United States v. Patrick Henderson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30209
Plaintiff-Appellee,
D.C. No.
v. 4:09-cr-00074-
BMM-1
PATRICK LAWRENCE HENDERSON,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding

Argued and Submitted October 5, 2020
Seattle, Washington

Filed June 3, 2021

Before: Consuelo M. Callahan and Morgan Christen,
Circuit Judges, and Jed S. Rakoff, * District Judge.

Opinion by Judge Callahan;
Dissent by Judge Rakoff

*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 UNITED STATES V. HENDERSON

SUMMARY **

Criminal Law

The panel affirmed a sentence imposed for violating the
terms of supervised release in a case in which the defendant
argued that the sentence violates his Fifth and Sixth
Amendment rights because it extends his incarceration
beyond the maximum term of imprisonment for his
underlying conviction, without findings of fact proved to a
jury beyond a reasonable doubt.

The panel wrote that the defendant’s argument was based
on the plurality opinion in United States v. Haymond, 139
S. Ct. 2369 (2019), but Justice Breyer’s controlling
concurring opinion did not adopt the plurality’s position.
Thus, Haymond did not overrule or undermine this court’s
opinion in United States v. Purvis, 940 F.2d 1276 (9th Cir.
1991), which held that a term of supervised release may
extend beyond the statutory maximum for the underlying
substantive offense. Nor does Haymond hold that the right
to jury findings proved beyond a reasonable doubt
recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000),
extends to a revocation of supervised release hearing. The
panel wrote that when district courts revoke supervised
release, the new sentences they impose are treated, for
constitutional purposes, “as part of the penalty for the initial
offense,” Johnson v. United States, 529 U.S. 694, 700
(2000).

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. HENDERSON 3

Dissenting, District Judge Rakoff wrote that the district
court violated the Sixth Amendment, as construed by
Apprendi and its progeny, by sentencing the defendant to
more than the prescribed maximum after advising the
defendant that his only rights were to have his guilt
determined by the judge and by a mere preponderance of the
evidence. Judge Rakoff noted that Purvis did not address
any Sixth Amendment question.

COUNSEL

David F. Ness (argued), Assistant Federal Defender;
Anthony R. Gallagher, Federal Defender; Federal Defenders
of Montana, Great Falls, Montana; for Defendant-Appellant.

Kalah A. Paisley (argued), Assistant United States Attorney;
Kurt G. Alme, United States Attorney; United States
Attorney’s Office, Great Falls, Montana; for Plaintiff-
Appellee.

OPINION

CALLAHAN, Circuit Judge:

Patrick Lawrence Henderson appeals his fifteen-month
sentence for violating the terms of his supervised release,
arguing that it violates his Fifth and Sixth Amendment rights
because it extends his incarceration beyond the maximum
term of imprisonment for his underlying conviction, without
findings of fact proved to a jury beyond a reasonable doubt.
See Apprendi v. New Jersey, 530 U.S. 466 (2000). However,
Henderson’s argument is based on the plurality opinion in
United States v. Haymond, 139 S.Ct. 2369 (2019), and
4 UNITED STATES V. HENDERSON

Justice Breyer’s controlling concurring opinion did not
adopt the plurality’s position. Thus, Haymond did not
overrule or undermine our prior opinion in United States v.
Purvis, 940 F.2d 1276 (9th Cir. 1991), which held a term of
supervised release may extend beyond the statutory
maximum for the underlying substantive offense. Nor does
Haymond hold that the right to jury findings proved beyond
a reasonable doubt recognized in Apprendi extends to a
revocation of supervised release hearing. Indeed, as the
dissent concedes, when district courts revoke supervised
release, the new sentences they impose are treated, for
constitutional purposes, “as part of the penalty for the initial
offense,” Johnson v. United States, 529 U.S. 694, 700
(2000). Neither our circuit nor any of our sister circuits has
adopted or endorsed Henderson’s argument that the terms of
imprisonment and the terms of reimprisonment must be
aggregated and may not exceed the maximum term of the
statute of conviction. Accordingly, we affirm the district
court’s sentence.

I.

Following his guilty plea in the United States District
Court for the District of Montana, Henderson was convicted
in January 2010 of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). He was sentenced to
serve 117 months’ imprisonment followed by three years of
supervised release. The statutory maximum for felonious
possession of a firearm was 120 months. 18 U.S.C.
§ 924(a)(2).

Henderson began his term of supervised release on
September 26, 2018. On October 11, 2018, Henderson was
arrested by Montana state officials for felony aggravated
assault, which resulted in the victim sustaining injuries,
including a broken jaw, broken nose, and extensive damage
 UNITED STATES V. HENDERSON 5

to facial bones that required surgery to repair. On October
29, 2018, the United States Probation Office filed a report
alleging this assault violated a mandatory condition of
Henderson’s supervised release. Henderson was allowed to
remain on supervised release, but the terms of supervision
were modified to require him to undergo a mental health
evaluation. 1

A month later, on November 30, 2018, Henderson was
arrested by Montana officials and charged with eleven new
offenses, including: four counts of felony burglary, two
counts of misdemeanor theft, and three counts of
misdemeanor criminal mischief. In April 2019, Henderson
entered into a plea agreement in the Cascade County District
Court to one count of felony burglary, one count of felony
theft, and one count of misdemeanor assault. In June 2019,
he was committed to the Montana Department of
Corrections for twenty years, with fifteen years suspended.

In July 2019, the United States Probation Office filed an
amended charge of violation of supervised release. The
petition alleged that Henderson had committed three
additional violations since the October 2018 report: (1) he
had failed to appear for a scheduled urinalysis test on
November 14; (2) he had failed to appear for a scheduled
mental health assessment on November 15; and (3) on
November 30 he committed new crimes for which he had
been convicted and sentenced in state court.

On July 17, 2019, Henderson appeared before a
Magistrate Judge for a revocation hearing. Henderson

1
The report noted that Henderson “continued to work full time hours
at Golden Corral and has a weekly check-in requirement with his
bondman.”
6 UNITED STATES V. HENDERSON

admitted that he failed to report for the substance abuse test
and the mental health assessment and that he had committed
another crime. The Magistrate Judge revoked Henderson’s
supervised release, sentenced him to incarceration for
twenty-one months, with fifteen months of supervised
release to follow, and stated that the term of custody should
run consecutive to Henderson’s state sentence.

Henderson timely objected. He argued that under the
Fifth and Sixth Amendments he could only be sentenced to
three months’ imprisonment because otherwise he would be
subjected to a total term of imprisonment greater than the
statutory maximum for his underlying crime of being a felon
in possession. He also argued that the recommended
sentence was substantially unreasonable.

The district court carefully considered Henderson’s
argument that he could be imprisoned for only three months
under Apprendi. The district court recognized that Haymond
raised questions as to the continued viability of Ninth Circuit
precedent allowing the preponderance-of-evidence standard
to apply in revocation proceedings. But the court noted that
Haymond was a plurality opinion and that Justice Breyer’s
concurring opinion limited the case’s holding to the
mandatory five-year sentence provided by 18 U.S.C.
§ 3583(k). The district court concluded that it was bound by
Ninth Circuit precedent given the lack of a Supreme Court
decision directly on point. The district court sentenced
Henderson to fifteen months’ imprisonment to run
consecutive to his state sentence, followed by fifteen months
of supervised release. Henderson filed a timely appeal.

