United States v. Travis Cork , 249 F. App'x 168 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 1, 2007
No. 07-10323 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00330-CR-01-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRAVIS CORK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 1, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Travis Cork appeals his resentence of eighteen months of imprisonment and
one year of supervised release, which was imposed after the district court revoked
Cork’s probation. Cork had initially had been sentenced to five years of probation
after pleading guilty to the underlying offense of conviction of making interstate
threats to injure the reputation and property of a person. On appeal, Cork argues
that the district court: (1) violated his constitutional rights or otherwise erred in
resentencing him to eighteen months of incarceration and one year of supervised
release and (2) abused its discretion in resentencing him to eighteen months of
imprisonment, above the Guidelines’ range, or, alternatively, that his resentence
was unreasonable.1 For the following reasons, we AFFIRM.
I. FACTS
In June 2004, a federal grand jury indicted Cork on multiple counts of
making interstate threats to injure the reputation and property of a person, in
violation of 18 U.S.C. § 875(d). The indictment alleged that, on different
occasions, Cork left threatening voice messages on the answering machine of an
individual and his family.
1
Cork also argues that the district judge erred in failing to recuse himself. Because Cork’s
recusal motion rested on arguments that were different from those he now raises on appeal, we
review this claim for plain error only. United States v. Wright, 392 F.3d 1269, 1279 (11th Cir.
2004). Plain error review also applies where, as in this case, a party fails to invoke a recusal statute
in its motion to recuse. Hamm v. Members of Bd. of Regents of the State of Florida, 708 F.2d 647,
651 (11th Cir. 1983). We have reviewed the entire record, including the transcripts of the revocation
proceeding, and conclude that the district judge did not plainly err in refusing to recuse himself.
2
Cork, through appointed counsel, initially pled not guilty to all of the counts
of the indictment, but later agreed to plead guilty to count seven in consideration of
the government’s agreement to dismiss the remaining counts against him. Cork
also agreed to be evaluated by a prison psychiatrist, and, if Cork was found to be
suffering from a mental defect, the government stated that it would recommend a
sentence of probation and hospitalization in lieu of incarceration.
The district court accepted Cork’s plea, found him guilty of count seven of
the indictment, and sentenced him to five years of probation. Cork’s probation
conditions required him to: (a) submit to mental health counseling; (b) obtain and
maintain employment; (c) report to the probation officer and submit a written
report within the first five days of each month; (d) answer truthfully all inquiries
by the probation officer and follow the officer’s instructions; and (e) notify his
probation officer within ten days of any change in his address. Although Cork
filed a direct appeal in the underlying action, he later dismissed his appeal
voluntarily.
This case arose in March 2006, when a probation officer petitioned to revoke
Cork’s probation because Cork failed: (a) to report as directed or to submit timely
monthly reports; (b) to secure employment; (c) to allow his probation officer to
visit him or to answer the door on “numerous” occasions; and (d) to notify his
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probation officer that he was changing residences. The district court appointed
new counsel for Cork on this petition.
Cork initially responded by filing a pro se motion to recuse, arguing that the
district judge had violated the law by departing from the applicable Guidelines’
range in sentencing Cork to five years of probation in the underlying action, in
violation of 18 U.S.C. § 875(d). Section 875 provides, in relevant part, that an
individual convicted under subsection (d) “shall be fined under this title or
imprisoned not more than two years, or both.” 18 U.S.C. § 875(d). The district
court denied this motion.
The district court held a hearing on the probation revocation petition in
January 2007, during which Cork was argumentative and hostile towards the
district court and the Assistant United States Attorney. Cork advised the district
court that he was “going to put you [the court] away. Your name is not going to be
mentionable in this building . . . I’m going to ruin you.” R7 at 8-9. Eventually, the
district court ordered Cork to be escorted from the courtroom, but did not hold him
in contempt and asked whether Cork expressed a desire to return to the courtroom.
