United States v. Marsha Arlene Massengill ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15207 MAR 19, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 08-00063-CR-IPJ-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARSHA ARLENE MASSENGILL,
a.k.a. Marsha Arlene Sanchez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(March 19, 2009)
Before BIRCH, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Philip A. Barr (“Barr”), appointed counsel for Marsha Arlene Massengill
(“Massengill”), has moved to withdraw from further representation of Massengill
and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396(1967), in support of his motion. Massengill’s appeal concerns the district court’s
revocation of her supervised release and the court’s sentence of twenty-one months
of imprisonment. Although Barr has complied with the Anders requirements, our
independent review of the record has revealed that the district court failed to
comply with 18 U.S.C. § 3553(c)(2) by not stating its specific reasons in its written
judgment for sentencing Massengill outside the guidelines range. Because this is
an arguably meritorious issue, we DENY Barr’s motion to withdraw. However,
because the district court’s oral explanation of the sentence was adequate and the
court did not err in revoking Massengill’s supervised release, we VACATE the
district court’s judgment and REMAND to the district court for the limited purpose
of amending the written judgment to include its reasons for the outside-the-
guidelines sentence.
I. BACKGROUND
In May 2007, Massengill pled guilty to one count of making false
statements, in violation of 18 U.S.C. § 1001(a)(2). See R1-1 at 6. Massengill was
sentenced to twenty months of imprisonment and three years of supervised release.
See id. at 7-8. One of the conditions of Massengill’s supervised release was that
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she “must report to the probation office in the district to which [she] is released
within 72 hours of release from the custody of the Bureau of Prisons.” Id. at 8.
In March 2008, the government moved to have Massengill’s supervised
release revoked because Massengill failed to report to the probation office as
required under the terms of her supervised release. See R1-2. On 29 April 2008,
the district court revoked Massengill’s supervised release and sentenced her to
three months of imprisonment and an additional twenty-one month term of
supervised release. See R1-7.
Massengill was released on 3 July 2008. See R1-8 at 1. On 22 July 2008,
the government moved a second time to have Massengill’s supervised release
revoked because she once again failed to report to the probation office as required
under the terms of her supervised release. See id. at 1-2. The government also
filed an addendum in which it alleged additional reasons for revoking Massengill’s
supervised release. See R1-9. The government asserted that Massengill attempted
to murder a police officer by intentionally striking a patrol car with her vehicle.
The government further alleged that when Massengill was arrested, she was found
in possession of two glass “crack” pipes. Id.An initial appearance hearing was held before a magistrate judge where,
according to the district court’s docket sheet, the magistrate judge explained the
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charges and Massengill’s rights, appointed Barr as Massengill’s counsel and
ordered Massengill into custody pending her revocation hearing. See R1, sixth
docket entry for 14 August 2008. At the revocation hearing, the court determined
that Massengill stipulated to her failure to report to the probation office, but
denied the allegations in the addendum. See R2 at 2-5. The court stated that it
would not consider the facts alleged in the addendum and asked if Massengill had
anything to say in mitigation. Id. at 5.
Massengill argued that a sentence of ten months of imprisonment would be
appropriate. Id. Massengill, through counsel, asserted that she had a drug problem
and that she wanted help. Id. at 5-6. The government agreed that Massengill
needed drug treatment but requested that Massengill receive the maximum possible
sentence of twenty-one months of imprisonment. Id. at 7. The government
asserted that the drug treatment program in the prison system was eighteen months
long and so a sentence of twenty-one months of imprisonment would allow for
Massengill to attend the program and complete it. Id. The government also argued
that Massengill was a danger to herself and the surrounding community and that
twenty-one months of imprisonment was the only sentence that would allow
Massengill to “beat” her drug addiction. Id.The district court found sufficient evidence to revoke Massengill’s
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supervised release based on her failure to report. Id. at 7-8. The court determined
that Massengill had committed a Grade C violation and had an original criminal
history category of II. Id. at 8. In accordance with the guidelines, the court found
Massengill’s sentencing range to be four to ten months of imprisonment. Id. The
court then sentenced Massengill to twenty-one months of imprisonment with no
additional term of supervised release. Id. at 8-9. The district court justified its
departure from the guidelines range by stating that it believed that Massengill
could not comply with the conditions of supervised release because of her drug
addiction. Id. at 8. The court also noted that the twenty-one month sentence is
what she would have served on supervised release had it not been revoked. Id.The court recommended that Massengill be allowed to receive drug treatment from
the Bureau of Prisons and expressed its confidence that Massengill would be able
to participate in and finish a drug treatment program during her incarceration. Id.
at 8-9.