II.

We review de novo a claim that a sentence violates a
defendant’s constitutional rights. United States v. Hunt,
 UNITED STATES V. HENDERSON 7

656 F.3d 906, 911 (9th Cir. 2011). Apprendi errors are
reviewed under the harmless error standard applied in Neder
v. United States, 527 U.S. 1 (1999). Id.

III.

The district court was correct. In light of our precedent
and the lack of a Supreme Court decision directly on point,
we are not free to adopt Henderson’s argument.

In Purvis, the appellant similarly argued that his total
time of imprisonment, including a term of supervised
release, could not extend beyond the statutory maximum for
his underlying substantive offense. 940 F.2d at 1278. We
held that Ҥ 3583 authorizes the revocation of supervised
release even where the resulting incarceration, when
combined with the period of time the defendant has already
served for his substantive offense, will exceed the maximum
incarceration permissible under the substantive statute.” Id.
at 1279. In declining Purvis’ arguments, we noted that under
his theory, “although supervised release could still be
imposed when a defendant is sentenced to the statutory
maximum period of incarceration, the imposition would
accomplish nothing in the case of the most serious
offenders—those who actually serve the maximum, or close
to the maximum, period of time.” Id. (emphasis in original).
Thus, “[f]or those defendants, no violation of the terms of
their supervised release, no matter how egregious, could ever
result in its revocation.” Id.

We are bound by our prior opinion unless an intervening
case so undercuts the theory or reasoning underlying the
prior circuit precedent as to make it clearly irreconcilable
with that intervening authority. Close v. Sotheby’s, Inc.,
894 F.3d 1061, 1072–73 (9th Cir. 2018) (citing Miller v.
Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc)).
8 UNITED STATES V. HENDERSON

IV.

Henderson argues that Johnson, 529 U.S. at 700,
recognized that supervised release was part of the penalty for
the initial offense, see Haymond, 139 S.Ct. at 2370–80, and
that the application of decisions such as Apprendi and
Alleyne v. United States, 570 U.S. 99 (2013), compels the
determination that the revocation of supervised release may
not extend a person’s incarceration beyond the statutory
maximum for the underlying offense on a preponderance of
evidence standard without a jury. Our dissenting colleague
argues that our decision in Purvis is inapposite because the
constitutional questions raised by Henderson were not
discussed in that case. But because in Purvis we held that a
revocation sentence is part of the maximum sentence
authorized for the underlying offense, Purvis dictates that
Henderson’s revocation sentence does not trigger the
constitutional analysis set forth in Apprendi.

Apprendi held that a judge may not increase a
defendant’s sentence beyond the statutory maximum based
on the judge’s finding of new facts by a preponderance of
the evidence. 530 U.S. at 495. Our decision in Purvis
informs whether a revocation sentence exceeds the statutory
maximum for an underlying offense. There, we explained
that a term of supervised release and any resulting revocation
sentence are part of the sentence authorized for the
underlying criminal conviction. Indeed, the dissent and
Henderson both acknowledge that the term of supervised
release is part of the original sentence.

The dissent and Henderson further assert that because the
terms of supervised release are part of the original sentence,
Johnson and Haymond require that the terms of
imprisonment and the terms of reimprisonment must be
aggregated and may not exceed the maximum term of the
 UNITED STATES V. HENDERSON 9

statute of conviction. Thus, they argue that Henderson could
be reimprisoned for only three months because a longer
sentence would exceed the statutory maximum for his
underlying crime of being a felon in possession.

This argument is based, in large part, on the plurality
opinion in Haymond and fails to recognize Justice Breyer’s
narrower controlling concurring opinion. It also overstates
the plurality’s holding. Haymond was found guilty by a jury
of possessing child pornography in violation of federal law.
Haymond, 139 S.Ct. at 2373. The law authorized a sentence
of up to ten years. Id. Haymond was sentenced to a prison
term of thirty-eight months, followed by ten years of
supervised release. Id. While he was on supervised-release
the government moved to revoke his supervised release,
alleging that he possessed child pornography. Id. at 2374.
A judge determined, based on a preponderance of the
evidence, that Haymond had knowingly downloaded and
possessed thirteen images of child pornography. Id.

Under 18 U.S.C. § 3583(e)(3), a district judge would
usually have had discretion to sentence Haymond to between
zero to two additional years in prison. Id. But because
possession of child pornography was one of several offenses
enumerated under § 3583(k), the judge was required to
“impose an additional prison term of at least five years and
up to life without regard to the length of the prison term
authorized for the defendant’s initial crime of conviction.”
Id. The district judge reluctantly imposed the mandatory
five-year punishment. On appeal, the Tenth Circuit found
that this sentence violated Haymond’s right to a jury trial
because the “new prison term included a new and higher
mandatory minimum resting only on facts found by a judge
by a preponderance of the evidence.” Id. at 2375.
10 UNITED STATES V. HENDERSON

On review by the Supreme Court, the plurality agreed
that the application of § 3583(k)’s mandatory minimum
violated Haymond’s right to trial by jury, id. at 2384–85, but
did not decide the issue before us. Henderson frames the
question presented as whether a judge, acting without a jury,
may revoke supervised release based on a preponderance of
the evidence and impose a punishment that extends beyond
the maximum time allowed for the underlying criminal
conviction. We disagree with Henderson’s premise because
a term of supervised release and consequent revocation
sentence is part of the maximum sentence authorized for the
original conviction.

If a revocation were not part of the sentence imposed for
the underlying offense, language in Justice Gorsuch’s
plurality opinion would support Henderson’s argument.
Contrasting § 3583(k) with parole, probation, and
supervised release, the plurality stated that Ҥ 3583(k) alone
requires a substantial increase in the minimum sentence to
which a defendant may be exposed based only on judge-
found facts under a preponderance standard. And, as we
explained in Alleyne and reaffirm today, that offends the
Fifth and Sixth Amendments’ ancient protections.” Id.
at 2382. Indeed, if that had been the question presented by
Henderson’s appeal, and if Justice Gorsuch’s view had been
embraced by a majority, we might agree with Henderson and
our dissenting colleague. 2

2
The breadth of the plurality opinion was cabined by its statement:

But what agitates the dissent so much is an issue not
presented here: whether all supervised release
proceedings comport with Apprendi. As we have
emphasized, our decision is limited to § 3583(k)—an
unusual provision enacted little more than a decade
 UNITED STATES V. HENDERSON 11

But Henderson’s term of supervised release was part of
his original sentence for the underlying criminal conviction,
and Justice Gorsuch’s opinion was joined by only three other
justices. 3 Justice Alito’s dissent on the very issue that is
critical to our case also commanded four votes. Justice
Breyer’s separate concurrence in the judgment is therefore
controlling. The Supreme Court has directed that “[w]hen a
fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, ‘the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the
narrowest grounds.’” Marks v. United States, 430 U.S. 188,
193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ));
see also United States v. Davis, 825 F.3d 1014, 1016 (9th
Cir. 2016) (en banc); United States v. Austin, 676 F.3d 924,
927 (9th Cir. 2012).

