United States v. George Ward

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4683

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEORGE A. WARD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:94-cr-00070-HCM-1)

Argued: September 19, 2014 Decided: November 3, 2014

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.

ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Robert Edward Bradenham,
II, OFFICE OF THE UNITED STATES ATTORNEY, Newport News,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Richard J.
Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia; Katharina J. Rienks,
Third Year Law Student, WILLIAM & MARY LAW SCHOOL, Williamsburg,
Virginia, for Appellee.

2
BARBARA MILANO KEENAN, Circuit Judge:

George A. Ward appeals from the district court’s judgment

sentencing him to a term of 20 months’ imprisonment for

violating the conditions of his supervised release. This

sentence was the mandatory minimum term required by a former

version of the supervised release statute, 18 U.S.C. § 3583(g),

which Congress amended in 1994 to eliminate the statute’s

mandatory minimum sentencing provision. The amended statute was

enacted after Ward committed the underlying offenses for which

he was originally convicted, but before he engaged in the

conduct that led to the revocation of his supervised release.

On appeal, Ward argues that the district court erred in

failing to apply the amended version of Section 3583(g). Ward

also argues that his mandatory minimum sentence violates the

Sixth Amendment, as construed in Alleyne v. United States, 133

S. Ct. 2151 (2013), because the sentence was imposed based on

factual findings made by a judge by a preponderance of the

evidence, rather than by a jury under the standard of beyond a

reasonable doubt.

Upon our review, we conclude that the district court

correctly applied the former version of Section 3583(g), because

that version of the statute was in effect when Ward committed

the underlying crimes. We further conclude that Alleyne, which

affords certain constitutional protections when a mandatory

3
minimum sentence is at issue in a criminal trial, does not apply

in the context of supervised release revocation proceedings.

Accordingly, we affirm the district court’s judgment.

I.

In December 1994, Ward pleaded guilty to several felony

charges, including three counts of being a felon in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924,

two counts of distribution of crack cocaine, in violation of 21

U.S.C. § 841, and one count of use of a firearm in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

The district court sentenced Ward to a prison term of 260

months, followed by a five-year period of supervised release.

Among other things, the conditions of Ward’s supervised release

prohibited him from illegally possessing a controlled substance.

Ward’s prison term ultimately was reduced by the district

court to 200 months, 1 but the court expressly left intact the

original duration and conditions of Ward’s supervised release.

When Ward was released from prison in October 2010, he began his

five-year term of supervised release.

1
The reduction in Ward’s prison sentence occurred as a
result of this Court’s unpublished order vacating Ward’s
conviction for violating 18 U.S.C. § 924(c), as well as the
district court’s application of 18 U.S.C. § 3582 concerning
retroactive amendments to the United States Sentencing
Guidelines for crack cocaine offenses.

4
 In April 2013, the government filed a petition in the

district court seeking to revoke Ward’s supervised release. The

government alleged that Ward violated his conditions of release

by testing positive for cocaine on four occasions, and positive

for marijuana on two occasions. 2 The government later

supplemented its revocation petition, alleging three additional

instances in which Ward had tested positive for cocaine.

At a hearing on the government’s petition, Ward admitted

that he had possessed cocaine and marijuana on numerous

occasions during his supervised release term. At the conclusion

of the evidence, the district court revoked Ward’s supervised

release, finding that Ward had violated the conditions of his

release.

In determining Ward’s sentence, the district court first

addressed which version of 18 U.S.C. § 3583(g) applied. Under

the version of Section 3583(g) in effect when Ward committed the

underlying crimes, Ward was subject to a mandatory minimum

sentence of one-third of his supervised release term, because

his violation was based on his illegal possession of controlled

substances. See 18 U.S.C. § 3583(g) (1993 ed.) (“If the

defendant is found by the court to be in the possession of a

2
The government also alleged, and Ward admitted during the
revocation hearing, that he violated the conditions of his
supervised release by submitting untimely reports to his
probation officer.

5
controlled substance, the court shall terminate the term of

supervised release and require the defendant to serve in prison

not less than one-third of the term of supervised release.”).

Thus, in this case, application of former Section 3583(g)

required a sentence of at least 20 months’ imprisonment based on

the original five-year term of supervised release.

