United States of America v. Seldrick R. Carpenter

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3295
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
SELDRICK R. C ARPENTER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:18-cr-10009-MMM-JEH-1 — Michael M. Mihm, Judge.
____________________
A RGUED MAY 29, 2024 — D ECIDED J UNE 17, 2024
____________________
Before EASTERBROOK , BRENNAN, and S CUDDER , Circuit
Judges.
SCUDDER , Circuit Judge. The United States Constitution
guarantees criminal defendants the right to a jury trial in two
places. Section 2 of Article III provides that “[t]he Trial of all
Crimes, except in Cases of Impeachment, shall be by Jury.”
And, for its part, the Sixth Amendment promises that in “all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and

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2 No. 23-3295
district wherein the crime shall have been committed.” This
case presents the question whether a supervised release revo-
cation proceeding held under 18 U.S.C. § 3583(e)(3) consti-
tutes the “trial of [a] crime” or a “criminal prosecution”
within the meaning of either clause. Agreeing with the district
court, we hold that it does not.
I
A
Little space need be devoted to the facts. In 2020 Seldrick
Carpenter commenced a six-year term of supervised release
after completing a federal sentence for distributing fentanyl.
For a time, Carpenter complied with his conditions. But fol-
lowing the death of his mother, he began using drugs and
lashing out against his probation officer. When efforts to ad-
dress these issues through behavioral therapy failed, Carpen-
ter’s probation officer petitioned to revoke his supervised re-
lease. The district court released Carpenter on bond pending
a final revocation hearing, only then to see him come under
suspicion for setting a car on fire.
B
The Probation Office alleged that Carpenter committed a
litany of supervised release violations, the most serious of
which included the offenses of arson, criminal damage to
property, intimidation, and aggravated battery. In advance of
the revocation hearing, Carpenter moved for a jury trial under
the Sixth Amendment and, alternatively, under Article III, § 2,
cl. 3. The district court denied the motion and presided over
Carpenter’s revocation hearing without a jury. In the end, it
found Carpenter guilty of several violations and exercised the
discretion conferred by 18 U.S.C. § 3583(e)(3) to revoke

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No. 23-3295 3
Carpenter’s supervised release. It then imposed a revocation
sentence of 30 months’ imprisonment.
Carpenter appeals, challenging the district court’s refusal
to impanel a jury and failure to recommend that the Bureau
of Prisons house him in a specified low-security prison in
Michigan.
II
The constitutional question pressed by Carpenter is im-
portant not only because supervised release violations occur
with some frequency, but also because of the consequential
deprivation of liberty that accompanies revocation. In the fi-
nal analysis, we conclude that neither the Sixth Amendment
nor Section 2 of Article III of the U.S. Constitution guarantee
a jury trial in a revocation hearing like Carpenter’s. A defend-
ant situated like Carpenter is entitled only to those proce-
dures dictated by the Federal Rules of Criminal Procedure
and the Due Process Clause of the Fifth Amendment.
A
By its terms, the Sixth Amendment applies only to “crim-
inal prosecutions.” U.S. Const. amend VI. Carpenter contends
that his supervised release revocation met that description.
He begins from the observation that “the scope of the consti-
tutional jury right must be informed by the historical role of
the jury at common law.” So. Union Co. v. United States, 567
U.S. 343, 353 (2012) (quotations omitted). From there he seeks
to leverage recent scholarly research purporting to show that
defendants in the founding era received jury trials in proceed-
ings analogous to today’s supervised release revocations. See
Jacob Schuman, Revocation at the Founding, 122 Mich. L. Rev.
(forthcoming 2024).

