United States v. David O. Spence, Sr. , 151 F. App'x 836 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 26, 2005
No. 04-15024 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00079-CR-ODE-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID O. SPENCE, SR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 26, 2005)
Before ANDERSON, CARNES, and MARCUS, Circuit Judges.
PER CURIAM:
I. BACKGROUND
In June 1999, David O. Spence, Sr., was convicted of being a felon in
possession of firearms, in violation of 18 U.S.C. §§ 922(g) and 924(a), and was
sentenced to 92 months’ imprisonment, to be followed by 3 years’ supervised
release. According to the Pre-Sentence Investigation Report issued in relation to
this conviction, Spence fired five shots into the bedroom of his former wife,
Marcia Buford. After firing the shots, Spence pulled Buford onto the bed by her
hair and held a gun to her temple, asking Buford whether “that got [her] attention.”
Spence then beat Buford in the face, causing Buford’s front tooth to come out of
her mouth and breaking two other teeth. After Buford went into the bathroom “to
get some of the blood and teeth out of her mouth,” Spence fired a round into the
bathroom.
The conditions of Spence’s supervised release included, inter alia, that he
could not commit another federal, state, or local crime, and that could not leave the
Northern District of Georgia without the permission of the court or his probation
officer. The district court revoked Spence’s supervised release on grounds that
Spence had committed the felony of aggravated stalking (perpetrated against his
ex-wife, Buford) and had left the jurisdiction without permission. The district
court imposed 24 months’ imprisonment. Spence appeals.
2
II. DISCUSSION
A. Spence’s Evidentiary Challenges
On appeal, Spence argues that the district court erred by admitting the
following hearsay testimony at his supervised release revocation hearing: (1) the
allegations of Marcia Buford, Spence’s former wife, relating to the aggravated
stalking charge; (2) documents relating to his transfer from Paulding County,
Georgia, to a nursing home in Macon, Georgia; and (3) an arrest warrant issued
against him for escape. Spence maintains that the district court violated his Sixth
Amendment right of confrontation by admitting this hearsay testimony. Spence
notes that in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d
177 (2004), the Supreme Court held that, under the Confrontation Clause, out-of-
court testimonial statements by a witness may not be admitted unless the declarant
is unavailable, and the defendant previously had an opportunity to cross-examine
him. Spence argues that we should hold that Crawford applies to a supervised
release revocation hearing. Alternatively, Spence argues that we should determine
whether the district court erred by applying the balancing test outlined in United
States v. Frazier, 26 F.3d 110 (11th Cir. 1994) and Fed.R.Crim.P. 32.1(b)(2)(C).1
1
Under Fed.R.Crim.P. 32.1(b)(2)(C), a judge must give a defendant at a parole
revocation hearing “an opportunity to appear, present evidence, and question any adverse witness
unless the court determines that the interest of justice does not require the witness to appear . . .
3
The applicability of evidentiary rules in supervised release revocation
proceedings is a question of law subject to de novo review. United States v.
Frazier, 26 F.3d 110, 112 (11th Cir. 1994). In Crawford, the Supreme Court held
that prior testimonial statements may be admitted only if the declarant is
unavailable, and the defendant had an earlier opportunity to cross-examine the
declarant. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. We have not addressed
the issue of whether the Supreme Court’s holding in Crawford applies to a
supervised release revocation hearing. However,
[a]lthough the Federal Rules of Evidence do not apply in supervised
release revocation hearings, the admissibility of hearsay is not
automatic. Defendants involved in revocation proceedings are entitled
to certain minimal due process requirements. Among these minimal
requirements is the right to confront and cross-examine adverse
witnesses. Fed.R.Crim.P. 32.1, which applies to supervised release
revocation, incorporates these same minimal due process
requirements. Indeed, “[t]he same protections granted those facing
revocation of parole are required for those facing the revocation of
supervised release.” Thus, in deciding whether or not to admit
hearsay testimony, the court must balance the defendant's right to
confront adverse witnesses against the grounds asserted by the
government for denying confrontation. In addition, the hearsay
statement must be reliable.
Frazier, 26 F.3d at 114.
In Frazier, we found that although the district court had erred by failing to
.”
4
determine the reliability of the hearsay testimony or conduct the required
balancing test, the error was harmless because other properly considered evidence
demonstrated that Frazier had breached the terms of his supervised release. Id.We need not determine whether Crawford applies to revocation hearings,
nor whether admission of the challenged evidence violated the balancing test set
forth in Frazier. As in Frazier, any error was harmless. Even assuming that the
evidence challenged by Spence should not have been admitted, the error was
harmless because other, uncontested evidence satisfied the elements of aggravated
stalking and established that Spence left the jurisdiction without permission.2
Under O.C.G.A. 16-5-91(a):
A person commits the offense of aggravated stalking when such
person, in violation of a bond to keep the peace posted pursuant to
Code Section 17-6-110, temporary restraining order, temporary
protective order, permanent restraining order, permanent protective
order, preliminary injunction, good behavior bond, or permanent
injunction or condition of pretrial release, condition of probation, or
condition of parole in effect prohibiting the behavior described in this
subsection, follows, places under surveillance, or contacts another
person at or about a place or places without the consent of the other
person for the purpose of harassing and intimidating the other person.
