by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit held that a sentence under 18 U.S.C. § 3583(k) for revocation of a term of supervised release that was imposed as a result of crimes that occurred in 2005 violated the Ex Post Facto Clause.

In 2007, Tommy Hanson was convicted of one count of possession of child pornography and was sentenced to 96 months’ imprisonment followed by 60 months of supervised release. Upon release from prison, Hanson began serving his term of supervised release in June 2012. In May 2017, a jury found Hanson guilty of receipt of child pornography.

He agreed to a combined sentencing hearing for both his 2017 conviction (“conviction”) and his violation of supervised release (“violation”). Probation calculated an advisory sentencing range of 210 to 262 months for the conviction but recommended the statutory minimum of 180 months. For the violation, the probation office informed the court that 18 U.S.C. § 3583(k) required a minimum term of 60 months’ imprisonment. Counsel for the Government recommended 20 years for the conviction and 5 years for the violation to be run consecutively “because there are two interests at play.” The district court determined that 15 years for the conviction and a consecutive sentence of 5 years for the violation for a total of 20 years was “sufficient, but not greater than necessary, to satisfy the sentencing goals.”

On Hanson’s appeal, the Ninth Circuit reviewed for plain error the claim that the district court violated the Ex Post Facto Clause of the U.S. Constitution when it sentenced him to five years for the violation under § 3583(k). To obtain relief, Hanson was required to show (1) an error that (2) was clear and obvious (3) affected his substantial rights and (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129 (2009). Regarding sentencing errors, the third prong requires a defendant to show “a reasonable probability that he would have received a different sentence” absent the error. United States v. Dallman, 533 F.3d 755 (9th Cir. 2008).

The Court observed that “neither Congress nor any state shall pass any ex post facto law.” U.S. Const. art. I, § 9, cl. 3; art. I, § 10, cl. 1. The Ex Post Facto Clause is violated when a statutory amendment that increases a penalty to be imposed upon the revocation of supervised release is applied in a case in which the underlying offense was committed before the amendment was adopted, but the conduct that led to revocation of supervised release occurred afterward. United States v. Paskow, 11 F.3d 873 (9th Cir. 1993). Retroactive application of a statute that “raises the penalty” upon revocation of supervised release “from whatever the law provided” when the underlying offense was committed is at odds with the Ex Post Facto Clause. Johnson v. United States, 529 U.S. 694 (2000).

When Hanson was first convicted in 2007, the maximum term of imprisonment the district court could impose after revoking supervised release was two years. 18 U.S.C. § 3583(e)(3) (2005). The Court concluded the district court violated the Ex Post Facto Clause when it sentenced Hanson to five years under § 3583(k).

The Government conceded that the five-year sentence violated the Ex Post Facto Clause and further conceded that Hanson had satisfied the first two prongs of the plain error standard. But the Government argued that Hanson failed to satisfy the third prong because he didn’t demonstrate a reasonable probability that he would have received a different sentence absent the error. According to the Government, the district court determined a 20-year sentence was appropriate for Hanson, and had the district court known it could sentence him to only two years for the violation, it would have sentenced him to 18 years for the conviction. The Ninth Circuit rejected that argument, observing that the district court sentenced Hanson to the minimum terms on both the conviction and violation. Had the court known it could sentence Hanson to a term of less than 20 years, there was a reasonable probability it would have done so.

The Ninth Circuit also concluded the fourth prong of the plain error review was met. In Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018), the district court had miscalculated the sentencing Guidelines range resulting in a reasonable probability that the defendant would have received a different sentence absent the error, and the Supreme Court held that the miscalculation “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings” because of the risk of unnecessary deprivation of liberty.

Since the district court had combined the sentencing proceedings for the conviction and the violation into one hearing, the Ninth Circuit concluded this was a “sentencing package” case. Sentencing package cases “typically involve multicount indictments and a successful attack by a defendant on some but not all of the counts of conviction.” Greenlaw v. United States, 554 U.S. 237 (2008). In such cases, the appeals court “may vacate the entire sentence on all counts so that, on remand, the trial court can reconfigure the sentencing plan to ensure that it remains adequate to satisfy the [18 U.S.C. § 3553(a)] sentencing factors.” Id. Accordingly, the Court vacated the sentences for both the conviction and the violation, instructing the district court it was free to fashion an appropriate combined sentence on remand as long as the sentence for the violation was not greater than two years. See: United States v. Hanson, 936 F.3d 876 (9th Cir. 2019).

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