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4 No. 23-3295
As Carpenter recognizes, however, his position collides
with thirty years of contrary precedent. We have long held
that supervised release revocations—whether conducted un-
der § 3583(e)(3) or some other provision—are not “criminal
prosecutions” within the meaning of the Sixth Amendment.
See United States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.
2015) (“[A] revocation proceeding, because it focuses on the
modification of a sentence already imposed and implicates
the conditional (rather than absolute) liberty that the defend-
ant enjoys as a result of that sentence, is not considered to be
a stage of a criminal prosecution.”); United States v. Kelley, 446
F.3d 688, 691 (7th Cir. 2006) (same); United States v. Pratt, 52
F.3d 671, 675 (7th Cir. 1995) (same).
Although our full court could revisit these decisions, they
stand today as controlling authority. See Wilson v. Cook Cty.,
937 F.3d 1028, 1035 (7th Cir. 2019) (“[P]rinciples of stare deci-
sis require that we give considerable weight to prior deci-
sions.” (quoting McLain v. Retail Food Emp’rs Joint Pension
Plan, 413 F.3d 582, 586 (7th Cir. 2005))). They reflect the court’s
reasoned judgment on a question of constitutional law, and
we would need “compelling reason[s]” to chart a different
course. See United States v. Lamon, 893 F.3d 369, 372 (7th Cir.
2018) (quotations omitted). Mere disagreement with the law
or a desire to see the law change is not enough. See Tate v.
Showboat Marina Casino P’ship, 431 F.3d 580, 582 (7th Cir. 2005)
(“[I]f the fact that a court considers one of its previous deci-
sions to be incorrect is a sufficient ground for overruling it,
then stare decisis is out the window, because no doctrine of
deference to precedent is needed to induce a court to follow
the precedents that it agrees with.”).

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No. 23-3295 5
None of this is lost on Carpenter, who candidly admits
that he is asking us to overrule our precedent. In extending
that invitation, he directs our attention to the Supreme
Court’s 2019 decision in United States v. Haymond, 139 S. Ct.
2369, which he reads as unsettling and indeed conflicting with
our precedent. See Wilson, 937 F.3d at 1035 (explaining that a
subsequent Supreme Court decision undermining Circuit
precedent is a compelling reason to revisit a settled issue). We
disagree, at least in the context of supervised release revoca-
tions conducted under the authority of 18 U.S.C. § 3583(e)(3).
Haymond involved a Sixth Amendment challenge not to
§ 3583(e)(3)—the provision at issue here—but instead to
§ 3583(k), a supervised release revocation provision applica-
ble only to defendants required to register under the Sex Of-
fender Registration and Notification Act. In the event such a
defendant is found to have committed any one of an enumer-
ated list of sex crimes while on supervised release, § 3583(k)
requires district courts to revoke his term of supervised re-
lease and impose a revocation sentence of “not less than 5
years.”
Andre Haymond had been convicted of possessing child
pornography in violation of 18 U.S.C. § 2252(b)(2), an offense
that carried a statutory range of 0 to 10 years’ imprisonment.
See Haymond, 139 S. Ct. at 2373. After completing a 38-month
prison sentence, he began serving a ten-year term of super-
vised release. See id. While under supervision, Haymond was
accused once again of possessing child pornography—one of
the offenses covered by § 3583(k). See id. At his revocation
hearing and on appeal, Haymond argued that § 3583(k) vio-
lated the Sixth Amendment by increasing his sentencing ex-
posure based on judge-found facts. See id. at 2375; see also

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6 No. 23-3295
Alleyne v. United States, 570 U.S. 99, 116 (2013) (plurality opin-
ion) (holding that “facts that increase mandatory minimum
sentences must be submitted to [a] jury”). The Tenth Circuit
agreed and held § 3583(k) unconstitutional as applied to Hay-
mond. Haymond, 139 S. Ct. at 2375.
The Supreme Court affirmed, but no single opinion com-
manded the support of five Justices. Writing for three others,
Justice Gorsuch relied heavily upon the Court’s prior holding
in Alleyne and concluded that § 3583(k) violated the Sixth
Amendment by compelling the district court to find facts trig-
gering a heightened sentencing exposure: a mandatory mini-
mum revocation sentence of five years even though the jury’s
verdict in Haymond’s underlying criminal prosecution did
not itself authorize any mandatory minimum. See id. at 2378–
79. En route to that conclusion, Justice Gorsuch appeared to
suggest that—contrary to our precedent—most, if not all, su-
pervised release revocations are “criminal prosecutions” as
that term was understood at the founding. See id. at 2376 (ob-
serving that, historically, “the concept of a ‘crime’ was a broad
one linked to punishment”). The dissenting Justices disa-
greed. Writing for three others, Justice Alito would have
held—consistent with our precedent—that no supervised re-
lease proceedings are “criminal prosecutions” within the
meaning of the Sixth Amendment. See id. at 2393–95.
In a solo concurrence Justice Breyer supplied the neces-
sary fifth vote for affirming the Tenth Circuit. See id. at 2385–
86. He “agree[d] with much of the dissent, in particular that
the role of the judge in a supervised-release proceeding is con-
sistent with traditional parole.” Id. at 2385. But he disagreed
with Justice Gorsuch’s “transplant” of Alleyne “to the super-
vised-release context.” Id. Justice Breyer nonetheless then

