United States v. Ellis , 207 F. App'x 208 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-29-2006
USA v. Ellis
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5470
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 05-5470
_______________
UNITED STATES OF AMERICA
v.
ROGER W. ELLIS,
Appellant.
____________________
On Appeal From the United States District Court
for the Middle District of Pennsylvania
(No. 94-cr-00256)
District Judge: Honorable Thomas I. Vanaskie, Chief Judge
Submitted Under Third Circuit LAR 34.1(a)
November 8, 2006
Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges.
(Filed: November 29, 2006)
__________________
OPINION OF THE COURT
__________________
CHAGARES, Circuit Judge.
Appellant Roger W. Ellis (“Ellis”) appeals from the District Court’s Order of
December 15, 2005 revoking his supervised release and imposing the statutory maximum
term of imprisonment of twenty-four months. We will affirm.
I.
We write only for the parties, therefore a lengthy recitation of the facts and
procedural background is unnecessary.
On November 30, 1995, Ellis pled guilty to one count of possession of a firearm
by a felon in violation of 18 U.S.C. § 922(g)(1), and one count of possession of an
unregistered firearm in violation of 26 U.S.C. § 5861(d). On March 28, 1996, Ellis was
sentenced to a 120-month term of imprisonment on each count to run concurrently and a
two-year term of supervised release on each count also running concurrently. Ellis
commenced his term of supervised release on November 13, 2003, but Ellis’s liberty
lasted only a scant eight months. On July 28, 2004, he was arrested for violating the
terms and conditions of his supervised release. On September 16, 2004, the District
Court revoked Ellis’s supervised release and sentenced him to a four-month term of
imprisonment followed by a one-year term of supervised release.
Ellis served the four-month term. He commenced his second period of supervised
release on November 24, 2004, but history was soon to repeat. In August 2005, a warrant
was again issued for Ellis’s arrest for violating several conditions of his supervised
release. Specifically, the warrant charged Ellis with violating the General Condition
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which forbade Ellis from committing another federal, state or local crime, as well as three
Standard Conditions. In violation of Standard Condition # 2, Ellis failed to submit a
report for the month of July 2005 and failed to report to the Probation Office as directed
on August 12, 2005. In violation of Standard Condition # 11, Ellis failed to notify his
Probation Officer within seventy-two hours of the receipt of a citation for speeding from
Pennsylvania State Police in June 2005 and he failed to inform Probation that he had been
charged by Pennsylvania State Police with allegedly assaulting his girlfriend in July 2005.
Finally, Ellis repeatedly failed to attend scheduled individual and group drug and alcohol
counseling sessions occurring during the months of April, May, and June 2005, in
violation of Standard Condition # 15.
At the revocation hearing, Ellis admitted violating the three aforementioned
Standard Conditions and waived his right to a probable cause hearing thereon. The
Government agreed to dismiss the allegation that Ellis violated the General Condition.
Thereafter, the District Court heard arguments from the parties on the appropriate
sentence to impose. Ellis maintained that the imposition of another four-month term of
incarceration would be the most appropriate punishment. The Government argued for the
imposition of a longer sentence. Ellis’s original criminal history category was VI, that
being the highest, and the subsequent activity leading to this revocation hearing
constituted Grade C violations of his supervised release.1 Thus, the range of
1
The record before us on appeal does not reflect whether the crimes for which
Ellis pled guilty originally (felon in possession and possession of unregistered firearm)
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imprisonment applicable upon revocation, pursuant to the advisory United States
Sentencing Guidelines § 7B1.4 (Chapter 7 Policy Statement Revocation Table), was
between eight and fourteen months, with the maximum sentence under 18 U.S.C. §
3583(e) for a Class C or D felony being twenty-four months. Ultimately, the District
Court rejected Ellis’s request for a four-month sentence, sentencing Ellis instead to the
statutory maximum term of twenty-four months imprisonment.
Ellis timely appealed.
II.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
“When there is no applicable sentencing guideline (Chapter 7 policy statements are not
‘sentencing guidelines’), and when the district court sentences within statutory limits . . . ,
we are empowered to review the sentence and will not disturb it unless it is ‘plainly
unreasonable.’” United States v. Blackston, 940 F.2d 877, 894 (3d Cir. 1991) (citing 18
U.S.C. § 3742(e)(4)). Prior to United States v. Booker, 543 U.S. 220 (2005), we
reviewed “revocation sentences for abuse of discretion that resulted in a ‘plainly
unreasonable’ sentence.” United States v. Dees, ---- F.3d ----, 2006 WL 3209989, at *3
were classified as Class C or Class D felonies. According to the presentence report, the
maximum term of imprisonment for counts I and II is ten years for each. “An offense that
is not specifically classified by a letter grade in the section defining it, is classified if the
maximum term of imprisonment authorized is – . . . (3) less than twenty-five years but ten
or more years, as a Class C felony; (4) less than ten years but five or more years, as a
Class D felony.” 18 U.S.C. § 3559(a)(3)-(4). Class C and Class D felonies are grouped
together in 18 U.S.C. § 3583(e) for purposes of determining the maximum statutory term
of incarceration upon revocation of supervised release.
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(3d Cir. Nov. 8, 2006) (citing United States v. Schwegel, 126 F.3d 551, 555 (3d Cir.
1997); 18 U.S.C. § 3742(a)(4)).
Ellis contends that a reasonableness standard applies in reviewing the District
Court’s consideration of § 3553(a) factors. Booker, 543 U.S. at 262 (“Nor do we share
the dissenters’ doubts about the practicality of a ‘reasonableness’ standard of review.
