By: Dan Menken

Today, in United States v. Ward, the Fourth Circuit affirmed the conviction of George A. Ward for violating the conditions of his supervised release. He was sentenced to 20 months imprisonment, which is the mandatory minimum under 18 U.S.C. § 3583(g), which Congress amended in 1994 to eliminate the statute’s minimum sentencing provision. In this case, the statute was amended after Ward committed the underlying offense, but after he engaged in the conduct that led to the revocation of his supervised release.

Ward Violated Parole Agreement by Testing Positive for Controlled Substances

In December 1994, Ward plead guilty to three counts of being a felon in possession of a firearm, two counts of distribution of crack cocaine, and one court of use of a firearm in furtherance of a drug trafficking crime. He ultimately received a sentence of 200 months, followed by a five-year period of supervised release. The supervised release prohibited Ward from illegally possessing a controlled substance.

In April 2013, the government filed a petition in the district court seeking to revoke Ward’s supervised release. The government alleged that Ward had tested positive for cocaine or marijuana on multiple occasions. At a hearing on the government’s petition, Ward admitted that he had possessed cocaine and marijuana on numerous occasions during his supervised release. The district court revoked Ward’s supervised release and sentenced him to 20 months in prison. In calculating Ward’s sentence, the court followed the version of 18 U.S.C. § 3583(g) that was in effect at the time he was sentenced for his underlying crimes. These guidelines specified that the defendant must serve a mandatory minimum sentence of one-third of his supervised release term.

Congress amended 18 U.S.C. § 3583(g) in September 1994, eliminating the mandatory minimum sentencing provision.

Did the District Court Err in Applying Former Version of 18 U.S.C. § 3583(g)?

Ward argued that the former version of the statute was not applicable because the statute was amended before he was originally sentenced and before he committed the acts in violation of his supervised release. In coming to their decision, the Fourth Circuit relied on Johnson v. United States, which held that a defendant was subject to the sentencing provisions of the statute in effect when the initial offense was committed. That court specifically held that “postconviction penalties relate to the original offense.” Thus, any violation of a supervised release would relate back to the time when the underlying offense was committed. The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial because the court must look back to the initial offense.

Moreover, under the federal Savings Statute, 1 U.S.C. § 109, 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.” Thus, the Savings Statute preserved the mandatory minimum punishment provision of § 3583(g).

The fact that Ward was not sentenced for his crimes until after the statute was amended is immaterial. Therefore, the district court correctly applied the former version of § 3583(g), which was the statute in effect when Ward committed the underlying crimes.

Did Mandatory Minimum Provision Violate Defendant’s Sixth Amendment Rights?

Ward further agues that the mandatory minimum provision in § 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. The Fourth Circuit once again turned to Johnson, which stated that a violation of the conditions of a supervised release “need only be found by a judge under a preponderance of the evidence standard.” However, they also noted that in Alleyne v. United States, the Supreme Court required a jury determination 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. In this case, the Fourth Circuit determined that Ward was facing a supervised release revocation, which stands in contrast to a criminal trial. According to Morrissey v. Brewer, “the full panoply of rights due a defendant in [a criminal prosecution] does not apply to parole revocations.” Additionally, those individuals on supervised release enjoy only “conditional liberty” because they already have been convicted of the criminal offense.

Thus, the Fourth Circuit concluded that Ward was not entitled to have the alleged supervised release violation proven to a jury beyond a reasonable doubt.

District Court’s Judgment Affirmed

The Fourth Circuit held that the district court did not err in applying the former version of 18 U.S.C. § 3583(g) in Ward’s supervised release revocation proceeding. The Court further held that Ward’s Sixth Amendment rights were not violated. Accordingly, the Court affirmed the district court’s judgment.

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