PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4913

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DANIEL KA, a/k/a Daniel Konso,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:10-cr-00144-FDW-DSC-1)

Argued: September 9, 2020 Decided: December 2, 2020

Before GREGORY, Chief Circuit Judge, and WYNN and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the majority opinion, in which Judge Harris joined. Chief Judge Gregory wrote a dissenting opinion.

ARGUED: Melissa S. Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. WYNN, Circuit Judge:

While serving a term of supervised release, Defendant Daniel Ka made several self-

incriminating statements to his probation officer. The United States District Court for the

Western District of North Carolina considered these statements when it found Ka guilty of

violating the terms of his supervision and revoked his supervised release.

On appeal, Ka contends that the district court violated his Fifth Amendment right

against self-incrimination by denying his motion to suppress these statements. Because we

have previously held that the use of compelled, self-incriminating statements in a

supervised release revocation hearing does not violate the Self-Incrimination Clause of the

Fifth Amendment, we affirm the district court’s denial of Ka’s motion to suppress.

I.

In 2011, Ka was convicted of possessing a firearm during and in relation to a drug

trafficking crime. The district court’s sentence of five years of imprisonment was followed

by five years of supervised release which he began serving in June of 2016. The conditions

of Ka’s supervised release required him to refrain from committing any new crime or using

controlled substances and to “answer truthfully all inquiries by [his] probation officer and

[to] follow the instructions of [his] probation officer.” J.A. 15. 1 Additionally, Ka’s criminal

judgment provided that “[u]pon a finding of a violation of probation or supervised release

. . . the court may (1) revoke supervision, (2) extend the term of supervision, and/or (3)

modify the conditions of supervision.” Id. at 18.

1 Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal.

2 Ka’s trouble complying with the conditions of his release began approximately a

year after he left prison. On May 26, 2017, he tested positive for drug use. His probation

officer, Chelsey Padilla, warned him that any further positive tests would result in fifteen

days of confinement. Accordingly, after Ka again tested positive two months later, the

district court ordered him to serve fifteen days in the Gaston County Jail. Not long after his

release from the county jail, Ka recorded a third positive drug test. In response, Officer

Padilla and her partner traveled to Ka’s house to discuss his drug use.

The officers spoke with Ka as the three sat around his dining room table. During

their conversation, Ka told Officer Padilla that he was short on cash after leaving the county

jail and that he had been helping friends sell drugs to make money. Officer Padilla reviewed

text messages on Ka’s phone, finding photos of marijuana and text messages related to

drug sales. Ka then signed a statement prepared by Officer Padilla in which Ka admitted

to selling marijuana and cocaine. The statement also included Ka’s averment that “[t]hese

are my own words and [are] given voluntarily.” Id. at 156. At no point during the

conversation did Ka invoke his Fifth Amendment right against self-incrimination.

Following her conversation with Ka, Officer Padilla petitioned the district court to

revoke Ka’s term of supervised release pursuant to

(e) because, as

relevant on appeal, Ka had violated the condition of his supervision prohibiting him from

breaking the law.

Ka moved to suppress all statements he had made to Officer Padilla concerning his

possession and sale of drugs on the grounds that the use of these statements violated his

3 Fifth Amendment privilege against self-incrimination. While conceding that he never

invoked the privilege, Ka argued that the Fifth Amendment’s “penalty exception” applied.

A defendant generally “must assert the [Fifth Amendment’s privilege against self-

incrimination] rather than answer [a law enforcement officer’s questions] if he desires not

to incriminate himself.” Minnesota v. Murphy,

(1984). However, this

general rule does not apply in “penalty” cases, “in which assertion of the privilege results

in a penalty that essentially ‘foreclose[s] a free choice to remain silent.’” United States v.

Lara,

(4th Cir. 2017) (alteration in original) (quoting Garner v. United

States,

(1976)). Ka argued that the condition in his terms of supervision

requiring him to “answer truthfully all inquiries by the probation officer and follow the

instructions of the probation officer” meant he would have been penalized for any assertion

of his Fifth Amendment privilege, rendering the privilege self-executing under the penalty

exception.

