Petition for Writ of Certiorari — Seldrick Carpenter, Petitioner v. United States

Supreme Court briefSep 16, 2024

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In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-3295

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

SELDRICK R. CARPENTER,

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.

____________________

ARGUED MAY 29, 2024 — DECIDED JUNE 17, 2024

____________________

Before EASTERBROOK, BRENNAN, and SCUDDER, 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

Appendix A

district wherein the crime shall have been committed.” This

case presents the question whether a supervised release revocation proceeding held under 18 U.S.C. § 3583(e)(3) constitutes 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.

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 following the death of his mother, he began using drugs and

lashing out against his probation officer. When efforts to address these issues through behavioral therapy failed, Carpenter’s probation officer petitioned to revoke his supervised release. 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.

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

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.

The constitutional question pressed by Carpenter is important not only because supervised release violations occur

with some frequency, but also because of the consequential

deprivation of liberty that accompanies revocation. In the final 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 defendant situated like Carpenter is entitled only to those procedures dictated by the Federal Rules of Criminal Procedure

and the Due Process Clause of the Fifth Amendment.

By its terms, the Sixth Amendment applies only to “criminal 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 constitutional 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 proceedings analogous to today’s supervised release revocations. See

Jacob Schuman, Revocation at the Founding, 122 Mich. L. Rev.

(forthcoming 2024).

As Carpenter recognizes, however, his position collides

with thirty years of contrary precedent. We have long held

that supervised release revocations—whether conducted under § 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 defendant 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 decisis require that we give considerable weight to prior decisions.” (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 decisions 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.”).

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 revocations 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 applicable only to defendants required to register under the Sex Offender Registration and Notification Act. In the event such a

defendant is found to have committed any one of an enumerated list of sex crimes while on supervised release, § 3583(k)

requires district courts to revoke his term of supervised release 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 supervised 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) violated the Sixth Amendment by increasing his sentencing exposure based on judge-found facts. See id. at 2375; see also

Alleyne v. United States, 570 U.S. 99, 116 (2013) (plurality opinion) (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 Haymond. Haymond, 139 S. Ct. at 2375.

The Supreme Court affirmed, but no single opinion commanded 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 triggering a heightened sentencing exposure: a mandatory minimum 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, supervised release revocations are “criminal prosecutions” as

that term was understood at the founding. See id. at 2376 (observing that, historically, “the concept of a ‘crime’ was a broad

one linked to punishment”). The dissenting Justices disagreed. Writing for three others, Justice Alito would have

held—consistent with our precedent—that no supervised release proceedings are “criminal prosecutions” within the

meaning of the Sixth Amendment. See id. at 2393–95.

In a solo concurrence Justice Breyer supplied the necessary 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 consistent with traditional parole.” Id. at 2385. But he disagreed

with Justice Gorsuch’s “transplant” of Alleyne “to the supervised-release context.” Id. Justice Breyer nonetheless then

explained that “three aspects” of § 3583(k) made it “less like

ordinary revocation and more like punishment for a new offense, 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 offenses 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 discretion 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 features 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 plurality—that § 3583(k) was unconstitutional as applied to Andre

Haymond. See id.

Five Justices in Haymond concluded that the Sixth Amendment does apply to some supervised release proceedings. Not

surprisingly, then, Carpenter contends that Haymond has undermined 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.

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 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.” 430 U.S. at 193 (cleaned up). If either Justice Gorsuch’s plurality opinion or Justice Breyer’s concurrence 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 Nichols 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 mandatory minimum revocation would increase a defendant’s sentencing 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 imposing a mandatory minimum where before there was none. In

either case, the plurality’s approach would require that alleged supervised release violations be tried to a jury.

By contrast, Justice Breyer’s narrower approach would require a jury trial in only a subset of those cases. It is not

enough for the revocation of supervised release to be

mandatory. To trigger the Sixth Amendment, it must have additional characteristics that make it “less like ordinary [supervised 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 concurring 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 supervised release proceedings along a spectrum. Ordinary revocations—like those conducted under § 3583(e)(3)—lie at one

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 revocation” 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 Carpenter’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 discretion 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 empanel a jury to find whether Carpenter committed the alleged

violations of supervised release—a result entirely aligned

with our existing precedent.

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 Impeachment, shall be by Jury; and such Trial shall

10a

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 directed.

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”—Carpenter contends that it can apply to supervised release revocations 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 particular 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 “vicinage” (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.

11a

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 testimony. 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 employed 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 resolve worries and uncertainties about a particular constitutional 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—superseded its predecessor in Article III, § 2. See 127 U.S. at 548–49.

The “letter and spirit of the constitution” supported a contrary 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 content 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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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: traditional jury trials for criminal prosecutions and a weaker version with less robust protections in an amorphous case of proceedings 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 revocation 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. Carpenter asks us to instruct the district court to correct that oversight. As we explained in United States v. McHugh, 528 F.3d

538 (7th Cir. 2008), however, and reaffirm today, we lack

13a

jurisdiction to review such non-binding recommendations on

appeal. See id. at 540–41.

For these reasons, we AFFIRM.

14a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA,

Plaintiff,

vs.

SELDRICK CARPENTER,

Defendant.

)

Criminal No. 1:18-10009

TRANSCRIPT OF PROCEEDINGS - VOLUME I

BEFORE THE HONORABLE MICHAEL M. MIHM

FINAL HEARING ON REVOCATION OF SUPERVISED RELEASE

NOVEMBER 2, 2023; 3:01 P.M.

PEORIA, ILLINOIS

APPEARANCES:

For the Government:

DARILYNN J. KNAUSS, ESQUIRE

Asst. United States Attorney

211 Fulton Street, Suite 400

Peoria, Illinois 61602

(309) 671-7050

For the Defendant:

KARL W. BRYNING, ESQUIRE

Federal Public Defender

401 Main Street, Suite 1500

Peoria, Illinois 61602

(309) 671-7898

Jennifer E. Johnson, CSR, RMR, CRR

U.S. District Court Reporter

Central District of Illinois

Proceedings recorded by mechanical stenography;

transcript produced by computer

15a

Appendix B

INDEX

PAGE

WITNESSES FOR THE GOVERNMENT:

MARISSA EDWARDS

DIRECT EXAMINATION

CROSS-EXAMINATION

REDIRECT EXAMINATION

RECROSS-EXAMINATION

EDDIE HERNANDEZ, JR.

