United States v. Murphy ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT April 13, 2017
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-5118
(D.C. No. 4: 15-CR-00101-JED-1)
BRYAN JAMES MURPHY, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
Rarely do we see obdurate misbehavior on this scale. Bryan James Murphy has a
history of impersonating police officers and other authority figures. Unfortunately, his
demonstrated desire for control over others is exacerbated by his refusal to control his
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
own unacceptable behavior. His unwillingness to reform and his disregard of court
orders led to the revocation of his supervised release. That resulted in 11 months in
prison followed by a new term of supervised release, which included 6 months of home
curfew with electronic monitoring. He claims the sentence is substantively unreasonable.
He is mistaken. In light of his persistently deplorable behavior, the sentence is eminently
reasonable.
I. Background
The procedural history in this case is convoluted. Nevertheless, detailing
Murphy’s serial transgressions opens a window revealing his attitude, if not his character.
A. False Statement to Federal Agency
On August 13, 2014, Murphy applied to be an aircraft fueler at the Tulsa
International Airport. As part of the application process, he applied for a Security
Identification Display Area badge with the Transportation Security Administration, better
known as TSA. The badge would have given him unrestricted access to the aircraft
operating area. On his application for the badge, he lied three times: (1) he provided a
false social security number; (2) he indicated he did not have any prior felony convictions
involving dishonesty, fraud, or misrepresentation but, truth be told, he had just been
convicted of a felony in May 2014 for impersonating a public officer by uniform or
vehicle; and (3) when asked whether he had previously used another name, he failed to
report his recent name change from Bryan Sebesta to Bryan Murphy. His lies did not go
undetected.
-2-
On May 29, 2015, the government charged him with knowingly and willfully
making false statements to a federal agency in violation of 18 U.S.C. § 1001. A month
later, the district judge released him on a $5,000 bond. As a condition of his pretrial
release, he agreed “not [to] possess a firearm, destructive device, or other dangerous
weapon.” (Supp. R. Vol. II at 14.)
B. Guilty Plea and Conduct while on Pretrial Release
On July 28, 2015, he pled guilty to the false statement offense. At the change of
plea hearing, the government asked the judge to modify the conditions of pretrial release
based on his recent possession of a pepper-ball gun while working as an unlicensed
security officer. The judge did so, prohibiting him from “possess[ing] a firearm or
anything that resembles a firearm” including a pepper-ball gun. (Supp. R. Vol. II at 26.)
Those words went twisting in the wind.
A month later, on August 29, 2015, a police officer found Murphy carrying a
pepper-ball gun in a holster while working as a security guard at an apartment complex.
It gets worse. A few weeks later, while working as a security guard at a mobile home
park, he stopped a vehicle with a broken tail light. When the driver became angry and
threw a bottle of liquid at him, he retaliated by tasing the driver several times, taking him
to the ground, and placing him in handcuffs.1
1
This was not the first time Murphy exceeded the bounds of reasonable behavior.
On July 26, 2015, two days before he pled guilty, he unsuccessfully attempted to stop a
vehicle belonging to a car dealer (the car dealer did business with the auto auction where
Murphy worked as a security guard). He then called the dealer, identifying himself as “a
(Continued . . .)
-3-
These incidents led the judge to modify the conditions of release once again. This
time, with Murphy’s consent, he was prohibited from “work[ing] directly or indirectly in
any business, profession, self-employment, or contract employment engaged in security
services or similar activities.” (Supp. R. Vol. II at 31.) It was all in vain. Ten days later,
on November 7, 2015, police observed Murphy driving a vehicle containing a flashing
emergency light bar on its roof, the word “SECURITY” on both of its sides, and a red
sticker with a picture of a dog indicating it was a K-9 unit. Murphy claimed to be driving
the vehicle only because his other car was not working. His clothing indicated
otherwise—he was wearing black tactical pants and boots and carrying a pocketknife.
