Tenth Circuit: A Defendant’s Police-Officer Status, Standing Alone, Cannot Aggravate Sentence; Supervised Release Preserves Mootness on Direct Appeal

Case: United States v. Thompson (10th Cir. Apr. 13, 2026)
Disposition: New-trial denial affirmed; sentence vacated and remanded for resentencing

1. Introduction

United States v. Thompson arose from a volatile domestic conflict on Fort Riley, a federal military installation within the special territorial jurisdiction of the United States. Jordan Thompson—an estranged spouse and newly employed police officer—entered his wife Jessica Haraughty’s on-base housing with a firearm, confronted Haraughty and fellow service member Joseph Libbrecht, and threatened to shoot Libbrecht if he did not leave. A jury convicted Thompson of one count of assault with a dangerous weapon against Libbrecht under 18 U.S.C. § 113(a)(3), while acquitting him on related charges involving Haraughty.

On appeal, Thompson pressed two principal issues:

  • New trial: whether post-trial evidence (an interview with Breann McPhaul) showed Haraughty and Libbrecht had lied, warranting a new trial under Fed. R. Crim. P. 33.
  • Sentencing: whether the district court plainly erred by increasing (or selecting a higher) sentence because Thompson was a police officer—i.e., holding him “to a higher standard” based on occupation.

The panel also confronted a threshold question: Thompson’s release from Bureau of Prisons custody during the appeal raised potential mootness concerns.

2. Summary of the Opinion

The Tenth Circuit held:

  • Not moot: The appeal remained live because (i) Thompson’s conviction challenge implicated continuing collateral consequences, and (ii) his sentencing challenge could still affect his unexpired term of supervised release.
  • Rule 33 denied (affirmed): The district court did not abuse its discretion in denying a new trial because Thompson failed the “newly discovered evidence” test—most notably the diligence prong—by not interviewing an obvious impeachment witness before trial.
  • Sentencing vacated (plain error): The district court plainly erred by relying on Thompson’s status as a law enforcement officer as an aggravating factor, and that error affected substantial rights and the integrity of proceedings. The court vacated the sentence and remanded for resentencing.

3. Analysis

3.1 Precedents Cited

A. Mootness and Article III jurisdiction

  • United States v. Salazar — Central to the panel’s conclusion that an “unexpired term of supervised release” defeats mootness on direct appeal because a favorable decision can reduce that term. Thompson’s release from prison did not end the controversy where supervised release continued.
  • United States v. Vera-Flores — Provided the Article III framework and reinforced that supervised release imposes ongoing restrictions on liberty sufficient to sustain a live case or controversy.
  • United States v. Sandoval-Enrique (citing Spencer v. Kemna) — Supported the principle that a conviction challenge is not mooted by completion of incarceration because collateral consequences flow from the conviction itself.
  • Rhodes v. Judiscak and United States v. Zamora — Discussed and distinguished. The panel emphasized these arose in collateral post-conviction contexts, not direct appeals, and therefore did not control. The opinion relied on Salazar to explain why habeas jurisdictional limits do not bar relief on remand after a successful direct appeal.

B. New trial based on newly discovered evidence (Rule 33)

  • United States v. Sinclair — Supplied the cautionary baseline: Rule 33 motions are “not regarded with favor” and should be granted “with great caution.”
  • United States v. Martinez — Stated the abuse-of-discretion standard for reviewing denial of new-trial motions.
  • United States v. Quintanilla (citing Tibbs v. Florida) — Confirmed a district court may weigh evidence and assess witness credibility when considering a new trial motion.
  • United States v. Cordova — Provided the controlling five-part test for newly discovered evidence. The panel resolved the claim on prong two (diligence).
  • United States v. LaVallee (quoting Quintanilla) — Explained the purpose of the diligence requirement: preventing defendants from holding an “evidentiary trump card.” Also clarified that “reasonable diligence,” not maximum diligence, is required.
  • United States v. Allen — Reinforced the “reasonable diligence” standard.
  • United States v. Gomez-Castro — Cited (persuasively) for considering defense theory and accessibility of evidence when evaluating diligence.

C. Plain-error review and sentencing limits

  • United States v. Ramon — Established that unpreserved sentencing objections are reviewed for plain error.
  • United States v. Mendiola — Set out the four-prong plain-error framework.
  • United States v. Chandler — The key substantive sentencing principle: “a defendant’s status as a police officer, standing alone, is not a justifiable reason to increase a sentence.” The government conceded plain error in light of this rule.
  • United States v. Vega-Acosta — Used to analogize occupation-based aggravation to impermissible reliance on “socioeconomic status,” while also acknowledging a court may consider employment as part of “history and characteristics,” but not to impose a higher standard based solely on status.
  • Concepcion v. United States and 18 U.S.C. § 3661 — Cited to confirm broad informational latitude at sentencing (“whole person”), which the panel distinguished from using occupation as an aggravator because of status.
  • United States v. Barone and United States v. Harrington — Reinforced that increasing punishment merely because a defendant holds a respected profession (judge, attorney) is improper.
  • United States v. Bustamante-Conchas and United States v. Ruiz — Provided the substantial-rights standard: a reasonable probability of a lower sentence is enough; the defendant need not show the court would have adopted his requested sentence.
  • United States v. Cordery — Supported the idea that a sentencing court’s “emphasis” on an improper factor can establish prejudice.
  • United States v. Rosales-Miranda, Rosales-Mireles v. United States, and United States v. Sabillon-Umana — Guided the fourth prong (discretion to correct): unnecessary deprivation of liberty undermines confidence in the judiciary, and obvious district-court-created errors should generally be corrected, especially when remand is straightforward.

