United States v. White ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
March 8, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-3024
v. (D. Kansas)
BILLY WAYNE WHITE, (D.C. No. 2:97-CR-20033-KHV-JPO-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, EBEL, and HARTZ, Circuit Judges.
I. INTRODUCTION
After Billy Wayne White (Defendant) violated the terms of his supervised
release, the United States District Court for the District of Kansas revoked his
release and sentenced him to 46 months’ incarceration. Defendant appeals his
sentence, arguing that it was procedurally unreasonable because the district court
failed to articulate its reasons for imposing the sentence. We affirm.
*
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)(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not binding precedent except under the doctrines of law of the case, res judicata,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.
II. BACKGROUND
In 1997 Defendant was convicted of distributing 11.4 grams of crack
cocaine. He was sentenced to 140 months’ imprisonment and eight years of
supervised release. The term of supervised release began on November 19, 2007.
On July 29, 2008, the government filed a petition to revoke. The petition alleged
that Defendant had violated the terms of release on July 22 by possessing
approximately 70 grams of marijuana with intent to distribute it. Defendant was
prosecuted in Kansas state court and was eventually found guilty of felony
marijuana possession on September 11, 2009.
The violation report prepared by the federal probation office characterized
Defendant’s offense as a Grade A violation. Given his criminal-history category
of V and his original offense of conviction, the sentencing range recommended by
the United States Sentencing Guidelines policy statements was 46 to 57 months.
See USSG § 7B1.4(a). On December 28, 2009, the court granted the
government’s petition and sentenced Defendant to 46 months’ imprisonment.
III. DISCUSSION
Defendant does not contest the district court’s calculation of the
recommended sentencing range. He argues only that the district court violated
18 U.S.C. § 3553(c) by failing to articulate its reasons for sentencing him to 46
months’ imprisonment. Subsection (c) provides: “The court, at the time of
sentencing, shall state in open court the reasons for its imposition of the particular
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sentence . . . .” 18 U.S.C. § 3553(c). Defendant asserts that aside from “making
credibility determinations to support the finding of a Grade A violation, the
District Court said little else concerning how [it] concluded a 46 month sentence
was reasonable.” Aplt. Br. at 9. According to Defendant, this was insufficient to
satisfy the requirements of § 3553(c), thereby rendering his 46-month sentence
unreasonable.
Because Defendant failed to raise this issue at sentencing, we review for
plain error. See United States v. Caraway, 534 F.3d 1290, 1298 (10th Cir. 2008).
“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects
[Defendant’s] substantial rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
marks omitted). The defendant has the burden of establishing all four elements of
plain error. See United States v. Gonzalez, 558 F.3d 1193, 1199 (10th Cir. 2009).
We resolve this case at the first stage of the plain-error analysis because the
district court committed no error. Under our precedent a district court sentencing
a defendant for violating a condition of supervised release must comply with
§ 3553(c) and state in open court the reasons for imposing a specific sentence. 1
1
The government argues that there is no statutory authority for applying
18 U.S.C. § 3553(c) to a revocation of supervised release, and that doing so “does
not reflect a recognition that a revocation proceeding is not a sentencing
proceeding.” Aplee. Br. at 12–13. Hence, it argues, there is “an apparent
incongruence” between congressional directives and this court’s precedents. Id.
at 13. But it does not ask us to overturn our precedents, and this panel is bound
(continued...)
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See United States v. Rose, 185 F.3d 1108, 1111–13 (10th Cir. 1999) (applying
§ 3553(c) to a revocation of supervised release); United States v. Burdex, 100
F.3d 882, 886 (10th Cir. 1996) (upon sentencing a defendant who has violated the
terms of his supervised release, the “court need only give the reasons for its
action as required by 18 U.S.C. § 3553(c)”). Compliance with § 3553(c) at the
original sentencing is not a burdensome requirement. “Where . . . a district court
imposes a sentence falling within the range suggested by the Guidelines, Section
3553(c) requires the court to provide only a general statement of ‘the reasons for
its imposition of the particular sentence.’” United States v. Ruiz-Terrazas, 477
F.3d 1196, 1199 (10th Cir. 2007). That “general statement need involve no
ritualistic incantation to establish consideration of a legal issue,” id. at 1202(internal quotation marks omitted), and need only “not[e] the appropriate
guideline range and how it was calculated.” Id. (internal quotation marks
omitted). The same standard applies to sentences after revocation of supervised
release that are within the range recommended by the Sentencing Commission’s
policy statements. See United States v. McBride, No. 10-3206, 2011 WL 489681(10th Cir. Feb. 14, 2011).
1
(...continued)
by circuit precedent anyway.
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The district court’s statements at Defendant’s sentencing were sufficient to
satisfy § 3553(c). In finding that Defendant had violated a condition of
supervised release, the court stated:
Well, I believe that the testimony [of the government’s
witnesses] was more credible than [Defendant’s] testimony. And the
Court does find that the highest grade of violation here is A, that
defendant was not only in possession of 70 grams of marijuana, but
was in clear plastic Baggies, a digital scale, and $1,432, which was
evidence of being involved in distribution of illegal drugs. And I
don’t at all credit his explanation for the events of this encounter
with police on July 22nd, 2009.
So then we would be looking again at a custody range of 46 to
57 months. Would you like to be heard on sentencing?
R., Vol. 2 pt. 2 at 91–92. Defense counsel declined the court’s offer, stating that
“everything ha[d] probably been said that can possibly be said about this matter”
and that “further comment would [not] be of much benefit.” Id. at 92. Defendant
then spoke on some factual issues not relevant to the appeal and the court
discussed with counsel what term of supervised release could be imposed after the
revocation sentence. Defense counsel urged the court not to impose any further
supervised release after a lengthy sentence on revocation. The court imposed
sentence, saying:
[T]he sentence I would propose here—first of all, the highest grade
violation is A, the criminal history category is 5. The Court finds
that defendant has violated the terms of supervised release which the
Court imposed on October 27, 1997. So that term of supervised
release is revoked.
The Court finds, Mr. White, that you should be sentenced to
the custody of the Bureau of Prisons for 46 months. When you’re
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released from prison, you’ll be placed on supervised release for 50
months.
Id. at 98–99. By stating the appropriate guideline range and how it was
calculated, the court gave a satisfactory general statement of the reasons for
imposing the sentence.
IV. CONCLUSION
We AFFIRM the Defendant’s sentence.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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