United States v. Crews ( 2022 )

Appellate Case: 21-1440 Document: 010110718244 Date Filed: 08/01/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 1, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-1440
(D.C. No. 1:07-CR-00280-RBJ-1)
MAITISE CREWS, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, KELLY, and HOLMES, Circuit Judges.
_________________________________
Maitise Crews appeals from the 21-month sentence the district court imposed
after revoking his second term of supervised release. Exercising jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
BACKGROUND
In 2007, Mr. Crews pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 63 months
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Appellate Case: 21-1440 Document: 010110718244 Date Filed: 08/01/2022 Page: 2
of imprisonment, to be served concurrently with a much longer state term, and three
years of supervised release.
In September 2019, Mr. Crews began serving his federal supervised-release
term. Nearly a year later, in August 2020, his probation officer petitioned to revoke
his supervised release because he had tested positive for drugs a number of times and
had failed to comply with drug treatment and monitoring. Mr. Crews admitted to the
violations. The Guidelines range was 21-24 months’ imprisonment, but neither party
requested a Guidelines sentence. The prosecutor considered 12 months and 1 day to
be a sufficient sentence, while Mr. Crews requested time served pending the
revocation hearing (approximately 60 days). Both sides agreed that imprisonment
should be followed by two more years of supervision.
Defense counsel stated that Mr. Crews was making improvements, but he had
been incarcerated for a long time, in harsh conditions, and he was having trouble
managing his obligations out of prison. She asked the court “to give Mr. Crews a
second chance, a second chance to learn how to take advantage of all the positives
that exist for him right now,” stating that he “is deserving of some leniency maybe
cloaked in some empathy at this point in time.” R. Vol. 3 at 18. Mr. Crews told the
court that he was “willing to take any kind of rehabilitation that’s offered” and that
being detained pending the revocation hearing had “opened [his] eyes to not being
able to play around with [his] freedom.” Id. at 24. He stated, “I just want some help,
some rehabilitation, and I will try and I will do my best.” Id.2
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The district court varied downward and imposed a sentence of 6 months of
imprisonment and two years of supervised release. But the decision “came with a
warning to Mr. Crews,” with the district court telling him:
[I]t is time for you, sir, to grow up. It is time for you to stop relying on
defense lawyers . . . trying to tell judges like me how difficult it is for you
to do such simple things as comply with supervised release, and if you are
revoked again, the Court will have no interest in continuing supervised
release or in varying below the guidelines in terms of incarceration. This is
your chance, sir.
R. Vol. 3 at 29.
Mr. Crews completed the 6-month sentence and began serving his second term
of supervised release on January 12, 2021. His probation officer reviewed the
conditions of supervised release with him on January 13. The next day, however,
Mr. Crews failed to provide a urine sample for drug testing. Further, he was living at
his wife’s house, and she alleged that he assaulted her by grabbing her neck and
holding it with both hands.
The probation office placed Mr. Crews in a motel, but that arrangement lasted
only two days because he had a verbal disagreement with another resident. He then
moved to his mother’s house. But his wife called police at least three times over the
next two weeks, reporting that he not only made harassing phone calls to her, but also
forcibly entered her house and stole her marijuana, repeatedly knocked on her door
and refused to leave, and threw rocks through her windows. During this time, he also
failed two drug tests. Finally, on January 29, he engaged in a three-hour standoff
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with police before being arrested. Mr. Crews pleaded guilty to one count of criminal
mischief, and the state dismissed charges of burglary, assault, harassment, and theft.
Mr. Crews’ probation officer filed a petition to revoke his second supervised
release with four counts supporting revocation. Count 1 alleged he violated the law,
Counts 2 and 3 alleged he failed drug tests, and Count 4 alleged he failed to comply
with substance abuse testing as directed.
Mr. Crews’ second revocation hearing did not take place until December 14,
2021. He was in state custody for most of 2021, but he was transferred to federal
custody on November 9. On November 15, a magistrate judge ordered him released
on bond with the condition that he reside in a Residential Reentry Center (RRC). On
November 18, two hours after the probation officer met with Mr. Crews and his case
manager at the RRC, Mr. Crews attempted to assault and/or threaten an RRC staff
member. The RRC rejected him from the program, and a second magistrate judge
revoked Mr. Crews’ release on bond. He remained in federal custody until the
second revocation hearing.
At the second revocation hearing, Mr. Crews admitted to all four counts. As
before, the Guidelines range was 21-24 months. This time, both the probation officer
and the prosecutor requested that the court impose a 21-month sentence. Mr. Crews
requested a sentence of time served (315 days) with no further supervision. His
counsel argued that he was in a better position to be successful in the community and
that he faced accountability because of state supervision requirements. She stated, “I
understand the Court wants to impose a harsher sentence. Our request of time
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served, which is between 10 and 11 months, is a harsher sentence, and . . . I think that
the question is maybe a bit more complicated than just looking at the guideline
ranges in these circumstances.” R. Vol. 3 at 36. In addition, Mr. Crews personally
addressed the court, emphasizing his family circumstances and his desire to do better
for himself and his family. “I can’t do this anymore, Your Honor. I’ve learned my
lesson. It’s time for me to stop being my own worst enemy and start being my own
best friend by cherishing my freedom and my time.” Id. at 41.
The district court imposed a 21-month sentence with no further supervision. It
rejected defense counsel’s suggestion that it wanted to impose a “harsh sentence.”