Congress amended former Section 3583(g) in September 1994,

eliminating the mandatory minimum sentencing provision. See

Violent Crime Control and Law Enforcement Act of 1994, Pub. L.

103-322, § 110505(3), 108 Stat. 1796. Ward argued that he

should be sentenced under the amended statute, which was in

effect both when the court imposed Ward’s original sentence and

when he violated the supervised release conditions.

The district court held that it was bound by the former

version of the statute. The court sentenced Ward to the

mandatory minimum prison term of 20 months, stating, “I’m not

imposing 20 months based on the fact that I have the discretion

to do that for this violation, I’m imposing it because the

[c]ourt believes it’s mandatory. And if it wasn’t mandatory I

wouldn’t impose a sentence that severe.” Ward filed a timely

notice of appeal.

6
 II.

We first address Ward’s argument that the district court

erred in applying the former version of Section 3583(g) when

imposing the sentence for his supervised release violation.

Ward contends that the former version of the statute was not

applicable because the statute was amended before he originally

was sentenced and before he committed the acts in violation of

his conditions of release. We review de novo this issue of law.

See United States v. Fareed, 296 F.3d 243, 245 (4th Cir. 2002).

A.

We conclude that under the Supreme Court’s decision in

Johnson v. United States, 529 U.S. 694 (2000), the district

court properly applied former Section 3583(g) in determining

Ward’s revocation sentence. In Johnson, the Court addressed

whether a provision of former Section 3583 that had not been

enacted at the time of the petitioner’s underlying offense was

applicable in his supervised release revocation proceeding, when

his conduct in violation of the conditions of release occurred

after the statute was amended. 3 529 U.S. at 697-702. The Court

3
The decision in Johnson concerned subsection (h) of 18
U.S.C. § 3583, which was enacted at the same time subsection (g)
was amended in 1994. Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. 103-322, § 110505(3), 108 Stat. 1796.
Section 3583(h) expressly authorizes the district court to
impose an additional term of supervised release as part of the
sentence in a revocation proceeding. Johnson, 529 U.S. at 698.

7
held that the defendant was subject to the sentencing provisions

of the pre-amendment statute in effect when the initial offense

was committed. Id. at 701-02.

In reaching its conclusion in Johnson, the Court expressly

rejected the argument that revocation and reimprisonment should

be characterized as punishment for a violation of the conditions

of supervised release. Id. at 700-01. Instead, the Court held

that “postconviction penalties relate to the original offense.”

Id. at 701.

In light of this conclusion, the Court considered whether

Congress intended that the amended version of Section 3583 apply

retroactively. The Court analyzed this question under the well-

established presumption that legislation will not be given

retroactive effect unless Congress clearly manifested such an

intent. Id. The Court noted the absence of any clear

congressional intent, and accordingly held that amended Section

3583(h) “applies only to cases in which that initial offense

occurred after the effective date of the amendment.” Id. at

702.

In the present case, Ward committed his underlying offenses

between December 1993 and June 1994, before Congress amended

former Section 3583 in September 1994. Thus, absent clear

congressional intent to the contrary, the former version of

8
Section 3583(g) was controlling in Ward’s supervised release

revocation proceeding. See id.

There is no evidence that Congress intended the amended

version of Section 3583(g) to have retroactive application.

Fareed, 296 F.3d at 245 n.2 (“Congress provided no indication

that it intended the 1994 amendments [to former Section 3583(g)]

to apply retroactively.”). 4 And, notably, Ward does not provide

any authority supporting a different conclusion.

The fact that Ward was not sentenced for his crimes until

after the statute was amended is immaterial because the

“relevant conduct” in determining whether former Section 3583(g)

applies is the “initial offense.” Johnson, 529 U.S. at 702.

The Second Circuit emphasized this point in a case involving the

same issue before us regarding mandatory minimum revocation

sentences required by former Section 3583(g). In United States

v. Smith, 354 F.3d 171, 174 (2d Cir. 2003), the Second Circuit

explained that it was irrelevant that the defendant’s

4
The issue in Fareed involved the district court’s
application of former Section 3583 as a basis for imposing an
additional period of supervised release as part of a sentence
for violating the conditions of the defendant’s initial period
of supervised release. 296 F.3d at 245. We observed that the
district court’s authority to impose an additional term of
supervised release was clear under Section 3583(g) as amended in
1994. Id. at 245 n.2. However, we held that the former version
of the statute, which was in effect when the defendants
committed the underlying offenses, applied because there was no
indication that Congress intended that the amended statute apply
retroactively. Id. (citing Johnson, 529 U.S. at 701-02).