The district court’s written judgment stated only that Massengill was
sentenced to twenty-one months of imprisonment and recommended that
Massengill be allowed to participate in a drug treatment program. R1-14. The
judgment did not include any reasons for the court’s departure from the guidelines
range.
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Barr filed a notice of appeal on Massengill’s behalf and later moved to
withdraw as counsel. Massengill was given notice of the motion and the brief, and
of her opportunity to respond. Massengill did not respond to counsel’s motion to
withdraw. See Admin. Materials at 1-2, 5. Both Barr’s motion to withdraw and
Massengill’s appeal are now before us.
II. DISCUSSION
An attorney who finds an appeal “wholly frivolous” and seeks to withdraw
from further representation nevertheless must remain in the role of an active
advocate on behalf of the client. Anders, 386 U.S. at 744, 87 S. Ct. at 1400.
Anders mandates that counsel seeking to withdraw from further representation
based upon the belief that an appeal is wholly frivolous must accompany the
motion to withdraw with a brief that “set[s] out any irregularities in the trial
process or other potential error which, although in his judgment not a basis for
appellate relief, might, in the judgment of his client or another counselor or the
court, be arguably meritorious.” United States v. Blackwell, 767 F.2d 1486, 1487-
88 (11th Cir. 1985). Counsel must conduct a “conscientious examination” of the
entire record on appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 350
(1988) (quotation marks omitted). Counsel then must isolate the pages of the
record relevant to those arguably meritorious points and cite relevant legal
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authority. See United States v. Edwards, 822 F.2d 1012, 1013 (11th Cir. 1987)
(per curiam). After we conduct a review of the record, we then must independently
determine whether the case is wholly frivolous. See Anders, 386 U.S. at 744, 87 S.
Ct. at 1400.
We review a sentence upon revocation of supervised release for
reasonableness. United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008)
(per curiam). Under 18 U.S.C. § 3553(c)(2), when the district court sentences a
defendant outside of the advisory guideline sentencing range, it is required to state
its specific reasons for sentencing outside of the advisory range in open court and
in the written judgment. If the district court fails to give its specific reason(s) for
sentencing outside of the advisory guideline range, we must remand for
resentencing. See United States v. Delvecchio, 920 F.2d 810, 813 (11th Cir. 1991).
The purpose for requiring the district court to specify its sentencing rationale is so
that we may determine whether the sentence was reasonable. See id.In this case, Barr’s Anders brief adequately cites relevant legal authority,
isolates pages in the record, and discusses three possible issues for appeal: (1)
whether the district court complied with Federal Rule of Criminal Procedure 32.1;
(2) whether the district court abused its discretion in revoking Massengill’s
supervised release; and (3) whether the district court properly applied the
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Sentencing Guidelines and governing statutes when sentencing Massengill. See
Appellant Brief at 6-12. Barr contends that all three issues lack arguable merit.
Although our independent review of the record confirms Barr’s contention
regarding the first two issues cited, we find the last issue more troublesome.
Our review of the record reveals that the district court committed no error in
revoking Massengill’s supervised release or in its oral pronouncement of the
sentence. However, it is clear from the record that the district court did not comply
with § 3553(c)(2)1 because it did not state its specific reasons for the non-
guidelines sentence in the written judgment. See R1-14. We have long held that if
the district court fails to give its specific reason(s) for sentencing outside of the
advisory guideline range, we must remand for resentencing. See Delvecchio, 920
F.2d at 813. The purpose for requiring the specific reasons is so that we may
determine if the departure was justified. See id.1
The relevant text of 18 U.S.C. § 3553(c) is the following:
Statement of reasons for imposing a sentence. The court, at the time of sentencing,
shall state in open court the reasons for its imposition of the particular sentence, and,
if the sentence –
(1) is of the kind, and within the range, described in subsection (a)(4), and that range
exceeds 24 months, the reason for imposing a sentence at a particular point within
the range; or
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the
specific reason for the imposition of a sentence different from that described, which
reasons must also be stated with specificity in the written order of judgment and
commitment.