DIRECT EXAMINATION

CROSS-EXAMINATION

JASON LEIGH

DIRECT EXAMINATION

CROSS-EXAMINATION

ALEC GERDES

DIRECT EXAMINATION

CROSS-EXAMINATION

102

16a

EXHIBITS

PAGE

GOVERNMENT'S EXHIBITS:

Exhibit Number 2

Exhibit Number 3

Exhibit Number 4

Exhibit Numbers 5, 6 and 7

Exhibit Number 8

Exhibit Numbers 9, 10 and 11

Exhibit Number 1

Exhibit Number 12

Exhibit Number 13

DEFENDANT'S EXHIBITS:

Exhibit Z

Exhibit Number 2A

Exhibit Number 2B

Exhibit Number 3A

Exhibit Number 3B

Exhibit Number 3C

Exhibit Number 3D

Exhibit Number 4B

Exhibit Number 4C

Exhibit Number 5D

Exhibit Number 5E

Exhibit Numbers 5A, 5B and 5C

17a

103

111

117

105

108

109

(Proceedings held in open court.)

THE COURT:

MR. BRYNING:

Good afternoon, Your Honor.

THE COURT:

This is the case of the United

Good afternoon.

States of America v. Seldrick Carpenter, Criminal

Number 18-10009.

The defendant is in court represented by his

attorney, Karl Bryning.

represented by Darilynn Knauss.

The United States is

The matter is set today for a hearing on a

petition alleging violations of supervised release.

And the first matter to be addressed at this

hearing is the defendant's motion for a jury trial.

I've read the pleadings on that.

motion, the government's response, and the

defendant's reply.

each side an opportunity to highlight any arguments

you want me to consider.

Mr. Bryning?

MR. BRYNING:

But I would be happy to give

Your Honor, I would stand on

the --

THE COURT:

MR. BRYNING:

THE COURT:

I've read the

over.

Stay seated.

Oh.

Thank you, Your Honor.

Stay seated.

Thank you.

18a

Pull the microphone

MR. BRYNING:

Your Honor, I would stand on the

pleadings as written unless the Court has questions

about them or would like to hear argument.

THE COURT:

hold on.

Well, just a moment.

Let me --

Just a minute.

Well, I guess the biggest question I had was

that -- let me get to the right spot here.

MS. KNAUSS:

Your Honor, if I may?

I believe

the Court entered a docket entry denying the

motion.

THE COURT:

MR. BRYNING:

I did?

That was just prior to the

reply.

MS. KNAUSS:

It was on October 31st.

THE COURT:

I don't understand.

I can't

imagine I would have done that without doing it in

the courtroom.

MS. KNAUSS:

the docket entry --

THE COURT:

I'm just saying, Your Honor, it's

I appreciate that, but -- well,

then I'm going to vacate that just so we can

consider it.

consider this in person.

Certainly my intention to be --

The government cites some cases from 2015 and

2014 indicating that the Sixth Amendment provisions

19a

concerning jury trial do not extend to a supervised

release revocation hearing.

that are older than that.

recent one is Stahl, U.S. v. Stahl, and then that

refers to the Supreme Court case from -- of Gagnon

v. Scarpelli.

They cite some others

Actually, the more

How do you respond to those -- that case

authority, Mr. Bryning?

it's controlling.

MR. BRYNING:

I mean, it seems to me

Your Honor, I think that in

terms of the Sixth Amendment it is controlling at

this point, so we would make our arguments to

preserve them for appeal.

THE COURT:

MR. BRYNING:

Okay.

That's fair.

Essentially, the reason for

filing this motion was because it appears that the

logic of the Supreme Court after Bruen is changing,

and the reply does deal with a separate issue which

is the Article III right to a jury trial which was

not -- I don't believe that was addressed.

think even --

THE COURT:

for that, correct?

So, I

You don't have any case authority

MR. BRYNING:

has been litigated.

No.

I don't think that issue

20a

THE COURT:

All right.

I'm going to deny the

motion for a jury trial.

there's no entitlement to a jury trial for

supervised release issues.

To me, it's clear that

So then that brings us to the -- brings us to

the petition.

petition or --

Let's see here.

Is it just one

MS. KNAUSS:

There's four, Your Honor.

THE COURT:

Three?

MS. KNAUSS:

Four.

THE COURT:

I've got one, two -- I only have

three here.

MS. KNAUSS:

I can provide the docket numbers.

THE COURT:

One is April 28th; one is

June 8th; one is August 1st.

What's the last one?

COURTROOM DEPUTY:

October 10th.

THE COURT:

So, what is the status?

Okay.

Are we going to have an evidentiary hearing?

MR. BRYNING:

Yes, Your Honor.

Mr. Carpenter

denies all of the allegations in all of the

petitions and is prepared for hearing.

THE COURT:

Okay.

Is the government ready to

proceed?

MS. KNAUSS:

Yes, Your Honor.

THE COURT:

Okay.

21a

118

THE COURT:

Okay.

Thank you.

You may step

down.

Do you have any other witnesses?

MS. KNAUSS:

No, Your Honor.

THE COURT:

All right.

have any witnesses?

MR. BRYNING:

THE COURT:

(A pause was had in the record.)

MR. BRYNING:

May I have a moment, Your Honor?

Sure.

No other witnesses.

rests, Your Honor.

THE COURT:

MR. BRYNING:

THE COURT:

admitted.

Okay.

But we would move to admit the

Well, I think they've already been

They've all been admitted.

All right.

Let's take these one at a time,

take them in chronological order.

The first one is the failure to allow the home

visit.

Mrs. Knauss?

The defense

exhibits that we've published.

Mr. Bryning, do you

Do you have any argument to make on that,

MS. KNAUSS:

No, Your Honor.

I'll stand on

the evidence the Court has just heard.

THE COURT:

MR. BRYNING:

Mr. Bryning?

Yes, Your Honor, just briefly.

22a

Appendix C

119

I think this was not a willful violation of

supervised release.

allowing Probation to enter the home.

want to be the first one to enter on that date.

He's not charged with any of these other

violations.

Mr. Carpenter was actually

He did not

In fact --

THE COURT:

You're confusing me with that.

would think he would want to be the first one into

the house.

MR. BRYNING:

He's -- it's his dog.

I don't think anybody wants to

get between a female Cane Corso and her pups.

Why wouldn't he?

THE COURT:

dog.

Well, then he shouldn't have that

He knows he's on supervision, doesn't he?

MR. BRYNING:

Well, as it turns out, we had a

hearing about that, and he was ordered not to have

the dogs in the home, and he had the dogs removed

from the home.

a sanction for that, so --

He was also sanctioned.

