FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA (D.C. No. 4:08-CR-00201-TCK-1)
William D. Lunn, Tulsa, Oklahoma, appearing for Appellant.
Alam, Assistant United States Attorney (Danny C. Williams,
Sr., United States Attorney, and Andrew J. Hofland, Assistant
United States Attorney, on the brief), Office of the United
States Attorney, Tulsa, Oklahoma, appearing for Appellee.
KELLY, BRISCOE, and McHUGH, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
district court revoked Andre Ralph Haymond's supervised
release based in part on a finding that Haymond knowingly
possessed thirteen images of child pornography. The district
court imposed the mandatory minimum sentence required by 18
U.S.C. § 3583(k). Haymond appeals and argues that the
evidence was insufficient to support a finding by a
preponderance of the evidence that he possessed child
pornography, and that 18 U.S.C. § 3583(k) is
unconstitutional because it violates his right to due
conclude that the evidence was sufficient to support the
district court's finding that Haymond violated the
conditions of his supervised release, but we agree that 18
U.S.C. § 3583(k) is unconstitutional because it strips
the sentencing judge of discretion to impose punishment
within the statutorily prescribed range, and it imposes
heightened punishment on sex offenders based, not on their
original crimes of conviction, but on new conduct for which
they have not been convicted by a jury beyond a reasonable
doubt. Thus, we affirm the district court's revocation of
Haymond's supervised release, but we vacate Haymond's
sentence and remand for resentencing.
January 21, 2010, Haymond was convicted by a jury of one
count of possession and attempted possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B)
and (b)(2). Aplt. App. vol. I, at 29. For this offense,
Haymond was sentenced to thirty-eight months of imprisonment,
to be followed by ten years of supervised release.
Id. at 30-31. Haymond began serving his supervised
release on April 24, 2013. Id. at 144.
October 22, 2015, at 6:00 am, probation officers conducted a
surprise search of Haymond's apartment. Id. at
145. The officers seized a password-protected Samsung
cellular Android phone belonging to Haymond, a personal
computer belonging to Haymond, a personal computer belonging
to Haymond's roommate, and two other computers found in
the kitchen area. Id.
probation officer conducted a forensic examination of
Haymond's phone using a Cellebrite device, which extracts
the flash memory of the phone for examination. Id.
This examination revealed web history for only October 21,
2015, indicating that all prior history had been deleted.
Id. at 146. The web history for October 21 contained
numerous websites with titles indicative of sexually explicit
material. Id. (listing websites). The forensic
examination of Haymond's phone also revealed fifty-nine
images that the FBI's Internet Crime Task Force
identified as child pornography. Id. at 147.
on these findings, Haymond's probation officer alleged
that Haymond had committed five violations of his supervised
release: (1) possession of fifty-nine images of child
pornography, in violation of the mandatory condition that
Haymond not commit another federal, state, or local crime;
(2) failure to disclose to the probation office all internet
devices he possessed, in violation of a special computer
restriction; (3) possession of numerous sexually explicit
images on his phone, in violation of a special condition that
he not view or possess pornography; (4) failure to install
and pay for computer monitoring software, in violation of a
special monitoring condition; and (5) failure to attend sex
offender treatment on fifteen occasions, in violation of a
special condition that he participate in treatment.
Id. at 142.
district court found, by a preponderance of the evidence,
that Haymond had committed all five violations, but, with
respect to the first alleged violation, possession of child
pornography, the court concluded that Haymond had possessed
only the thirteen images located in his phone's gallery
cache, not the other forty-six images located in other
portions of the phone's cache. Id. Because the
possession of child pornography triggered a mandatory minimum
sentence of five years' reincarceration, under 18 U.S.C.
§ 3583(k), the judge sentenced Haymond to five
years' reincarceration, to be followed by a five-year
term of supervised release. Id. at 191-92, Aplt.
App. vol. III, at 152.
appeals and challenges only the first of these alleged
violations. He argues: (1) that the presence of images in his
phone cache was insufficient to show by a preponderance of
the evidence that he knowingly possessed child pornography,
and (2) that 18 U.S.C. § 3583(k) is unconstitutional
because it deprives him of due process. Aplt. Br. at 2-4.
review the district court's decision to revoke supervised
release for abuse of discretion." United States v.
Jones, 818 F.3d 1091, 1097 (10th Cir. 2016) (quoting
United States v. LeCompte, 800 F.3d 1209, 1215 (10th
Cir. 2015)). "A district court abuses its discretion
when it relies on an incorrect conclusion of law or a clearly
erroneous finding of fact." United States v.
Battle, 706 F.3d 1313, 1317 (10th Cir. 2013). "A
finding of fact is clearly erroneous if it is without factual
support in the record or if, after reviewing all of the
evidence, we are left with the definite and firm conviction
that a mistake has been made." United States v.
Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017) (quoting
In re Vaughn, 765 F.3d 1174, 1180 (10th Cir. 2014)).
the district court abused its discretion by relying on a
clearly erroneous finding of fact that "Haymond
knowingly took some volitional act related to the Gallery
Images that resulted in the images being on his phone in a
manner consistent with knowing possession." Aplt. App.
vol. I, at 164. Nonetheless, the remaining evidence in the
record was sufficient to support a finding, by a
preponderance of the evidence, that Haymond knowingly
possessed the thirteen images of child pornography located in
the Gallery cache of his smart phone.
only expert testimony regarding the Gallery cache function on
Haymond's smart phone came from David Penrod, who
testified as an expert for Haymond; the prosecution did not
provide any expert testimony. Id. at 166. With
respect to all fifty-nine images, Penrod testified that the
presence of the images in the phone's cache did not
indicate whether or not the user had viewed the images or
knew of their existence. Aplt. App. vol. II, at 128
("With Internet cache databases, all that information is
automatically downloaded in the background without the
user's knowledge."); id. at 163-64 (A user
may not know images in the Gallery cache exist "because
the Gallery3D cache database contains images from all over
the phone, not just from one particular folder on the
phone."); id. at 140 ("[T]he fact [the apk
file is] still sitting there in the download folder is very
strong evidence that the user had no knowledge that this file
was there."). Further, Penrod testified that all the
images were thumbnails, indicating that the user had not
clicked on them because, if the user had viewed an enlarged
image, that enlarged image would also appear in the cache.
Id. at 130-32. The images did not include any
metadata, so it was impossible to determine when the images
came to be on the phone, except to say "that they
arrived in the cache file of the phone at some point prior to
seizure." Aplt. App. vol. I, at 149; Aplt. App. vol. II,
also testified that Android smart phone users can easily
access their photo gallery through the Gallery3D application
and can look through the photos in that application. Aplt.
App. vol. II, at 158. He was then asked this question:
"So a cached file from the Gallery indicates that, just
the same way as for the Samsung browser, that at one point an
image that corresponded to that cached file was present in
that application?" Id. at 159. He responded,
Penrod's testimony makes clear that images can appear in
the Gallery3D application without a user taking any
volitional action to place them there. Penrod testified that
"the gallery cache functions in the same way that the
browser cache does: it's a cached database and it
contains thumbnails." Id. at 163. He stated
that the Gallery3D application searches the phone for all
images on the phone. Id. ("[I]t's going to
go out and look for actual images throughout the
phone."). Therefore, he testified that a user might not
know about all the images in the Gallery cache. Id.
recounting this testimony, the district court concluded,
"[b]ased on this testimony and other circumstantial
evidence, " that it was "more likely than not that
Haymond knowingly possessed the Gallery Images at a point in
time prior to search of the phone." Aplt. App. vol. I,
at 163. Specifically, the court made the following findings:
• "Haymond had nearly exclusive use and possession
of his password-protected phone, " id. at
• Only Haymond "possessed the phone at relevant
times, " id. at 164;
• "[O]nly those images actually 'on the
phone' (and not images merely accessed or viewed on the
phone using a browser application) would have a "gallery
3d" path when found in the cache, " id.
(quoting Aplt. App. vol. II, at 168);
• "[O]n the phone" means "saved,
downloaded, or otherwise accessible on the phone in some
application for viewing at the user's discretion, "
id. (emphasis added);
• "Haymond knowingly took some volitional act
related to the Gallery Images that resulted in the
images being on his phone in a manner consistent with
knowing possession, " id.
• "[T]hese 13 images previously resided in an
accessible area of Haymond's phone and were under his
control, " id.; C "[T]he path
demonstrates that Haymond took prior volitional actions with
regard to the Gallery Images, "
id. (emphasis added);
• Unlike the Browser Images or the APK Images, "the
13 Gallery Images depict sexual acts between young boys or
between boys and adult males, " which is
"consistent with images forming the basis of
Haymond's original conviction, " id. at
portions in italics are clearly erroneous because the
district court expressly relied on Penrod's testimony as
support, but these findings are actually contradicted by
Penrod's testimony. We agree with the district court that
"[s]aving, downloading, or otherwise placing the image
in an application on the phone is a similar volitional
act" to the "volitional downloads from
Limewire" that supported Haymond's original
conviction. See id. at 164. But Penrod's
testimony supports only a finding that the images were at
some point accessible on Haymond's phone, not that
Haymond necessarily saved, downloaded, or otherwise placed
them there. Penrod's testimony cannot be construed to
indicate either that Haymond knew the images were in the
Gallery3D application, or that he took any volitional action
to cause them to be there.
this was not clear from Penrod's testimony at the
hearing, Haymond submitted a letter from Penrod clarifying
that, "[w]ithout additional information about them, the
most one can say about the photographs linked to thumbnail
images in the Gallery3D cache database is that they were on
the phone at one time." Id. at 186. Penrod gave
five examples of ways the images might have arrived on
Haymond's phone without Haymond's knowledge or
volitional acts, including as zip file attachments to emails,
as text messages sent without Haymond's consent, as
attachments to messages on social media sites, as part of a
mass file transfer from a computer, or downloaded from the
internet as part of a set. Id. According to Penrod,
"[o]pening the transferred archives, folders, or sets
would have launched the phone's Gallery3D service. The
service would have automatically scanned the contents of the
new directories, extracted thumbnail images from all the
photos within them, and stored the thumbnails in the
Gallery3D cache database." Id. Penrod stated
The mere fact that these thumbnail images are in the
Gallery3D cache database does not mean, however, that Mr.
Haymond had viewed their full size counterparts or even knew
of their existence. The thumbnails in the cache database also
do not mean that Mr. ...