In United States v. Henderson, --- F.3d ---, No. 19-30209 (9th Cir. 2021), a divided panel affirmed a supervised release revocation sentence.
Henderson was convicted of felon in possession of a firearm and sentenced to 117 months. The statutory maximum for the offense was 120 months.
After his release from custody, Henderson violated supervised release and was sentenced to an additional fifteen months. He argued the sentence was unconstitutional under Apprendi because, taken together, the underlying sentence and the revocation sentence exceeded the original statutory maximum of 120 months.
The majority, relying on prior Ninth Circuit precedent, held that "a term of supervised release may extend beyond the statutory maximum for the underlying substantive offense." In so doing, it rejected the argument that "the terms of reimprisonment must be aggregated and may not exceed the maximum term of the statute of conviction."
The dissent disagreed with the majority's analysis: "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."