9
resentencing occurred after the enactment of the amendment

because, under Johnson, “the date on which the original offense

is committed, not the date on which the defendant is sentenced

for that offense, determines which version of a statute

applies.” 5 We agree with the Second Circuit’s reasoning in

Smith, which expressly applied the Supreme Court’s directive in

Johnson that the “relevant conduct is the initial offense” in

assessing which version of Section 3583 governs at a supervised

release revocation proceeding. 529 U.S. at 702; see also United

States v. Perry, 743 F.3d 238, 240 (7th Cir. 2014) (holding that

the statute in effect on the date the defendant commits the

underlying offense governs the sentence available in a

supervised release revocation hearing).

B.

We next conclude that the federal Savings Statute, 1 U.S.C.

§ 109, also required that the district court apply former

5
Ward further attempts to distinguish Johnson on the basis
that application of the amended Section 3583(h) in Johnson would
have burdened that defendant, thus raising potential issues
concerning the Constitution’s Ex Post Facto Clause, whereas the
amended version of Section 3583(g) at issue here would benefit
Ward. However, as noted by the Second Circuit in Smith, the
Supreme Court acknowledged but did not reach the ex post facto
issue in Johnson. See Smith, 354 F.3d at 174. Instead, the
Court decided the issue based on the lack of congressional
intent concerning retroactivity and the principle that
supervised release sanctions are part of the punishment for the
original offense. Johnson, 529 U.S. at 700-03.

10
Section 3583(g). The Savings Statute provides, in relevant

part:

The repeal of any statute shall not have the effect to
release or extinguish any penalty, forfeiture, or
liability incurred under such statute, unless the
repealing Act shall so expressly provide, and such
statute shall be treated as still remaining in force
for the purpose of sustaining any proper action or
prosecution for the enforcement of such penalty,
forfeiture, or liability.

1 U.S.C. § 109 (emphasis added). Under the Savings Statute,

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.” Warden,

Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661 (1974).

Although the language of the Savings Statute refers to the

“repeal” of statutes, the Savings Statute also applies in

considering the application of statutory amendments. United

States v. Bullard, 645 F.3d 237, 248 (4th Cir. 2011).

Ward maintains, however, that the Savings Statute did not

apply in his case, because he had not “incurred” any penalty

before the mandatory minimum provision of former Section 3583(g)

was eliminated. We disagree.

Under the Savings Statute, a penalty is “incurred” under a

former statute “when an offender becomes subject to [the

penalty], i.e., commits the underlying conduct that makes the

11
offender liable.” Dorsey v. United States, 132 S. Ct. 2321,

2331 (2012). As discussed above, in the context of a supervised

release revocation proceeding, the “relevant conduct” is the

initial offense, not the conduct in violation of the conditions

of supervised release. Johnson, 529 U.S. at 701-02; see also

Smith, 354 F.3d at 175 (citing United States v. Ross, 464 F.2d

376, 379 (2d Cir. 1972)). Thus, Ward “incurred” all penalties

relating to his offenses, including the penalties imposed

because he later violated the conditions of his supervised

release, at the time he committed his original offenses between

December 1993 and June 1994 when former Section 3583(g) was in

effect. Accordingly, we conclude that, in the present case, the

Savings Statute preserved the mandatory minimum punishment

provision of former Section 3583(g). See Smith, 354 F.3d at

175.

Our conclusion is not altered by the Supreme Court’s

holding in Dorsey. There, the Court held that the Savings

Statute did not bar application of reduced penalties for

defendants who were convicted of crack cocaine offenses before

the enactment of the Fair Sentencing Act (FSA), but who were not

sentenced until after its enactment. 6 132 S. Ct. at 2326. The

6
The FSA increased the amount of crack cocaine required to
impose certain mandatory minimum sentences, thereby reducing the
crack-to-powder cocaine disparity from 100-to-1 to 18-to-1.
(Continued)
12
Court in Dorsey applied the principle, consistent with the

Savings Statute itself, that a new criminal law providing more

lenient penalties may be applied retroactively if it is clear

that Congress intended this result. 132 S. Ct. at 2331-32. The

Court explained that the ameliorative provision of the FSA could

be applied in sentencing such defendants, given “congressional

intent as revealed in the Fair Sentencing Act’s language,

structure, and basic objectives.” 7 Id. at 2326.

