All 12 full-time judges on the Denver-based federal appeals court gathered for a rare oral argument on Monday to consider whether one of the court’s precedent-setting opinions created a process for sentencing probation violators that is out of step with what Congress intended.

Although the judges of the U.S. Court of Appeals for the 10th Circuit probed the intricacies of federal law and the sentencing guidelines, the basic question was how trial judges should resentence criminal defendants who receive probation and then violate the terms.

“My understanding is that if someone gets their probation revoked, it’s a free game on what’s gonna happen,” said Judge Gregory A. Phillips, who authored the original opinion under scrutiny. “You’re right back in front of the court and subject to getting resentenced for whatever crime you’ve committed.”

Yes, but “the court has chosen to sentence you for the underlying offense to probation. That’s done,” said Chief Judge Jerome A. Holmes. After a violation, “the only thing on the table is what happens for your breach of trust, and the time of imprisonment after that. Why isn’t that entirely logical if you accept the premise that probation isn’t some add-on? It’s your sentence for the underlying offense.”

In the federal appellate courts, the vast majority of cases are decided in three-judge panels. Occasionally, the courts will vote to have all judges hear a case, known as an “en banc” review. Historically, the 10th Circuit receives approximately 190 requests per year, but grants fewer than one on average.

A key feature of en banc review is a circuit court’s ability to overrule prior precedents established in panel decisions, which are binding on the court itself.

In the case of Malachi Mathias Moon Seals, out of Colorado, his attorney persuaded a majority of the appellate judges to review the 2022 opinion in United States v. Moore, in which a 10th Circuit panel introduced a binding two-step process for resentencing probation violators.

First, wrote Phillips in Moore, a judge must reimpose a 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.

Some appellate judges quickly telegraphed that they had reservations about that two-step process and were willing to consider it in a future en banc case.

While Moore’s appeal unfolded, Moon Seals pleaded guilty to numerous counts of sending threats to federal officials, including U.S. Rep. Lauren Boebert. Despite the sentencing range being 33 to 41 months in prison, both sides 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. Moon Seals immediately resumed sending threats, amounting to a probation violation. 

Although the 10th Circuit had decided the Moore case, Sweeney did not follow the two-step procedure in resentencing Moon Seals. Instead, she appeared to believe she could resentence him under either the range for his original offenses or the range for a probation violation. Relying on the original range, Sweeney imposed 36 months in prison.

The 10th Circuit panel hearing Moon Seals’ appeal agreed Sweeney did not follow the procedure, but it upheld his sentence in October. In doing so, Phillips, who also authored the decision in Moon Seals’ case, defended his two-step resentencing process as fully supported by Congress’s legislative changes.

His arguments did not ward off full-court review. After the 10th Circuit judges voted to rehear the case en banc, the government indicated it would not defend Phillips’ two-step process. The 10th Circuit appointed former Colorado solicitor general Frederick R. Yarger to make the argument for upholding Moore.

Moore “didn’t truly create a new rule. It formalizes what many conscientious courts across the country have effectively already been doing,” Yarger said. The two-step process “just makes sure that all the procedural boxes have been checked. That everyone can understand where the sentence came from.”

“Why can’t they understand where the sentence came from, when, as is often the case, the court will explain where it came from?” asked Holmes.

The government and the public defender’s office asked for the 10th Circuit to overrule Moore and adopt a resentencing process that imposes a sentence for the probation violation anchored by the probation range. The government, however, argued that trial judges should also be able to consider the sentencing range for the underlying crime.

“What constrains the sentencing range on the probation revocation?” asked Judge Veronica S. Rossman.

The maximum amount for the original offense is the most that a judge can impose, responded U.S. Department of Justice attorney Ethan A. Sachs.

Phillips repeatedly challenged the lawyers about the consequences of departing from his two-step process. He outlined a hypothetical scenario where one judge imposes a single sentence that is relatively harsh for Moon Seals’ violation, “and then you have another judge who says, ‘Everybody knows there are all kinds of screwballs out there who type letters, and there was nothing really threatening about this guy.’

“How can we meaningfully review the difference between those?” he asked. “Under what standard do we say, ‘You went too far’ or ‘You should’ve gone further?’”

Phillips also suggested it was reasonable for judges who resentence probation violators to distinguish between the ranges applicable to each component of the sentence.

The two-step process “is like a railway operator. It’s just a switch. You pull the switch for Santa Fe or Bozeman,” he said. “You pull the switch for (the underlying offense) or (the probation violation).”

The problem, said public defender Jacob Rasch-Chabot, is that “when revoking a probationary sentence, the guideline range operative at the time the defendant was sentenced to probation (for the original offense) is no longer applicable.”

There was lengthy discussion about the need to avoid creating massive sentencing disparities between similarly situated defendants or giving defendants a windfall by imposing a relatively light sentence for a probation violation.

Judge Joel M. Carson III suggested a one-step resentencing that imposes a harsher penalty for a probation violation is not inherently unworkable. He noted Sweeney arguably created a disparity in the first place by giving Moon Seals probation when she had a 41-month prison sentence available.

“Disparity’s OK to have if you have a good reason for having disparity,” he said. “We’re gonna have disparities. You just have to explain why it’s there.”

The case is United States v. Moon Seals.