The magistrate judge recommended denying Ka’s motion to suppress. The district

court accepted the recommendation, denied Ka’s motion, and later sentenced Ka to thirty

months of imprisonment and an additional term of twenty-four months of supervised

release for violating the conditions of his supervision. In so doing, the district court relied

in part on Ka’s statements to Officer Padilla. Ka filed a timely appeal.

II.

On appeal, Ka argues that the district court violated the Fifth Amendment by

considering his statements to Officer Padilla. “[W]e review de novo the issue whether the

4 government violated a defendant’s Fifth Amendment right against compelled self-

incrimination.” Lara,

.

We need not decide whether the condition of Ka’s release requiring him to answer

truthfully all inquiries by his probation officer triggered the Fifth Amendment’s penalty

exception because, even if it did, our recent holding in United States v. Riley precludes

Ka’s challenge. In Riley, we concluded that the Self-Incrimination Clause of the Fifth

Amendment does not prevent the use of compelled, self-incriminating statements in

supervised release revocation hearings held, as Ka’s was, under

(e). See

, 207–09 (4th Cir. 2019).

The Self-Incrimination Clause provides that no person “shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. In Riley, we explained

that the clause is violated “only if [the self-incriminating] statements are used in a criminal

trial.”

. “Supervised release revocation proceedings, however, are not part

of the underlying criminal prosecution.”

Thus, the introduction of compelled self-

incriminating statements in supervised release revocation proceedings does not violate a

defendant’s rights under the Self-Incrimination Clause.

. The district court did

not err by relying on Ka’s statements to Officer Padilla in his supervised release revocation

hearing.

Ka argues that the Supreme Court’s recent decision in United States v. Haymond

fatally undermines our holding in Riley. United States v. Haymond,

(2019).

We disagree.

5 The defendant in Riley, like Ka, was sentenced under the ordinary supervised release

revocation provision,

(e)(3). See Riley,

; S.J.A. 174. By

contrast, Haymond involved an as-applied constitutional challenge to

(k),

an “unusual provision” that imposed a mandatory minimum sentence of five years’

imprisonment if a supervised releasee committed one of several enumerated offenses—

“without empaneling a jury of his peers or requiring the government to prove his guilt

beyond a reasonable doubt.” Haymond, 139 S. Ct. at 2373–74, 2383 (plurality opinion).

The Court concluded that the statute was unconstitutional under the Fifth Amendment’s

Due Process Clause and the Sixth Amendment’s jury guarantee.

. But the

plurality was careful to cabin its analysis to § 3583(k). See id. at 2382–83 & n.7 (“[W]e do

not pass judgment one way or the other on § 3583(e)’s consistency with Apprendi[ v. New

Jersey,

(2000)]. . . . [O]ur decision is limited to § 3583(k).”).

Moreover, in his controlling concurrence, 2 Justice Breyer highlighted three unique

aspects of § 3583(k) that distinguish it from § 3583(e): (1) § 3583(k) applies only to an

enumerated list of federal criminal statutes; (2) it strips judges of the discretion to decide

whether a violation of a condition of supervised release should result in imprisonment; and

(3) it “limits the judge’s discretion in a particular manner: by imposing a mandatory

minimum term of imprisonment of [five years]” upon the judge’s finding that the releasee

had committed one of the enumerated offenses. Id. at 2386 (Breyer, J., concurring). “Taken

2 “Justice Breyer’s concurrence [in Haymond] presented the narrowest grounds for the Court’s holding and therefore controls.” United States v. Coston,

, 295 (4th Cir. 2020).

6 together,” these features made § 3583(k) “resemble the punishment of new criminal

offenses,” and so triggered the jury right “that attend[s] a new criminal prosecution.” Id.

Section 3583(k) did not grant releasees that jury right, so, Justice Breyer concluded, it was

unconstitutional. Id. Notably, however, § 3583(e) “does not contain any of the three

features that, in combination, render[ed] § 3583(k) unconstitutional.” United States v.