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No. 23-3295 7
explained that “three aspects” of § 3583(k) made it “less like
ordinary revocation and more like punishment for a new of-
fense, to which the jury right would typically attach.” Id. at
2386.
First, § 3583(k) applies only when a defendant
commits a discrete set of federal criminal of-
fenses specified in the statute. Second, § 3583(k)
takes away the judge’s discretion to decide
whether violation of a condition of supervised
release should result in imprisonment and for
how long. Third, § 3583(k) limits the judge’s dis-
cretion in a particular manner: by imposing a
mandatory minimum term of imprisonment of
“not less than 5 years” upon a judge’s finding
that a defendant has “commit[ted] any” listed
“criminal offense.”
Id. “Taken together,” Justice Breyer concluded that “these fea-
tures of § 3583(k) more closely resemble the punishment of
new criminal offenses, but without granting a defendant the
rights, including the jury right, that attend a new criminal
prosecution.” Id. So Justice Breyer agreed with the plurality—
though on purely functional grounds rejected by the plural-
ity—that § 3583(k) was unconstitutional as applied to Andre
Haymond. See id.
Five Justices in Haymond concluded that the Sixth Amend-
ment does apply to some supervised release proceedings. Not
surprisingly, then, Carpenter contends that Haymond has un-
dermined our precedent and that principles of stare decisis
must give way to a fresh examination of the scope of the jury
trial right guaranteed by the Sixth Amendment. See Wilson,
937 F.3d at 1035.

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8 No. 23-3295
We view Haymond differently. Under Marks v. United
States, 430 U.S. 188 (1977), an opinion of the Supreme Court
can bind lower courts even if it failed to garner five votes.
“When a fragmented Court decides a case and no single ra-
tionale 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.” 430 U.S. at 193 (cleaned up). If either Jus-
tice Gorsuch’s plurality opinion or Justice Breyer’s concur-
rence fits the bill, our role as an inferior court is to apply that
decision until the Supreme Court sees fit to overrule it.
No doubt the Marks rule can be difficult to apply. See Nich-
ols v. United States, 511 U.S. 738, 745 (1994) (acknowledging
that the test is sometimes “more easily stated than applied”).
But here its application is straightforward. Justice Gorsuch’s
plurality approach would require that all revocation hearings
exposing a defendant to a mandatory revocation sentence be
tried to a jury. That is because, in the plurality’s view, any
revocation sentence a defendant receives “constitutes a part
of the final sentence for his crime.” 139 S. Ct. at 2380. On this
conception of sentencing, any statute that imposes a manda-
tory minimum revocation would increase a defendant’s sen-
tencing exposure within the meaning of Alleyne, either by
adding to the mandatory minimum Congress prescribed for
a defendant’s underlying offense or, as in Haymond, by impos-
ing a mandatory minimum where before there was none. In
either case, the plurality’s approach would require that al-
leged supervised release violations be tried to a jury.
By contrast, Justice Breyer’s narrower approach would re-
quire a jury trial in only a subset of those cases. It is not
enough for the revocation of supervised release to be