The uncontested evidence related to stalking included the following: (1)
Detective Lafay Streetman, who was working with Spence’s parole officer,
2
We note that elsewhere in his brief, Spence’s counsel concedes that “Mr. Spence
violated a protective order repeatedly.” Blue Brief at 25.
5
testified that Buford delivered various documents to Streetman that Buford had
received through the mail, including legal documents that Spence had filed with
the Superior Court of Paulding County and personal letters that either contained
Spence’s signature or were signed “your husband.”3 Several of those documents
involved Spence’s attempt to divorce his ex-wife, notwithstanding the fact that the
two were already divorced. (2) Buford’s permanent protective order was admitted
without objection. That protective order stated that Spence was “enjoined and
restrained from doing or attempting to do or threatening to do any act of injuring,
molesting, maltreating, harassing, harming or abusing the petitioner in any manner
and from approaching within 200 yards of the petitioner and from approaching
within 200 yards of petitioner’s residence or place of employment.” Revocation
Hearing at 47. (3) Spence admitted that he had served Buford with legal
documents. (4) The detective testified that Spence had told her he was trying to
“resolve” his marriage with Buford. (5) The detective testified that she believed
that Buford viewed the mailings as a form of harassment , and that Buford was
“taking all this in” and appeared to be “excessively afraid.”4 Even assuming that
3
Streetman testified that she is the lead domestic violence investigator at the
Paulding County Sheriff’s Department.
4
Detective Streetman also testified that Buford told her that Buford was so afraid
that she had missed work, stayed with her parents, and had begun seeing a doctor who could
prescribe medication for her anxiety.
6
all the evidence whose admissibility Spence challenges is inadmissable in a parole
revocation hearing, the unchallenged evidence is sufficient to justify the district
court’s finding that Spence had committed the felony of aggravated stalking.
The court was also justified in finding that Spence had violated the terms of
his release by leaving the Northern District of Georgia without authorization from
the court or his probation officer. Although Spence challenges the admissibility of
certain documents relating to Spence’s transfer from Paulding County custody to a
nursing home in Georgia, and to the arrest warrant issued after Spence left the
nursing home, Spence does not dispute that he left the nursing home without
authorization.5 The probation officer’s petition for revocation of supervised
release alleged that Spence was guilty of the crime of escape. As the district court
pointed out, regardless of whether Spence is guilty of the crime of escape, the
evidence above is sufficient to justify the finding that Spence left the jurisdiction
without permission of the court or his parole officer.
B. Spence’s PROTECT Act Challenges
Spence also argues that his sentence upon revocation of his supervised
5
Rather, without pointing to any corroborating evidence, Spence claims that he left
in order to avoid being subject to medical procedures to which he did not consent. Spence does
not dispute the fact that he was found and arrested in Camden County, Georgia, which is outside
the jurisdiction. The district court judge found Spence’s account of why he left the nursing home
not to be credible. Revocation Hearing at 97.
7
release did not comply with the requirements of the Prosecutorial Remedies and
Other Tools to End the Exploitation of Children Today Act, (the “PROTECT
Act”) Pub.L. No. 108-21, 117 Sta. 650 (2003). Specifically, Spence maintains
that the district court erred by (1) imposing a sentence above the sentencing range
set forth in U.S.S.G. § 7B1.4, which Spence argues was made mandatory by the
PROTECT Act, and (2) failing to include a written explanation for its decision to
impose the sentence.
Spence preserved his challenge to the sentence outside of the sentencing
range described in U.S.S.G. § 7B1.4, but did not object to the district court’s
failure to provide a written statement of its reasons for doing so. Therefore, we
review this issue for plain error. See United States v. Aguillard, 217 F.3d 1319,
1320 (11th Cir. 2000).6 We have “held that where neither the Supreme Court nor
this Court has ever resolved an issue, and other circuits are split on it [or have
unanimously held against the appellant], there can be no plain error in regard to
that issue.” Aguillard, 217 F.3d at 1321, citing United States v. Humphrey, 164
F.3d 585, 588 (11th Cir. 1999).
6
To establish plain error, Spence must persuade us that (1) there was an error, (2)
that was plain, (3) that affected his substantial rights, and (4) that, if left uncorrected, would
seriously affect the fairness, integrity or public reputation of a judicial proceeding. See, e.g.
United States v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999).
8
Spence’s argument that the sentencing range described in the U.S.S.G.
§7B1.4 policy statement is now mandatory is based upon the following provisions
of the statute. Section 3553(b)(1) of Title 18 provides in relevant part:
The court shall impose a sentence of the kind, and within the range
referred to in subsection (a)(4) unless the court finds that there exists
an aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines.