Doka,

, 296 (2d Cir. 2020).

Because the controlling opinion in Haymond relied on the unique aspects of

§ 3583(k) not present in § 3583(e), Haymond did not abrogate Riley. Our sister circuits that

have considered whether Haymond has implications for their § 3583(e) jurisprudence agree

that it does not. Id. at 292 (concluding that “Haymond did not undermine, let alone

overrule” Second Circuit precedent on the constitutionality of § 3583(e)); see also United

States v. Walton,

, 734 (11th Cir. 2020) (unpublished) (per curiam)

(concluding that Haymond’s holding was limited to § 3583(k) and therefore “d[id] not

overrule or abrogate [circuit precedent] regarding the constitutionality of § 3583(e)”);

United States v. Smithey,

, 643–44 (5th Cir. 2020) (unpublished) (per

curiam) (concluding that a revocation of supervised release pursuant to § 3583(e) did not

contravene Haymond as that opinion was expressly limited to § 3583(k)). And our

unpublished authority is similarly in accord, albeit in a case regarding the standard of proof

during revocation proceedings, not the Self-Incrimination Clause. See United States v.

Mooney,

, 171 n.* (4th Cir. 2019) (unpublished) (per curiam) (concluding

that “Haymond had no impact on [defendant’s] run-of-the-mill revocation sentence

imposed under

(e)(3)”). Riley remains governing law and requires the

7 conclusion that Ka’s Fifth Amendment right against compelled self-incrimination did not

attach in his supervised release revocation hearing conducted pursuant to § 3583(e).

III.

Because we previously held in Riley that the Self-Incrimination Clause of the Fifth

Amendment does not apply in supervised release revocation hearings conducted pursuant

to § 3583(e), and because that holding remains good law, the district court did not err in

denying Ka’s motion to suppress and considering his incriminating statements.

AFFIRMED

8 GREGORY, Circuit Judge, dissenting:

The majority concludes that United States v. Riley controls this case, such that even

compelled self-incriminating statements may be used against defendants in supervised

release revocation proceedings. Because in my view Riley cannot serve as binding

precedent after the Supreme Court’s decision in United States v. Haymond, I respectfully

dissent.

I.

Riley considered a sentence arising under the general supervised release revocation

provision,

(e)(3). United States v. Riley,

, 203–04, 209 (4th

Cir. 2019). This Court held that supervised release revocation proceedings are not part of

the “criminal prosecution,” and therefore use of the defendant’s self-incriminating

statements could not constitute a Fifth Amendment violation.

at 204–05. In Haymond,

the Supreme Court held that a more “unusual provision” governing supervised release

revocation,

(k), was unconstitutional under the Fifth and Sixth

Amendments. United States v. Haymond,

, 2375–79, 2383 (2019) (plurality

opinion);

at 2385–86 (Breyer, J., concurring).

Here, the majority concludes that Haymond did not abrogate Riley. Haymond

considered only revocation proceedings subject to § 3583(k), whereas the proceeding in

Riley arose under § 3583(e). See Maj. Op. at 6–8. First, the majority points to Haymond’s

express limitations, like the plurality’s qualifiers that it “d[id] not pass judgment one way

or the other on § 3583(e)’s consistency with Apprendi” and that its decision was “limited

9 to § 3583(k).” Haymond, 139 S. Ct. at 2382–83 & n.7 (plurality opinion); Maj. Op. at 6.

Next, the majority emphasizes that Justice Breyer—in his controlling concurrence—

identified “unique aspects of § 3583(k) that distinguish it from § 3583(e).” Haymond,

(Breyer, J., concurring); Maj. Op. at 6–7. It was these aspects that made

revocation proceedings under § 3583(k), in particular, more like a criminal prosecution,

such that the Fifth and Sixth Amendments applied. Maj. Op. at 6–7. Because § 3583(e)

lacks these features, the majority concludes that Riley remains good law.

The majority’s reasoning goes to whether Haymond controls the outcome of

constitutional challenges to revocation proceedings arising under § 3583(e)—like the one

at issue in Riley or the one Mr. Ka raises here. But Mr. Ka does not argue that Haymond

necessarily binds this Court to decide his Fifth Amendment challenge one way or the other.

