United States v. Bowers , 242 F. App'x 558 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-3308
v.
(D.C. No. 97-CR-010053-WEB)
District of Kansas
HESIQUIO J. BOWERS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before McWILLIAMS, Senior Circuit Judge, ANDERSON, Senior Circuit Judge and
BRORBY, Senior Circuit Judge.
On September 26, 1997, Hesiquio Bowers (the defendant) pled guilty in the district
court for the District of Kansas, to a charge of Obstruction of Commerce by Robbery in
violation of 18 U.S.C. §1951 and to a second count charging him with Possession of a
Firearm During a Crime of Violence in violation of 18 U.S.C. §924(c). He was then
sentenced to imprisonment for 34 months on the first count and 60 months on the second
*
This order and judgment is not binding precedent, except under the doctrines of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. After
examining the briefs and appellate record, this panel has determined unanimously to grant
the parties’ request for a decision on the briefs without oral argument. See Fed. R. App.
34(f); 10th Cir. R. 34.1(g). The case is therefore ordered submitted without oral
argument.
count, said terms to be served consecutively. At the same time, the district court ordered
that upon defendant’s release from imprisonment, he be placed on supervised release for a
term of three years on each count to run concurrently. Upon his release from
imprisonment on June 9, 2004, the defendant was placed on supervised release.
On August 1, 2006, the United States Probation Office filed in the district court a
Petition for Warrant or Summons for Offender Under Supervision, citing, inter alia,
numerous violations by the defendant of the conditions of his supervised release, and
asking that his term of supervised release be revoked. A hearing was held on that petition
on August 18, 2006. At this hearing, defendant was represented by appointed counsel
later appointed to represent him in this appeal. At the hearing, the defendant did not
contest any of the numerous violations alleged in the petition, but did ask that any term of
confinement be served in a community corrections facility or by home detention. The
district court rejected the defendant’s request and sentenced defendant to imprisonment for
a total term of 24 months for his violations of the conditions of his supervised release.
The defendant then filed a timely notice of appeal.
Counsel thereafter filed in this Court a so-called Anders Brief pursuant to Anders v.
California, 386 U.S. 738 (1967). In the “Preamble” in his brief, counsel for the defendant
stated that in accordance with Anders, he had carefully examined the facts and matters
contained in the record on appeal and had researched the law in connection therewith, and
concluded that defendant’s “appeal presents no legally non-frivolous questions.” Counsel
further stated that in so doing, he had examined the Sentencing Reform Act and the United
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States Sentencing Guidelines and “has thoroughly read the record.”
Pursuant to Anders, counsel presents three issues for our review: (1) the district
court erred in revoking defendant’s supervised release, (2) the district court, after revoking
the defendant’s supervised release, erred in imposing a term of imprisonment which
exceeds the advisory guidelines for the revocation of his supervised release, and (3) the
term of imprisonment imposed by the district court was “unreasonable” under U.S. v
Booker, 543 U.S. 220 (2005). Each of these matters will be considered seriatim.1
The first issue raised in this appeal is whether the district court erred in revoking
defendant’s supervised release and sentencing him to imprisonment. An order revoking
supervised release is reviewed for abuse of discretion. U.S. v. McAfee, 998 F.2d 835, 837
(10th Cir. 1993).
Our review of the record indicates that in revoking defendant’s term of supervised
release, the district court did not abuse its discretion. As indicated, defendant was released
from prison in 2004 and was on supervised release some 2 years before his supervised
release was revoked. During this time, the defendant had repeatedly violated the
conditions of his release, which the defendant concedes. Those violations need not be
recited here. In short, defendant has a very serious problem with drugs. In revoking
defendant’s 3 year sentence of supervised release and imposing a sentence of 2 more years
1
In response to counsel’s Anders brief, the United States has advised this Court that
it “waives its response in this appeal, unless this Court directs otherwise.” We have not
“directed otherwise.”
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imprisonment, the district court opined that it was doing so “to give your treatment there
because you won’t take treatment here”. (Emphasis ours). In revoking defendant’s
original sentence of 3 years supervised release, the district court did not abuse its
discretion.
Following up on the foregoing, the defendant also submits that the district court
erred in imposing a two year imprisonment sentence upon the revocation of defendant’s
three year term of supervised release. United States Sentencing Guidelines, Chapter 7,
relates to Violations of Probation and Supervised Release. That chapter states at the outset
that it is promulgating “policy statements only.” Guideline §7B1.4 does provide that a
guideline range for one with a Grade C violation with a Criminal History Category III
(which fits the defendant) is 5-11 months. However, 18 U.S.C. §3583(e)(3) provides that
a person with a Class C felony may be required to serve not more than two years in prison.
It is defendant’s position on this matter that he should have been sentenced to 5-11
months imprisonment upon the revocation of his supervised release and not two years
imprisonment. That argument was considered and rejected by this Court in United States
v. Burdex, 100 F.3d 882 (10th Cir. 1996).
The final matter raised in this court, though not in the district court, is that
defendant’s term of imprisonment for 24 months upon the revocation of his 3 year term of
supervised release “was unreasonable under Booker.” U.S. v. Booker, 543 U.S. 220(2005). Not having been raised in the district court, our review is for “plain error.” U.S. v.
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Burbage, 365 F.3d 1174, 1180 (10th Cir. 2004).
In regard to this issue, it should be noted that the defendant did not contest, and in
fact admitted, that he had indeed violated the terms of his supervised release repeatedly.
Thus, there were no disputed facts.
As already indicated, the guideline range for the revocation of a term of supervised
release for one with a Grade C violation with a Criminal History Category of III, which
would include the defendant, is 5-11 months imprisonment. However, it should again be
noted that at the very outset of Chapter 7 of the Guidelines, Chapter 7 was declared to be
“policy statements only.” So, Chapter 7 was never mandatory, but only advisory. The
district court obviously knew that the Guidelines in Chapter 7 were not mandatory and
sentenced defendant pursuant to 18 U.S.C. §3583(e)(3).
We reject the suggestion that the 2 year sentence was “unreasonable” under 18
U.S.C. §3553. Defendant’s violations of the provisions of his supervised release were
repeated and serious in nature.
Judgment affirmed.2
ENTERED FOR THE COURT
Robert H. McWilliams
Senior Circuit Judge
2
Counsel’s motion to withdraw is granted.
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