United States v. Le , 259 F. App'x 115 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 18, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-3241
v. (D. Kansas)
TRUNG V. LE, (D.C. No. 02-CR-10117-09-WEB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and MURPHY, 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(f); 10th Cir. R. 34.1(G). This court,
therefore, honors the parties’ requests and orders the case submitted without oral
argument.
Trung V. Le admitted to two counts of violating the terms of his supervised
release. The district court imposed a sentence of twelve months’ imprisonment.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Le appeals, narrowly asserting as follows: (1) the district court erred in failing to
sufficiently explain, by reference to the factors set out in 18 U.S.C. § 3553(a),
why it chose a sentence of imprisonment rather than placing Le back on
supervised release; and (2) a sentence of imprisonment, rather than a continued
term of supervised release, is unduly harsh. 1 Exercising jurisdiction pursuant to
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court affirms the judgment of the
district court. 2
Although the factual litany set out in the parties’ briefs is quite extensive,
the facts necessary to resolve this appeal are relatively limited. Le pleaded guilty
to use of a communication facility in furtherance of a drug crime in violation of
1
To be clear, Le does not contest in any fashion the length of the term of
imprisonment imposed by the district court. Instead, both his procedural and
substantive challenges are directed narrowly at the decision to impose any term of
imprisonment at all.
2
For the first time in its brief on appeal, the government asserts that the
waiver of appellate rights Le entered into as part of his plea agreement forecloses
Le’s appeal of the sentence he received upon revocation of his term of supervised
release. Although the government’s failure to raise this issue at an earlier point
in the appeal does not foreclose its appeal-waiver argument, 10th Cir. R.
27.2(A)(3)(b), we decline to reach the issue in this particular case. This court has
made clear that the existence of an appeal waiver does not affect our jurisdiction.
United States v. Hahn, 359 F.3d 1315, 1320-24 (10th Cir. 2004) (en banc).
Accordingly, this court is not obligated to conduct the appeal-waiver analysis set
out in Hahn when the case can be easily resolved on other grounds and the merits
of the government’s appeal-waiver assertions are subject to serious question.
This is particularly true when the government raises the appeal waiver at a
relatively late point in the proceedings, thereby eliminating any conservation of
judicial resources that would normally flow from resolving the enforceability of
an appeal waiver before briefing is complete.
-2-
21 U.S.C. § 843(b). The district court imposed a sentence of forty-eight months’
imprisonment, to be followed by a one-year term of supervised release. While Le
was serving his post-imprisonment term of supervised release, the probation
office filed a petition requesting that the district court revoke Le’s term of
supervised release. In support of its request, the probation office alleged Le had
violated the following four terms of his supervised release: (1) he possessed a
controlled substance; (2) he failed to report for scheduled drug tests on three
occasions; (3) he had associated with a convicted felon without the permission of
the probation office; and (4) he failed to inform the probation office of his change
in employment status.
At the hearing on the motion to revoke, Le admitted he had possessed a
controlled substance and had associated with a convicted felon. In exchange for
Le’s admissions, the government dismissed the allegations relating to missed drug
tests and undeclared changes in employment status. Thereafter, Le argued to the
district court that the appropriate action in light of his violations was to continue
his term of supervised release. In support of this assertion, Le argued his drug
possession was tied to his drug addiction, something difficult to overcome. Le
also argued that he had worked hard to support his son while he was on
supervised release, the current violations were his first violations of supervised
release, and his contact with a convicted felon was merely for the purpose of
helping Le complete his required reports to the probation office.
-3-
After listening to the parties’ arguments, the district court revoked Le’s
supervised release and sentenced him to a term of imprisonment of one year. In
so doing, the district court noted it had considered the nature and circumstances
of the violations, Le’s characteristics, the sentencing objectives set out in
18 U.S.C. § 3553, and the policy statements set out in Chapter Seven of the
Sentencing Guidelines. Furthermore, because it concluded Le was not amenable
to supervised release, the district court declined to impose an additional term of
supervised release following the conclusion of his one-year term of imprisonment.
On appeal, Le asserts both that the district court erred in failing to
adequately explain its decision to revoke his supervised release and in ultimately
revoking his supervised release and sentencing him to a term of imprisonment.
Le’s argument fails as a matter of law because the district court was required, by
statute, to revoke Le’s supervised release and sentence him to a term of
incarceration based on Le’s admission that he possessed a controlled substance in
violation of the terms of his supervised release. 18 U.S.C. § 3583(g) (“If the
defendant . . . possesses a controlled substance in violation of the conditions [of
his supervised release] . . . the court shall revoke the term of supervised release
and require the defendant to serve a term of imprisonment . . . .”). 3 Because a
3
We recognize that § 3583(g) is not as categorical as it might seem at first
blush. In particular, 18 U.S.C. § 3583(d) provides as follows: “The court shall
consider whether the availability of appropriate substance abuse treatment
programs, or an individual’s current or past participation in such programs,
(continued...)
-4-
term of incarceration was mandatory under § 3583(g), the district court was not
required to consider the factors set out in § 3553(a) before deciding to revoke
Le’s incarceration and impose a term of incarceration. 4 United States v. Larson,
432 F.3d 921, 923 n.3 (8th Cir. 2006); United States v. Brown, 224 F.3d 1237,
1241 (11th Cir. 2000); United States v. Giddings, 37 F.3d 1091, 1095 (5th Cir.
1994). Thus, the district court fully complied with the relevant statutory
mandates and Le’s arguments fail as a matter of law. 5
3
(...continued)
warrants an exception . . . from the rule of section 3583(g) when considering any
action against a defendant who fails a drug test.” Nevertheless, Le never raised
this issue before the district court and, for that reason, the record is devoid of any
evidence bearing on Le’s amenability to substance abuse treatment or his history
of such treatment. Accordingly, Le’s failure to raise in the district court the
potential applicability of § 3583(d) means he has forfeited the issue. United
States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007). Furthermore, Le’s failure on
appeal to raise and brief the potential applicability of § 3583(d) amounts to a
further appellate forfeiture of the issue. United States v. Abdenbi, 361 F.3d 1282,
1289 (10th Cir. 2004).
4
Because, as noted above, Le does not challenge the length of the one-year
term of incarceration imposed by the district court upon revocation of Le’s
supervised release, this court need not decide whether a district court is required
to consider the § 3553(a) factors in formulating the length of such a sentence. In
any event, the district court specifically noted it considered the § 3553(a) factors
and the policy statements set out in Chapter Seven of the Sentencing Guidelines
in arriving at Le’s sentence. Furthermore, the sentence the district court imposed
was at the bottom of the advisory guidelines range.
5
We recognize, as noted by Le, that the district court did err when, in
setting out the reasons for revoking Le’s supervised release, it stated Le had
failed to participate in drug testing. The government specifically dismissed the
allegation of missed drug tests in exchange for Le’s admission to possession of a
controlled substance and failure to declare changes in employment status. As
(continued...)
-5-
For those reasons set out above, the judgment of the district court is hereby
AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
5
(...continued)
noted by the government, however, this error is clearly harmless because Le
admitted to possessing a controlled substance and that admission, standing alone,
mandated the revocation of Le’s supervised release.
-6-