Rather, Mr. Ka argues that Haymond undermined the necessary premises of Riley,

such that Riley can no longer be given binding effect. See, e.g., United States v. Peterson,

(4th Cir. 2011) (finding a circuit precedent non-binding where a

Supreme Court holding “overruled at least in part the reasoning of” the prior decision)

(emphasis added); see also In re Guo,

, 105 (2d Cir. 2020) (explaining that a

prior panel decision is no longer binding after a Supreme Court decision either “broke the

link on which we premised” the prior decision “or undermined an assumption of that

decision,” even if the Supreme Court did not “address the precise issue decided by the

panel”) (internal quotations omitted). Therefore, Mr. Ka contends, Riley does not control

the outcome of this case, and this Court should consider anew the question of Fifth

Amendment protections at supervised release revocation proceedings post-Haymond.

10 A.

The Riley court, like the majority here, declined to reach the defendant’s

compelled-statement argument because “[e]ven with regard to statements made under

circumstances that would otherwise be viewed as coercive, the Self-Incrimination Clause

is violated only if those statements are used in a criminal trial,” and supervised release

revocation proceedings “are not part of the underlying criminal prosecution.”

.

To support this conclusion, Riley cited Supreme Court decisions reaching the same

conclusion as to probation and parole revocation proceedings. See

at 205–06 (citing

Minnesota v. Murphy,

(1984); Morrissey v. Brewer,

(1972)). Riley relied on the common presumption that the “[probation and parole] analysis

is equally applicable to supervised release proceedings, which[] . . . are analogous to and

largely indistinguishable from probation and parole proceedings.” 1 Id. at 206 (emphasis

added); see also id. (explaining that supervised release revocation proceedings are

analogous to those of parole because, in both settings, the “full panoply of constitutional

protections afforded a criminal defendant is not available”) (quoting United States v.

Armstrong,

(4th Cir. 1999)). In other words, the holding that the

majority cites as controlling this case—that supervised release revocation proceedings are

1 Other pre-Haymond decisions of this Court relied on similar reasoning, citing the Supreme Court’s parole and probation jurisprudence based on the presumption that supervised release revocation proceedings are constitutionally equivalent. See, e.g., United States v. Ward,

(4th Cir. 2014); United States v. Ferguson,

(4th Cir. 2014).

11 not part of the criminal prosecution—arose directly from the Riley court’s determination

that constitutional protections in supervised release revocation proceedings are coextensive

with those of parole and probation. See

at 205–06.

In Haymond, the Supreme Court controverted this premise for the first time. Cf.

Jacob Schuman, Supervised Release Is Not Parole,

, 590 (2020)

(“Haymond is the Supreme Court’s first major decision on the constitutional law of

supervised release.”). Haymond held that imposing a mandatory revocation sentence under

§ 3583(k) based on the district court’s factfinding on a preponderance of the evidence

standard violated the Fifth and Sixth Amendments. 139 S. Ct. at 2376–85 (plurality

opinion); id. at 2385–86 (Breyer, J., concurring).

The plurality found that these protections could apply because “a ‘criminal

prosecution’ continues . . . until a final sentence is imposed,” and “an accused’s final

sentence includes any supervised release sentence he may receive.” Id. at 2379–80

(plurality opinion) (citing Johnson v. United States,

(2000)). “The

defendant receives a term of supervised release thanks to his initial offense, and whether

that release is later revoked or sustained, it constitutes a part of the final sentence for his

crime.” Id. at 2380. Therefore, in the context of a challenge to § 3583(k), the plurality

concluded that “[a]s at the initial sentencing hearing, . . . a jury must find any facts that

trigger a new mandatory minimum prison term.” Id. And in reaching this conclusion, the

plurality identified “structural difference[s]” between supervised release and parole and

probation that “bear[] constitutional consequences.” See id. at 2381–82.

