USA v. Peterson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
STEVEN G. PETERSON,
Defendant.
4:19-CR-3015
ORDER
The defendant was sentenced to two terms of supervised release, of 3 and
5 years, to be served concurrently. See filing 69; filing 101. The defendant has
filed a pair of motions to modify the conditions of his supervised release, which
has now commenced. Filing 115; filing 118; see also filing 129. The Court will
deny those motions.
The first motion the defendant filed was captioned "Motion to Vacate or
Set Aside a Sentence Declaring Supervised Release Unconstitutional Pursuant
to 28§2255 / 18§3583(e)(2)." Filing 115 at 1. In that motion, he alleged that the
term of supervised release—which he erroneously said was 10 years, see filing
115 at 1—was unlawful because it exceeded the statutory maximum and
because it violated the Double Jeopardy Clause. See filing 115.
Because the motion referred to 28 U.S.C. § 2255 in the caption and
alleged that the judgment was unlawful, but was filed more than two years
after the entry of judgment, the Court ordered the defendant to show cause
why his motion shouldn't be dismissed as untimely. Filing 116 (citing § 2255(f);
Day v. McDonough, 547 U.S. 198, 209 (2006)). In response, the defendant
insisted that he was proceeding under § 3583(e)(2) and Fed. R. Crim. P. 32.1(c),
not § 2255. Filing 117.
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After that, the defendant filed another motion to modify the conditions
of his supervised release, relying solely on § 3583(e)(2) and Rule 32.1(c). Filing
118. He again asserted that it violated the Double Jeopardy Clause to place
him on supervised release. See filing 118.
But the Court will deny his motions, for two reasons. The first is that
courts have consistently held § 3583(e)(2)1 cannot be used to collaterally attack
the legality or constitutionality of supervised release conditions—rather, such
issues are reserved for direct appeal or a motion to vacate pursuant to § 2255.
See United States v. Cordero, 7 F.4th 1058, 1070 (11th Cir. 2021); United States
v. McLeod, 972 F.3d 637, 644 (4th Cir. 2020); United States v. Gross, 307 F.3d
1043, 1044 (9th Cir. 2002); United States v. Hatten, 167 F.3d 884, 886 (5th Cir.
1999); United States v. Lussier, 104 F.3d 32, 35 (2d Cir. 1997); United States v.
Shipley, 825 F. Supp. 2d 984, 988 (S.D. Iowa 2011); see also United States v.
Thomas, No. 22-1149, 2023 WL 1872585, at *4 (10th Cir. Feb. 10, 2023); United
States v. Romig, No. 00-CR-355, 2014 WL 1048390, at *2 (D. Minn. Mar. 18,
2014), aff'd No. 14-2355 (8th Cir. Sept. 19, 2014); cf. United States v. Still, 275
F. App'x 561 (8th Cir. 2008) (citing Hatten, 167 F.3d at 886)). But see United
States v. Neal, 810 F.3d 512, 520 (7th Cir. 2016).
While the defendant's first motion mentioned § 2255, he disclaimed
reliance on it, see filing 117, and the Court will take him at his word. (Not to
mention that a § 2255 motion would have been untimely for the reasons
explained in filing 116.) But his claim is premised exclusively on arguments
that the conditions imposed—indeed, the terms imposed—were unlawful at the
time of sentencing. As such, they are collateral attacks that can't be brought
pursuant to § 3583(e)(2).
1 Rule 32.1(c) establishes procedures for modifying conditions of supervised release, but the
legal authority to do so is found in § 3583(e)(2).
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That said, the defendant is also wrong on the merits. The Double
Jeopardy Clause of the Fifth Amendment states that no person shall "be
subject for the same offence to be twice put in jeopardy of life or limb." U.S.
Const. amend. V. "This protection applies both to successive punishments and
to successive prosecutions for the same criminal offense." United States v.
Dixon, 509 U.S. 688, 696 (1993). The Double Jeopardy Clause "ensures that
the total punishment a defendant has received does not exceed that authorized
by the legislature." Velez v. Clarinda Corr. Facility, 791 F.3d 831, 834 (8th Cir.
2015). The federal supervised release program has survived several attacks on
the program's constitutionality. See, e.g., United States v. Wilson, 939 F.3d 929,
931-32 (8th Cir. 2019); United States v. Trung Dang, 907 F.3d 561, 567 (8th
Cir. 2018); United States v. Bennett, 561 F.3d 799, 802-03 (8th Cir. 2009).
A court "may include as part of the sentence a requirement that the
defendant be placed on a term of supervised release after imprisonment." §
3583(a). To the defendant's first argument—that supervised release
constitutes an unconstitutional additional penalty, filing 118 at 3—the statute
indicates that the term of supervised release is "part of the sentence" for a
convicted defendant's criminal wrongdoing. Nothing in the Constitution
requires that crime be punished by incarceration, and nothing in the
Constitution prohibits Congress from imposing multiple types of punishment
for the same offense. See Velez, 791 F.3d at 834. Congress has expressly
authorized courts to impose a term of supervised release in addition to a term
of incarceration as part of the same punishment for a crime.
Even revocation of supervised release "is a penalty attributable to the
original conviction, not a new punishment." Bennett, 561 F.3d at 802 (citing
Johnson, 529 U.S. at 700-01); see also United States v. Wilson, 939 F.3d 929,
932 (8th Cir. 2019). And a "hearing to determine whether supervised release
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should be revoked . . . is not a criminal prosecution," and presents no double
jeopardy concerns. Id. Nor does any combination of the terms of imprisonment
and supervised release imposed on the defendant—even considering the
possibility of revoking his supervised release—exceed the 20-year statutory
maximum imprisonment on the count for which he's serving a 5-year term of
supervised release. See filing 98 at 21 (citing 18 U.S.C. §§ 2252(a)(2) and
2252(b)(1)); see also Wilson, 939 F.3d at 933. Accordingly,
IT IS ORDERED:
1. The defendant's "Motion to Vacate or Set Aside a Sentence
Declaring Supervised Release Unconstitutional Pursuant to
28§2255 / 18§3583(e)(2)" (filing 115) is denied.
2. The defendant's "Motion To Modify Or Reduce Supervised
Release Conditions As Being Unconstitutional As-Applied
Pursuant To 18§3583(e)(2) and Fed.R.Crim.P.32.l(c)" (filing
118) is denied.
3. The Clerk of the Court is directed to close case no.
4:22-CV-3240.
Dated this 20th day of January, 2026.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
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