Extending Probation Sentence Without Proof Beyond a Reasonable Doubt?

From U.S. v. Cunningham (11th Cir. May 28):

In 2005, Cunningham was convicted by a federal jury of two counts of conducting monetary transactions over $10,000 in criminally derived property, in violation of 18 U.S.C. §§ 1957 and 2, and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956 and 2. The district court sentenced him to 24 months’ imprisonment followed by 3 years’ supervised release as to each count, to run concurrently. After serving his sentences, Cunningham was released from custody in April 2008. His projected date for completion of supervised release was April 2011.

In June 2009, a United States probation officer sought revocation of Cunningham’s supervised release pursuant to § 3583(e)(3), alleging Cunningham violated the terms and conditions of his release by engaging in unapproved employment, giving false statements and reports to his probation officer, and associating with an individual engaged in criminal activity…. The district court found by a preponderance of the evidence that Cunningham made false statements to a probation officer regarding his employment, which constituted a violation of 18 U.S.C. § 1001 and a Grade B violation of his supervised release. Based on this violation and Cunningham’s criminal history category of I, the district court noted an advisory guidelines range of 4 to 10 months’ imprisonment was recommended. After considering arguments from both parties and the 18 U.S.C. § 3553(a) factors, the district court imposed a 4-month sentence followed by 30 months’ supervised release.

The Eleventh Circuit holds that the court could revoke probation without proof beyond a reasonable doubt or a jury trial, which I think is probably right: “In contrast to the defendants in Apprendi and Blakely, Cunningham stands already convicted of the underlying offenses of money laundering and conspiracy, and was granted only conditional liberty, the existence of which depends on
Cunningham’s observation of the limits of his supervised release. Cunningham was properly accorded the limited procedural safeguards to which he was entitled under § 3583(e)(3).” The probation part of the initial sentence carries with it the possibility that the probation will be revoked, and revoked without all the procedural protections offered at the original trial.

But what I don’t understand is how the judge could lawfully sentence Cunningham to a new probation term that extends past the end of the initial sentence. Under the original sentence, Cunningham was to be entirely free of criminal justice system supervision after 5 years, in April 2011 (two in prison and three on probation, with the probation revocable if he misbehaves). Yet under the sentence imposed at the revocation hearing, Cunningham would continue to be under criminal justice system supervision until April 2012 (June 2009 + 4 months in prison + 30 months on probation).

That extension of the sentence, I think, can’t be imposed without a new criminal trial — it isn’t just the revocation of probation, but the lengthening of the original total prison-plus-probation sentence. On the other hand, I’ve seen other appellate opinions do the same thing (see, e.g., United States v. Walker, 513 F.3d 891 (8th Cir. 2008)). Am I missing something here? Could such a decision be justified, for instance, on the theory that the revocation of probation authorizes a reopening of the original sentence, and a resentencing for the original offense? (Facts relevant to sentencing may be decided by the judge by a preponderance of the evidence, so long as the judge is just exercising his sentencing discretion rather than following statutorily prescribed sentencing rules.) That’s not how I understood the revocation of probation, but perhaps I’m mistaken.

The government’s brief, at p. 10 n.1, reports that “Defendant does not contest Judge Murphy’s imposition of additional supervised release upon revocation”; so perhaps the Eleventh Circuit was right not to disturb this particular sentence. But I’m interested in the general question, which obviously arises in other cases as well.