                         10
      discrete set of federal criminal offenses specified
      in the statute. Second, [subsection (k)] takes
      away the judge’s discretion to decide whether
      violation of a condition of supervised release
      should result in imprisonment and for how long.
      Third, [subsection (k)] limits the judge’s
      discretion in a particular manner: by imposing a
      mandatory minimum term of imprisonment of
      ‘‘not less than 5 years’’ upon a judge’s finding
      that a defendant has ‘‘commit[ted] any’’ listed
      ‘‘criminal offense.’’

      Taken together, these features of § 3583(k) more
      closely resemble the punishment of new criminal
      offenses, but without granting a defendant the
      rights, including the jury right, that attend a new
      criminal prosecution. And in an ordinary
      criminal prosecution, a jury must find facts that
      trigger a mandatory minimum prison term.
      Alleyne, 570 U.S. at 103, 133 S. Ct. 2151.



Id. at 2386 (emphasis added).

                                IV

       Citing Haymond, Seighman claims the District Court
committed plain error when it revoked his supervised release
and sentenced him to 24 months in prison. He argues
subsection (g) is “less like ordinary revocation and more like
punishment for a new offense, to which the jury right would
typically attach.” Id. And he contends that subsection (g)




                                11
“shares all three of the features that rendered [subsection (k)]
unconstitutional.” Seighman Br. 13–14. We are unpersuaded.

       Subsection (g) states:

       (g) Mandatory revocation for possession of
       controlled substance or firearm or for refusal
       to comply with drug testing.—If the
       defendant—

       (1) possesses a controlled substance in violation
       of the condition set forth in subsection (d);

       (2) possesses a firearm, as such term is defined
       in section 921 of this title, in violation of Federal
       law, or otherwise violates a condition of
       supervised release prohibiting the defendant
       from possessing a firearm;

       (3) refuses to comply with drug testing imposed
       as a condition of supervised release; or

       (4) as a part of drug testing, tests positive for
       illegal controlled substances more than 3 times
       over the course of 1 year;

       the court shall revoke the term of supervised
       release and require the defendant to serve a term
       of imprisonment not to exceed the maximum term
       of imprisonment authorized under subsection
       (e)(3).

18 U.S.C. § 3583(g) (emphasis added).




                                12
       Regarding Justice Breyer’s first factor, we note that
subsection (g) does not apply to a “discrete set of federal
criminal offenses specified in the statute.” Haymond, 139 S.
Ct. at 2386 (Breyer, J., concurring in the judgment). By its
terms, subsection (g) applies to conduct that does not rise to the
level of a federal criminal offense, such as “refus[ing] to
comply with drug testing” or repeatedly “test[ing] positive for
illegal controlled substances.” Recognizing this weakness,
Seighman argues that because his supervised release was
“mandatorily revoked for the discrete offense of drug
possession,” we “need not trouble [ourselves]” with the fact
that subsection (g) also applies to noncriminal conduct. Reply
Br. 2–3. But Justice Breyer’s concurrence counsels in favor of
reading subsection (g) holistically: he stressed that subsection
(k) applies “only when a defendant commits a discrete set of
federal criminal offenses specified in the statute.” Haymond,
139 S. Ct. at 2386 (Breyer, J., concurring in the judgment).

       The differences between the two subsections become
even clearer when we consider Justice Breyer’s second and
third points of emphasis. Seighman is correct that subsection
(g), like subsection (k), mandates imprisonment. But the
former requires only one day in prison, while the latter
mandated at least five years in prison.