THE COURT:

So he had

What's your argument on this

violation?

MR. BRYNING:

My argument is that it was not a

willful violation because it would have been

dangerous for the probation officer or anyone else

to get between a female Cane Corso and her pups,

especially while feeding, and that he spoke with

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the probation officer on the deck of his house.

did not run from him, he did not hide from him, and

this is not a willful violation of supervised

release.

THE COURT:

All right.

I think -- my finding

on this, the government has met its burden of proof

by a preponderance of the evidence.

only this situation, I might agree with

Mr. Bryning, but this is in the context of other

contacts -- prior contacts they've had with him

when he's impeded or interfered or obstructed them

in terms of getting in the house.

If it were

And even on this occasion, it's his dog and

his puppies.

should know they have a right and a duty to conduct

home visits.

maybe closed her in a bedroom or something; I don't

know.

than Probation, and that's just simply not the way

it's supposed to be.

willful violation, and I'm going to find him guilty

of that.

He knows they have a right or he

If the dog was out, they could have

But this puts the defendant in charge rather

So, I do think it was a

The next one, let's see, failure to complete

cognitive-based therapy program.

Does the government have any argument on that?

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MS. KNAUSS:

No, Your Honor.

Again, that the

defendant was directed to go, and he didn't.

THE COURT:

MR. BRYNING:

Okay.

Mr. Bryning?

Mr. Carpenter contends that he

was put in jail by the probation office and was

unable to attend his last appointment.

three absences allowed and that was his third

absence.

THE COURT:

custody on the 10th.

arrested?

He only had

Well, they say he was taken into

This is -- when was he

MS. KNAUSS:

May 10th.

THE COURT:

As I understand it, they're saying

May 10.

a week before he was arrested.

This incident happened on May 3rd.

MR. BRYNING:

That's

Says he was arrested on a

warrant, and he was in custody at the time of his

last appointment.

THE COURT:

to accept that.

The government's informed me, I believe as an

officer of the court, that he was arrested on the

10th.

Well, at this point I'm not going

He's not testifying under oath.

Is that correct?

MS. KNAUSS:

Yes.

THE COURT:

All right.

25a

Then I'm going to find

122

him guilty of that violation.

The third matter is the car fire.

What is the

government's argument on that?

MS. KNAUSS:

Your Honor, the government's

argument is that there's, in fact, two videos,

first showing that -- what we suggest the video

shows is that he threw an item through the back

windshield.

Edwards, there was, in fact, a broken-out window in

that car; I believe it was the back passenger both

she and the detective referenced.

to that, the car was, in fact, set on fire.

And as was testified to by Marissa

We've got the information as to those two,

both about -THE COURT:

Well, she can't -- in terms of

Marissa, she says what?

video; is that correct?

That subsequent

MS. KNAUSS:

She recognized him in the

I don't believe she did, Your

Honor.

THE COURT:

She did here on the witness stand.

MS. KNAUSS:

I'm sorry, I guess she did.

missed that.

THE COURT:

confess to her.

MS. KNAUSS:

But other than that, he did not

Not to her.

26a

Not to Marissa, no.

123

THE COURT:

No.

MS. KNAUSS:

But we do have the information

that he was the one talking with her about the

parking fees and when was the car going to get

moved.

He was the only one expressing that.

THE COURT:

That's certainly some background

on this.

watched the video on who says that he confessed to

her, I think, twice.

MS. KNAUSS:

But then it was the witness that we

That is correct.

The first time

he -- he first denied it, saying that the video --

you know, can't tell anything from the video.

then said he did it, but he was apologetic to her

because he didn't intend for her car to be damaged.

And then it was the third time that he said that he

set the car on fire to mess with Marissa.

THE COURT:

And his response is, as I

understand it, that both of these witnesses were

not telling the truth, in effect, because of this

ongoing scenario of him being accused of some

misconduct.

MS. KNAUSS:

Well, first of all, as I recall

it was -- Marissa put it on social media after she

saw the video herself and stated that she believed

that that was, in fact, Seldrick Carpenter that set

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her car on fire.

THE COURT:

In terms of what she put on social

media, did she make reference to this other

incident?

MS. KNAUSS:

I'm just going by what Counsel

here has put on today.

what she put on social media was information about

the fire of her car.

THE COURT:

What she was talking about,

Well, Mr. Bryning, this exhibit

that you showed, I didn't read it word for word

when you put it on.

did that?

going by, included references to this other

incident.

This social media filing, who

That social media filing, as I saw it

MR. BRYNING:

Yes, it did.

THE COURT:

Who put it on?

MR. BRYNING:

It was shared on the Alexis

Scott Campaign by Dusti Moultrie.

THE COURT:

So we don't know who put it on.

mean, we don't know that it was one of these two

witnesses?

MR. BRYNING:

It's a -- it's a family member

of Alexis that has this site.

THE COURT:

Okay.

So, it's not either of

these two, but they had to get it from somebody.

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MR. BRYNING:

Right.

And the testimony was

that a guy from the car wash came over, taped it on

his phone, came over and delivered it to her, I

think.

THE COURT:

Right.

Okay.

But anyway, so I

assume the biggest thing you're relying on is the

fact that he supposedly admitted this on two

occasions.

MS. KNAUSS:

That, plus the fact that that is

also corroborated by the testimony of Marissa who

said that she saw the video, and she said it looked

like Seldrick Carpenter to her and that she knew of

him.

THE COURT:

Well, the probation officer also

said it looked like him.

looked like him, I can't give a lot of credibility

to that based on what I saw.

the probation officer said has more credibility,

but even with that, it's not the greatest in the

world.

Frankly, her saying it

It's -- I think what

But anyway, Mr. Bryning, what's your argument?

MR. BRYNING:

Judge, I mean, I think from this

evidence you can see why this has not been picked

up for state prosecution.

level of preponderance of the evidence, certainly

29a

It does not rise to the

126

not beyond a reasonable doubt.

not do this.

videos, certainly not from a walk which would be

the same for anybody with sagging pants or who

knows how many other people.

anybody from the video.

identify Mr. Carpenter from the clear video of the

protest, misidentified him as his brother.

Mr. Carpenter did

You can't identify anybody in those

You can't identify

The officer couldn't even

You've had an opportunity to see his brother,

to see Mr. Carpenter, to see his other brother so,

I mean, this is -- the video at night is too dark

and grainy.

not coming from Mr. Carpenter's address, not

returning to that address.

You've got videos that show a person

THE COURT:

You certainly see on one of the

videos somebody coming from that address and going

over and lighting the fire, it appears.

