United States v Collins

The government appealed Collins’ 12-month sentence for violation of supervised release arguing the district court erred in concluding it was limited to a 12-month sentence. The panel agreed, reversed the sentencing order, remanded for vacation of judgment and resentencing. It held that under 18 USC 3583(e)(3), the underlying criminal conviction not the acts which result in a second or subsequent revocation of supervised release, set the limit on prison sentence and here the limit was 36 months not 12. The panel reasoned that the language “offense that resulted in the term of supervised release” refers to underlying conviction because “offense’ generally means a crime ; acts resulting in revocation need not be criminal and only need to be proven by preponderance of the evidence; two other circuits have reached the same conclusion and two others similar conclusions on slightly different arguments and still others have implicitly followed the rule while Supreme Court precedent holds revocation is punishment for the underlying offense; considering revocation a new offense for purposes of (e)(3) would raise significant double jeopardy and 6th Amendment concerns; and the result is consistent with the use of offense in 3583’s other provisions and other parts of Title 18. It rejected Collins arguments to the contrary holding “results in” does not have a proximate causation component and the first revocation of supervised release here was not sufficiently intendant of the second to sever the but for causation of the original conviction; the cross reference relied upon by Collins is best read to require consideration of the underlying conviction and the acts which led to revocation separately; and adding a subsection to 3583 which includes “original offense” did not change the meaning of “offense” to anything other than the underlying criminal conviction but instead allowed the revoking court to make its sentence unbound by the original term of supervised release.

United States v Duong

The government appealed the dismissal of the indictment charging Duong with child sex trafficking arguing proof of age by proving a reasonable opportunity to observe met the mens rea element. The panel agreed and reversed. It held that under the plain language of 18 USC 1591(c) on the date of the charged offense here, reasonable opportunity to observe the alleged victim by the defendant means the government need not prove actual knowledge the victim is a minor, that this reading does not make the reckless disregard path to prove the knowledge element superfluous as that applies when the defendant does not have a reasonable opportunity to observe and this reading serves the purpose of the statute in combating child sex trafficking. It held the conspiracy charge here was also improperly dismissed as it incorporated the reasonable opportunity to observe and thus alleged all the elements of the crime.