       Even more significantly, subsection (g) does not limit
the judge’s discretion in the same “manner” as subsection (k).
Subsection (k) mandates five years’ imprisonment and
empowers the judge to impose a life sentence regardless of how
serious (or minor) the defendant’s crime of conviction was. By
contrast, subsection (g) imposes a mandatory term of
imprisonment of just one day, and the maximum length of the
defendant’s sentence depends on the seriousness of his crime
of conviction under subsection (e)(3). Considering these three




                               13
factors “in combination,” we are convinced that subsection (g)
is more like ordinary revocation and less like punishment for a
new offense. Cf. id.1

       Seighman insists the one-day mandatory minimum
“alone” violates the jury right, and the “length of the
mandatory sentence is irrelevant.” Reply Br. 3–4. We disagree.
Justice Breyer stressed the length of subsection (k)’s
mandatory minimum repeatedly. See Haymond, 139 S. Ct. at
2386 (Breyer, J., concurring in the judgment). And because he
emphasized that the three factors he applied are to be
considered “in combination,” id., it cannot be true that one
factor “alone” is outcome-determinative.

       Had we reached the opposite conclusion, Seighman’s
appeal would still fail. The novelty of the question presented
precludes relief under the stringent Olano standard because
any error would not have been plain. See Olano, 507 U.S. at
734. And because the District Court imposed a sentence well
beyond a day in prison (24 months), it’s clear that Seighman’s
substantial rights were not affected by subsection (g)’s

       1
          Since Haymond, only a few federal courts have
addressed the constitutionality of subsection (g) and their
decisions are consistent with ours. See, e.g., United States v.
Wilson, 939 F.3d 929, 932 (8th Cir. 2019), cert. denied, 140 S.
Ct. 1242 (2020) (declining to extend Haymond to subsection
(g) in response to double jeopardy argument); United States v.
Badgett, 957 F.3d 536, 540–41 (5th Cir. 2020) (holding district
court did not plainly err by applying subsection (g) because no
court has yet extended Haymond to that subsection); United
States v. Hernandez, 2019 WL 6324743, at *3–4 (S.D.N.Y.
2019) (upholding subsection (g) after applying Justice Breyer’s
three factors).




                              14
mandatory minimum. Id. Indeed, the District Court’s
frustration with Seighman’s repeated breaches of trust resulted
in a term of imprisonment to the maximum extent the statute
permits.

       For these reasons, the District Court committed no
error, much less plain error, when it sentenced Seighman under
subsection (g).

                              VI

        Seighman also argues that his sentence is
unconstitutional under Apprendi. As counsel rightly conceded
in his brief, however, Seighman is merely preserving this
argument for Supreme Court review because Justice Breyer’s
refusal to “transplant the Apprendi line of cases to the
supervised-release context” forecloses it. Haymond, 139 S. Ct.
at 2385 (Breyer, J., concurring in the judgment); see also
Seighman Br. 18. Justice Breyer’s opinion is consistent with
our own precedent, where we have rejected the argument that
a defendant can establish an Apprendi violation by
“aggregat[ing] . . . revocation sentences and then compar[ing]
them to” a statutory maximum. United States v. Dees, 467 F.3d
847, 854 (3d Cir. 2006). Revocation sentences (other than
those under subsection (k)) are “part of the penalty for the
initial offense,” and do not increase the penalty under
Apprendi. Johnson, 529 U.S. at 700–01. At least four of our
sister circuits agree. See United States v. Doka, 955 F.3d 290,
293–95 (2d Cir. 2020) (reaffirming that “the Constitution
permits judges to revoke a defendant’s term of supervised
release [and impose a new prison term] after finding, under a
preponderance-of-the-evidence standard, that the defendant
violated his or her conditions of supervised release”); United
States v. McIntosh, 630 F.3d 699, 703 (7th Cir. 2011) (holding




                              15
“the rule in Apprendi does not apply to a sentence imposed
under § 3583 following the revocation of a supervised
release”); United States v. Hampton, 633 F.3d 334, 341–42
(5th Cir. 2011) (same); United States v. Huerta-Pimental, 445
F.3d 1220, 1221 (9th Cir. 2006) (same).

                       *     *      *

      For the reasons stated, we will affirm Seighman’s
judgment of sentence.2




      2
         Seighman also appealed his judgment of sentence in
case no. 17-3368. That appeal is moot in light of our opinion
in case no. 19-3203. Oral Argument 1:01:15.




                             16
