United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SR UNITED STATES DISTRICT JUDGE
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.
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.)
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.)
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.)
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
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.
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).
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 ...