Id. at 44. In doing so, the court explained: “One of the most unpleasant things about
being a judge is sentencing people. . . . And in the case of Mr. Crews, who’s been in
prison or jail for so much time, really the part of his life when he was young with the
whole world in front of him, that makes me sad for him, sad for his family, sad for
his community.” Id. It continued:
I look, however, at the history here, here, and as I said before, as
soon as he got out—I mean, he literally began his second term of
supervised release on January 12th, and he got into this scrape with his
wife, drunk apparently, breaking into her home, assaulting her three days
later. The probation office tried to find him a place, a motel where he could
stay. That didn’t seem to work out too well. They got him at one point into
an RRC, residential reentry center, and he got into it and threatened
somebody on the staff and another person over there bragging that he was
an OG Crip, and don’t mess with me type stuff. You know, it’s a guy with
lots of ability, lots of talent. Look what his brothers are doing. He said one
of them is a sheriff deputy. One of them is an ER surgeon or ER doctor.
And for Mr. Crews to be stuck in this vortex of incarceration that started
way back with Judge Nottingham in 2007, four years before I ever came to
this court, it’s a shame.
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But what I said last time I meant when I said I’m going to give you a
break today, sir, but if you violate again I’m not going to vary, I’m not
going to give you another break, I’m going to give you what the guideline
says you deserve, and I meant that. So my sentence will be 21 months, the
bottom of the guideline. No more supervised release. That’s not working
for him.
Id. at 44-45.
Mr. Crews now appeals.
DISCUSSION
Mr. Crews raises one issue: whether the district court impermissibly decided
his sentence in advance when it warned him at the first revocation hearing that it
would not vary in the future and then imposed a Guidelines sentence at the second
revocation hearing. He acknowledges that he failed to object at the revocation
hearing, and therefore our review is for plain error. See United States v. Moore,
30 F.4th 1021, 1024 (10th Cir. 2022). “Under plain-error review, a defendant must
show: (1) error, (2) that is plain, (3) which affects the party’s substantial rights, and
(4) which seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1025 (internal quotation marks omitted). “An error is plain if it
is clear or obvious under current, well-settled law. In general, for an error to be
contrary to well-settled law, either the Supreme Court or this court must have
addressed the issue.” United States v. Wells, 38 F.4th 1246, 2022 WL 2444429, at *4
(10th Cir. 2022) (internal quotation marks omitted).
Relying on Moore, Mr. Crews argues that the district court plainly erred by
employing a “sentence-in-advance system,” Moore, 30 F.4th at 1025. In Moore, the
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district court had offered the defendant a choice between a low-end Guidelines
sentence of 51 months’ imprisonment, or a sentence of 48 months’ probation, subject
to a sentence of at least 84 months’ imprisonment if he violated probation. See id.
at 1023. When the defendant violated probation, the district court imposed the
84-month sentence based solely on what it said at the earlier hearing, without
discussion of the Guidelines range or the facts that led to the probation violation.
See id. at 1024.
In Moore, we held that “the district court plainly erred by imposing its
sentence-in-advance system.” Id. at 1025. “The Supreme Court and this circuit have
established a required order of operations in federal sentencings. A district court is
supposed to start with the facts, calculate the advisory guideline range, and then
decide whether a variance is warranted to ensure a just sentence.” Id. (internal
quotation marks omitted). “Thus, the plain error here lies in preordaining a minimum
future sentence and bypassing the required analysis that is available only after
probation has been revoked.” Id. We therefore concluded in Moore that “[t]he
problem is obvious—the district court couldn’t have known whether Mr. Moore’s
future conduct would justify the at-least-33-month-consecutive increase to its offered
51-month sentence.” Id.
But the circumstances here differ from Moore in important respects. When the
defendant violated probation in Moore, the district court skipped directly to imposing
the previously promised 84-month sentence in lieu of performing the proper analysis.
Id. at 1024, 1027. Here, however, the probation officer prepared a supervised release
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violation report discussing the facts and the law, which the district court reviewed.
The report included the relevant Guidelines range, which was not disputed. Then
Mr. Crews was able to set forth his sentencing position, including letters of support,
which the district court also reviewed. His counsel argued at the second revocation
hearing, and he had the opportunity to address the court. And importantly, the
district court’s discussion at the second revocation hearing indicates that it
considered relevant factors, specifically including the nature and circumstances of the
second supervised release violation and Mr. Crews’ history and characteristics,
see 18 U.S.C. § 3583(e) (identifying sections of 18 U.S.C. § 3553(a) to be considered
in revoking supervised release). Thus, unlike Moore, the district court here followed
the correct procedural steps. See Gall v. United States, 552 U.S. 38, 49-50 (2007)
(stating that the district court should calculate the Guidelines range, give the parties
an opportunity to argue, and then consider the § 3553(a) factors). Rather than
skipping directly to the sentence previously discussed, the district court applied its
previous warning in light of the facts underlying the second revocation hearing.
Further, in Moore, the 84-month sentence greatly exceeded the Guidelines
range of 5 to 11 months, and it was not clear how the district court determined that
84 months would be an appropriate sentence. See 30 F.4th at 1027. The omission of
an explanation was itself a procedural violation. See Gall, 552 U.S. at 50 (“After
settling on the appropriate sentence, [the district court] must adequately explain the
chosen sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.”). Here, however, the district court imposed a
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within-Guidelines sentence, which on appeal we may presume to be reasonable,
see Rita v. United States, 551 U.S. 338, 347 (2007), and it gave its reasons for doing
so. And, as stated, its reasons largely focused on Mr. Crews’ conduct during the
second supervised release period.
For these reasons, Mr. Crews has not established that the district court committed
an error that is clear or obvious. He thus does not satisfy plain-error review.
CONCLUSION
We grant Mr. Crews’ motion to expedite the appeal and affirm the district
court’s judgment.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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