3.2 Legal Reasoning

A. Jurisdiction: supervised release keeps the appeal alive

The court separated Thompson’s appeal into two live controversies:

  • Conviction challenge: Not moot due to “collateral consequences” continuing after custody ends (drawing from United States v. Sandoval-Enrique and Spencer v. Kemna).
  • Sentence challenge: Not moot because supervised release can be reduced on remand after direct appeal (drawing from United States v. Salazar and United States v. Vera-Flores).

The panel expressly rejected defense counsel’s Rule 28(j) concession of mootness, explaining that habeas cases like Rhodes v. Judiscak and United States v. Zamora do not dictate the outcome on direct appeal.

B. New trial: diligence is the decisive gatekeeper

Applying United States v. Cordova, the panel affirmed on the narrow ground that Thompson failed prong two: the evidence (McPhaul’s denial that she knew Haraughty/Libbrecht or anyone named “Libbrecht/Labrecht”) could have been discovered with reasonable diligence before trial.

The logic was practical and defense-theory driven:

  • Thompson’s defense was heavily impeachment-based—attacking Haraughty’s and Libbrecht’s credibility by showing deception surrounding their relationship.
  • Thompson knew of McPhaul’s existence because the contested 2022 text explicitly named her, and he chose to use that text during cross-examination.
  • The speed with which McPhaul was interviewed post-verdict (the motion came 49 days after Haraughty testified) showed she was not meaningfully “unavailable.”

The court invoked the policy behind diligence from United States v. LaVallee: defendants cannot withhold readily obtainable evidence as a contingency for retrial. Because all Cordova prongs must be met, failure on diligence ended the claim without reaching materiality, “merely impeaching,” or probable acquittal.

C. Sentencing: occupation may describe a person, but cannot be used to punish “status”

The court drew a sharp line between permissible consideration of employment and impermissible occupation-based aggravation:

  • Permissible: Considering employment as part of “history and characteristics” (18 U.S.C. § 3553(a)(1)), consistent with 18 U.S.C. § 3661 and Concepcion v. United States.
  • Impermissible: Increasing punishment because the defendant is a police officer and “more is expected,” absent a case-specific abuse-of-trust nexus.

The opinion also clarified what it was not deciding: both parties agreed that Sentencing Guideline § 3B1.3 allows enhancements for abuse of a position of trust when used to facilitate or conceal the offense; but here, there was no allegation Thompson leveraged police authority to commit or cover up the assault.

D. Plain-error application: prejudice and integrity

With the first two prongs conceded (error and plainness), the court’s work centered on:

  • Prong three (substantial rights): The district court explicitly said Thompson’s law enforcement status was “the basis for why I’m doing what I’m doing” and listed it as an aggravator. That emphasis created a reasonable probability of a lower sentence absent the error (drawing on United States v. Cordery, United States v. Mendiola, United States v. Bustamante-Conchas, and United States v. Ruiz).
  • Prong four (fairness/integrity): Correcting the error protects public confidence where an obvious mistake risks unnecessary liberty deprivation and can be remedied by a relatively simple resentencing (drawing on Rosales-Mireles v. United States, United States v. Rosales-Miranda, and United States v. Sabillon-Umana). The panel added that even though Thompson had completed imprisonment, supervised release restrictions are substantial enough that an unnecessary term similarly threatens liberty and the judiciary’s reputation.

3.3 Impact

A. Sentencing practice in the Tenth Circuit

The opinion strengthens a clear, administrable rule: professional status alone (including being a police officer) is not a valid aggravating factor. District courts may discuss employment in the “whole person” sense, but must tether any aggravation to legally relevant conduct (e.g., abuse of trust, exploitation of authority, facilitation/concealment), not to a generalized “higher standard.”

B. Plain-error corrections even after release

By emphasizing supervised release as a continuing liberty restraint, the decision signals that the Tenth Circuit will remain willing to correct sentencing errors on direct appeal even where incarceration is complete—so long as supervised release remains modifiable on remand.

C. Rule 33 diligence as a stringent screening tool

For newly discovered evidence, diligence remains a hard gatekeeper. When a defense theory depends on impeaching key witnesses using known third parties or named individuals, failure to investigate those individuals pretrial is likely fatal under United States v. Cordova.

4. Complex Concepts Simplified

  • “Special territorial jurisdiction of the United States”: Certain federal enclaves—like military bases—where federal criminal statutes (such as 18 U.S.C. § 113) apply.
  • Rule 33 “new trial” motion: A post-verdict request to redo the trial “in the interest of justice.” If based on “newly discovered evidence,” the defendant must satisfy the five-part United States v. Cordova test, including reasonable diligence.
  • “Diligence” (Rule 33 context): The defendant must show the evidence could not reasonably have been found before trial. Courts aim to prevent strategic withholding of evidence.
  • “Plain error” review: When an issue wasn’t preserved below, the defendant must show (1) error, (2) obviousness, (3) prejudice (reasonable probability of a different outcome), and (4) a serious effect on fairness/integrity of the courts.
  • Supervised release and mootness: Even if prison time is done, an appeal can remain live because supervised release restricts liberty and can potentially be reduced after a successful appeal.

5. Conclusion

United States v. Thompson delivers two practical directives. First, on direct appeal, completion of incarceration does not moot sentencing challenges where supervised release remains—preserving appellate review and remedial authority. Second, at sentencing, a defendant’s occupation—specifically police-officer status—cannot serve as a standalone aggravator; courts must sentence based on lawful factors tied to conduct and the statutory framework, not professional “status” expectations. The decision simultaneously reinforces strict Rule 33 diligence requirements, signaling that impeachment-centered defenses must investigate obvious witnesses before trial or risk forfeiting “newly discovered evidence” relief.