C. Sentencing on False Statement Offense
The presentence report calculated a base offense level of six. USSG
§ 2B1.1(a)(2). After a two-level downward adjustment for acceptance of responsibility,
USSG § 3E1.1(a), the total offense level was four. In addition to his 2014 conviction for
impersonating a public officer by uniform or vehicle, Murphy’s criminal history included
convictions for: (1) illegally possessing blue or red emergency lights, (2) unlawfully
possessing a weapon, (3) impersonating a police officer, and (4) working as an
Emergency Medical Technician (EMT) without proper certification. This criminal
history, along with the commission of the false statement offense while on state court
sheriff” from Pryor, Oklahoma, and stating he was going to put the dealer in jail for
repossessing a vehicle. (R. Vol. II at 9.) It got worse. He went to the dealer’s business,
this time identifying himself as a detective. He threatened to place the dealer in jail,
revoke his dealer’s license, and ban him from auto auctions.
-4-
probation, resulted in a Criminal History Category of III. The violations of the court’s
pretrial release order were not factored into the history score. The advisory guideline
range was 0 to 6 months imprisonment.
After considering the sentencing factors outlined in 18 U.S.C. § 3553(a), the judge
sentenced Murphy to 4 months in prison to be followed by a three-year term of
supervised release. He noted Murphy’s “shocking” conduct on November 7, which
occurred shortly after agreeing not to engage in security work. (Supp. R. Vol. I at 69.)
He also expressed his concern over the nature of the offense conduct—attempting to gain
access to secure areas of an airport. Finally, he emphasized how Murphy’s “criminal
history and conduct while on pretrial release reflect an unwillingness to abide by the law
and cease portraying himself as holding a position of authority.” (Id. at 75.)
D. Conduct on Supervised Release
With four months of incarceration completed, Murphy began serving his
supervised release on April 15, 2016. Shortly thereafter, his probation officer learned
that he and his fiancé had continued operating a security company while he was
incarcerated, a violation of prison rules. On April 22, 2016, the judge modified the
conditions of supervised release, again with his consent, to prohibit him from working in
security.2 Nonetheless, the pattern continued.
On May 7, 2016, Murphy, clothed in tactical gear and carrying what looked like a
2
Whether intentional or inadvertent, the conditions of Murphy’s supervised
release (as opposed to those of his pretrial release) did not prohibit him from working in
the security field.
-5-
gun, was found working as a security guard at a mobile home park. When asked about
the incident, Murphy denied working as a security officer.3 Citing both incidents, the
probation officer filed a petition seeking to revoke his supervised release.
E. Revocation of Supervised Release and Sentencing
After Murphy admitted to the violations, the judge revoked his supervised release
and the probation officer prepared a sentencing memorandum. The advisory guideline
range was 5 to 11 months imprisonment.
The government requested a sentence at the top of the range (11 months) due to
Murphy’s repeated failure to heed the court’s directives. Murphy’s attorney, on the other
hand, argued there is obviously “something not quite right [with Murphy’s] psyche,”
making prison an inappropriate response. (R. Vol. II at 25.) His recommendation was
basically more of the same—Murphy should be continued on supervised release with
stricter conditions such as ankle monitoring and home confinement with psychological
treatment.
The judge decided 11 months in prison was “appropriate and necessary.” (R.Vol.
II at 29.) He cited in detail Murphy’s noncompliance with the requirements of pretrial
release, noting he “has not taken . . . the court or his supervision seriously . . . .” (Id.) He
emphasized that “[c]ommunity supervision has proven to be ineffective in aiding Murphy
to understand the importance of following the court’s directives. Having not been
3
In addition to agreeing not to work in the security field, another condition of
Murphy’s supervised release required him to “answer truthfully all inquiries by the
probation officer.” (Supp. R. Vol. II at 34.)
-6-
subjected to a lengthy period of incarceration as punishment for his [past] criminal
activity, a more lengthy sentence of imprisonment may serve as a more effective
deterrent . . . .” (Id.) He reasoned:
Both the court and the probation office have exhausted methods and
modifications to address [Murphy’s] noncompliance; however, [he] has not shown
a desire to change his behavior. The incidents that occurred on pretrial release
during his incarceration and post release are of great concern to the court, as the
defendant has portrayed himself as a law enforcement entity and placed both
himself and the community in danger.
(Id. at 30-31.)