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No. 23-3295 9
mandatory. To trigger the Sixth Amendment, it must have ad-
ditional characteristics that make it “less like ordinary [super-
vised release] revocation and more like punishment for a new
offense.” Haymond, 139 S. Ct. at 2386. Justice Breyer’s opinion
is thus the narrower of the two.
Accordingly, we now join all nine circuit courts to have
considered the question and hold that Justice Breyer’s concur-
ring opinion controls under Marks. See United States v. Doka,
955 F.3d 290, 296 (2d Cir. 2020) (“In Haymond, Justice Breyer’s
opinion concurring in the judgment represents the narrowest
ground supporting the judgment, and therefore provides the
controlling rule.”); United States v. Seighman, 966 F.3d 237, 242
(3d Cir. 2020); United States v. Coston, 964 F.3d 289, 295 (4th
Cir. 2020); United States v. Lipscomb, 66 F.4th 604, 612 n.11 (5th
Cir. 2023); United States v. Robinson, 63 F.4th 530, 540 (6th Cir.
2023); United States v. Childs, 17 F.4th 790, 792 (8th Cir. 2021);
United States v. Henderson, 998 F.3d 1071, 1076 (9th Cir. 2021);
United States v. Salazar, 987 F.3d 1248, 1259 (10th Cir. 2021);
United States v. Moore, 22 F.4th 1258, 1268 (11th Cir. 2022).
Sixth Amendment arguments in this area must therefore be
assessed under the framework Justice Breyer supplied in his
concurrence.
Turning back to Carpenter’s case, Justice Breyer’s opinion
finds straightforward application. For Justice Breyer,
§ 3583(k) triggered the Sixth Amendment because it had three
characteristics that made it “less like ordinary revocation and
more like punishment for a new offense, to which the jury
right would typically attach.” 139 S. Ct. at 2386 (emphasis
added). Justice Breyer’s functional approach arrays super-
vised release proceedings along a spectrum. Ordinary revo-
cations—like those conducted under § 3583(e)(3)—lie at one

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10 No. 23-3295
extreme and do not trigger Sixth Amendment scrutiny. With
respect to these revocation proceedings, then, our precedents
in Pratt, Kelley, and Boultinghouse remain sound. At the other
end of the spectrum lie ordinary criminal prosecutions, which
everyone agrees bring with them a right to a jury trial (save
the limited exception of petty offenses). Section 3583(k) lies
somewhere between these two poles, but close enough to the
latter to require a jury trial.
Carpenter’s supervised release revocation—held as it was
under § 3583(e)(3)—was precisely the kind of “ordinary rev-
ocation” that Justice Breyer took care to explain falls outside
the scope of the Sixth Amendment. Although that provision
vested the district court with the discretion to revoke Carpen-
ter’s term of supervised release, it did not obligate it to do so.
Even more, the revocation itself did not expose Carpenter to
any mandatory revocation sentence: the district court had dis-
cretion to fashion a sentence within the applicable statutory
maximum. In short, Carpenter’s revocation proceeding was
not “like punishment for a new offense” within the meaning
of Justice Breyer’s controlling opinion in Haymond. The Sixth
Amendment therefore did not compel the district court to em-
panel a jury to find whether Carpenter committed the alleged
violations of supervised release—a result entirely aligned
with our existing precedent.
B
In the alternative, Carpenter argues that he was entitled to
a jury under Article III, § 2, cl. 3, the Sixth Amendment’s
lesser-known older cousin. That clause provides that
The Trial of all Crimes, except in Cases of Im-
peachment, shall be by Jury; and such Trial shall

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No. 23-3295 11
be held in the State where the said Crimes shall
have been committed; but when not committed
within any State, the Trial shall be at such Place
or Places as the Congress may by Law have di-
rected.
U.S. Const. Art. III, § 2, cl. 3. Picking up on a minor variation
in the phrasing of that clause—it applies to “The Trial of all
Crimes” rather than to “all criminal prosecutions”—Carpen-
ter contends that it can apply to supervised release revoca-
tions even if the Sixth Amendment does not. In short, he
views Article III’s jury guarantee as independent from and
broader than that contained in the Sixth Amendment.
Though textually plausible, Carpenter’s interpretation
finds no footing in the history of either the Sixth Amendment
or Article III. During the ratification debates, Article III, § 2,
cl. 3 came under attack for failing to expressly safeguard par-
ticular attributes of the common law jury trial. For example,
although the clause guaranteed a jury trial for “all Crimes,”
and designated the venue where those trials must take place,
it did not promise that juries would be drawn from the “vici-
nage” (meaning from the local community). See Williams v.
Florida, 399 U.S. 78, 93 & n.35 (1970); Smith v. United States, 599
U.S. 236, 246–48 (2023). This omission elicited heavy criticism
in the ratification debates that followed the Constitutional
Convention, see Drew L. Kershen, Vicinage, 29 Okla. L. Rev.
801, 816–17 (1976); Akhil Reed Amar, The Bill of Rights as a
Constitution, 100 Yale L.J. 1131, 1197 (1991); see also Smith, 599
U.S. at 248, and was cause for continued concern during the
early years of the Republic, see Williams, 399 U.S. at 94.
Fears surfaced that Article III’s generality would permit
the erosion of the historical jury trial in other ways as well.