Justice Breyer’s concurrence begins with him agreeing
“with much of the dissent, in particular that the role of the
judge in a supervised-release proceeding is consistent with
traditional parole.” Haymond, 139 S.Ct. at 2385. He further

ago—and the Alleyne problem raised by its 5-year
mandatory minimum term of imprisonment. Section
§ 3583(e), which governs supervised release
revocation proceedings generally, does not contain
any similar mandatory minimum triggered by judge-
found facts.

Id. at 2383–84. (citation omitted). Thus, even if the plurality opinion
were the majority opinion it would not clearly extend Apprendi to all
supervised release proceedings.
3
Justices Ginsburg, Sotomayor, and Kagan joined Justice Gorsuch’s
opinion. Chief Justice Roberts and Justices Thomas and Kavanaugh
joined Justice Alito’s dissent.
12 UNITED STATES V. HENDERSON

stated that he “would not transplant the Apprendi line of
cases to the supervised-release context.” Id. Nonetheless,
he agreed with the plurality that “this specific provision of
the supervised-release statute, 3583(k), is unconstitutional.”
Id. at 2386. Justice Breyer cited three aspects of the
provision that led him to conclude that “it is less like
ordinary revocation and more like punishment for a new
offense.” Id. He explained that § 3583(k) “applies only
when a defendant commits a discrete set of federal criminal
offenses specified in the statute;” “takes away the judge’s
discretion to decide whether violation of a condition of
supervised release should result in imprisonment and for
how long”; and “limits the judge’s discretion in a particular
manner: by imposing a mandatory minimum term of
imprisonment of ‘not less than 5 years.’” Id. Justice Breyer
concluded that because the statute “more closely resembled
the punishment of new criminal offenses, but without
granting a defendant the rights, including the jury right that
attend a new criminal prosecution,” he would “hold that
§ 3583(k) is unconstitutional.” Id.

Henderson’s term of supervised release was imposed as
part of his original sentence, and his revocation sentence was
imposed under § 3583(e), not § 3583(k). Furthermore, none
of the concerns raised by Justice Breyer apply to
Henderson’s revocation hearing or sentence. His violations
of supervised release are not within a “discrete set of federal
criminal offenses specified in the statute,” the judge had the
discretion to determine whether Henderson should be
imprisoned and for how long, and there was no mandatory
minimum sentence. Thus, Henderson’s proceeding was an
“ordinary revocation” rather than “punishment for a new
offense.”
 UNITED STATES V. HENDERSON 13

Furthermore, Justice Alito’s dissent, much of which
Justice Breyer indicated he agreed with, reiterates some of
the concerns that underlay our opinion in Purvis. Justice
Alito opined that at a supervised-release revocation
proceeding, as “[a]t a parole revocation hearing, the
fundamental requisites of due process had to be observed,
but a parolee did not have a right to a jury trial.” Id. at 2391.
He stated that “[t]he principal reason for assigning a penalty
to a supervised-release violation is not that the violative act
is a crime (indeed, under other provisions in § 3583, the act
need not even be criminal); rather, it is that the violative act
is a breach of trust.” Id. at 2393. He concluded that
“[c]onvicts like respondent on supervised release thus enjoy
only conditional liberty,” and that the Court’s decisions that
mention conditional liberty “speak only of general due
process rights, not other constitutional protections that
unaccused and unconvicted individuals enjoy.” Id. at 2399.

Our reading of Johnson and Haymond leads us to agree
with our sister circuits that those opinions do not prohibit a
sentence for a supervised release violation that, when
aggregated with the sentence the defendant has already
served, extends beyond the maximum sentence for the
underlying crime. Johnson affirmed that “district courts
have the authority to order terms of supervised release
following reimprisonment.” 529 U.S. at 713. We agree with
the Tenth Circuit that Johnson, “did not adopt or endorse an
aggregation approach.” United States v. Salazar, 987 F.3d
1248, 1256 (10th Cir. 2021). The Tenth Circuit further read
Haymond as supporting its prior position “that Apprendi
does not apply to standard revocation proceedings under
§ 3583(e)—even when a defendant’s aggregate time in
prison exceeds the statutory maximum sentence for the
crime of conviction.” Id at 1260–61. In United States v.
Seighman, 966 F.3d 237, 244–45 (3d Cir. 2020), the Third
14 UNITED STATES V. HENDERSON

Circuit likewise rejected the argument that Haymond limited
a sentence of imprisonment for a violation of supervised
release to the unserved portion of the maximum sentence for
the underlying crime. 4 The Eleventh Circuit noted in United
States v. Cenna, 448 F.3d 1279, 1280 (11th Cir. 2006), that
“a court may impose the maximum term of imprisonment
under the statute of conviction and a term of supervised
release, because supervised release is an independent part of
a defendant’s sentence.” Similarly, the Second Circuit in
United States v. Wirth, 250 F.3d 165, 170 (2nd Cir. 2001),
noted that it was “well-settled . . . that punishment for a
violation of supervised release is separate from punishment
for the underlying conviction and may, when combined with
the latter, exceed the statutory maximum for the underlying
offense.” Certainly, Cenna and Wirth precede Haymond, but
in light of Justice Breyer’s controlling concurring opinion,
with its statement that he “would not transplant the Apprendi
line of cases to the supervised release context,” 139 S.Ct.
2385, Haymond does not alter the well-settled rule that
Henderson’s sentence for violating the terms of supervised
release does not exceed the maximum sentence for his initial
conviction.

In sum, reviewing Henderson’s constitutional challenge
to our holding in Purvis, we do not read Haymond or any

4
Furthermore, in United States v. Eagle Chasing, 965 F.3d 647, 651
(8th Cir. 2020), the Eighth Circuit recognized that Haymond does not at
this time, but could in the future, lead to a rule that “the sum of a
defendant’s initial and revocation sentences is a total of imprisonment
exceeding the statutory maximum.” Also, in United States v. Coston,
964 F.3d 289, 295 (4th Cir. 2020), the Fourth Circuit recognized that
Justice Breyer’s concurrence “departed from the plurality in two key
ways: it found that supervised release is not so different from traditional
parole, and that Apprendi and Alleyne do not apply in the supervised
release context.”
 UNITED STATES V. HENDERSON 15

other Supreme Court opinion as holding that a defendant’s
otherwise reasonable sentence for violating the terms of
supervised release may not exceed, when aggregated with
the time the defendant was imprisoned for the underlying
crime, the maximum statutory sentence for the underlying
crime. Accordingly, the district court’s order is
AFFIRMED.