Unlike the clear intent of Congress expressed in the FSA,

the amendments to Section 3583 do not evidence any clear

congressional intent providing for retroactive application of

the amended statute. See Johnson, 529 U.S. at 701-02; Fareed,

296 F.3d at 245 n.2. Accordingly, the district court did not

err in applying the former version of Section 3583(g) in

Dorsey, 132 S. Ct. at 2326, 2329. The FSA thus resulted in
lesser sentences for many defendants convicted of crack cocaine
offenses than under the law before the FSA’s enactment.
7
The Court examined six factors in Dorsey, several of which
were particular to the FSA, and concluded that these factors
taken together showed clear congressional intent that the FSA
apply to defendants who committed an offense before, but were
sentenced after, the FSA’s enactment. 132 S. Ct. at 2331-35.
Included among these factors was language in the FSA that gave
the United States Sentencing Commission “[e]mergency
[a]uthority” quickly to promulgate amendments to the sentencing
guidelines that would “achieve consistency” with the more
lenient penalties for crack cocaine offenses under the FSA. Id.
at 2332-33 (citations and internal quotation marks omitted).

13
determining Ward’s sentence at the supervised release revocation

proceeding.

III.

Ward next argues that the district court’s application of

the mandatory minimum provision in former Section 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. We

review de novo this question of law. See Fareed, 296 F.3d at

245.

At the outset, we observe that the Supreme Court in Johnson

stated that a violation of the conditions of supervised release

“need only be found by a judge under a preponderance of the

evidence standard, not by a jury beyond a reasonable doubt.”

529 U.S. at 700 (citing 18 U.S.C. § 3583(e)(3)). However, the

decision in Johnson was issued about two months before the

Supreme Court released its seminal decision in Apprendi v. New

Jersey, in which the Court held that any fact in a criminal

trial that increases the statutory maximum penalty must be

submitted to a jury and proved beyond a reasonable doubt. 530

U.S. 466, 476 (2000). The decision in Johnson also was issued

twelve years before the decision in Alleyne, in which the Court

extended the Apprendi holding to require a jury determination

14
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. 133 S. Ct. at 2162-63.

We therefore turn to consider whether the holding in

Alleyne applies in the context of a supervised release

revocation hearing. This issue presents a question of first

impression in the federal courts of appeal.

One of the most fundamental constitutional protections

afforded to a defendant in a criminal trial is the right to a

trial by jury, in which the government bears the burden of

proving its case beyond a reasonable doubt. See Sullivan v.

Louisiana, 508 U.S. 275, 277-78 (1993) (characterizing the right

to a trial by jury under the standard of beyond a reasonable

doubt as central to the “American scheme of justice” and noting

the origin of the right in the Fifth and Sixth Amendments).

This fundamental protection is the basis of the Supreme Court’s

holdings in Apprendi and Alleyne. In those cases, the Court

recognized the core principle that, in a criminal prosecution,

each “element of a crime” must be submitted to a jury and proved

beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2156;

Apprendi, 530 U.S. at 490.

In Apprendi, the Court applied that principle in holding

that any fact increasing the statutory maximum penalty to which

a defendant is exposed is an element of the offense and, thus,

15
must be submitted to a jury and proved beyond a reasonable

doubt. 530 U.S. at 477, 490. The decision in Alleyne relied

almost exclusively on Apprendi, and extended the Apprendi

holding to require that a jury determine beyond a reasonable

doubt any fact requiring imposition of a mandatory minimum

sentence. Alleyne, 133 S. Ct. at 2158 (holding that “Apprendi’s

definition of ‘elements’ necessarily includes not only facts

that increase the ceiling, but also those that increase the

floor”).