After the hearing, the district court found the government proved by a
preponderance of the evidence that Cork violated the conditions of his probation as
to three of the allegations, but not that he changed residences without first
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notifying his probation officer. The court then requested the United States Marshal
to ask Cork whether he wanted to address the court in allocution. Apparently,
Cork did not, and so his attorney spoke on his behalf. Cork’s attorney stated that
he had “great admiration” for the court’s patience, admitted that Cork “definitely
[had] pushed some buttons,” and thanked the court “for not letting [Cork] have it
when you [the court] easily could [have].” Id. at 40-41.
The district court resentenced Cork to eighteen months of imprisonment,
followed by one year of supervised release, and recommended that the Bureau of
Prisons put him in a facility that offered a high level of psychiatric treatment. This
appeal followed.2
II. DISCUSSION
Cork raises two arguments on appeal with regard to his resentencing. First,
Cork contends that, as a result of his most recent arrest, he will have to serve more
than the statutory maximum penalty of twenty-four months of imprisonment for his
underlying offense of conviction, in violation of Article I, § 9 and the Fifth and
Sixth Amendments to the United States Constitution. Second, Cork argues that his
eighteen-month resentence was unreasonable because it exceeds the Guidelines’
2
Cork was released from custody in April 2007, presumably after receiving credit for time
served while he remained in custody during the pendency of his case in the district court. Cork has
since been indicted for threatening a federal official and is again in custody; this new case is still
pending.
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recommended range of three-to-nine-months, and because Cork’s probation
violations were “technical” in nature. Cork’s Brief at 12. We address each
argument in turn.
A. Constitutionality and Legality of Cork’s Resentence
We review a constitutional challenge to a sentence de novo. See United
States v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005) (per curiam). We review the
legality of a sentence de novo, including a sentence imposed pursuant to revocation
of a term of probation. See United States v. Mitsven, 452 F.3d 1264, 1265-66
(11th Cir.), cert. denied, ___ U.S. ___, 127 S. Ct. 663 (2006). A district court is
vested with the authority to sentence a defendant after a probation revocation
pursuant to 18 U.S.C. § 3565. Section 3565(a)(2) provides that “[i]f [a] defendant
violates a condition of probation at any time prior to the expiration or termination
of the term of probation, the court may, after a hearing pursuant to Rule 32.1 of the
Federal Rules of Criminal Procedure, and after considering the factors set forth in
section 3553(a) to the extent that they are applicable . . . (2) revoke the sentence of
probation and resentence the defendant under subchapter A.” 18 U.S.C.
§ 3565(a)(2).
Subchapter A, in turn, consists of 18 U.S.C. §§ 3551-3559. See United
States v. Cook, 291 F.3d 1297, 1301 (11th Cir. 2002) (per curiam). Under 18
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U.S.C. § 3553(a), a district court must consider certain factors before imposing a
sentence, including: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the
offense, to afford adequate deterrence, to promote respect for the law, to provide
just punishment for the offense, to protect the public, and to provide the defendant
with needed educational or vocational training or medical care; (3) the kinds of
sentences available; (4) the Sentencing Guidelines’ range; and (5) pertinent
Sentencing Commission policy statements. See 18 U.S.C. § 3553(a).
A district court is expressly permitted to resentence a defendant upon
revocation of probation without regard to the sentencing range applicable at the
time of the initial sentencing hearing.3 See Cook, 291 F.3d at 1300. Instead, a
court must only comply with subchapter A of the Code when sentencing a
defendant. See id. A district court is “authorized to impose a period of supervised
release as a consequence of probation revocation.” United States v. Hobbs, 981
F.2d 1198, 1199 (11th Cir. 1993) (per curiam).
Contrary to Cork’s arguments on appeal, the district court was not bound by
the statutory maximum for the underlying offense when resentencing him, and, in
any event, Cork’s ultimate resentence of eighteen months of imprisonment was less
3
The statutory maximum for the offense of making interstate threatening communications,
with the intent to extort, to another person is two years’ imprisonment. See 18 U.S.C. § 875(d).
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than the underlying offense’s statutory maximum of twenty-four months.