MR. BRYNING:

I -- from the clips that we saw,

there is at least one clip that shows somebody

coming from an address next door.

THE COURT:

Yes, and I wanted to ask about

that.

video camera.

people involved?

MS. KNAUSS:

How, how is it we have these -- it's one

How do we have these two different

The government's position is that

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it's not two different people involved.

passage of time between the two, but the one shows

him coming out of the front of the one house --

THE COURT:

There's a

I didn't mean to say two different

people, but it's two different times.

MS. KNAUSS:

Yes.

THE COURT:

And they came from different

locations.

MS. KNAUSS:

Yes.

THE COURT:

It looks like they came from the

side of 129, not from in the house, but it's

definitely two separate locations.

Anyway, go ahead, Mr. Bryning.

MR. BRYNING:

Judge, nobody can be identified

from these videos.

this does not rise to the level of proof even by a

preponderance of the evidence, certainly not beyond

a reasonable doubt.

favor of the defendant.

That's the bottom line.

And

So we'd ask that you find in

THE COURT:

Okay.

MS. KNAUSS:

Your Honor, before we end,

Well --

though, I would like to point out there's a third

part of this petition and that is the intimidation

which occurs, ironically, the same day as the

police go visit the car wash asking for the video

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and then the threats that we have toward

Mr. Hernandez.

THE COURT:

Okay.

MS. KNAUSS:

So, I think they need to be taken

into conjunction.

THE COURT:

That's a good point.

Would you

Yes, Your Honor.

Regarding the

address that?

MR. BRYNING:

alleged -- allegation of intimidation, there was

certainly a conversation between Mr. Carpenter and

the people at the car wash.

it does not rise to the level of a crime.

THE COURT:

Says, If you turn this video over,

I'm going to kill you.

MR. BRYNING:

THE COURT:

MR. BRYNING:

It's not intimidation;

That's not intimidation?

He never said that.

That's what the witness said.

That's what the witness said,

correct.

THE COURT:

All right.

But that's the

evidence I have in front of me.

MR. BRYNING:

THE COURT:

Well, yes.

I can't speculate on what evidence

you might have presented or could have presented,

like the testimony of the defendant.

that.

32a

I don't have

129

MR. BRYNING:

Well, you also don't have to

hold the credibility of the witness -THE COURT:

Well, this guy looked like a

reluctant witness to me.

here.

MR. BRYNING:

He wasn't happy to be

Well, he clearly had some kind

of argument with Mr. Carpenter, but whether -- what

was said is not on -- has not been recorded.

put it that way.

THE COURT:

MR. BRYNING:

THE COURT:

All right.

MR. BRYNING:

Okay?

Okay.

I'll

All right.

That's his story.

His story comes from --

that witness is one who is involved in handing out

video of surveillance that covers Mr. Carpenter's

home --

MS. KNAUSS:

I'm going to object to that.

don't believe that's the state.

said was it came from an employee of the car wash.

I don't know that he was ever identified as the

person providing the video.

THE COURT:

MR. BRYNING:

THE COURT:

MR. BRYNING:

I believe what was

He denied that.

He is the site manager.

Yes.

And when he talked to his

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130

supervisor, and he wouldn't hand out anything to

even the police without a warrant.

THE COURT:

MR. BRYNING:

Right.

So, he shouldn't have been doing

that.

over and talking to him about not having his house

surveilled 24 hours a day.

I think Mr. Carpenter was justified in going

THE COURT:

Well, you've lost me on that too.

I mean, that's almost -- well, very many of these

cameras end up showing the fronts of people's

houses or streets.

that I'm aware of with a camera that's looking out

that shows some houses across the street.

missing something?

Am I

Or are you just saying, Well, gee, it's a

private house.

that direction?

There's no violation of privacy

They shouldn't have pointed it in

MR. BRYNING:

That's what I'm saying.

It's a

private house.

own property, fine, but surveilling other people's

houses 24/7, I think that invites a neighbor to

complain at the very least.

THE COURT:

If they were going to surveil their

All right.

Well, my ruling on

this is, first of all, I believe the government has

met its burden of proof by a preponderance of the

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131

evidence concerning the car fire, the arson, and

committing -- knowingly causing damage to the

property of Marissa Edwards.

We have background from Marissa leading up to

this incident concerning the car being there for, I

think she said, three weeks or more, the

conversation outside the grocery store, and then

the incident itself.

victim of the arson whose car was also damaged

testifying under oath -- I'm sorry, she was not

under oath -- testifying that the defendant

admitted doing this on two separate occasions.

That's very strong evidence.

And then we have the other

And I will say, concerning the videos, I can't

make as much of the videos as the government wants

me to.

certainly shows someone coming from his house over

to that area, shows someone coming from next door,

whether that's the same person or not.

It certainly shows a series of events,

But based on the evidence I have here, I think

the government's clearly met their burden.

The defense has introduced the idea that these

witnesses were not truthful, and they had a

motivation to lie, and that was this other incident

that happened some time ago, and I -- there's

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132

nothing -- there's not nearly enough in this record

for me to enter a finding that that interferes with

what I heard from them to the extent that I would

find that what they said was not credible.

Concerning the other part of this about the

intimidation, the video clearly shows him coming

over on the second occasion.

yelling -- basically yelling, but the second

occasion coming up to them.

stand here and testified under oath as to what was

said.

it's certainly enough to establish this violation

by a preponderance of the evidence.

The first occasion

This manager took the

That's uncontradicted at this point, and

The last matter concerning the aggravated

battery, it's my finding the government has not met

its burden concerning that.

I think there are all

sorts of problems with that.

There's no doubt that

these people had a dispute -- a running dispute,

disagreement which ultimately led to apparently

them fighting with each other in that cell.

can't say what was happening in that cell or what

was said.

supposedly said that the defendant had made some

comment, I can't rely on that.

enough.

And the fact that another inmate

36a

So, it's just not

133

So, I've also been thinking about this during

the course of the hearing, and I think I need to

make a more complete record on this Article III

argument about jury trial, and I'd like to hear

what the government's response is to that claim.

MS. KNAUSS:

I'm just not prepared, Your

Honor.

not prepare anything else for today.

I thought the Court already ruled.

THE COURT:

And I apologize for that.

MS. KNAUSS:

I understand.

I did

I'm just saying

I'm not -THE COURT:

Okay.

Well, I apologize for that.