RAKOFF, J., dissenting:

Ultimately, this case is controlled by the Sixth
Amendment to the U.S. Constitution, which provides that
“[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury . . . .”
U.S. Const. amend. VI. In Apprendi v. New Jersey, the
Supreme Court held that this means, among other things, that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt” unless the defendant knowingly
waives these rights. 530 U.S. 466, 490 (2000). Yet here, the
defendant was sentenced to more than the prescribed
maximum after being advised by a judge that his only rights
were to have his guilt determined by the judge and by a mere
preponderance of the evidence. This violated the Sixth
Amendment, as construed by Apprendi and its progeny.

To be sure, the supervised release system writ large is
consistent with the Sixth Amendment. When a defendant is
found guilty by a jury (or pleads guilty after having been
advised of his right to a jury trial where the Government
would have to prove his guilt beyond a reasonable doubt),
the sentencing judge may impose a sentence of less than the
prescribed maximum conditioned on the defendant’s
16 UNITED STATES V. HENDERSON

complying with the terms of supervised release. A violation
of supervised release would then vitiate that bargain and
allow the judge to send the defendant back to prison to serve
more or all of the prescribed maximum term. In assessing
the defendant’s compliance with the terms of supervised
release, the judge may make her own determinations by a
preponderance of the evidence. Decades of Supreme Court
case law support this practice.

But, as Apprendi and its progeny show, the judge’s
constitutional authority to sentence a supervisee ultimately
stems from the original jury conviction or informed guilty
plea. Accordingly, upon finding a violation of supervised
release the judge may not impose a prison term that, together
with the original term, would exceed the statutory maximum
for the underlying offense—unless the defendant is given, or
knowingly waives, a trial by jury at which the Government
must prove guilt beyond a reasonable doubt. Otherwise, the
judge effectively arrogates to herself the power that the Sixth
Amendment gives solely to a jury.

My colleagues do not directly disagree with this analysis.
Rather, they conclude that as a three-judge panel “reviewing
Henderson’s constitutional challenge to our holding in
[United States v. Purvis, 940 F.2d 1276 (9th Cir. 1991)],”
Maj. Op. at 14, we are bound by that prior determination
because Apprendi and its progeny have not “so undercut[]
the theory or reasoning underlying the prior circuit precedent
as to make it clearly irreconcilable with that intervening
authority,” id. at 7. But Purvis addressed whether
“[18 U.S.C.] § 3583 authorizes the revocation of supervised
release” and the imposition of an additional sentence.
Purvis, 940 F.2d at 1279 (emphasis added). Purvis did not
address, because the defendant did not raise, any Sixth
Amendment question. See Appellant’s Opening Br. 16–24,
 UNITED STATES V. HENDERSON 17

Purvis, No. 90-50183 (raising only Indictment Clause and
statutory interpretation arguments). Yet, because Purvis
held that a sentence like Henderson’s is statutorily
authorized, my colleagues decline to afford plenary review
to the important constitutional questions Henderson raises.

In short, the majority has discovered a new form of stare
decisis: this Court must decline to address a constitutional
issue squarely presented because a prior panel did not
address a constitutional issue never raised. That is not the
law of this Circuit, so I would reach the constitutional
question. I respectfully dissent.

I.

In January 2010, Patrick Lawrence Henderson pled
guilty to being a felon in possession of a firearm and was
sentenced to 117 months’ imprisonment—near the statutory
maximum of 120 months—followed by 3 years’ supervised
release. Not long after his release, he was arrested, and he
was later charged in state court with various criminal
offenses. Having been advised of his right to a jury trial on
these charges, he pled guilty to one count each of felony
burglary and felony theft, as well as misdemeanor assault.
In June 2019, he was sentenced in state court to 20 years’
imprisonment, with fifteen years suspended. He is now
serving that sentence.

In July 2019, shortly after Henderson was sentenced in
state court, the United States Probation Office petitioned to
revoke Henderson’s term of supervised release, alleging
three violations: (1) failure to report for a drug test,
(2) failure to report for a mental health appointment, and
(3) the state-law crimes to which he had pled guilty.
Henderson provisionally agreed to admit the specifications,
and the magistrate judge recommended that the district court
18 UNITED STATES V. HENDERSON

revoke Henderson’s term of supervised release and impose
a 21-month term of imprisonment, to be followed by a 15-
month term of supervised release. Henderson filed
objections.

The forum then moved to the district court, where
Henderson again provisionally agreed to admit the
specifications. The district judge then advised Henderson of
the rights he would be giving up if he admitted the
specifications, specifically, a hearing before the judge at
which the Government would have the burden to prove the
alleged violations by a preponderance of the evidence.
Henderson agreed to give up those rights and admit the
specifications. At sentencing, however, Henderson argued
that, under the Fifth and Sixth Amendments, he could only
be sentenced to, at most, 3 months’ imprisonment, since a
greater sentence would subject him to a total term of
imprisonment greater than the statutory maximum for his
underlying crime of being a felon in possession, on which
his conditions of supervised release were premised. He also
objected that the recommended sentence was substantively
unreasonable.

The district court overruled the constitutional objections,
finding that Henderson had no right either to trial by jury or
to proof beyond a reasonable doubt. The court revoked
Henderson’s term of supervised release and imposed a
prison term of fifteen months, to be followed by a fifteen-
month term of supervised release. Henderson timely
appealed. On appeal, he raises only the constitutional
objections he pressed before the district court.

II.

Before we can consider Henderson’s argument, we must
first determine whether the Ninth Circuit has already done
 UNITED STATES V. HENDERSON 19

so. The majority finds that this case is controlled by United
States v. Purvis, 940 F.2d 1276 (9th Cir. 1991). I
respectfully disagree.

We are “bound by our prior opinion[s] unless an
intervening case so undercuts the theory or reasoning
underlying the prior circuit precedent as to make the
precedent clearly irreconcilable with that intervening
authority.” Close v. Sotheby’s, Inc., 894 F.3d 1061, 1072–
73 (9th Cir. 2018) (citing Miller v. Gammie, 335 F.3d 889
(9th Cir. 2003) (en banc)). But opinions do not bind with
respect to issues that they do not address. The Court, sitting
en banc, has explained this process as follows: “[i]n [a prior
case], the [issue] was . . . presented for review. We
addressed the issue and decided it in an opinion joined in
relevant part by a majority of the panel. Consequently, our
articulation of [the issue] became law of the circuit . . . .”
Barapind v. Enomoto, 400 F.3d 744, 750–51 (9th Cir. 2005)
(en banc) (per curiam) (footnotes omitted).

Thus, a subsequent panel must ask whether an issue was
“presented,” “addressed,” and “decided” in a published
opinion. Id.; see also Cetacean Cmty. v. Bush, 386 F.3d
1169, 1173 (9th Cir. 2004). Conversely, in this Circuit and
throughout the United States, courts do not consider
themselves bound by prior cases if the issue before the court
was not “squarely addressed” therein. Brecht v.
Abrahamson, 507 U.S. 619, 630–31 (1993).

