United States v. Haren ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-50932
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH GLEN HAREN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-98-CR-194-ALL)
_________________________
July 8, 1999
Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Joseph Haren appeals the sentence he received for violation
of the terms of his supervised release. He asserts that the
district court erred by (1) failing to provide adequate notice
that his past performance on supervised release was a factor in
his sentencing and (2) increasing his sentence based on
unsupported findings of past non-compliance with his supervised
release. Finding no reversible error, we affirm.
I.
Haren pleaded guilty to conspiracy to possess an
unregistered firearm and was fined $50 and sentenced to twenty-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
seven months' imprisonment and three years' supervised release.
On April 14, 1998, while on supervised release, he was arrested
and charged with driving while intoxicated (“DWI”). The
government originally moved to modify the terms of his supervised
release to request that he receive treatment for alcoholism and
reside in a halfway house. At the modification hearing, however,
the government announced that instead it would seek revocation of
supervised release on the ground that Haren’s alcohol problem
posed a risk to the community.1 The government then formally
moved for revocation, asserting that Haren’s DWI conduct violated
three conditions of his supervised release: (1) that he not
commit a crime; (2) that he not con-sume alcohol excessively; and
(3) that he not violate the instructions of his probation
officer. The government explained that in light of Haren’s
alcohol problem, he would receive more effective treatment if he
were revoked and sentenced to a federal term in a facility that
offered in-house alcohol treatment. It asked the court to revoke
Haren’s supervised release and imprison him for no more than
twenty-four months.
In a follow-up re-sentencing memorandum, the government
elaborated on its revocation motion and recommended that Haren be
sentenced to no less than eighteen months' imprisonment after
credit for time served. The government recognized that the
1
Haren had two previous DWI convictions from before his period of
supervised release.
2
policy statement recommended 5-11 months for cases like Haren’s.2
Because of Haren’s history of misconduct, however, the
government argued that an above-range punishment was needed to
protect the public from Haren’s “high risk of felonious conduct”.
See U.S.S.G. § 7B1.4, comment. n.3.
At the revocation hearing, Haren pleaded true to the
violations alleged. The probation officer confirmed that Haren
had committed a grade C violation and that his criminal history
category was III, leading to a recommended sentencing range of 5-
11 months. The government then reiterated its request that Haren
serve at least 18 months so that he could fully participate in an
alcohol recovery program. Because Haren had already been in
custody for five months, the government asked for 23 months to
ensure a full 18-month term. Haren requested a sentence of five
months' time served and said that the state prosecutor had
offered a suspended, probated sentence on the state DWI charge.3
The court revoked Haren’s supervised release term and
sentenced him to twenty-three months. In a subsequent written
explanation, the court stated that it “has imposed a sentence
near the statutory maximum imprisonment term based upon the
defendant’s extensive history of non-compliance while on
supervised release.”
2
Haren’s violation was classified as a Grade C violation with a
criminal history category of III. See U.S.S.G. § 7B1.4(a), p.s. (revocation
table).
3
Conditions of the state probation were to include alcohol education
classes and twice-weekly Alcoholics Anonymous meetings.
3
II.
We “will uphold a sentence unless it (1) was imposed in
violation of law, (2) resulted from an incorrect application of
the guidelines, (3) was outside the guideline range and is
unreasonable, or (4) was imposed for an offense for which there
is no applicable sentencing guideline and is plainly
unreasonable.” United States v. Mathena, 23 F.3d 87, 89 (5th
Cir. 1994). “Because there is no applicable guideline for
sentencing after revocation of supervised release, we will uphold
Appellant’s sentence unless it is in violation of law or is
plainly unreasonable.”4 We review questions of constitutional
violations and statutory interpretation, however, de novo.5
III.
Haren makes two challenges to his revocation and sentence.
First, he asserts that his rights to due process at his
revocation hearing were violated because he had no notice of the
grounds for the sentence. Second, he avers that the record does
not support the sentence.
A.
Haren first argues that the court did not give him notice
that his DWI charges incurred before supervised release would be
used to impose a sentence higher than the one recommended on the
4
United States v. Giddings, 37 F.3d 1091, 1093 (5th Cir. 1994) (citing
United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992)).
5
See, e.g., United States v. Webster, 162 F.3d 308, 333 (5th Cir. 1998)
(reviewing constitutional claims de novo), petition for cert. filed (Apr. 29,
1999) (No. 98-9212); United States v. Myers, 150 F.3d 459, 461 (5th Cir. 1998)
(reviewing FED. R. CRIM. P. 32 claims de novo).