That's what I was thinking, and I was -- but I

didn't intend for that to be entered before the

hearing because I often do this, and sometimes I

change my mind.

today without hearing the response from the

government to the Article III claim.

But I'm not going to sentence

MS. KNAUSS:

That's fine.

THE COURT:

How soon could you file that?

As I understand it, there's no citation to

cases.

exactly and only what it says.

case to support that.

MR. BRYNING:

You're just saying, Look, Judge, this is

You don't need a

Right?

I think it's an open question,

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especially after recent rulings.

THE COURT:

All right.

So, how soon

could you give me that?

Okay.

MS. KNAUSS:

How soon, Your Honor?

You tell

THE COURT:

The next time I'm going to be here

me.

is, what, the 20th or 21st?

COURTROOM DEPUTY:

THE COURT:

(A pause was had in the record.)

THE COURT:

for both sides?

21st.

Do I have some time that day?

1:00 on the 15th, would that work

And today is the 2nd so if you could maybe get

your brief to me by -- by the 9th, that would give

you a week.

MS. KNAUSS:

Your Honor, I've got a matter in

front of Judge McDade on the 15th at 1:30.

THE COURT:

Any other time that day?

MS. KNAUSS:

Is there anything in the morning?

The morning is more likely to be --

THE COURT:

in the morning?

I'm filled in the -- am I filled

COURTROOM DEPUTY:

We have a pretrial at 9:00.

Maybe we could do 9:30?

THE COURT:

9:15.

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135

MS. KNAUSS:

9:00 with Derek Griffin.

Mr. Griffin is still over in Indianapolis jail or

Indiana jail.

THE COURT:

All right.

How about 9:15 on the

15th?

MS. KNAUSS:

That would work.

MR. BRYNING:

That works.

THE COURT:

to me by the 9th?

Okay.

And you'll have your brief

MS. KNAUSS:

Yes, Your Honor.

THE COURT:

All right.

Okay.

Then I think

we're done today; is that correct?

Either side have anything else?

MS. KNAUSS:

Not from the government, Your

Honor.

MR. BRYNING:

THE COURT:

COURTROOM DEPUTY:

(Proceedings concluded at 6:10 p.m.)

Not from the defense, Judge.

Okay.

Thank you.

Court's adjourned.

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CERTIFICATE OF OFFICIAL REPORTER

I, Jennifer E. Johnson, CSR, RMR, CBC, CRR,

in and for the United States District Court for the

Central District of Illinois, do hereby certify

that pursuant to Section 753, Title 28, United

States Code that the foregoing is a true and

correct transcript of the stenographically reported

proceedings held in the above-entitled matter and

that the transcript page format is in conformance

with the regulations of the Judicial Conference of

the United States.

Dated this 19th day of December, 2023.

/s/ Jennifer E. Johnson

JENNIFER E. JOHNSON

CSR, RMR, CBC, CRR

License #084-003039

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA,

Plaintiff,

vs.

SELDRICK CARPENTER,

Defendant.

)

Criminal No. 1:18-10009

TRANSCRIPT OF PROCEEDINGS - VOLUME II

BEFORE THE HONORABLE MICHAEL M. MIHM

FINAL HEARING ON REVOCATION OF SUPERVISED RELEASE

NOVEMBER 15, 2023; 9:13 A.M.

PEORIA, ILLINOIS

APPEARANCES:

For the Government:

DARILYNN J. KNAUSS, ESQUIRE

Asst. United States Attorney

211 Fulton Street, Suite 400

Peoria, Illinois 61602

(309) 671-7050

For the Defendant:

KARL W. BRYNING, ESQUIRE

Federal Public Defender

401 Main Street, Suite 1500

Peoria, Illinois 61602

(309) 671-7898

Jennifer E. Johnson, CSR, RMR, CRR

U.S. District Court Reporter

Central District of Illinois

Proceedings recorded by mechanical stenography;

transcript produced by computer

41a

Appendix D

138

(Proceedings held in open court.)

THE COURT:

MR. BRYNING:

Good morning, Your Honor.

THE COURT:

This is the case of the United

Good morning.

States of America v. Seldrick Carpenter, Criminal

Number 18-10009.

his attorney, Karl Bryning.

represented by Darilynn Knauss.

The defendant is in court with

The United States is

The matter is set for continued hearing today

on the petitions alleging violations of supervised

release.

I think -- well, I conducted an evidentiary

hearing at the last session.

that.

question of whether or not the defendant's entitled

to a jury trial on these issues.

We'll talk about

But the first issue I want to address is the

I took a look again at the order that I -- the

text order I had entered and then vacated, but I

vacated it because you didn't address the Article

III argument.

the other part of this about the Fifth and Sixth

Amendment, and so that stands, but we have this

remaining question of whether or not Article III

requires a trial.

It's certainly correct in terms of

Mr. Bryning, I've read everything that's been

42a

139

filed here, but certainly give you an opportunity

to highlight what you think are the most important

parts of your argument.

MR. BRYNING:

Should I do that here or at the podium?

THE COURT:

MR. BRYNING:

Thank you, Your Honor.

Stay seated, please.

So, first I would note that in

the government's supplemental response to

defendant's reply regarding motion for jury trial,

the government states clearly that it has not

identified any authority addressing the Trial of

all Crimes clause relevant to supervised release.

So, I think this is certainly an open question

at the very least, whether or not -THE COURT:

Can I ask you something at this

point?

impression, or has this been raised elsewhere?

Is this, indeed, a case of first

MR. BRYNING:

I, I believe it is.

I'm not

sure, though.

THE COURT:

Okay.

I thought maybe there might

have been some information on the Federal Defender

hotline or something.

MR. BRYNING:

I think there -- people have

raised this issue in various forms before, but I

don't think it's been decided.

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140

THE COURT:

Okay.

All right.

Go ahead,

please.

MR. BRYNING:

But all the authority that the

government cites is pre-Bruen, and Bruen was really

the impetus for the filing of the original motion

as well as -- in both arguments, the Article III as

well as the other argument that the Court's already

ruled on.

I think to -- Bruen makes us look at this in a

new way, and what we see here is that there really

is a need -- and I think this case demonstrates the

need for a jury trial in revocation cases of this

type.

What we have is a person who's charged with

various state crimes, but the revocation process is

being used in federal court to get around a jury

trial and proof beyond a reasonable doubt.

have --

THE COURT:

Well, I'm not sure it's accurate

to say -- to characterize it "to get around."

on supervision in this court, correct?

MR. BRYNING:

THE COURT:

He's

He is, Judge.

I don't know -- I have no idea why

-- there were no state charges filed here, were

there?