12 I agree with the majority that Justice Breyer’s controlling concurrence is narrower

than the plurality opinion. See, e.g., id. at 2385 (Breyer, J., concurring) (“I agree with much

of the dissent, . . .”). However, Justice Breyer also found that § 3583(k) “is

unconstitutional,” specifically because “[r]evocation of supervised release is typically

understood as ‘part of the penalty for the initial offense,’” and “[§] 3583(k) is difficult to

reconcile with this understanding of supervised release.” Id. at 2386 (quoting Johnson,

). Thus, while Justice Breyer disagreed with the plurality on the extent to

which the Court’s Fifth and Sixth Amendment jurisprudence should apply to supervised

release revocations more broadly, he agreed that constitutional protections can attach.

Haymond, 139 S. Ct. at 2385–86 (Breyer, J., concurring). Ultimately, then, Haymond held

that a supervised release revocation could be part of a criminal prosecution, whereas under

Murphy and Morrissey—the cases Riley relied upon—parole and probation revocations

cannot be.

After Haymond, Riley’s broad rule statement that “[s]upervised release revocation

proceedings . . . are not part of the underlying criminal prosecution” is incorrect. See Riley,

. Instead, it is now possible for them to be “part of the underlying criminal

prosecution” based on unique features of the supervised release system. It is no longer

true, as a general rule, that “as with parole revocation proceedings, the full panoply of

constitutional protections afforded a criminal defendant is not available in supervised

release revocation proceedings.” See

(internal quotations omitted). And it can

no longer be taken as a given that the Supreme Court’s parole and probation jurisprudence

13 is “equally applicable” in the supervised release context because the systems are

constitutionally “indistinguishable.” See

Therefore, Haymond undermined Riley’s presumption of coextensive constitutional

protections across the supervised release, parole, and probation contexts. Rather,

supervised release’s differences from parole and probation bear constitutional

consequences. Haymond,

. For these reasons, I would find that Riley

does not bind this panel. See Peterson,

; In re Guo, 965 F.3d at 105.

Instead, I would consider anew whether the Fifth Amendment’s Self-Incrimination Clause

attached at Mr. Ka’s supervised release revocation proceeding. 2

B.

Mr. Ka argues, based on Haymond’s guidance, that supervised release revocation

proceedings are sentencing proceedings triggering the Fifth Amendment’s protection

against self-incrimination. There is no denying that the circuit courts have reached the

opposite conclusion, as this Court did in Riley, based on the presumption that supervised

release is “virtually indistinguishable” from parole and probation. See, e.g., United States

v. Hulen,

, 1019–20 (9th Cir. 2018); United States v. Neal,

,

434–35 (7th Cir. 2008); United States v. Carlton,

(2d Cir. 2006).

2 For example, in United States v. Coston, this Court considered a post-Haymond constitutional challenge to a different mandatory provision governing supervised release revocations,

(g). United States v. Coston,

, 294–96 (4th Cir. 2020). Coston concluded only that the district court did not commit plain error by upholding § 3583(g). See id. Notably, however, the Coston court applied Haymond to the question rather than simply applying parole and probation cases to conclude that supervised release revocation proceedings are not part of the criminal prosecution, such that no constitutional protections could possibly apply. See id.

14 But supervised release is different. Most fundamentally, supervised release differs

in its intent. See Haymond, 139 S. Ct. at 2381–82. “[U]nlike parole, supervised release

wasn’t introduced to replace a portion of the defendant’s prison term”; it is intended “only

to encourage rehabilitation after the completion of [their] prison term.” Id. at 2382

(internal quotations omitted). This rehabilitative intent results in a sentencing regime that

persists well beyond the period of incarceration. See id.

Previously, a federal defendant “could serve as little as a third of his assigned prison

term” before obtaining parole eligibility, or “might avoid prison altogether in favor of

probation.” Id. at 2381. If parole or probation was revoked, “the prison sentence a judge

or parole board could impose . . . normally could not exceed the remaining balance of the

term of imprisonment already authorized by the jury’s verdict.” Id. at 2377.