4
revocation table. He asserts that neither the government’s
revocation motion nor its sentencing memorandum asserted that his
past performance on conditional release warranted a sentence
above the recommended range. Moreover, his DWI charges were not
raised at the revocation hearing. According to Haren, he did not
learn that his pre-supervised release history had been a factor
in his sentence until the court issued its post-sentencing
written order. Haren claims that the failure to provide him with
the opportunity to address an issue determinative of his sentence
violated his right to due process.6 Haren is correct that
persons on supervised release have procedural due process rights
in the context of revocation hearings. See United States v.
Ayers, 946 F.2d 1127, 1129 (5th Cir. 1991). Though the Supreme
Court has emphasized that more flexibility is permitted in
revocation hearings, due process still requires that a defendant
facing revocation be given (1) written notice of the alleged
violation; (2) disclosure of the evidence against him; (3) an
opportunity to appear and present evidence; (4) an opportunity to
question adverse witnesses; and (5) notice of the right to be
represented by counsel. See Morrissey v. Brewer, 408 U.S. 471,
488-89 (1972); FED. R. CRIM. P. 32.1(a)(2).
Haren concedes that he received due process in the form of a
written notice of revocation proceedings and a full-scale
6
Haren did not object to the district court’s reliance on his non-
compliance during his supervised release. We will not review for plain error,
however, because the court did not reveal the basis for its decision until
after the revocation hearing. Therefore, Haren could not have objected at the
revocation hearing to preserve the issue for appeal.
5
revocation hearing accompanied by legal counsel. He maintains,
however, that the court deprived him of any effective ability to
comment on the factors used to impose sentence because it failed
to give him notice that his prior DWI charges would be a factor
in his sentencing. This lack of notice, Haren claims, violates
due process. “'Th[e] right to be heard has little reality or
worth unless one is informed' that a decision is contemplated.”
Burns v. United States, 501 U.S. 129, 136 (1991) (quoting Mullane
v. Central Hanover Bank, 339 U.S. 306, 314 (1950)).
In Burns, the Court held that rule 32 requires a court to
give defendants notice before departing upward on a ground not
identified in the pre-sentencing materials. Though he raises his
due process claim in the context of a revocation hearing rather
than a sentencing hearing, Haren claims that the reasoning in
Burns applies equally to his case: A court may not sua sponte
increase a sentence without giving notice of the grounds for such
an increase. To do otherwise, the Court explained, would raise
due process concerns. See id. at 138.
Burns is not directly applicable, however, because the court
in that case departed upward from the range set by the Sentencing
Guidelines. See id. at 135. Here, the court imposed a sentence
within the statutory maximum but in excess of the sentence
recommended by the policy statements accompanying Chapter 7 of
the guidelines. See U.S.S.G. § 7B1.4(a), p.s. (revocation
table). We have consistently held that unlike the ranges
prescribed by the Guidelines, these policy statements are
6
advisory only and do not bind sentencing courts at a revocation
7
hearing.
Therefore, Burns is inapposite. While rule 32 and due
process concerns require that a defendant receive the opportunity
to comment on the factors used to depart from pre-sentencing
recommendations based on the guidelines, the same stringent
standards do not apply to departures from non-binding, advisory
policy statements. “[T]he sentencing court is not required to
give notice of its intent to exceed the Chapter 7 sentencing
range.” United States v. Hofierka, 83 F.3d 357, 362 (11th Cir.
1996). “Thus, any recommendation of sentences before the
district court or argument against a particular sentence should
be grounded in the common understanding that the district court
may impose any sentence within the statutory maximum.” Id.
Because a court is not required to give notice of its intent
to depart from policy statements, there is no basis to require it
to give notice of why it is departing from them. Haren received
sufficient notice that he could have been required to serve up to
the statutory maximum allowed by the statute8 when the government
filed its original revocation motion.9 This notice of the
7
See Mathena, 23 F.3d at 93. Accord United States v. Blackston, 940 F.2d
877, 894 (3d Cir. 1991) (“When working with policy statements (as opposed to
guidelines), the district court is not required, in considering revocation for
supervised release, to justify its decision to impose a sentence outside the
prescribed range. . . .”).
8
18 U.S.C. § 3583(e)(3).
9
“THE COURT: [D]o you understand that if you plead true, the Court may
impose supervised release term that’ll beSSthat is that’ll be mandatory
grounds for revocation and the maximum punishment will be imposed upon
revocation, do you understand this? DEFENDANT HAREN: Yes, I do, Your
7
possibility of a two-year term satisfies the due process concerns
that Haren could raise under Burns. Therefore, Haren has no due
process right to notice of all possible factors used to depart
from a Chapter 7 policy statement.10
B.