In addition to the term of imprisonment, the judge imposed a 24-month term of
supervised release. Among the special conditions of supervised release, the judge
required he:
be placed on remote location monitoring on home curfew for a period of six
months to commence within 72 hours of release. During this time, the defendant
shall remain at his place of residence during hours determined by the probation
officer. The defendant shall maintain a telephone at his place of residence without
call forwarding, a modem, caller ID, answering machine, call waiting, or portable
cordless telephones for the above period. The defendant shall wear an electronic
monitoring device and follow electronic monitoring procedures specified by the
probation officer.
(Id. at 32-33.)
II. Discussion
Murphy sees his sentence as “unreasonably harsh” and therefore substantively
unreasonable. (Appellant’s Br. at 6.) He doesn’t deny that an 11-month sentence,
standing alone, would probably have been reasonable. In fact, he admits his “conduct on
supervised release may have warranted additional prison time.” (Id. at 7.) Nor would the
-7-
imposition of a curfew have been unreasonable. However, the combination of the two,
he claims, was too much.
“We review all sentences, including those imposed for violations of supervised
release, for reasonableness. Substantive reasonableness involves the length of the
sentence imposed and is reviewed under an abuse-of-discretion standard.” United States
v. Rausch, 638 F.3d 1296, 1302 (10th Cir. 2011) (citation omitted), overruled on other
grounds by United States v. Bustamonte-Conchas, 850 F.3d. 1130 (10th Cir. 2017). The
abuse of discretion standard requires “substantial deference” to the sentencing judge’s
decision; we will deem a sentence unreasonable only if it is “arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Landers, 564 F.3d 1217, 1224
(10th Cir. 2009) (quotation marks omitted).
Because Murphy’s sentence was within the range suggested by the Sentencing
Commission’s policy statements, it is presumptively reasonable. United States v.
McBride, 633 F.3d 1229, 1233 (10th Cir. 2011). He may rebut the presumption “by
demonstrating the sentence is unreasonable in light of the other factors laid out in
18 U.S.C. § 3553(a).” Id. (quotation marks omitted). In the district court (and even now)
he failed miserably, offering little more than tired argument.
He claims home detention to be “a very restrictive condition”:
A supervisee on home detention may leave the confines of his home only with the
permission of his probation officer. The supervisee’s ability to engage in
everyday activities, such as visiting friends and family or running errands is
severely curtailed, at least without a probation officer’s approval. Thus, while
certainly preferable to imprisonment, home detention involves a degree of
captivity that substantially exceeds the run-of-the-mill condition of supervised
-8-
release.
(Appellant’s Br. at 6-7.)
However, the judge imposed curfew, not home detention.4 Murphy is restricted to
his home only “during evening and nighttime hours.” USSG § 5D1.3(e)(5). That
distinction aside, a combination of prison and a curfew condition is reasonable in light of
the § 3553(a) factors. As the judge noted, a lengthy term of imprisonment was necessary
because the previous period of imprisonment (only 4 months) had not been an adequate
deterrent. The judge was also much concerned with the extent and nature of Murphy’s
noncompliance with supervision. His serial noncompliance made a gradual transition
from incarceration to release not only advisable, but also necessary.
4
According to Murphy, curfew only requires the defendant be at home “during
evening and nighttime hours.” USSG § 5D1.3(e)(5). Yet the condition imposed requires
him to remain at home “during hours determined by the probation officer.” (R. Vol. II
at 32.) He also points out that home detention should “ordinarily” be enforced through
use of electronic monitoring, which the judge imposed. See USSG § 5F1.2, comment.
(n.1). We see the argument as a distinction without a difference.
Although electronic monitoring is “ordinarily” used with home detention, this case
is far from ordinary (as we have taken pains to demonstrate). Moreover, it “may be used
as a means of surveillance to ensure compliance with a curfew order.” USSG
§ 5D1.3(e)(5).
The guidelines distinguish between “[h]ome detention” and “curfew,” USSG
§ 5D1.3(e)(2), (e)(5), something the judge clearly understood. With the difference in
mind, he imposed “home curfew.” (R. Vol. II at 32.) The obvious purpose was to
maximize success on supervised release by maintaining structure in Murphy’s life.
Taken in context, the probation officer was left to decide which “evening and
nighttime hours” Murphy would have to be at home—the essence of a curfew.
-9-
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
- 10 -