18 U.S.C. §3553(b)(1). The referenced subsection (a)(4) includes the following
provision regarding parole revocations:
The court, in determining the particular sentence to be imposed, shall
consider –
...
(B) In the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing
Commission.
18 U.S.C. §3553(a)(4). In addition, Spence relies upon 18 U.S.C. §3742(e), which
requires that an appellate court review departures from the Guideline range de
novo. Finally, Spence relies upon 18 U.S.C. §3742(f)(2) which provides that an
appellate court should set aside and remand a sentence if it is outside the
“applicable guideline range and the district court failed to provide the required
statement of reasons in the order of judgment and commitment.” The “required
statement of reasons in the order of judgment and commitment” refers to 18
9
U.S.C. §3553(c)(2) which provides in relevant part as follows:
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 –
...
(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)(2).
As is readily apparent from a close review of the foregoing statutory
provisions, the crucial provision upon which Spence relies to support his argument
that the policy ranges are mandatory is §3553(b)(1). In other words, only in
§3553(b)(1) is there any indication at all of a mandatory obligation.
For two reasons, we readily conclude that there is no merit in Spence’s
argument that the sentencing ranges recommended in the Chapter 7 policy
statements are mandatory. First, the crucial language of §3553(b)(1) was not
changed by the PROTECT Act, and our pre-PROTECT Act case law was well
established that such policy ranges were merely advisory. In United States v.
Hofierka, 83 F.3d 357 (11th Cir. 1996), we rejected an argument that the then
applicable §3553(b) imposed a mandatory obligation upon the sentencing judge to
impose a sentence within the range specified in Chapter 7 for a violation of
10
probation or supervised release. The Hofierka opinion included a quotation of the
then applicable §3553(a)(4) and of the then applicable §3553(b). So far as is
relevant to the question of whether or not there is a mandatory obligation upon a
sentencing judge to impose a sentence within the ranges specified in Chapter 7 for
violation of probation or supervised release, there is absolutely no difference in
the language of the statute applied in Hofierka as compared to the currently
applicable provisions of the statute. Thus, Spence’s argument is wholly without
merit.
A second reason for rejecting Spence’s argument that the sentencing ranges
recommended in the Chapter 7 policy statements are mandatory is based upon
United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 756-57 (2005). In that case,
the Court “severed and excised” §3553(b)(1), thus eliminating the statutory
language upon which Spence relies to support his argument. Pursuant to Booker,
even the Guidelines promulgated by the Sentencing Commission are merely
advisory, and, of course, the sentencing ranges recommended in the Chapter 7
policy statements remain merely advisory as well.
Having disposed of Spence’s argument that the sentencing ranges
11
recommended by the Chapter 7 policy statements are mandatory7, we turn next to
his argument that the sentencing judge failed to state with specificity in the written
order of judgment and commitment the reasons for departing from the
recommended sentencing range. In this regard, Spence relies upon §3553(b)(1)
and §3553(c)(2).
As noted, the former section has now been “severed and excised,” and
therefore cannot support Spence’s argument. However, §3553(c)(2) remains, and
we must address Spence’s argument. As noted above, Spence did not object in the
district court to the failure to provide such a written statement, and therefore we
review only for plain error. We readily conclude that Spence cannot satisfy the
plain error standard. In analyzing the currently applicable statutory language, the
Eighth Circuit has squarely held that the Chapter 7 sentencing ranges for violation
of supervised release remain merely advisory, that a sentence above that advisory
range is not an upward departure contemplated by the statutory language, and that
the requirement of specific findings justifying departures does not apply to a
sentence above such an advisory range. United States v. White Face, 383 F.3d
7Spence’s other arguments challenging the sentence are rejected without need for
discussion. For example, his double counting argument is rejected because we conclude there
was no double counting. His argument for de novo review is based upon § 3742(e), which was
also “severed and excised” by Booker; his challenge to the sentence is due to be affirmed under
any conceivable standard.
12
733, 737-39 (8th Cir. 2004); United States v. Martin, 371 F.3d 446, 449 (8th Cir.
2004). Neither this Court nor the Supreme Court has squarely addressed the
issue, although we note that the rationale of our Hofierka decision would point
toward a ruling similar to that of the Eighth Circuit. However, we need not
resolve the issue in this case because Spence cannot establish plain error. Even if
there were error, which we doubt, it is not plain or obvious. We also readily
conclude that Spence could not satisfy either the third or fourth prongs of the plain
error analysis.8
III. CONCLUSION
Upon review of the record on appeal and upon consideration of the parties’
briefs, we discern no reversible error. Accordingly, we affirm the district court’s
revocation of Spence’s supervised release and the sentence.
AFFIRMED.
8
We note that the sentencing judge amply explained the reasons for the sentence
and merely failed to include same in the written order of judgment and commitment.
13