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141

MR. BRYNING:

THE COURT:

No.

And I have no idea why that's the

case, but I think it might be a little bit too much

to say "to get around" because he is on supervision

here.

MR. BRYNING:

Well, I would argue that no

state prosecutor would charge these offenses --

specifically arson, intimidation, aggravated

battery.

this Court found wasn't even provable by a

preponderance of the evidence.

I mean, the aggravated battery charge

So, I don't see how this is not simply taking

state charges that would not otherwise stand up to

proof beyond a reasonable doubt and be entitled to

a jury trial and bringing them in another forum to

send a person to prison or attempt to send a person

to prison.

So, I don't think we would have had a hearing

here if there were a jury trial right and proof

beyond a reasonable doubt for the revocation.

think maybe we would have had a hearing -- well, I

don't even think we would have had a hearing on the

issue of whether Mr. Carpenter prevented the

probation office from conducting a home visit

because I think Mr. Carpenter probably would have

45a

142

admitted to that.

It's a fairly low-level offense.

But then you see here that, you know, you've

got the use of these uncharged alleged state

offenses to bring that grade level up to A from, I

believe, C.

I think what's being done is it is taking state

charges that would not otherwise have been brought

or be provable and using them to try to, for lack

of a better phrase, jack up the guideline range.

So, the government argues that supervised

release is a form of post-confinement monitoring.

Here, it's more than just monitoring.

the government says is conditional liberty is

really no liberty at all.

That's a significant difference.

THE COURT:

saying it, is it?

MR. BRYNING:

THE COURT:

MR. BRYNING:

And

I mean, what

But that's -- it's not just them

There's some cases that say -No.

-- very strongly -Yes.

All pre-Bruen, and I would

argue that --

THE COURT:

MR. BRYNING:

How does that change?

Well, I would argue they're

deficient under today's Supreme Court thinking

because they don't have historical backing.

that was argued in the --

46a

And

143

THE COURT:

I'm not at all sure that that

follows from the Second Amendment case to this.

MR. BRYNING:

in our original brief.

Seventh Circuit precedent, and we are preserving

that issue for further review.

THE COURT:

MR. BRYNING:

Well, that was what was argued

I understand that there is

Fine.

In terms of the Article III, I

don't believe there is Seventh Circuit precedent so

I'm making the argument that that is, in fact, the

case.

THE COURT:

Okay.

I understand that.

And I

commend you for that.

first impression, then it's something that the

Seventh Circuit should look at.

MR. BRYNING:

Apparently as a case of

We also have some references to

-- a lot of these cases reference parole, a parole

system.

parole from supervised release.

federal courts here, I've been hearing, you know,

the judges say, Look, there's a difference.

is no parole system here.

That is different.

I think it's important to distinguish

For 20 years in

There

It's supervised release.

And I think that difference is important in

terms of this argument because when we're talking

47a

144

about parole or probation, it's essentially a

balance-owed system which is where, you know, you

have a set period of time.

separate sentence after you've completed your

prison sentence -- after your prison sentence is

completed.

between a balance-owed system.

It's not an entirely

So, I think there's a difference there

And I know in some states a prisoner can

decide to forego parole or probation and instead

choose to serve out the remainder of their entire

sentence in order to be truly free once they're

released from prison.

We don't have that with

supervised release.

We don't have that option.

So, I think there's a difference there that's

important as well.

THE COURT:

Mrs. Knauss?

MS. KNAUSS:

All right.

Thank you.

Your Honor, the government will

stand on its pleading.

THE COURT:

Well, what about his argument that

Bruen changes this in some fashion?

MS. KNAUSS:

Well, I would only say --

THE COURT:

I'm sorry, pull that microphone

over.

MS. KNAUSS:

I would only say that I'm not

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145

aware of any authority on that.

which does exist, in fact, does explain that this

is, in fact, a part of the original sentence of the

Court and not a new and separate proceeding.

absent anything to indicate that Bruen is

implicated here, again, we believe the motion

should be denied.

THE COURT:

That the authority

So,

Well, it's an interesting

argument.

appealed, as it should be; and if the Seventh

Circuit tells me I'm wrong, I'll follow that

instruction.

defendant is not entitled to a jury trial under the

Third Amendment.

As I said, I'm sure this will be

But it's my ruling today that the

I do believe, as the Johnson court said, that,

"Even though the acts of violation may be criminal

in their own right, a court's reliance on them for

revocation of supervised release and reimprisonment

is part of the penalty for the initial offense."

So, I'm going to be entering a brief written

order on this, but that is -- that is my ruling.

So the motion for jury trial under the Sixth or

Third Amendment is denied.

Now having said that, at the last hearing we

had an evidentiary hearing on a number of different

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claims, and I believe I have -- my notes reflect

that on the car fire arson I found liability on

that.

intimidation.

successfully complete a cognitive-based therapy

program.

the probation office to conduct a home visit.

I found him not guilty of the petition alleging

aggravated battery on another inmate at the county

jail.

I found him guilty of the claim of

I found him guilty of the failure to

I found him guilty of refusal to permit

MS. KNAUSS:

And

Your Honor, if I could -- and

perhaps I did not hear the Court, but I believe the

Court also found him guilty of the criminal damage

to property as alleged in the same petition as the

arson and the intimidation.

THE COURT:

Oh, okay.

MS. KNAUSS:

Yes.

THE COURT:

I believe that's correct.

Mr. Bryning, do you agree with that?

MR. BRYNING:

THE COURT:

That was subsection A.

Yes, Judge.

Okay.

So, as I understand it,

we're talking about a Grade A violation, Criminal

History Category V.

Does the government have any additional

evidence to present in aggravation?

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MS. KNAUSS:

No, Your Honor.

THE COURT:

I might start by saying that --

and I may have done this at the last hearing, but

in anticipation of this hearing, the Court had

asked the probation office to prepare an updated

presentence report.

made available to everyone, including the

defendant.

That was done.

Copies were

Mr. Bryning, did you have a reasonable

opportunity to read this and review it with your

client?

MR. BRYNING:

THE COURT:

I have, Your Honor.

Based on your reading and review,

is there anything in the report you feel is

inaccurate or incomplete that you wish to

challenge?

MR. BRYNING:

Well, I -- Mr. Carpenter, of

course, disagrees with the factual bases alleged.

THE COURT:

MR. BRYNING:

Correct.

And to the extent that the

violation report runs contrary to our claims, he

does disagree with them.

THE COURT:

I understand that.