In considering whether the Alleyne holding applies to a

mandatory minimum sentence imposed in a supervised release

revocation proceeding, we observe that in contrast to the

criminal trials at issue in Alleyne and Apprendi, supervised

release revocation proceedings are not considered part of a

criminal prosecution. See, e.g., United States v. Phillips, 640

F.3d 154, 157 (6th Cir. 2011); United States v. House, 501 F.3d

928, 931 (8th Cir. 2007); United States v. Carlton, 442 F.3d

802, 807-08 (2d Cir. 2006); United States v. Tippens, 39 F.3d

88, 89 (5th Cir. 1994); see also Morrissey v. Brewer, 408 U.S.

471, 480 (1972) (noting that a parole revocation hearing is not

part of a criminal prosecution); Gagnon v. Scarpelli, 411 U.S.

778, 781-82 (1973) (discussing Morrissey and holding that

probation revocation is not a stage of a criminal prosecution);

United States v. Ferguson, 752 F.3d 613, 616 (4th Cir. 2014)

16
(applying Morrissey in the context of supervised release

revocation). Accordingly, the present question arises in a

critically different context than the criminal prosecutions at

issue in Apprendi and Alleyne.

The distinction between a criminal prosecution and a

supervised release revocation proceeding extends beyond mere

labels. In contrast to a criminal trial, a supervised release

revocation hearing is a less formal proceeding in which the

violative conduct need not be criminal in nature. See Johnson,

529 U.S. at 700; Ferguson, 752 F.3d at 616 (stating that

“[r]evocation hearings are less formal than trials of guilt”);

United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991)

(observing that “revocation hearings are more flexible than a

criminal trial”); see also Black v. Romano, 471 U.S. 606, 613

(1985) (discussing “flexible, informal nature” of revocation

hearings for probation violations).

Courts consistently have held that the constitutional

protections afforded in a criminal trial are not co-extensive

with the rights applicable in post-conviction proceedings such

as supervised release revocation hearings. For example, courts

have held that the Sixth Amendment’s Confrontation Clause, as

construed in Crawford v. Washington, 541 U.S. 36 (2004), does

not apply in supervised release revocation proceedings. See,

e.g., United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008);

17
United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006).

Likewise, courts have held that the Sixth Amendment right to a

speedy trial does not apply in the context of a supervised

release revocation hearing. 8 See, e.g., House, 501 F.3d at 931;

Tippens, 39 F.3d at 89.

These holdings are grounded in the Supreme Court’s decision

in Morrissey, in which the Court held that “the full panoply of

rights due a defendant in [a criminal prosecution] does not

apply to parole revocations” because such revocation proceedings

are not part of a criminal prosecution. 9 408 U.S. at 480.

Instead, the Court identified a limited set of constitutional

protections that apply in a revocation proceeding. 10 Id. at 489.

8
Although there is no constitutional basis for these rights
in a revocation proceeding, we note that these rights are
addressed to some degree by Rule 32.1 of the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 32.1(b)(2) (specifying
that the revocation hearing should be held “within a reasonable
time,” and allowing a limited right to question adverse
witnesses “unless the court determines that the interest of
justice does not require the witness to appear”).
9
See also United States v. Woodrup, 86 F.3d 359, 361-62
(4th Cir. 1996) (citing Morrissey and stating that “the full
panoply of constitutional protections afforded a criminal
defendant is not required for the revocation of supervised
release”); Ray, 530 F.3d at 668 (same); Kelley, 446 F.3d at 691
(same); Carlton, 442 F.3d at 807 (same).
10
The constitutional protections identified by the Court in
Morrissey include: “(a) written notice of the claimed violations
of parole; (b) disclosure to the parolee of evidence against
him; (c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to confront
(Continued)
18
This limited set of constitutional protections identified in

Morrissey does not include the right to have a jury determine

relevant facts beyond a reasonable doubt. Cf. Minnesota v.

Murphy, 465 U.S. 420, 435 n.7 (1984) (stating that “there is no

right to a jury trial before probation may be revoked”).

In addition to the distinction the Court drew in Morrissey

between the nature of a criminal prosecution and a revocation

hearing, the Court also recognized that “[r]evocation deprives

an individual, not of the absolute liberty to which every

citizen is entitled, but only of the conditional liberty

properly dependent on observance” of the conditions imposed upon

the individual’s release from prison. 408 U.S. at 480 (emphasis

added). Like parolees, individuals on supervised release also

enjoy only “conditional liberty” because they already have been

convicted of the underlying criminal offense. See Carlton, 442

F.3d at 810; see also United States v. McIntosh, 630 F.3d 699,

703 (7th Cir. 2011); United States v. Cunningham, 607 F.3d 1264,

1268 (11th Cir. 2010); United States v. Cordova, 461 F.3d 1184,

1187 (10th Cir. 2006). In contrast, the criminal defendants in

and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation);
(e) a ‘neutral and detached’ hearing body such as a traditional
parole board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking parole.” 408
U.S. at 489.