Haren asserts an alternative ground for vacating his
sentence: The district court’s finding that Haren had previously
violated the terms of his supervised release has no support in
the record. The record does not contain any evidence that Haren
violated his supervised release condition in any way before the
DWI arrest that sparked his revocation proceeding. Because there
is no support in the record for the finding, Haren argues, the
sentence is “plainly unreasonable.” See Mathena, 23 F.3d at 89.
We agree that the court erred in basing its sentence on
Haren’s “extensive history of non-compliance while on supervised
release.” The government’s pre-sentencing memorandum based its
recommendations on Haren’s behavior before his most recent
supervised release term, and there is nothing in the record
Honor.”
10
The government points out that even if Haren had a due process right
to be notified of the factors used to depart from the policy statements, he
received adequate notice that the prior DWI's would be considered in
sentencing. Specifically, the re-sentencing memorandum, filed two months
before the revocation hearing, recommended 18 months' incarceration in
addition to time served. At the revocation hearing, the government stated its
concerns about the prior DWI's. (“MR. MATHEWS: The issue, we feel is . . . Mr.
Haren’s repeated use of alcohol over the years and repeated violations of
driving while intoxicated.”).
Haren had ample time to respond to the government’s concerns and
recommendations before the final ruling. Because Haren has no due process
right to know the factors for a chapter 7 policy statement departure, we do
not reach the question whether any such rights were violated.
8
indicating Haren had previously violated his current release
term.
This error, however, does not necessarily require us to find
that the sentence was “plainly unreasonable.” We have upheld
rulings if the record provides a valid reason to do so.11
In its re-sentencing memorandum, the government asserted
that Haren’s persistent DWI misconduct before his current
supervised release term created a “high risk of new felonious
conduct” and that a twenty-three-month sentence was needed so
that Haren could undergo the rigorous substance abuse program
provided by the Bureau of Prisons. Even though it did not rely
on the government’s reasoning, the court accepted the
government’s sentencing recommendation. The resulting twenty-
three-month term was within the statutory maximum.12 Considering
that the government offered good reasons for seeking the sentence
and that the court did not exceed its statutory authority, we
cannot say the sentence was plainly unreasonable. See Mathena,
23 F.3d at 94.
AFFIRMED.
11
See, e.g., United States v. Diaz, 39 F.3d 568, 571-72 (5th Cir. 1994)
(holding that decision not to grant reduction for acceptance of responsibility
would be upheld even though based in part on irrelevant grounds, because decision
was independently supported by other factors); United States v. Tello, 9 F.3d
1119, 1128 (5th Cir. 1993) (“We may always affirm a district court’s ruling, made
for an invalid reason, if we are shown or can find a valid reason to support the
ruling.”).
12
See 18 U.S.C. § 3583(e)(3) (“[A] defendant whose term is revoked under
this paragraph may not be required to serve more than . . . 2 years in prison if
such offense is a Class C or D felony . . . .”).
9
KING, Chief Judge, specially concurring:
This is a case in which the district court simply misspoke
when it added the words “while on supervised release” to its
explanation of the reasons for revoking the defendant’s
supervised release. A fair reading of the record makes it
perfectly clear that the defendant had plenty of notice of the
reasons why the government sought revocation rather than
modification and why his sentence on revocation should be no less
than 18 months federal imprisonment after credit for time served.
At the revocation hearing on September 3, the defendant pleaded
true to the violations alleged. The government focused on the
defendant’s repeated alcohol-related violations and asked again
that the defendant be imprisoned for at least 18 months to allow
him to participate in a Bureau of Prisons alcohol treatment
program. The court did exactly that, and its written revocation
order contained a recommendation that the defendant participate
in an alcohol treatment program while incarcerated. The order
further stated that “[t]he Court has imposed a sentence near the
statutory maximum imprisonment term based upon the defendant’s
extensive history of non-compliance while on supervised release.”
The defendant’s extensive history of noncompliance with state
criminal laws about driving under the influence was clear. The
fact that only one of his DWI’s occurred while he was on
supervised release was absolutely clear to the court and to all
the participants. The court simply misspoke in its order.
Rather than seeking clarification or modification if, indeed,
10
there was any need for that, the defendant’s counsel filed a
notice of appeal. I respect the defendant’s counsel and I have
some sympathy for the situation he may have found himself in.
But a simple misstatement in an otherwise flawless proceeding has
generated what seems to me to be a needless appeal, which, in
turn, may have lent support to the defendant’s denial of his
alcohol problem. The defendant’s denial of his alcohol problem
was the central issue that the proceeding sought to address.
I concur in the judgment.
11