And that's --

is that reflected in the PSR that will go off to

the Bureau of Prisons, that we had a hearing and --

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PROBATION OFFICER:

THE COURT:

No, Judge, it will not.

Well, let's put it in there just

to be safe.

PROBATION OFFICER:

THE COURT:

Okay?

All right.

Mr. Carpenter, have you had a

Understood.

reasonable opportunity to read this report and

review it with your attorney?

THE DEFENDANT:

THE COURT:

THE DEFENDANT:

THE COURT:

Yes, sir.

I'm sorry?

Yes, sir.

Based on your reading and review,

is there anything in the report -- other than these

matters Mr. Bryning has talked about where you're

not admitting any of these violations, other than

that, is there anything in the report that you feel

is inaccurate or incomplete that you wish to

challenge?

I'm sorry?

THE DEFENDANT:

THE COURT:

No, sir.

You understand you have the

opportunity to present evidence in mitigation here

this morning.

statement to the Court on your own behalf before I

impose sentence.

You also have the right to make a

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Do you understand?

THE DEFENDANT:

THE COURT:

Yes, sir.

All right.

You have no additional

evidence in aggravation.

Mr. Bryning, any additional evidence in

mitigation?

MR. BRYNING:

Judge, I would just like to

acknowledge the presence in court today of

Mr. Carpenter's family members.

stand and identify themselves for the record.

THE COURT:

MR. JAMES CARPENTER:

Okay.

James Carpenter,

Seldrick's uncle.

MR. TEVAR CARPENTER:

Tevar Carpenter,

Seldrick's little brother.

MR. LATRELL CARPENTER:

I'd ask them to

Latrell Carpenter,

Seldrick's older brother.

THE COURT:

Thank you all very much for being

here.

Anything else?

MR. BRYNING:

THE COURT:

(Defense counsel and the defendant conferred

off the record.)

MR. BRYNING:

May I have a moment, Your Honor?

Sure.

Nothing further, Your Honor.

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THE COURT:

Okay.

So, Mrs. Knauss, do you

have a statement to make regarding sentence?

MS. KNAUSS:

Yes, Your Honor.

Do you want me

to do it from the table?

THE COURT:

microphone down.

MS. KNAUSS:

Just stay there.

Pull that

There you go.

Your Honor, as the violation

memorandum sets forth, this defendant has

repeatedly demonstrated non-compliance with the

terms and conditions of his supervised release.

Some are more -- for lack of a better word --

benign than others, but still it reflects his

attitude toward being supervised by the United

States Probation Office.

There are a number of times when he was

requested to sign releases of information so that

Probation could verify certain information.

refused to do that.

prior to the violation conduct, he refused to allow

a home visit despite the fact that the probation

office repeatedly advised him that this was, in

fact, a condition of his supervised release, that

they had to do these home visits to see how things

were going.

November 16 of 2021, March 16 of 2023, which was

On at least three occasions

But on September 23rd of 2020,

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the month before the charged violation, the

defendant threw up all sorts of roadblocks and

arguments as far as why they shouldn't be there and

do that.

He has a number of both positive and diluted

drug tests.

even at one point complained that Probation was

just being too hard on him.

There's failures to report.

And he

Now, as the Court has already found, we've got

the violations as far as the refusal to allow the

home visit and also his refusal -- his failure to

complete cognitive-based therapy, and then the most

serious offenses of all before the Court on top of

those others, the criminal damage to property and

the arson of not one but two cars that were parked

across the street from his house.

evidence which was presented at the revocation

hearing, it would appear that he decided to light

them up simply because he didn't like where they

were parked.

familiar with the idea that the car wash across the

street might have video of it, he went over there

not once but at least two, maybe three times,

threatening them, telling them that he would kill

them if they turn that footage over to the police.

And from the

And then when apparently he became

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This conduct is just inexcusable.

He has not

been compliant.

which he's been involved, the government's

recommending a sentence of 36 months with no

further supervised release.

Based on all the activities with

THE COURT:

Mr. Bryning?

MR. BRYNING:

Mr. Carpenter's been in jail now for 5 months

All right.

Thank you.

Thank you, Your Honor.

and 17 days by my count.

are based upon accusations that no state prosecutor

would ever charge, that could not be proven beyond

a reasonable doubt to a jury, and one that this

Court even found couldn't be proven by a

preponderance of the evidence.

Most of these allegations

While in jail, Mr. Carpenter was attacked not

once but twice.

evidence.

attacked in his cell.

skull, fractured orbital, traumatic brain injury

and concussion.

evidence, and this Court's seen them.

This is on video.

It's in

The Court's seen the video.

He was

He suffered a fractured

The medical reports are also in

So, our argument is that Mr. Carpenter should

receive time served.

Any impact of incarceration

has already been felt.

He has suffered enough by

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being in custody, and time served should be the

sentence.

As far as supervised release in this case,

supervised release is not helpful in this case.

The relationship between the probation officer and

Mr. Carpenter is irreparably damaged.

was from the start.

supervisee in his home in front of his mother --

God rest her soul -- on day one if you don't follow

my commands is not a good start.

And maybe it

Threatening to pepper-spray a

What is referred to as conditional liberty by

the government really means that the government

agents are able to walk through your bedroom, able

to have you wait while they go in and through your

home, and that's really no liberty at all.

During this time on supervised release,

Mr. Carpenter had a lot of other things going on in

his life, and he may not have acted as

professionally as he should have.

understandable because his daughter was shot; his

aunt died; his mother died.

truck driver; his truck broke down.

hand in trying to raise dogs, trying to get a job

locally.

he needed to do for himself and his family despite

It's

He tried working as a

He had his

This is a man who was trying to do what

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all of the hurdles of being on supervised release.

Mr. Carpenter -- I think it's good for the

Court to note that Mr. Carpenter is on supervised

release for a drug felony, a Class B felony.

believe that's a non-violent drug felony.

entire prosecution for this supervised release

violation has been biased by a years-old missing

person's case.

hearing in this case.

And this

I think that came out during the

The probation officer actually goes to the

police based upon a grainy, nighttime video from a

distance, claims that he can identify

Mr. Carpenter.

itself.

The Court has seen that video for

The police officer, I would note we only find

out during cross-examination, was actually assigned

to that same missing person's case, and, when

confronted, he tries to minimize his involvement.

Upon further cross-examination, it turns out that

he actually interviewed more than one witness in

that case and was familiar with the case.

So, there have been false accusations against

Mr. Carpenter for years based upon this what I

would characterize as cyber-bullying on social

media.