19
Apprendi and Alleyne had not been made subject to such

“conditional liberty.”

We conclude that the conditional liberty to which those

under supervised release are subject entails the surrender of

certain constitutional rights, including any right to have the

alleged supervised release violation proved to a jury beyond a

reasonable doubt. See Carlton, 442 F.3d at 809 (holding that “a

sentence of supervised release by its terms involves a surrender

of certain constitutional rights and this includes surrender of

the due process rights articulated in Apprendi and its

progeny”); see also McIntosh, 630 F.3d at 703 (an individual on

supervised release enjoys only “conditional liberty” and has no

right to a jury trial in a supervised release revocation

proceeding); Cunningham, 607 F.3d at 1268 (same). We are

unaware of any court that has reached a different conclusion.

On the contrary, our sister circuits uniformly have rejected

arguments seeking to extend the holding in Apprendi to require

trial by jury under the standard of beyond a reasonable doubt in

a supervised release revocation hearing. See McIntosh, 630 F.3d

at 702-03; Cunningham, 607 F.3d at 1267-68; United States v.

Dees, 467 F.3d 847, 854-55 (3d Cir. 2006); Cordova, 461 F.3d at

1186-88; United States v. Huerta-Pimental, 445 F.3d 1220, 1222-

25 (9th Cir. 2006); Carlton, 442 F.3d at 807-10; United States

20
v. Hinson, 429 F.3d 114, 118-19 (5th Cir. 2005); United States

v. Work, 409 F.3d 484, 489-92 (1st Cir. 2005).

We acknowledge that these cases were decided before Alleyne

and do not involve the imposition of a mandatory minimum

sentence. 11 Nevertheless, because the Alleyne decision is based

almost entirely on the reasoning and holding in Apprendi, we

conclude that our decision here properly is informed by the

holdings of our sister circuits rejecting application of

Apprendi in the supervised release revocation context.

Our sister circuits’ decisions also are consistent with

Morrissey and Johnson by holding that a defendant in a post-

conviction revocation proceeding does not have a constitutional

right to trial by jury under the standard of beyond a reasonable

doubt. The core principle of Alleyne is that such a

constitutional right exists as a fundamental protection in a

11
As Ward observes, our sister circuits additionally noted
in a few of these cases that a judicial finding that the
defendant violated the conditions of supervised release does not
require application of Apprendi and its progeny because a judge
generally retains discretion under 18 U.S.C. § 3583(e)(3) to
determine the appropriate sentence. Although there was no such
judicial discretion in the present case, we nevertheless rely on
those decisions of our sister circuits because their reasoning
primarily involved the limited “panoply of rights” applicable in
supervised release revocation proceedings. See Dees, 467 F.3d
at 854-55; Cordova, 461 F.3d at 1186-88; Carlton, 442 F.3d at
807-10; Hinson, 429 F.3d at 118-19; Work, 409 F.3d at 489-92;
see also McIntosh, 630 F.3d at 702-03 (not mentioning district
court’s general discretion under Section 3583(e)); Cunningham,
607 F.3d at 1267-68 (same).

21
criminal trial, 133 S. Ct. at 2156, and the Court’s holding

providing for a jury determination of facts required for

imposition of a mandatory minimum sentence was a straightforward

application of that principle. Because a supervised release

revocation proceeding is not a criminal prosecution, we conclude

that Alleyne’s protections are inapplicable in the present

context. 12

IV.

In sum, we hold that the district court did not err in

applying the former version of Section 3583(g) in Ward’s

supervised release revocation proceeding. We further hold that

Ward’s Sixth Amendment rights were not violated when the court,

rather than a jury, determined that Ward possessed a controlled

substance in violation of his supervised release conditions.

Accordingly, we affirm the district court’s judgment.

AFFIRMED

12
We find no merit in Ward’s contention that we should
construe former Section 3583(g) as merely advisory for remedial
purposes.

22