Then, “Congress overhauled federal sentencing procedures to make prison terms

more determinate and abolish the practice of parole,” substituting the supervised release

system. Id. at 2382. “Now, when a defendant is sentenced to prison he generally must

serve the great bulk of his assigned term.” Id.; see also United States v. Thompson,

(7th Cir. 2015) (“Supervised release does not shorten prison time; instead it

imposes restrictions on the prisoner to take effect upon his release from prison.”). Then,

upon release, the defendant must comply with “restrictions, imposed by the judge at

15 sentencing, called conditions or terms of supervised release, that . . . continue for a specific

term of years (which can be life).” Thompson,

. 3

During that term of supervision, violations of the restrictions can result in a loss of

the defendant’s conditional liberty. If supervised release is revoked, the court can impose

a new term of incarceration—usually capped by statute at one, three, or five years

depending on the violation, but not temporally linked to any remitted prison sentence. See

id.;

(e)(3). And that new term of incarceration can be followed by a new

term of supervised release, which could also then be subject to revocation and

reimprisonment, and so on. See Fiona Doherty, Indeterminate Sentencing Returns: The

Invention of Supervised Release,

, 1010 (2013) (“In cases in which

a defendant’s supervised release previously has been revoked, . . . [e]ach revocation is now

potentially subject to a new reimprisonment term of between one and five years—without

regard to any statutory aggregate maximum.”).

3 Given the size of the federal case load and considering resource limitations, some experts question whether the federal probation agency is administratively equipped to make genuinely individualized recommendations in sentencing reports about which conditions should apply. See United States v. Siegel,

, 710–11 (7th Cir. 2014). Those same concerns extend to whether probation officers can then effectively enforce those conditions in the name of rehabilitation, not punishment. See

Likewise, they extend to whether sentencing courts are exercising sufficient discretion over probation officers’ recommendations and providing sufficient justification—as required by Booker and its progeny—for the supervised release component of federal sentences. See

at 711–12. See generally Christine S. Scott-Hayward, Shadow Sentencing: The Imposition of Federal Supervised Release, 18 Berkeley J. Crim. L. 180 (2013); Fiona Doherty, Indeterminate Sentencing Returns: The Invention of Supervised Release,

(2013).

16 Put differently, “[p]arole mitigates punishment; supervised release augments it—

most dramatically when the defendant, having been determined to have violated a condition

or conditions of supervised release, is given, as punishment, a fresh term of imprisonment.”

Thompson,

. So while “the primary purpose of supervised release is to

facilitate the reentry of offenders into their communities, rather than to inflict punishment,”

United States v. Murray,

(3d Cir. 2012), supervised release nevertheless

“lengthens [the] sentence, unlike parole.” 4 United States v. Siegel,

(7th

Cir. 2014). Throughout the duration of the supervised release portion of that lengthened

sentence, the defendant must comply with the bevy of conditions—of which there are over

thirty to potentially be imposed—at the risk of losing their conditional liberty.

.

4 “The cumulative effect of these changes has made supervised release into a more expansive, more rigid, more punitive system.” Schuman, supra, at 606 (referring to the supervised release system’s expansion since its initial introduction as a rehabilitative program with no provision for revocations). Although supervised release was intended as a “discretionary supplement to prison,” specifically “designed for people in particular need of post-release services,” sentencing judges now impose supervised release in 99% of cases. Doherty, supra, Indeterminate Sentencing, at 997–98, 1015 (noting that supervised release is only required by statute in “less than half of all cases”). “[A]t its most expansive, the federal parole system supervised . . . about one-fourth of the number now on supervised release,” and “federal probation has declined by about two-thirds since” the introduction of supervised release. Id. at 1014–15 (“Supervised release is now the dominant form of federal community supervision . . . . [and] is responsible for sending a significant number of offenders back to prison.”). “Revocations have also become more common, and more than half of all revocations are for noncriminal conduct.” Schuman, supra, at 606 (“One- third of all defendants are eventually found in violation of a condition of their release, . . . . [i]n 2009, over 10,000 people were in federal prison for violating their supervised release, which was between 5 and 10 percent of the total federal prison population.”). Thus, “[w]hile Congress intended supervised release to reduce government interference in the lives of former prisoners,” it has instead grown to vast scale and, for many people, extends involvement with the criminal system, raising the chances of reincarceration. Id. at 603– 07. Our constitutional analysis should be informed by these developments.

