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10-1936 U.S. v. McIntosh

By: WISCONSIN LAW JOURNAL STAFF//January 21, 2011//

10-1936 U.S. v. McIntosh

By: WISCONSIN LAW JOURNAL STAFF//January 21, 2011//

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Criminal Procedure
Right to jury; reimprisonment

It does not violate the right to a jury trial to impose reimprisonment after revocation of supervised release, to a term that, combined with previous confinements, exceeds the maximum sentence.

“McIntosh contends that our decision in Colt is no longer controlling because it was decided before Apprendi’s release. But the rule in Apprendi does not apply to a sentence imposed under § 3583 following the revocation of a supervised release. A violation of supervised release is not a separate fact creating an additional penalty on top of a defendant’s original sentence that may go beyond the statutory maximum, thereby requiring submission to a jury and proof beyond a reasonable doubt. Rather, supervised release, and the subsequent possibility of reimprisonment after a violation of that release, is a part of the original sentence imposed by the sentencing court following a defendant’s conviction by a jury based on proof beyond a reasonable doubt. In other words, following his conviction, McIntosh was sentenced to a period of imprisonment and granted a period of ‘conditional liberty, the existence of which depends on [McIntosh’s] observation of the limits of his supervised release.’ United States v. Cunningham, 607 F.3d 1264, 1268 (11th Cir. 2010). Accordingly, we have continued to rely on Colt after the Apprendi decision, albeit in unpublished orders. See, e.g., United States v. Santiago, 250 Fed. App’x 736, 739 (7th Cir. 2007) (unpublished); United States v. Kizeart, 251 Fed. App’x 352, 354 (7th Cir. 2007) (unpublished); United States v. Braziel, 86 Fed. App’x 202, 204 (7th Cir. 2004) (unpublished). In addition, since the Apprendi decision, every circuit court to consider the supervised release revocation framework under 18 U.S.C. § 3583 has concluded that there is no constitutional violation. See United States v. Work, 409 F.3d 484, 489-92 (1st Cir. 2005); United States v. Carlton, 442 F.3d 802, 807-10 (2d Cir. 2006); United States v. Dees, 467 F.3d 847, 854-55 (3d Cir. 2006); United States v. Johnson, 356 Fed. App’x 785, 790-92 (6th Cir. 2009) (unpublished); United States v. Huerta-Pimental, 445 F.3d 1220, 1224-25 (9th Cir. 2006); United States v. Cordova, 461 F.3d 1184, 1186-88 (10th Cir. 2006); Cunningham, 607 F.3d at 1266-68 (11th Cir. 2010). McIntosh’s constitutional rights were not violated by the second revocation of his supervised release and reimprisonment for an additional 16 months.”

Affirmed.

10-1936 U.S. v. McIntosh

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Manion, J.

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