The panel in Purvis did not consider, let alone address
and decide, the constitutional issues now pressed by
Henderson. Indeed, the issues were not even raised in
Purvis. See Appellant’s Opening Br., Purvis, No. 90-50183;
Appellee’s Br., Purvis, No. 90-50183. This is hardly
surprising, since Apprendi was not decided until nine years
later.
20 UNITED STATES V. HENDERSON

Admittedly, the facts in Purvis were analogous to the
instant case: a district court revoked Purvis’s term of
supervised release and sentenced him to a term of
imprisonment that, when combined with his original term of
imprisonment, exceeded the statutory maximum that the
court originally could have imposed based upon his
conviction. Purvis, however, argued that Congress had not
authorized this result, and this court disagreed, “hold[ing]
that [18 U.S.C.] § 3583 authorizes the revocation of
supervised release even where the resulting incarceration,
when combined with the period of time the defendant has
already served for his substantive offense, will exceed the
maximum incarceration permissible under the substantive
statute.” Purvis, 940 F.2d at 1279. Thus, Purvis was
principally a statutory interpretation case; it asked whether
“§ 3583 authorizes” such a result. The Court held that it
does, and that is the law of this Circuit.

Henderson does not dispute any of that. He argues that
the sentence, while statutorily authorized, is unconstitutional
under the Due Process Clause of the Fifth Amendment and
the Sixth Amendment right to trial by jury. Purvis did not
raise these issues. His only constitutional argument was that
his sentence violated the Indictment Clause. Appellant’s
Opening Br. 16–24, Purvis, No. 90-50183. He also raised a
constitutional avoidance argument, again premised on the
Indictment Clause, which this Court declined to consider.
Purvis, 940 F.2d at 1279 n.1 (“Mr. Purvis also argues that
where a statute is susceptible of more than one interpretation,
we should choose the interpretation that avoids raising
constitutional issues. That principle is inapplicable where,
 UNITED STATES V. HENDERSON 21

as here, precedents preclude us from reasonably interpreting
the statute in more than one way.”). 1

Because Purvis did not consider, address, and decide the
issues raised by Henderson, this panel is free to do so. I
would reach the merits.

III.

It should go without saying that the right not to be
criminally punished except upon a jury verdict finding proof
of guilt beyond a reasonable doubt is a hallowed and
precious right that goes back at least to the time of the Magna
Carta, which provided that “[n]o free man shall be taken or
imprisoned or outlawed, or exiled, or in any way ruined, nor
will we go against or send against him, except by the lawful
judgment of his peers, or by the law of the land.” Magna
Carta ch. 39 (1215). No group was more aware of these
rights than the Founding Fathers, who had protested their
erosion at the hands of the British colonial judges. In the
words of Justice Story, “trial by jury in criminal cases . . .
was from very early times insisted on by our ancestors in the
parent country, as the great bulwark of their civil and
political liberties, and watched with an unceasing jealousy
and solicitude.” 3 J. Story, Commentaries on the
Constitution of the United States § 1773 (1833). The early
Americans “brought this great privilege with them, as their
birth-right and inheritance, as a part of that admirable
common law, which had fenced round, and interposed

1
These prior Ninth Circuit “precedents”—which, by the way, the
Purvis court acknowledged were, in relevant part, “dicta,” id. at 1279—
never addressed the constitutional issues, either. See U.S. v. Doering,
909 F.2d 392 (9th Cir. 1990); U.S. v. Linares, 921 F.2d 841 (9th Cir.
1990); U.S. v. Montenegro-Rojo, 908 F.2d 425 (9th Cir. 1990); U.S. v.
Robertson, 901 F.2d 733 (9th Cir. 1990).
22 UNITED STATES V. HENDERSON

barriers on every side against the approaches of arbitrary
power.” Id. In particular, trial by jury offered “security
against the prejudices of judges, who may partake of the
wishes and opinions of the government, and against the
passions of the multitude, who may demand their victim with
a clamorous precipitancy.” Id. § 1774.

This guarantee was enshrined in the Sixth Amendment,
which, as noted, provides, “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime
shall have been committed . . . .” U.S. Const. amend. VI.
And in the centuries since, the Supreme Court has
continuously recognized that defendants’ jury trial rights
must “be jealously preserved.” Patton v. United States,
281 U.S. 276, 312–13 (1930), abrogated on other grounds
by Williams v. Fla., 399 U.S. 78 (1970). For example,

the maintenance of the jury as a fact-finding
body in criminal cases is of such importance
and has such a place in our traditions, that,
before any waiver can become effective, the
consent of government counsel and the
sanction of the court must be had, in addition
to the express and intelligent consent of the
defendant. And the duty of the trial court in
that regard is not to be discharged as a mere
matter of rote, but with sound and advised
discretion, with an eye to avoid unreasonable
or undue departures from that mode of trial or
from any of the essential elements thereof,
and with a caution increasing in degree as the
offenses dealt with increase in gravity.

Id.
 UNITED STATES V. HENDERSON 23

In recent decades, the Supreme Court’s seminal case on
this topic was Apprendi, in which the Court considered a law
permitting longer sentences if a trial judge found, based upon
a preponderance of the evidence, that a convicted defendant
had committed a hate crime. The Supreme Court found this
practice unconstitutional, holding that “[o]ther than the fact
of a prior conviction”—where, of course, a right to jury trial
and proof beyond a reasonable doubt is present during that
prior proceeding—“any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt”
or admitted through a guilty plea after a defendant
knowingly waived the right to such a trial. Apprendi,
530 U.S. at 490. In 2004, the Court recognized that the same
principle applied to a state’s sentencing regime in which
judicial factfinding permitted an “exceptional” sentence
greater than the maximum authorized by the jury’s factual
findings. Blakely v. Washington, 542 U.S. 296, 303 (2004).
And in 2013, the Court recognized that the reasoning
“applies with equal force to facts increasing the mandatory
minimum.” Alleyne v. United States, 570 U.S. 99, 111–112
(2013). It is now beyond cavil that, regardless of the
particular context in which a sentence is imposed, “[w]hen a
judge inflicts punishment that the jury’s verdict alone does
not allow, the jury has not found all the facts which the law
makes essential to the punishment, and the judge exceeds his
proper authority.” Blakely, 542 U.S. at 304 (internal
quotation marks and citation omitted).

To be sure, a judge’s sentence below the maximum
sentence the jury has authorized can be conditioned on
adherence to specified requirements. Thus, while judges
have long been empowered to sentence a convicted
defendant to probation rather than prison, 18 U.S.C. § 3561
(1982 ed.), probationers (and parolees) have to abide by
24 UNITED STATES V. HENDERSON

conditions of release. If they violate them, they can be sent
(or sent back) to prison for up to the maximum sentence
originally authorized by the statute of conviction. See
Morrissey v. Brewer, 408 U.S. 471, 478 (1972). As the
Supreme Court explained in 1972, “[t]he enforcement
leverage that supports the parole conditions derives from the
authority to return the parolee to prison to serve out the
balance of his sentence if he fails to abide by the rules.” Id.
at 478–79 (emphasis added).

Congress substantially modified the federal sentencing
system with the Sentencing Reform Act of 1984. The use of
parole was largely phased out, and instead Congress
permitted courts to sentence convicted defendants to terms
of “supervised release” following imprisonment. But none
of this could alter the hoary constitutional principles
embodied in the Fifth and Sixth Amendments.