17 Ultimately, then, supervised release revocation proceedings—unlike revocations of

parole or probation—consider the imposition of new terms of incarceration. Yet, “between

1984 and 2019, the Supreme Court said almost nothing about how this new system of post-

release supervision fit into the nation’s constitutional framework.” Schuman, supra, at

612. Haymond’s acknowledgment that the unique features of supervised release have

constitutional ramifications should reasonably be expected to have implications for this

Court.

One such implication is presented by this case, which invites this Court to reconsider

the presumption that parole and probation case law apply equally to supervised release.

See Haymond,

; see also Johnson, 529 U.S. at 724–25 (Scalia, J.,

dissenting) (arguing that “equat[ing] parole and supervised release is unpersuasive”

because “the Sentencing Reform Act’s adoption of supervised release was meant to make

a significant break with prior practice”). We should accept the invitation and recognize

what has long been true but, until now, has gone unaddressed: the supervised release

system’s differences from probation and parole necessitate additional constitutional

protections.

Supervised release sanctions are “part of the penalty for the initial offense.”

Johnson,

; see also Haymond, 139 S. Ct. at 2379–80 (plurality opinion);

Haymond,

(Breyer, J., concurring). And supervised release revocation

can result in a new, additional term of incarceration. See Thompson,

;

Siegel,

. Therefore, a supervised release revocation proceeding should be

regarded as a “sentencing proceeding,” and the same constitutional protections available at

18 the initial sentencing should attach. 5 See Haymond, 139 S. Ct. at 2377–80 (plurality

opinion).

The Supreme Court has “repeatedly rejected efforts to dodge the demands of the

Fifth and Sixth Amendments by the simple expedient of relabeling a criminal prosecution”

as an “enhancement,” “modification,” or “postjudgment sentence-administration

proceeding.” Id. at 2379. Here, a supervised release revocation proceeding is a sentencing

proceeding, regardless of what the government labels it. Its purpose is to modify the

supervised release portion of the defendant’s sentence—which is one portion of a single,

unified sentence for the original offense—and potentially impose a new term of

incarceration followed by a new term of supervised release. And it is well-established that

sentencing is a critical stage of the criminal prosecution, such that the Fifth Amendment

applies. Mitchell v. United States,

(1999); Mempa v. Rhay,

(1967).

Indeed, it is especially vital that the protection against the use of compelled

statements applies at sentencing proceedings: “To say that [the defendant] ha[s] no right

to remain silent but instead could be compelled to cooperate in the deprivation of her liberty

would ignore the Fifth Amendment privilege at the precise stage where, from her point of

5 There is intuitive appeal to the contrary position put forward by the dissent in Haymond: “[A] sentence is ‘imposed’ at final judgment, not again and again every time a convicted criminal wakes up to serve a day of supervised release and violates a condition of his release.”

(Alito, J., dissenting). “But saying it does not make it so.”

at 2380 n.5 (plurality opinion). Rather, “[a]s Johnson recognized, when a defendant is penalized for violating the terms of his supervised release, what the court is really doing is adjusting the defendant’s sentence for his original crime.”

19 view, it was most important.” See Mitchell, 526 U.S. at 327–28. That principle applies

just as forcefully to a revocation proceeding—where additional terms of incarceration and

supervised release are considered—as it does to the initial sentencing.

Unlike parole and probation revocations, supervised release revocation proceedings

uniquely allow for the imposition of new prison sentences. Just like the initial sentencing

proceeding, then, constitutional protections should apply. Here, I would find that Mr. Ka’s

supervised release revocation proceeding was a sentencing proceeding, part of his

“criminal prosecution,” and the Fifth Amendment’s protection against the use of compelled

statements applied. Because the majority declines to do so, I respectfully dissent.

20