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United States v. Carpenter

United States District Court, M.D. Florida, Fort Myers Division

December 6, 2017

UNITED STATES OF AMERICA
v.
CHRISTOPHER A. CARPENTER

          OPINION AND ORDER

          JOHN E. STEELE SR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant's Motion to Strike a Portion of 18 U.S.C. § 3583(k) as Unconstitutional (Doc. #74) filed on October 13, 2017. The Government's Response (Doc. #77) was filed on October 27, 2017. With leave of court, defendant filed a Memorandum of Law (Doc. #82) on November 14, 2017, and the government filed a Supplemental Memorandum of Law (Doc. #86) on November 28, 2017. For the reasons set forth below, the motion is denied.

         I.

         On October 12, 2010, defendant was sentenced to 60 months imprisonment followed by a life term of supervised release based upon his conviction for possession of child pornography. (Doc. #58.) Defendant began supervised release on October 4, 2013. (Doc. #61.) On June 19, 2017, a petition alleging violations of supervised release was filed. (Id.) Specifically, it is alleged that on June 19, 2017, defendant (1) possessed videos of child pornography on his cell phone, and (2) possessed and used an unauthorized cell phone to access the internet. (Id.) The government reports that on November 8, 2017, defendant was indicted for receipt of child pornography based on the June 19, 2017 events, which remains pending in the Tampa Division. (Doc. #86, pp. 2-3.) Defendant's final revocation hearing on the supervised release violations is currently scheduled for December 11, 2017. (Doc. #85.)

         II.

         Essentially, the parties dispute the length of the maximum penalty for the violations of supervised release in this case. The government asserts that under 18 U.S.C. § 3583(k) defendant faces a mandatory minimum five years imprisonment for possessing child pornography on his cell phone. (Doc. #77.) Defendant asserts that those portions of Section 3583(k) that impose a mandatory minimum sentence are unconstitutional, his maximum sentence of imprisonment is two years, and the court retains full discretion to impose any sentence of imprisonment up to two years. (Doc. #74.)

         Defendant's underlying 2010 conviction of possession of child pornography was for a Class C felony. 18 U.S.C. §§ 2252, 3559(a)(3). A person convicted of a Class C felony normally faces a term of supervised release of not more than three years. 18 U.S.C. § 3583(b)(2). Where the offense of conviction is possession of child pornography (among other offenses), a more specific statute requires a term of supervised release of at least five years to life. 18 U.S.C. § 3583(k). The Court imposed a life term of supervised release at the original sentencing. (Doc. #58.)

         When a defendant who has been convicted of a Class C felony is subsequently charged with violation of supervised release, the maximum term of incarceration is normally two years. 18 U.S.C. § 3583(e)(3). Defendant asserts that the Sentencing Guidelines recommend a range of 4 to 10 months in this case. (Doc. #74, pp. 5-6 (citing U.S. Sentencing Guidelines Manual § 7B1.4(a) (U.S. Sentencing Comm'n 2016))).

         The government asserts, however, that the second and third sentences of 18 U.S.C. § 3583(k) apply to this revocation proceeding and require a mandatory minimum five-year sentence of imprisonment. (Doc. #77, pp. 2-8.) This section provides in full:

(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.

18 U.S.C. § 3583(k). This version of the statute took effect on July 27, 2006, United States v. Perry, 743 F.3d 238, 241 (7th Cir. 2014), so it applies to defendant's 2009 offense conduct and his 2010 conviction.

         Defendant responds that the second and third sentences of 18 U.S.C. § 3583(k) requiring a mandatory five-year term of imprisonment are unconstitutional as a violation of his Sixth Amendment, Due Process, and Double Jeopardy rights. (Doc. #74.) Defendant relies primarily on United States v. Haymond, 869 F.3d 1153 (10th Cir. 2017).

         III.

         The original imposition of a term of supervised release is governed by Section 3583. The statute first states that the Court may, and in some cases must, impose a term of supervised release after imposing a sentence of imprisonment. 18 U.S.C. § 3583(a). The statute then sets forth the authorized lengths of supervised release, based solely on the classification of the offense of conviction. 18 U.S.C. § 3583(b). Defendant's offense of conviction was a Class C felony, for which there normally is a maximum three-year term of supervised release. 18 U.S.C. § 3583(b)(2). The statute also provides, however, that notwithstanding the authorized terms in Section ...


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