Last year, a plurality of the Supreme Court recognized as
much in Haymond v. United States, 139 S. Ct. 2369 (2019),
where the Court held unconstitutional the last two sentences
of 18 U.S.C. § 3583(k), which provide that when a
supervisee “required to register under the Sex Offender
Registration and Notification Act commits any [of several]
criminal offense[s] . . . , the court shall revoke the term of
supervised release and require the defendant to serve a term
of imprisonment . . . not less than 5 years.”

Writing for the four-justice plurality, Justice Gorsuch
explained that “[o]nly a jury, acting on proof beyond a
reasonable doubt, may take a person's liberty.” Haymond,
139 S. Ct. at 2373 (plurality).

Based on the facts reflected in the jury’s
verdict, Mr. Haymond faced a lawful prison
term of between zero and 10 years under
 UNITED STATES V. HENDERSON 25

§ 2252(b)(2). But then a judge—acting
without a jury and based only on a
preponderance of the evidence—found that
Mr. Haymond had engaged in additional
conduct in violation of the terms of his
supervised release. Under § 3583(k), that
judicial factfinding triggered a new
punishment in the form of a prison term of at
least five years and up to life.

Id. at 2378. The plurality analogized to Alleyne v. United
States, 570 U.S. 99 (2013), explaining that in both cases, a
judge found facts that “increased the legally prescribed range
of allowable sentences,” and concluding that in both cases
this was “in violation of the Fifth and Sixth Amendments.”
Id. (internal quotation marks omitted). The Court thus found
the statutory provision unconstitutional as applied to
Haymond.

The plurality rejected the Government’s argument that
revocation proceedings were somehow different from
ordinary sentencings for constitutional purposes. The Court
explained that “any increase in a defendant’s authorized
punishment contingent on the finding of a fact requires a jury
and proof beyond a reasonable doubt no matter what the
government chooses to call the exercise.” Id. at 2379
(internal quotation marks and citation omitted).

To be sure, the plurality explicitly declined to reach
§ 3583(e), the more general supervised release provision at
issue in the case now before us, but it recognized that its
holding could be read to “raise Sixth Amendment issues in a
small set of cases” under § 3583(e). Id. at 2384. It
emphasized that few such cases would raise issues because
“[i]n most cases (including [Haymond]), combining a
26 UNITED STATES V. HENDERSON

defendant’s initial and post-revocation sentences issued
under § 3583(e) will not yield a term of imprisonment that
exceeds the statutory maximum term of imprisonment the
jury has authorized for the original crime of conviction.” Id.

Concededly, the case before us is not controlled by
Haymond, because Justice Breyer concurred in the
judgment, providing the fifth vote to strike down the last two
sentences of § 3583(k). He cautioned in dictum that he
“agree[d] with much of the dissent, in particular that the role
of the judge in a supervised-release proceeding is consistent
with traditional parole.” Haymond, 139 S. Ct. at 2385
(Breyer, J., concurring in the judgment). However, he
nevertheless found § 3583(k) unconstitutional, reasoning
that it was unlike ordinary supervised release and more like
punishment for a new crime, for three reasons:

First, § 3583(k) applies only when a
defendant commits a discrete set of federal
criminal offenses specified in the statute.
Second, § 3583(k) takes away the judge's
discretion to decide whether violation of a
condition of supervised release should result
in imprisonment and for how long. Third,
§ 3583(k) limits the judge's discretion in a
particular manner: by imposing a mandatory
minimum term of imprisonment of “not less
than 5 years” upon a judge's finding that a
defendant has “commit[ted] any” listed
“criminal offense.”

Id. at 2386.

Because the plurality and Justice Breyer did not agree
upon a single rationale, and because Justice Breyer’s
rationale is not a logical subset of the plurality’s (or vice-
 UNITED STATES V. HENDERSON 27

versa), the Court’s fractured decision leaves open the
question presented here. 2 And it seems to me that the logic
of Apprendi and its progeny, not to mention the plain dictates
of the Sixth Amendment, compel that we vacate the
judgment in this case.

It is well-established that when district courts revoke
supervised release, the new sentences they impose are
treated, for constitutional purposes, “as part of the penalty
for the initial offense.” Johnson v. United States, 529 U.S.
694, 700 (2000). Thus, for example, applying to a
supervisee a supervised release statute enacted after his
original conviction raises ex post facto concerns. See id.
(construing statute not to apply retroactively).

It follows that Henderson’s fifteen-month revocation
sentence must be “treated as part of the penalty for” being a
felon in possession of a firearm. The district court has thus
imposed a total prison term of 132 months for that offense.
Based upon Henderson’s original conviction standing alone,
the district court was not statutorily authorized to impose
such a sentence. The court’s statutory power to impose this
heightened sentence stems from its further factual finding
that Henderson violated the terms of his supervised release.
But “[w]hen a judge inflicts punishment that the jury’s

2
United States v. Davis, 825 F.3d 1014, 1028 (9th Cir. 2016) (en
banc) (“In sum, when applying Marks [v. United States, 430 U.S. 188
(1977)] to a fractured Supreme Court decision, we look to those opinions
that concurred in the judgment and determine whether one of those
opinions sets forth a rationale that is the logical subset of other, broader
opinions. When, however, no ‘common denominator of the Court’s
reasoning’ exists, we are bound only by the ‘specific result.’”). It is also
irrelevant that Justice Breyer, in dicta, agreed with the dissent on some
points. See id. at 1029 (Christen, J., concurring) (“[D]issents play no
role in a Marks analysis.”).
28 UNITED STATES V. HENDERSON

verdict alone does not allow, the jury has not found all the
facts which the law makes essential to the punishment, and
the judge exceeds his proper authority.” Blakely v.
Washington, 542 U.S. 296, 304 (2004) (internal quotation
marks and citation omitted). Because the district court’s
findings increased “the legally prescribed range of allowable
sentences,” Alleyne, 570 U.S. at 115, without offering the
defendant a jury trial at which the Government would be
required to prove the violations beyond a reasonable doubt,
the sentence violated Henderson’s Fifth and Sixth
Amendment rights. 3

My colleagues note that they “might agree with” this
analysis, but for two issues. Maj. Op. at 10. First, Justice
Gorsuch’s opinion did not command a majority, so it does
not undermine Purvis. But, as previously noted, Purvis
addressed a statutory question; Apprendi and its progeny,
including Haymond, did not. Thus, while Purvis has not
been overruled by Haymond, neither does it control on the
constitutional question here presented. I would hold that the
slate is clean and that we should adopt Justice Gorsuch’s
reasoning in Haymond not because it is binding precedent,
but because it correctly applies the Fifth and Sixth
Amendments.

