The Denver-based federal appeals court rejected a defendant’s theory for re-sentencing people who violate the terms of their probation last month, with one judge defending his precedent-setting framework from possible full-court review.

At the same time, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed the trial judge who sentenced Malachi Mathias Moon Seals after his probation violation ignored the clearly established framework for doing so.

The narrow issue in Moon Seals’ appeal — what it should look like to resentence a probation violator — has a complicated backstory that stretches back to 2022.

In United States v. Moore, a defendant in Kansas pleaded guilty to robbery. The judge offered the defendant, Jamaryus Moore, two options: First, 48 months of probation, provided he remained violation-free. If Moore incurred a violation, the judge would sentence him to at least 84 months in prison. Or, he could have an immediate 51 months of incarceration. Moore chose the 48-month option.

Roughly a year into his release, Moore accumulated two minor violations. The judge enforced his prior promise and handed down an 84-month sentence. The 10th Circuit, by 2-1, rejected that “sentence-in-advance” system.

Under federal law, wrote Judge Gregory A. Phillips for the majority, sentencing must occur in two steps following a probation violation. First, a judge must reimpose the sentence for the underlying crime, without regard to events that occurred since the probation began. Second, the judge adds an increment to the sentence for the probation violation.

Two years later, Moore was back at the 10th Circuit following his resentencing. A different three-judge panel upheld the precedent-setting nature of the two-step approach for sentencing probation violators.

However, wrote Senior Judge Michael R. Murphy, the panel was “not without some doubt” about that process. If it had the freedom to decide differently, “this panel might very well” go with a different procedure.

Finally, Moore sought consideration of his case by the entire 10th Circuit, known as “en banc” review. Although no judge voted for a full-court hearing, the two other judges who sat on Moore’s second panel agreed the sentencing method “should be addressed in a future case.”

Applying the Moore steps

Moon Seals’ original sentencing in Colorado occurred in September 2023. He pleaded guilty to numerous counts of sending threats to federal officials, including U.S. Rep. Lauren Boebert. Although the sentencing range was 33 to 41 months in prison, all parties asked that Moon Seals be put on probation instead.

U.S. District Court Judge Charlotte N. Sweeney initially balked. But she understood Moon Seals’ longstanding brain injury played a role in his conduct, and begrudgingly imposed probation so his condition could be addressed out of custody.

“This is almost unheard of. You are being given a chance that 99.9% of the people charged are not given,” Sweeney said before handing down a five-year probationary sentence.

Moon Seals immediately resumed sending threats, amounting to a probation violation. By that time, the 10th Circuit had issued its first Moore decision describing how Sweeney should re-sentence Moon Seals.

After noting she regretted imposing probation “the moment I walked out of the courtroom,” Sweeney said she was going with a prison sentence. However, she appeared to believe she could “either” sentence Moon Seals according to the original guideline of 33 to 41 months, or for the three to nine months applicable to probation violations. Sweeney gave Moon Seals 36 months in prison, relying solely on the range for his underlying crimes.

On appeal, the 10th Circuit agreed Sweeney made a mistake by not following the process laid out in the Moore decision, which required re-sentencing the defendant for the original crime and incrementally imposing punishment for the probation violation.

But instead of arguing Sweeney’s disregard of the two-step process merited a redo on its own, Moon Seals contended the actual issue was Sweeney’s failure to reimpose probation for the underlying crime. The 10th Circuit panel parted ways with him there.

“Moon Seals’s argument that the district court locked itself into a (probationary) sentence for his offenses of conviction ignores important considerations,” wrote Phillips in the Oct. 17 opinion. “For instance, the district court knew that it was imposing a conditional sentence of probation and contemplated imposing prison time for the offenses of conviction if Moon Seals violated his probation conditions.”

Moreover, reimposing probation for the underlying crimes and only three to nine months for the probation violation would have given Moon Seals an “unwarranted benefit.”

“The sanction for violating probation is one that is in addition to the resentencing (to) prison time for the underlying offenses,” wrote Phillips for himself and Judge Allison H. Eid.

The concurrences

In an unusual move, there were two concurring opinions. Murphy briefly wrote that Moon Seals did, in fact, receive an unwarranted benefit when Sweeney reimposed a sentence for his underlying crimes without adding the probation increment.

Phillips also authored a concurrence. Referencing the subsequent doubts other judges raised about his original Moore opinion, he wrote at length to defend his reasoning behind the two-step sentencing method for probation violators, potentially to ward off full-court reconsideration.

Phillips traced the history of the sentencing law, arguing Congress changed it in the 1990s after the then-chair of the U.S. Sentencing Commission wanted to overturn an appeals court decision capping the sentence a probation violator received to the original range for the underlying crime.

“The legislative history precisely shows that Congress,” wrote Phillips, “created the two-step sentencing procedure set forth in Moore.”

Moon Seals has signaled he will seek the full 10th Circuit’s review.

The case is United States v. Moon Seals.