There have been marches and harassment.

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The Court has seen video of that as well during the

hearing.

Then there are people going to the car wash

across the street to get video to post online to

further their accusations and their harassment of

Mr. Carpenter and his family, to essentially serve

their vendetta which they're carrying out online.

I would note that Mr. Carpenter has strong

family support.

she left the house to her children.

brothers and uncle are here in court today.

brothers were also present for the revocation

hearing.

Although his mother has passed,

And his

His

So, our request to the Court is for a sentence

of time served and no supervised release to follow.

Thank you, Your Honor.

THE COURT:

Mr. Carpenter, is there anything you would

like to say to the Court on your own behalf before

I impose sentence?

please.

All right.

THE DEFENDANT:

company.

court and do right.

you again.

Thank you.

Pull that microphone close,

I owned my own trucking

I was trying my best to stay away from

I'm sorry that I'm in front of

I don't have nothing against my

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probation officer, but it was -- it was hard.

THE COURT:

The Court adopts the factual findings and

guideline application as contained in the report.

All right.

Thank you.

First of all, I want to say I'm sorry about

the problems in the family, your mother dying, your

sister and other stuff.

that can be.

I understand how traumatic

The second point I want to make is in reading

this presentence report -- and I might add there's

nothing that I heard here during the evidentiary

hearing that changed my impression of what I read,

and that was that from day one your attitude toward

the probation officer was absolutely unacceptable.

You're on supervised release.

supervise you.

meaning, and from the beginning you were

non-compliant about letting them into your home,

which is part of their responsibility.

Their duty is to

That word, "supervise," has some

Mr. Bryning says it's no surprise since you're

threatened with pepper spray the first time they're

there.

the officer, I think, reasonably felt that he was

put in danger by you.

that Probation was not going to let you get away

Well, there was a reason for that, because

And the bottom line here is

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with that, would not let you intimidate them on

multiple occasions.

And I won't either.

If I recall correctly, the first time it was

only through the intervention of your mother that

something more serious didn't happen.

I'm very troubled by this.

I have these

supervised release violation hearings all the time.

This is very, very unusual.

the number of times that you were non-compliant,

threatening or intimidating is just simply

unacceptable.

positive, failure to report.

we do have these more serious things -- the

criminal damage, the arson.

from the record in this case, you ultimately made a

decision to torch that car or, as it ended up, two

cars because you didn't like the fact that that car

had been parked there for a long time.

chastising you for not being happy about that car

being there.

hold you accountable for starting it on fire and

ultimately involving another car.

The consistency and

You had some other stuff -- some

CBT didn't work.

And

And as best I can tell

I might feel the same way.

I'm not

But I do

And I also believe, as I found, that you did,

in fact, intimidate or try to intimidate the people

working at that car wash.

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Now, Mr. Bryning says these efforts against

you were furthered by going to this car wash to get

the video.

What's unreasonable about that?

Well, their car had been destroyed.

I don't know all the details of these

accusations that have been made about you about a

missing person.

about that at all.

may be that every one of those accusations is

absolutely false, but that doesn't change anything

in terms of what I've been called upon to decide in

this case.

about that, and I can -- it would be very difficult

to deal with that over a period of time, but that's

-- in spite of Mr. Bryning's efforts to link these

things together, I don't believe that's what I'm

really addressing here.

I have no -- I have no conclusion

From all I've heard here, it

If they're not true, I'm very sorry

So, when I impose a sentence, I should

consider the conduct, consider your background.

There were some efforts on your part to get

involved in the trucking industry.

problems with that.

There were

I also acknowledge the fact of this fight at

the jail.

I found the government had not met its burden that

Mr. Bryning says that you were attacked.

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you attacked, but I'm not willing to accept his

version either.

there were conversations that led up to that.

doesn't excuse the fact that you were injured in

any way, but I just don't know what really all the

background on that is.

It appeared to me that perhaps

Taking all of this into account, I'm supposed

to -- I may have said this -- also consider the

seriousness of the offense -- some of them are very

serious -- promote respect for law, provide just

punishment, provide adequate deterrence to others

and to you -- and there's a big question mark

concerning the "you" -- and also what the

guidelines say.

The guidelines -- excuse me.

The guidelines

are 30 to 36 months.

account, the Court finds that the following

sentence is sufficient but not greater than

necessary to address all of the sentencing factors.

Taking all of this into

Supervised release is revoked.

It is the

judgment of the Court that you be committed to the

custody of the Bureau of Prisons for a term of 30

months, and there will be no further imposition of

supervised release.

You do, of course, have the right to file a

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notice of appeal in this case.

to appeal, I instruct you that any notice of appeal

must be filed with the clerk of the court within 14

days of today's date.

Mr. Bryning has an absolute responsibility to file

that notice for you if that is your wish.

Do you understand?

THE DEFENDANT:

THE COURT:

If it is your wish

As your attorney,

Yes, sir.

Mr. Bryning, do you have any

specific recommendations to the Bureau of Prisons?

MR. BRYNING:

THE COURT:

(Defense counsel and the defendant conferred

off the record.)

MR. BRYNING:

May I have a moment, Your Honor?

Sure.

Judge, we're requesting

recommendation for the camp at Milan, Michigan.

THE COURT:

Anything else?

MR. BRYNING:

THE COURT:

anything else?

I will recommend that.

No, Your Honor.

Okay.

Mrs. Knauss, do you have

MS. KNAUSS:

No, Your Honor.

THE COURT:

All right.

Thank you.

I would ask the

marshals, give him five minutes or so to talk to

his family who's here.

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If you folks go into the front row, you can

talk to him.

him, but we'll give you a chance to chat before he

leaves.

You can't have physical contact with

We're in recess.

COURTROOM DEPUTY:

(Proceedings concluded at 9:47 a.m.)

Court is in recess.

CERTIFICATE OF OFFICIAL REPORTER

I, Jennifer E. Johnson, CSR, RMR, CBC, CRR,

in and for the United States District Court for the

Central District of Illinois, do hereby certify

that pursuant to Section 753, Title 28, United

States Code that the foregoing is a true and

correct transcript of the stenographically reported

proceedings held in the above-entitled matter and

that the transcript page format is in conformance

with the regulations of the Judicial Conference of

the United States.

Dated this 19th day of December, 2023.

/s/ Jennifer E. Johnson

JENNIFER E. JOHNSON

CSR, RMR, CBC, CRR

License #084-003039

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Filed: 11/20/23

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s/Michael M. Mihm

11/20/2023

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Appendix E

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.