United States of America v. Moses Childs, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 20-3234
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United States of America
Plaintiff - Appellee
v.
Moses Childs, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: September 20, 2021
Filed: November 8, 2021
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Moses Childs, Jr. pled guilty to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g). In 2004, the district court sentenced
him as an Armed Career Criminal to 180 months in prison and five years of
supervised release. See United States v. Childs, 403 F.3d 970 (8th Cir. 2005)
(affirming sentence). In 2016, the district court vacated Childs’ sentence based on
Johnson v. United States, 576 U.S. 591 (2015) and resentenced him to “time served”

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with three years’ supervised release. Childs violated the conditions of release by
committing sexual assault. The district court1 revoked his release and sentenced him
to eight months in prison and 18 months’ supervised release, to be served
consecutively to his state sentence for assault. He appeals. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
I.
Childs argues the district court imposed an illegal sentence because he
overserved the maximum time permitted by statute for his felon-in-possession
charge (10 years). This court reviews de novo the legality of a revocation sentence.
See United States v. Walker, 513 F.3d 891, 893 (8th Cir. 2008).
A district court may “revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised release authorized
by statute for the offense that resulted in such term of supervised release” if the court
“finds by a preponderance of the evidence that the defendant violated a condition of
supervised release.” 18 U.S.C. § 3583(e)(3). For a Class C felony conviction, the
maximum revocation prison sentence is two years. Id. Childs’ sentence does not
violate the maximum term set forth in § 3583(e)(3).
Childs’ belief—that his sentence exceeded the statutory maximum because
the number of years he served was greater than the sum of the maximum term of
imprisonment plus the maximum term of supervised release—is without merit. The
maximum term of imprisonment is governed by the law of the offense. See United
States v. Postley, 449 F.3d 831, 833 (8th Cir. 2006). Supervised release is distinct
from the prison term, and the amount of time to be served is determined separately.
See United States v. Johnson, 529 U.S. 53, 59 (2000); Postley, 449 F.3d at 833. See
also United States v. Poe, 471 Fed. Appx. 556, 556 (8th Cir. 2012) (“supervised
1 The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

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release may be imposed in addition to the statutory maximum for the offense of
conviction”).
Childs argues the Supreme Court’s decision in United States v. Haymond, 139
S. Ct. 2369 (2019)—which held 18 U.S.C. § 3583(k) unconstitutional as applied to
the defendant there— applies to all supervised release cases under 18 U.S.C. § 3583.
This argument is based on the plurality opinion, not Justice Breyer’s controlling
opinion. See Marks v. United States, 430 U.S. 188, 193 (1977) (“When 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.”
(internal quotation marks omitted)). Haymond applies to § 3583(k) cases, not to all
cases under § 3583. See Haymond, 139 S. Ct. at 2385 (Breyer, J., concurring in the
judgment) (noting that “in light of the potentially destabilizing consequences, I
would not transplant the Apprendi line of cases to the supervised-release context”).
See also United States v. Henderson, 998 F.3d 1071, 1072 (9th Cir. 2021) (noting
that Haymond did not overrule prior opinions “which held a term of supervised
release may extend beyond the statutory maximum for the underlying substantive
offense”).
The district court did not err in sentencing Childs to eight months in prison.
II.
Again relying on Haymond, Childs asserts that the revocation of his
supervised release violates his Constitutional right to a jury. Again, Haymond is
inapplicable. The Court there found that 18 U.S.C. § 3583(k) violated the
defendant’s Fifth and Sixth Amendment rights to a jury trial because it increased the
mandatory minimum based on facts not found by a jury beyond a reasonable doubt.
However, Haymond clarified that its holding was “limited to § 3583(k).” Haymond,
139 S. Ct. at 2383, 2385-86 (plurality opinion) (Breyer, J., concurring in the
judgment). And this court rejected the argument that Haymond applies to § 3583(e).

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See United States v. Eagle Chasing, 965 F.3d 647, 651 (8th Cir. 2020) (“Until the
Supreme Court invalidates § 3583(e)(3), we must follow our precedent and hold that
the revocation of Eagle Chasing’s release did not violate his constitutional rights.”).
The revocation of Childs’ supervised release did not violate his Constitutional right
to a jury trial.
III.
Childs believes his sentence is substantively unreasonable because the district
court failed to consider the time he had already served. This court reviews for abuse
of discretion. Id. at 653.
The district court carefully considered and weighed the relevant factors under
§ 3553(a) and specifically considered Childs’ argument about his time served:
As far as the supervised release violation itself, for this type of
conviction, a two-year sentence would be appropriate, but I am taking
into consideration that you did overserve on the—on the underlying
felony over in the Northern District of Iowa . . . .
. . . .
And I’m going to impose an eight-month sentence. I would normally
impose a 24-month sentence, but I am taking into consideration the
Johnson ruling . . . .
Childs also claims that “no rehabilitative goals would be met by transferring
him to federal prison for eight months in addition to the almost 15 years he had
served.” The district court disagreed:

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If you’re sentenced to a period of eight months, you’ll essentially be
assigned to a BOP facility and very shortly after that there would be a
release plan developed and be released into the community.
So I’m taking all of that into consideration. And what I’m planning on
doing is an eight-month sentence with that in mind, with 18 months of
supervised release to follow, and that’s primarily to get you back on
your feet. You’re not going to have parole in the state system. So
there’s going to be an eight-month sentence followed by 18 months of
supervised release.
And supervised release isn’t designed as punishment. It’s designed to
get you back on your feet, get you some resources to get back in the
community. So that is the basis of my sentence.
The district court did not abuse its “broad discretion” in determining Childs’
sentence. See United States v. Boelter, 806 F.3d 1134, 1136 (8th Cir. 2015).
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The judgment is affirmed.
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