Moreover, the court complied with the provisions of subchapter A in imposing
Cork’s resentence. Specifically, the district court noted that it had considered as
part of its resentencing: (a) the nature and circumstances of Cork’s probation
violations in concluding that a sentence below the statutory maximum was
appropriate; (b) Cork’s personal history and characteristics; and (c) the need to
provide Cork with psychiatric treatment. R7 at 37-38, 43, 46. Finally, the district
court was permitted to impose a term of supervised release as a part of Cork’s
resentence.
Upon review of the record, and upon consideration of the briefs of the
parties, we conclude that the district court committed no error, constitutional or
otherwise, in resentencing Cork.4
B. Reasonableness of Cork’s Resentencing
We review for an abuse of discretion a district court’s decision to exceed the
advisory sentencing range in Chapter 7 of the Sentencing Guidelines, U.S.S.G.
4
To the extent that Cork attempts to assert that his sentence of five years of probation,
imposed in the underlying action, was unlawful, this issue is not properly before us. Cork filed a
notice of appeal regarding this sentence, but later dismissed this appeal with prejudice. Moreover,
to the extent that Cork attempts to assert an argument as to the legality of a sentence that may be
imposed at a future supervised release revocation hearing, the issue is not ripe for review at this
time. See Atlanta Gas Light Co. v. F.E.R.C. 140 F.3d 1392, 1404 (11th Cir. 1998) (“‘A claim is not
ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or
indeed may not occur at all.’”) (quoting Texas v. United States, 523 U.S. 296, 300, 118 S. Ct. 1257,
1259 (1998)).
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§ 7B1.4. See United States v. Silva, 443 F.3d 795, 798 (11th Cir. 2006) (per
curiam). We review the sentence imposed upon the revocation of probation for
reasonableness. See United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006) (per curiam) (in the context of supervised release).
While a district court must consider the factors outlined in 18 U.S.C.
§ 3553(a) when sentencing a defendant, it is not required to discuss each factor on
the record. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per
curiam). We reaffirmed this holding in United States v. Dorman, 488 F.3d 936,
944 (11th Cir. 2007), where we upheld a defendant’s sentence as reasonable,
“[d]espite the district court’s failure to explicitly articulate that it had considered
the § 3553(a) factors,” since the record revealed that the court, in fact, had
considered a number of sentencing factors. “The weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court.”
United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert. dismissed,
___ U.S. ___, 127 S. Ct. 3040 (2007). “[T]here is a range of reasonable sentences
from which the district court may choose” and the burden of demonstrating
unreasonableness rests with the party challenging the sentence. Talley, 431 F.3d at
788.
Upon review of the record, and upon consideration of the briefs of the
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parties, we conclude that the district court did not abuse its discretion in imposing a
resentence of eighteen months of imprisonment at the revocation hearing, nor was
this resentence unreasonable.
The policy statements of Chapter 7 are merely advisory and not binding,
and the district court, after expressly considering a number of § 3553(a) factors,
found that a sentence exceeding the Guidelines’ range was necessary. First, the
district court explained that it imposed a resentence in excess of the recommended
range because Cork needed psychiatric treatment, and it was “dubious” whether he
would receive treatment out of prison. R7 at 43. The need for medical treatment is
a sentencing factor that the district court may consider, and it is granted broad
discretion to determine the weight to give any particular sentencing factor.
Second, the district court noted that Cork had “returned to his pattern of
threatening the . . . reputation of somebody else . . . [s]o he is a danger.” Id. Third,
the district court declined to sentence Cork to the maximum period of
imprisonment possible because Cork’s probation violations were relatively
technical in nature. Id. at 37-38. Finally, Cork’s eighteen-month resentence did
not exceed the statutory maximum for the underlying offense of conviction.
Accordingly, we conclude that the district court did not abuse its discretion
in resentencing Cork to eighteen months of imprisonment, nor was this resentence
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unreasonable.
III. CONCLUSION
Cork has appealed his eighteen month resentence, which the district court
imposed after revoking Cork’s probation. Having reviewed the record, we
conclude that district court committed no error in resentencing Cork, that the
sentence imposed was reasonable, and that the district court did not err in denying
Cork’s motion to recuse. AFFIRMED.
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