United States of America v. Reginald K. Agnew, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 21-3217
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Reginald K. Agnew, Jr.
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: April 15, 2022
Filed: July 25, 2022
[Unpublished]
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Before SHEPHERD, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Reginald K. Agnew, Jr., appeals the sentence of imprisonment that the district
court1 imposed upon him after revoking his term of supervised release, arguing that
1The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

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the sentence violates his rights under the Sixth and Tenth Amendments of the United
States Constitution. Having jurisdiction pursuant to 28 U.S.C. § 1291 and finding no
error, we affirm.
In 2018, Agnew was convicted of possessing a firearm as an unlawful user of
a controlled substance, in violation of 18 U.S.C. § 922(g)(3), and making a false
statement in connection with the acquisition of a firearm, in violation of 18 U.S.C.
§ 922(a)(6). Although each conviction carried a maximum sentence of 10 years
imprisonment, the district court sentenced Agnew to two concurrent sentences of 12
months and 1 day imprisonment, to be followed by 3 years supervised release.
Agnew completed his sentence and began his supervised release on September 24,
2019.
On August 10, 2021, the United States Probation Office filed a petition for
revocation, alleging that Agnew had violated the terms of his supervised release. On
September 21, 2021, pursuant to 18 U.S.C. § 3583(e)(3), the district court found by
a preponderance of the evidence that Agnew violated the term of his supervised
release prohibiting him from committing “another federal, state, or local crime” when
he assaulted a Hayti, Missouri police officer and resisted arrest. The district court
revoked his supervised release and sentenced him to two concurrent terms of 18
months imprisonment. In this appeal, Agnew contends that the revocation of his
supervised release violates his Sixth Amendment right to have a jury determine,
beyond a reasonable doubt, whether he violated a term of his supervised release.
Further, Agnew contends that “[t]he facts claimed to be criminal resisting arrest or
assault . . . are quintessential examples of local police power reserved to the states”
under the Tenth Amendment and “the subpoenaing and the use of the time and
testimony of local police officers” constitutes “a type of commandeering of state
resources that the Tenth Amendment prohibits.” We review these constitutional
challenges de novo. United States v. Stephens, 594 F.3d 1033, 1036-37 (8th Cir.
2010).
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First, Agnew’s Sixth Amendment claim is without merit because, as the
Supreme Court has explained, “revocation of parole is not part of a criminal
prosecution and thus the full panoply of rights due a defendant in such a proceeding
does not apply to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480
(1972). Our precedent forecloses his argument, particularly in this situation, when
the sum of his original and revocation sentences does not exceed the statutory
maximum. See, e.g., United States v. Eagle Chasing, 965 F.3d 647, 650-51 (8th Cir.
2020); United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008); United States v.
Shurn, 128 F. App’x 552, 554 (8th Cir. 2005) (per curiam).
Second, Agnew’s Tenth Amendment claim hinges upon the twin contentions
that he was punished for violating state law and that state law enforcement officers
were “commandeered” to testify in his supervised release revocation proceeding held
in federal court. Cf. United States v. Kehoe, 310 F.3d 579, 588 (8th Cir. 2002)
(considering whether federal criminal statute violated Tenth Amendment by
“improperly encroach[ing] upon state sovereignty to prosecute individuals for state
common law crimes”). To the contrary, “[r]evocation of supervised release is
typically understood as ‘part of the penalty for the initial offense,’” United States v.
Wilson, 939 F.3d 929, 932 (8th Cir. 2019) (citation omitted), and, clearly, the Tenth
Amendment is not implicated where a federal defendant, such as Agnew, violates a
term of supervised release by violating a state law. Further, although, in accordance
with the Tenth Amendment, Congress may not issue orders directly to the states, “a
federal court’s compelling of testimony from witnesses with relevant information,
whether or not they are state officials, cannot be equated with Congress
commandeering state law enforcement officials” to carry out a federal directive.
United States v. Darkes, 608 F. App’x 584, 588-89 (10th Cir. 2015). Therefore,
Agnew’s Tenth Amendment claim is without merit.
For these reasons, we affirm Agnew’s sentence.
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