18 U.S.C. § 3553(c) (emphasis added).
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In this case, the district court articulated two reasons during the sentencing
hearing for imposing a sentence of twenty-one months of imprisonment. First, the
court did not believe that Massengill would be able to comply with the terms of
supervised release. Second, the court gave Massengill a sentence that would be
long enough to allow her to obtain treatment for her drug addiction. The district
court complied with the first part of § 3553(c)(2) by giving its specific reasons in
open court during the sentencing. However, § 3553(c)(2) also mandates that
specific reasons be provided in the written judgment. Although the district court’s
judgment recommended that Massengill be allowed into a drug treatment program,
it did not state that the drug treatment program was the specific reason for the
sentence. See R1-14.
The district court’s failure to reduce its sentencing rationale to writing in this
case is subject only to plain error review because Massengill did not raise this issue
below. See United States v. Massey, 89 F.3d 1433, 1441 (11th Cir. 1996); see also
United States v. Gonzalez-Delgado, 271 Fed. Appx. 837, 840 (11th Cir. 2008) (per
curiam). That said, the error remains one on which, in our judgment, an arguably
meritorious appeal might be based. Given the dearth of our own circuit precedent
on this point, we are inclined to follow the reasoning of our brethren in the Second
Circuit who dealt with a like issue in United States v. Hall, 499 F.3d 152, 154 (2d
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Cir. 2007) (per curiam).
In Hall, the district court “gave an oral explanation that adequately explained
the below-Guidelines sentence imposed, but the court did not include a written
statement of reasons for the sentence in the written order of judgment as required
by 18 U.S.C. § 3553(c)(2).” Hall, 499 F.3d at 153. Counsel filed a motion to
withdraw pursuant to Anders arguing that “it would be frivolous to claim that the
district court’s failure to comply with section 3553(c)(2) was not harmless.” Id. at
154. The Hall court explained that it had previously held in a direct appeal that
when the oral explanation of the non-guidelines sentence was adequate, but a
written explanation was not provided, the “better course” was to affirm the
substance of the judgment and remand to the district court for the sole purpose of
amending the written judgment to comply with § 3553(c)(2). Id. (quotation marks
and citation omitted). The court further noted that although compliance with
§ 3553(c)(2) would not change the substance of the judgment, the written
statement of reasons was beneficial because the Bureau of Prisons often consulted
the written judgment of conviction. Id. at 154-55. The court stated that it could
not “conclude that the absence of a written statement of reasons will not have
consequences for the defendant, some of which may be negative, in his future
relationship with the Bureau of Prisons as he proceeds to serve his sentence.” Id.
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at 155.
The Second Circuit then addressed counsel’s Anders motion. Id. at 155-57.
The court stated that because it concluded that the lack of a written statement could
be detrimental to a defendant, it could not say with certainty that an appeal of the
issue would be frivolous. Id. at 156. Accordingly, the court denied counsel’s
motion to withdraw. Id. at 157. The court’s disposition of the case was to affirm
the sentence imposed and remand to the district court with instructions to amend
the written judgment to comply with § 3553(c)(2). Id.
We agree with Hall’s rationale for enforcing the requirement that the written
judgment specify the reason for a departure from the guidelines range. We further
agree that an appeal of this issue cannot be considered “wholly frivolous.” Anders,
386 U.S. at 744, 87 S. Ct. at 1400. Accordingly, we must deny Barr’s motion to
withdraw at this juncture. As the Second Circuit noted, “[h]aving counsel continue
to represent his client on remand will ensure that the defendant has the benefit of
counsel to review the written statement of reasons once it is filed and ensure that
no meritorious issues that arise in connection with that written entry are
overlooked.” Hall, 499 F.3d at 157.
Having agreed with Hall’s reasoning, we also adopt its instructions as
follows:
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Following the district court’s entry on remand of the written statement
of reasons, the clerk of the district court will report that entry to the
clerk of this Court, and the present appeal will be reinstated. Within
ten days thereof, counsel for [Massengill] will either withdraw his
Anders motion and request a briefing schedule or will renew and
supplement his Anders motion. If renewing his Anders motion,
counsel may proceed by supplemental letter brief making reference to
his original Anders brief and adding such further discussion as may be
necessary. [We] will retain jurisdiction of this appeal after the
disposition on remand.
Id.III. CONCLUSION
For the foregoing reasons, we DENY Barr’s motion to withdraw. We
VACATE the district court’s judgment and REMAND to the district court for the
limited purpose of amending the written judgment to include its reasons for the
outside-the-guidelines sentence.
MOTION TO WITHDRAW DENIED.
JUDGMENT VACATED AND REMANDED FOR THE LIMITED
PURPOSE OF AMENDING THE WRITTEN JUDGMENT TO INCLUDE
THE SPECIFIC REASONS FOR THE SENTENCE.
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