Second, the majority disagrees with my analysis because
“a term of supervised release and any resulting revocation
sentence are part of the sentence authorized for the

3
The Haymond dissent argued that supervised release is analogous
to parole and, thus, governed by the Supreme Court’s opinions
establishing lesser protections for parole revocation hearings. But this is
irrelevant to our case. A violation of parole allows the sentencing judge
to sentence the defendant to serve out the balance of his authorized
sentence; it does not provide the possibility of a sentence exceeding the
statutory maximum, which is the issue here.
 UNITED STATES V. HENDERSON 29

underlying criminal conviction.” Id. at 8. Thus, my
colleagues reason that a jury verdict conditionally authorizes
subsequent sentences for revocations of supervised release.
But Apprendi prohibited precisely that: a regime where jury
verdicts authorize future sentences, conditioned on
subsequent factual findings by judges. As Justice Gorsuch
explained,

on the strength of the jury’s findings the
judge was entitled to impose as punishment a
term of supervised release; and, in turn, that
term of supervised release was from the
outset always subject to the possibility of
judicial revocation and § 3583(k)’s
mandatory prison sentence. Presto[, the
Government argues]: Sixth Amendment
problem solved.

But we have been down this road . . . . In
Apprendi and Alleyne, the jury’s verdict
triggered a statute that authorized a judge at
sentencing to increase the defendant’s term
of imprisonment based on judge-found facts.
Th[e] [Supreme] Court had no difficulty
rejecting that scheme as an impermissible
evasion of the historic rule that a jury must
find all of the facts necessary to authorize a
judicial punishment. And what was true
there can be no less true here.

Haymond, 139 S. Ct. at 2381 (plurality) (citations omitted).
A jury’s verdict does not trigger a perpetual motion machine
that would “allow the government to evade the need for
another jury trial on any other offense the defendant might
commit”; rather, it authorizes a discrete set of punishments.
30 UNITED STATES V. HENDERSON

Id. Here, those punishments included 120 months’
imprisonment, but no more. 4

4
My colleagues also distinguish § 3583(k), the statute at issue in
Haymond, because it required imposition of a mandatory minimum,
while here, revocation increased the maximum sentence that the judge
could impose beyond the previously applicable 120 months. But the
Supreme Court resolved that question years ago, stating unequivocally
that “there is no basis in principle or logic to distinguish facts that raise
the maximum from those that increase the minimum.” Alleyne, 570 U.S.
at 116. I recognize that Justice Breyer’s concurring opinion in Haymond
relied upon the fact that § 3583(k) imposed a mandatory minimum, but
Justice Breyer’s concurrence cannot erase the majority’s holding in
Alleyne. Indeed, this is not the first time that Justice Breyer has
suggested treating maximum and minimum sentences differently for
purposes of Apprendi analysis, and the outcome on that prior occasion is
instructive. In 2002, Justice Breyer offered the fifth vote to uphold a
mandatory minimum sentencing scheme based on judge-found facts. He
acknowledged that mandatory minimum sentences and maximum
sentences “cannot easily [be] distinguish[ed] . . . in terms of logic.”
Harris v. United States, 536 U.S. 545, 569–70 (2002) (Breyer, J.,
concurring in the judgment). However, because he disagreed with
Apprendi and sought to limit its expansion, he “join[ed] the Court’s
judgment, and . . . its opinion to the extent that it holds that Apprendi
does not apply to mandatory minimums.” Id. Eleven years later,
however, conceding that Apprendi was here to stay, Justice Breyer
accepted that “the law should no longer tolerate the anomaly that the
Apprendi/Harris distinction creates.” Alleyne, 570 U.S. at 122 (2013)
(Breyer, J., concurring in part). He explained why maximums and
minimums must be treated the same for purposes of Apprendi analysis:

Where a maximum sentence is at issue, Apprendi
means that a judge who wishes to impose a higher
sentence cannot do so unless a jury finds the requisite
statutory factual predicate. Where a mandatory
minimum sentence is at issue, application of Apprendi
would mean that the government cannot force a judge
who does not wish to impose a higher sentence to do
so unless a jury finds the requisite statutory factual
 UNITED STATES V. HENDERSON 31

IV.

While, in my opinion, reversal in our case is compelled
by the logic of Apprendi and the plain language of the Sixth
Amendment, one should not be blind to consideration of the
practical implications of such a result. Indeed, Justice
Alito’s dissent in Haymond paints an apocalyptic vision that
the federals court will face tens of thousands of additional
criminal jury trials if the defendant’s view prevails.

Justice Alito describes the problem this way:

In 2018, federal district courts completed
1809 criminal jury trials. During that same
year, they adjudicated 16,946 revocations of
supervised release, and there is simply no
way that the federal courts could empanel
enough juries to adjudicate all those
proceedings. 5

predicate. In both instances the matter concerns higher
sentences; in both instances factfinding must trigger
the increase; in both instances jury-based factfinding
would act as a check . . . .

Id. at 123–24. Justice Breyer (and a majority of the Court) got it right in
Alleyne. Thus, I would treat the increased maximum to which Henderson
was here subjected no differently than the increased minimum to which
Haymond was subjected.
5
Id. (citing Admin. Office of U. S. Courts, Judicial Business of the
United States Courts (2018) (Tables T–1 & E–7A).
32 UNITED STATES V. HENDERSON

Justice Alito is correct that there are tens of thousands of
revocation adjudications every year. 6 Indeed, for the five
years ending September 30, 2017, United States Sentencing
Commission data shows 107,998 revocation hearings, which
amounts to 21,600 hearings per year, on average—even
slightly higher than the figure Justice Alito identified for
2018. 7 But this figure is totally misleading because, in fact,
very very few of these revocation hearings would raise the
constitutional issues presented here or result in a jury trial,
for at least three reasons.

First, the overwhelming majority of supervisees admit
the violations with which they are charged. This presumably
would be even more so if they knew the sentence the judge
could impose was capped at the statutory maximum for the
underlying offense. To be more precise, according to the
U.S. Sentencing Commission, in the five years ending
September 30, 2017, “[o]ffenders admitted to the alleged
violation in 81.9% of the violation cases.” 8 And in those rare
situations where the Government or the Court wished to
avoid the cap, the issues presented here could still be avoided
if the defendant waived his right to a jury trial and to proof
beyond a reasonable doubt.

Second, as the Haymond plurality correctly noted,
federal judges very rarely sentence defendants at or near the

6
In comparison, there are around 76,538 individuals sentenced in
federal court in non-revocation-related proceedings each year. United
States Sentencing Comm’n, Fiscal Year 2019: Overview of Federal
Criminal Cases 1.
7
United States Sentencing Comm’n, Federal Probation and
Supervised Release Violations 30 (July 2020).
8
Id.
 UNITED STATES V. HENDERSON 33

statutory maximum, thus leaving plenty of room for
meaningful sentences for supervised release violations, even
if the sentence was capped at the statutory maximum in order
to avoid the right to a jury. Specifically, according to the
U.S. Sentencing Commission, for the year ending September
30, 2016, only 4.4% of federal criminal sentences following
conviction were at or within one year of the statutory
maximum. 9

Furthermore, sentences for violations of supervised
release tend to be less than one year. For the five-year period
ending September 30, 2017, 13.9% of supervisees were
sentenced to punishments other than prison; for the
remainder, “the average term of imprisonment imposed . . .
was 11 months.” 10 Since supervised release sentences are
generally less than a year, and judges very rarely sentence
defendants to a term within one year of the statutory
maximum, very few supervisees will be in Henderson’s
situation.

