United States v. Roark ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
MAR 5 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 96-6330
v. W.D. Oklahoma
LAWSON DEAN ROARK, (D.C. No. CR-94-169-T)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered
submitted without oral argument.
Appellant Lawson Dean Roark pleaded guilty to one count of assisting another in
receiving unauthorized satellite cable programming for direct commercial advantage to
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
his business and the private financial gain of another in violation of 47 U.S.C.
§ 605(e)(2).1 On March 29, 1995, the district court sentenced Roark to probation for two
years, 208 hours of community service as directed by the probation office, and a $1,000
fine. R. Vol. I at Tab 17 (Judgment). The court imposed several standard conditions of
supervision upon Mr. Roark, including monthly reports to the probation officer and
following the probation officer’s instructions. Id.On August 22, 1996, Mr. Roark’s probation officer, Byron Boese, petitioned the
court to revoke Mr. Roark’s probation due to six alleged violations. After a hearing and
testimony from Mr. Boese and Mr. Roark, the district court determined that Mr. Roark
violated the terms of his probation because he: (1) missed scheduled appointments with
the probation officer; (2) failed to follow the probation officer’s instructions when he did
not contact the probation officer on several occasions; (3) failed to make regular monthly
fine payments; (4) failed to follow the probation officer’s instructions to document his
inability to make regular monthly payments; (5) failed to perform scheduled community
service work, leaving approximately 96 hours of the required community service
outstanding; and (6) failed to follow the probation officer’s instructions when he was
unable to perform scheduled community service work. R. Vol. I at tab 24 (Order on
1
47 U.S.C. § 605(e)(2) provides: “Any person who violates subsection (a) of this
section willfully and for purposes of direct or indirect commercial advantage or private
financial gain shall be fined not more than $50,000 or imprisoned for not more than 2
years, or both, for the first such conviction and shall be fined not more than $100,000 or
imprisoned for not more than 5 years, or both, for any subsequent conviction.”
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Revocation). The court then sentenced Mr. Roark to five months imprisonment
beginning September 16, 1996, directed him to pay $205.89, the outstanding balance of
his original $1,000 fine, placed him on one-year supervised release, and required him to
perform 96 hours of community service. Id.Mr. Roark appeals the district court’s order revoking his probation, arguing that
the evidence was insufficient and urging this court to “remand this matter with
instructions to continue Mr. Roark under the previously imposed term of probation.”
Appellant’s Br. at 1, 8.
As a practical matter, Mr. Roark’s appeal is moot as to the sentence of
imprisonment since inquiry of counsel reveals that he completed his term of
imprisonment approximately two weeks ago, and under the new sentence, he must simply
pay the balance of the fine required by the original sentence, which he would be required
to do even if this court reinstated the original sentence. Also, he must complete the same
amount of remaining community service required under the original sentence.
However, the one-year supervised release imposed by the court at Roark’s second
sentencing is still in force, as well as the potential for collateral consequences from the
revocation. See United States v. Schmidt, 99 F.3d 315, 317 (9th Cir. 1996). Accordingly,
we turn to the merits of the appeal.
Probation may be revoked if the district court is reasonably satisfied that a
violation of probation conditions has occurred, and we review probation revocation
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decisions for fundamental unfairness or for an abuse of discretion. See United States v.
Reber, 876 F.2d 81, 83 (10th Cir. 1989); United States v. Levine, 983 F.2d 785, 787 (7th
Cir. 1993). Roark urges that the evidence was insufficient to justify revoking his
probation, and that we must review de novo the district court’s order, citing inapposite
authorities requiring de novo review for sufficiency of the evidence in appeals from
criminal trial convictions. Appellant’s Br. at 5 (citing, inter alia, United States v. Grimes,
967 F.2d 1468, 1472 (10th Cir. 1992)). We are unpersuaded. The applicable standard of
review is established by Reber. In any event, more than sufficient evidence supported the
district court’s decision to revoke probation, including Roark’s own admissions that he
violated the terms of his probation. The district court resentenced Roark within the
applicable guideline range. See R. Vol. III at 10 (PSR).
The district court did not abuse its discretion and there was no fundamental
unfairness in revoking Roark’s probation and resentencing him. The judgment of the
district court is therefore AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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