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12 No. 23-3295
Some worried that it might “admit[] of a secret trial, or of one
that might be indefinitely postponed to suit the purposes of
the government.” Schick v. United States, 195 U.S. 65, 78 (1904).
Others were anxious to stamp out infamous British practices,
like the use of testimonial hearsay in lieu of live witness testi-
mony. See Crawford v. Washington, 541 U.S. 36, 42–47 (2004)
(discussing the historical impetus for the Confrontation
Clause).
The Sixth Amendment emerged largely to address these
and other perceived problems with the general language em-
ployed in Article III, § 2. See Callan v. Wilson, 127 U.S. 540,
549–50 (1888) (explaining that the ratification of the Sixth
Amendment “is to be referred to the anxiety of the people of
the states to have in the supreme law of the land … a full and
distinct recognition” of certain common law rules); Williams,
399 U.S. at 94 (observing that the vicinage issue “furnished
part of the impetus for introducing” the Sixth Amendment).
In other words, its purpose was remedial in nature—to re-
solve worries and uncertainties about a particular constitu-
tional provision.
It did so, moreover, without supplanting Article III, § 2, cl.
3. In Callan, the Supreme Court rejected the contention that
the Sixth Amendment—because it came later in time—super-
seded its predecessor in Article III, § 2. See 127 U.S. at 548–49.
The “letter and spirit of the constitution” supported a con-
trary view: that the provisions were designed to operate in
tandem. Id. at 549. Article III, § 2 guarantees a jury in the trial
of all crimes, and the Sixth Amendment then gives added con-
tent to that guarantee by “declar[ing] … what … rules” apply
to those proceedings. Id. The Court has treated the two jury
guarantees as complementary ever since. See, e.g., United

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No. 23-3295 13
States v. Johnson, 323 U.S. 273, 275 (1944) (observing that the
Sixth Amendment “reinforced” Article III, § 2, cl. 3); United
States v. Rodriguez-Moreno, 526 U.S. 275, 278 (1999) (same);
Peña-Rodriguez v. Colorado, 580 U.S. 206, 210 (2017) (“The right
to a jury trial in criminal cases was part of the Constitution as
first drawn, and it was restated in the Sixth Amendment.”).
Carpenter’s contention that Article III, § 2 can apply to
proceedings outside the scope of the Sixth Amendment turns
this history on its head. On his reasoning, the Constitution
grants two kinds of jury trials in criminal proceedings: tradi-
tional jury trials for criminal prosecutions and a weaker ver-
sion with less robust protections in an amorphous case of pro-
ceedings that fall within the daylight he sees between the
phrase “criminal prosecutions” and “trial of all crimes.” But
we find no support for this view. History and precedent make
clear that the Sixth Amendment was meant to complement
Article III, § 2, not to supersede or compete with it. In line
with this history, we reject Carpenter’s interpretation and
hold that Article III, § 2, cl. 3 and the Sixth Amendment are
identical in scope. Accordingly, a proceeding that does not
trigger the Sixth Amendment cannot independently trigger
Article III, § 2.
III
Carpenter presses one additional point targeted at his rev-
ocation judgment. At sentencing the district court agreed to
recommend that the Bureau of Prisons house Carpenter at FCI
Milan, a low-security prison in Michigan. Carpenter’s written
judgment, however, contains no such recommendation. Car-
penter asks us to instruct the district court to correct that over-
sight. As we explained in United States v. McHugh, 528 F.3d
538 (7th Cir. 2008), however, and reaffirm today, we lack

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14 No. 23-3295
jurisdiction to review such non-binding recommendations on
appeal. See id. at 540–41.
For these reasons, we AFFIRM.

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