Third, as discussed below, Apprendi has an exception:
when imposing sentences, courts may consider the fact of a

9
United States Sentencing Comm’n, Monitoring of
Federal Criminal Sentences 2015--2016, available at
https://www.icpsr.umich.edu/web/ICPSR/studies/36962/datadoc
umentation#. These calculations use the 2015–2016 data
because, although data is available for subsequent years through
the Sentencing Commission, analyzing it requires the use of
relatively advanced statistics software. The Commission
ultimately makes these datasets available in more accessible
formats, in partnership with the Inter-university Consortium for
Political and Social Research, as it has for the 2015–2016 dataset
used here.
10
United States Sentencing Comm’n, Federal Probation and
Supervised Release Violations 34 (July 2020).
34 UNITED STATES V. HENDERSON

prior conviction without requiring proof to a jury beyond a
reasonable doubt because in the prior proceeding the
defendant was afforded those rights. Yet, one surmises,
situations in which the Government or the court will even be
tempted to consider a violation sentence that would, when
added to the time already served, exceed the statutory
maximum for the underlying crime, will usually be in cases
in which the defendant has been convicted of some new
crime. Indeed, in this very case, if the government and the
court had been content to charge and sentence Henderson
solely on the basis of the violation arising from his new state
court convictions, the constitutional issues presented here
might have been avoided.

Picking up on the last point, the Government argues that
there were no constitutional violations here because
Henderson pled guilty to the state crimes. To be sure, based
on Henderson’s state convictions alone, the district court had
the authority to find a violation, revoke Henderson’s term of
supervised release, and impose any reasonable sentence
authorized by § 3583. But that is not what the district court
did. It adjudged Henderson guilty of three violations and
imposed a sentence on the basis of all three. Because two of
those violations were unrelated to his guilty plea, and
because Henderson was not offered and did not waive his
Fifth and Sixth Amendment rights, the Court could impose
no more than three months’ imprisonment for those two
violations. Therefore, the sentence must be vacated. See
United States v. Handa, 122 F.3d 690, 691–92 (9th Cir.
1997), as amended on reh’g (Aug. 4, 1997) (“The court
construes the multiple sentences given a defendant convicted
of more than one count of a multiple count indictment as ‘a
package,’ reflecting the likelihood that the sentencing judge
will have attempted to impose an overall punishment taking
into account the nature of the crimes and certain
 UNITED STATES V. HENDERSON 35

characteristics of the criminal. . . . [T]his court has the
authority to vacate all of the sentences imposed and to
authorize the district court to begin the sentencing process
afresh.”); United States v. Graves, 925 F.3d 1036, 1041 (9th
Cir. 2019) (where district court imposed mandatory
minimum and this court found mandatory minimum did not
apply, remanding for new sentence based upon a correct
understanding of the law even though district court had
stated that sentence would be the same regardless of whether
mandatory minimum applied). 11

Finally, the majority observes that other circuits have
affirmed sentences like Henderson’s. But no on-point case
has engaged in plenary review of this important

11
The Government also appears to argue that there were no
constitutional issues because the defendant admitted to the
specifications. This argument is foreclosed both by the Federal Rules of
Criminal Procedure and by binding circuit precedent. Federal Rule of
Criminal Procedure 23(a) provides: “If the defendant is entitled to a jury
trial, the trial must be by jury unless (1) the defendant waives a jury trial
in writing; (2) the government consents; and (3) the court approves.”
Here, the defendant was entitled to a jury trial on at least the
specifications that did not relate to the state crimes, but he was neither
advised of that right nor waived it, so the proceeding violated the Federal
Rules. And even absent the Rule, it is well-established that a defendant
cannot waive a right to a jury unless he is expressly advised of that right
and makes “an express waiver . . . in open court.” U.S. v. Saadya,
750 F.2d 1419, 1421 (9th Cir. 1985); see also Johnson v. Zerbst,
304 U.S. 458, 464 (1938) (“[C]ourts indulge every reasonable
presumption against waiver of fundamental constitutional rights and . . .
we do not presume acquiescence in the loss of fundamental rights. A
waiver is ordinarily an intentional relinquishment or abandonment of a
known right or privilege.”) (internal quotation marks and citations
omitted). Henderson, of course, did not waive his right to trial by jury.
36 UNITED STATES V. HENDERSON

constitutional issue. 12 Rather, other circuits, like the
majority here, have found themselves bound by circuit
precedent. See United States v. Salazar, 987 F.3d 1248,
1261 n.9 (8th Cir. 2021) (“Because we have concluded that
we are not ‘writing on a blank slate,’ we will not speculate
as to whether, if we were free to reconsider Robinson, we
would arrive at the same conclusion.”); United States v.
Doka, 955 F.3d 290, 298 (2d Cir. 2020) (on plain error
review, holding that “[w]here, as here, the Supreme Court
has not undermined[] our Court’s clear precedent on the
vitality of § 3583(e)(3), we must apply that longstanding
precedent and thus reject Doka’s constitutional challenge”);
see also United States v. Seighman, 966 F.3d 237, (3d Cir.
2020) (noting that in light of circuit precedent defendant was
“merely preserving this argument for Supreme Court
review”).

While sentences like Henderson’s are rare, “[a]t stake in
this case are constitutional protections of surpassing

12
Many of the out-of-circuit cases cited by the majority are not on-
point because the defendants did not object to an aggregate sentence that,
like Henderson’s, surpassed the statutory maximum for the crime of
conviction. See United States v. Eagle Chasing, 965 F.3d 647, 651 (8th
Cir. 2020) (“Even assuming that, in a future case, the [Supreme] Court
follows the [Haymond] plurality and holds ‘a small set of [§ 3583(e)]
cases’ do ‘turn[] out to raise Sixth Amendment issues’ when the sum of
a defendant’s initial and revocation sentences is a total term of
imprisonment exceeding the statutory maximum for the original crime
of conviction, Eagle Chasing would not be impacted because his second
degree murder conviction carries a maximum sentence of life in prison.”)
(some alterations in original); United States v. Coston, 964 F.3d 289, 294
(4th Cir. 2020) (same); United States v. Cenna, 448 F.3d 1279 (11th Cir.
2006) (affirming imposition of supervised release, not revocation);
United States v. Wirth, 250 F.3d 165, 170 n.3 (2d Cir. 2001) (per curiam)
(rejecting an argument like Henderson’s, but, as in Purvis, engaging in
no Sixth Amendment analysis).
 UNITED STATES V. HENDERSON 37

importance: the proscription of any deprivation of liberty
without ‘due process of law,’ and the guarantee that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury.’” Apprendi,
530 U.S. at 476–77 (citations omitted). These rights are “the
heart and lungs, the mainspring and the center wheel of our
liberties, without which the body must die; the watch must
run down; the government must become arbitrary.”
Haymond, 139 S. Ct. at 2375 (plurality) (internal quotation
marks and citation omitted).

For the foregoing reasons, I would vacate the judgment
and remand the matter to the district court for further
proceedings.