‘Reasonableness’ standards are not foreign to sentencing law. The Act has long required
their use in important sentencing circumstances-both on review of departures, see 18
U.S.C. § 3742(e)(3) (1994 ed.), and on review of sentences imposed where there was no
applicable Guideline, see §§ 3742(a)(4), (b)(4), (e)(4). Together, these cases account for
about 16.7% of sentencing appeals. See United States Sentencing Commission, 2002
Sourcebook of Federal Sentencing Statistics 107, n. 1, 111 (at least 711 of 5,018
sentencing appeals involved departures), 108 (at least 126 of 5,018 sentencing appeals
involved the imposition of a term of imprisonment after the revocation of supervised
release).”).
We conclude that Ellis’s sentence satisfies either standard of review, and therefore
we need not determine at this time which standard of review applies to violations of
supervised release.
III.
Section 3583(e) governs the revocation of supervised release. It states,
The court may, after considering the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7)--
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....
(3) revoke a term of supervised release, and require the defendant to
serve in prison all or part of the term of supervised release authorized
by statute for the offense that resulted in such term of supervised
release without credit for time previously served on postrelease
supervision, if the court, pursuant to the Federal Rules of Criminal
Procedure applicable to revocation of probation or supervised release,
finds by a preponderance of the evidence that the defendant violated a
condition of supervised release, except that a defendant whose term is
revoked under this paragraph may not be required to serve on any such
revocation . . . more than 2 years in prison if such offense is a class C or
D felony . . . .
18 U.S.C. § 3583(e)(3). The § 3553(a) factors referred to within § 3583(e) include: “(1)
the nature and circumstances of the offense; (2) the history and characteristics of the
defendant; (3) the need to afford adequate deterrence to criminal conduct; (4) the need to
protect the public from further crimes of the defendant; and (5) the need to provide the
defendant with appropriate treatment.” Blackston, 940 F.2d at 893.
On appeal, Ellis contends that the District Court failed to articulate explicitly its
consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a) as relevant to 18
U.S.C. § 3583(e). According to Ellis, Booker obligates the District Court to discuss in
detail all of the § 3553(a) factors and state on the record the reasons for the sentence
imposed. Ellis argues that because the record is devoid of such in depth, particularized
analysis, the sentence is unreasonable. Ellis seeks remand for re-sentencing. Ellis also
asserts that his sentence violates § 3553(a) because it is greater than necessary to meet the
purposes of sentencing. We disagree.
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We made clear in Blackston that, within the realm of supervised release, the
District Court need only “consider” relevant policy statements and the § 3553(a) factors
listed in § 3583(e). Blackston, 940 F.2d at 893. “In fact, there is no requirement that the
district court make specific findings with respect to each of the section 3553(a) factors
that it considered. At the time of sentencing, the district court simply must state on the
record its general reasons under section 3553(a) for rejecting the Chapter 7 policy
statements and for imposing a more stringent sentence.” Id.; accord United States v.
Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (recognizing that the District Court does not
have to “discuss and make findings as to each of the § 3553(a) factors if the record makes
clear the court took the factors into account in sentencing”).
Here the District Court offered several reasons for its decision to sentence Ellis to
twenty-four months imprisonment instead of applying the § 7B1.4 range of eight to
fourteen months, and it is clear that the “record as a whole reflects rational and
meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United
States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). The District Court noted that it
had already given Ellis “a break” in sentencing him to four months imprisonment the first
time his supervised release was revoked, and that by his own admission, Ellis was having
difficulty adapting to society.2 The District Court found that Ellis knowingly violated the
2
Given the opportunity to address the court, Ellis stated: “It ain’t been easy
adapting to society, I’ll tell you that. And like he said, there is no reason why I didn’t,
other than I knew I was going to jail, so I just didn’t report.” Ellis’s attorney conceded
that Ellis “has had a problem with probation all along.”
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terms and conditions of his release even after receiving several warnings from Probation,
which demonstrated a lack of respect for the law and an inability to handle the
requirements of supervision. Taking this into account, the District Court reasonably
concluded that a longer term of incarceration, without further, pointless supervised
release was necessary to protect the community, to provide deterrence, and to promote
respect for the law. These considerations are relevant to the history and characteristics of
the defendant, the need to deter criminal conduct, and the need to protect the public from
further crimes by the defendant, 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-(C), and also provide
the District Court with a solid basis for rejecting the § 7B1.4 range and imposing the
more stringent statutory maximum sentence.
Additionally, the District Court considered defense counsel’s request for a
downward departure from the advisory Chapter 7 sentencing range. The request was
rejected clearly because such a term of imprisonment failed to deter Ellis from criminal
conduct when the same was imposed for Ellis’s violation of his first term of supervised
release. Consideration here relates directly to the need to deter criminal conduct and to
provide the defendant with correctional treatment in the most effective manner. 18
U.S.C. §§ 3553(a)(2)(B), (D).
Ellis points specifically to § 3553(a)(6), the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct, and argues that the District Court failed to address this factor, rendering the
sentence unreasonable. However, at the revocation hearing, Ellis did not present the
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District Court with any information related to sentence disparities, and does not do so on
appeal. Ellis has not met his burden on appeal to prove the sentence was unreasonable.
IV.
We conclude that the District Court gave meaningful consideration to the
applicable Chapter 7 sentencing range and statutory maximum term of imprisonment as
well as the pertinent § 3553(a) factors in revoking Ellis’s supervised release. The District
Court did not abuse its discretion when it rejected the range of eight to fourteen months,
imposing instead the maximum term of twenty-four months incarceration. Finally, the
sentence of twenty-four months imprisonment is not unreasonable given that Ellis
demonstrated an inability or unwillingness to comply with the requirements of supervised
release not once, but twice.
Accordingly, for the foregoing reasons, we will affirm the judgment of sentence
imposed by the District Court.
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