United States v. Hollenbeck ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50530
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAE H. HOLLENBECK,
Defendant-Appellant.
_______________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-18-ALL
_______________________________________
January 23, 2002
Before POLITZ, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Tae H. Hollenbeck appeals the district court’s order revoking his supervised
release and imposing a sentence of nine months’ imprisonment. He contends that
the imposition of a term of imprisonment upon revocation of his supervised release
violated the “extradition treaty between Germany and the United States” because
the sentencing court sent him back to prison for “conduct that was not the subject of
*
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not be published and is not precedent except under the limited circumstances set forth in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.
the original extradition.”
Assuming arguendo that Hollenbeck has standing to raise this “specialty”
issue,1 the district court did not plainly err by ordering him imprisoned; nor did the
sentence violate the United States-Germany extradition treaty. The “doctrine of
specialty is concerned primarily with prosecution for different substantive offenses
than those for which consent has been given, and not prosecution for additional or
separate counts of the same offense.”2 When revoking supervised release, the
district court is not resentencing the defendant; the type and term of the sentence
has already been determined by the sentencing judge.3 The judge is bound by the
sentence previously imposed, and at revocation is merely converting all or a portion
of the supervised release period into a term of imprisonment.4 Hollenbeck was not
imprisoned for new criminal conduct which was not authorized by his extradition.
When he violated the terms of his supervised release, he subjected himself to
sanctions for violating the conditions of his sentence for his original crime. He was
not sentenced or punished for an offense for which he was not extradited.
Hollenbeck next contends that the district court abused its discretion in
revoking his supervised release and in imposing a nine-month term of imprisonment,
maintaining that the court was not specific in its findings about the violations
1
United States v. LeBaron, 156 F.3d 621, 627 (5th Cir. 1998).
2
Id.3
United States v. Giddings, 37 F.3d 1091, 1096 (5th Cir. 1994).
4
Id. See also United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001)
(supervised release is a component of defendant’s total sentence).
2
justifying a sentence of imprisonment. He insists that his failure to maintain
employment cannot be considered a reasonable basis to revoke his supervised
release because he was unable to work due to his medical condition. He blames his
failure to report and to notify his probation officer of his changes in residence on his
medical condition. He also contends that the district court in effect punished him for
failure to be able to pay for the consumer credit counseling class, in violation of
Bearden v. Georgia.5
Our review of the record persuades that the district court did not abuse its
discretion in determining that Hollenbeck violated any or all of the four conditions
of his supervised release. As for his insistence that the district court abused its
discretion because it “simply said that Hollenbeck violated the terms of his
supervised release” and did not consider the factors set forth in 18 U.S.C. §
3553(a), the implicit consideration of these statutory factors is sufficient.6
The district court did not revoke Hollenbeck’s supervised release and order
him imprisoned solely because he did not attend consumer credit counseling. He
did not plead inability to pay for the counseling as the reason for his non-attendance
until the hearing; rather, he failed to show up for the initial consumer credit
counseling visit, at which time, according to the record herein, financial
arrangements could have been made.
Hollenbeck does not suggest that the district court’s sentence is in violation of
5
461 U.S. 660 (1983).
6
United States v. Pena, 125 F.3d 285 (5th Cir. 1997).
3
law. His only challenge to the sentence appears to be that the court should have
allowed for vocational and medical treatment rather than confinement. He maintains
that because of his medical condition and his inability to work, the district court
should not have ordered him imprisoned. Given the evidence of record that
Hollenbeck failed to keep his probation officer informed of his whereabouts and
failed to report as ordered, the district court’s sentence of imprisonment was not
plainly unreasonable.7
AFFIRMED.
7
Giddings, 37 F.3d at 1093.
4