United States v. Sensing ( 2023 )

Case: 21-60662 Document: 00516608829 Page: 1 Date Filed: 01/12/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 12, 2023
No. 21-60662
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Brenda Sensing,
Defendant—Appellant,
consolidated with
_
No. 21-60691
_
United States of America,
Plaintiff—Appellee,
versus
Dennis Sensing,
Defendant—Appellant.
Appeals from the United States District Court
for the Northern District of Mississippi
USDC Nos. 3:18-CR-154-1, 3:19-CR-40-1
Case: 21-60662 Document: 00516608829 Page: 2 Date Filed: 01/12/2023
No. 21-60662
c/w No. 21-60691
Before Stewart, Willett, and Oldham, Circuit Judges.
Per Curiam:*
Brenda and Dennis Sensing challenge the revocation of their
supervised release, arguing that the district court violated a number of their
statutory and constitutional rights during three informal “show cause”
hearings. But because the Sensings each admitted to at least one violation of
their conditions of supervised release at their formal revocation hearing, and
because each admitted violation independently justifies the court’s
revocation decision, any errors during the show-cause hearings were
harmless. We therefore AFFIRM.
I
The Sensings both pleaded guilty to conspiring to defraud the United
States, see 18 U.S.C. § 371, by committing healthcare fraud and by paying and
receiving illegal remunerations. Upon conviction, the Western District of
Tennessee sentenced them to time served and two years of supervised
release. Relevant to this appeal, the Sensings were also ordered to pay
$627,267.25 in restitution.
The Sensings’ supervised release was transferred to the Northern
District of Mississippi. See 18 U.S.C. § 3605. There, the U.S. Probation
Office filed a report with the district court alleging that both Sensings had
violated the conditions of their release. Brenda, for instance, had pleaded
guilty to petit larceny, opened new lines of credit without approval, and failed
to notify her probation officer about her receipt and use of student-loan
money. And Dennis had opened new lines of credit without prior approval.
The Sensings’ probation officer recommended that the court hold a “Show
Cause Hearing” as a result of these violations. The court agreed and,
intermittently over the next year and a half, held three such hearings.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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Case: 21-60662 Document: 00516608829 Page: 3 Date Filed: 01/12/2023
No. 21-60662
c/w No. 21-60691
At the first show-cause hearing, the court verified that the Sensings
had, in fact, violated the conditions of supervised release as alleged by the
probation officer. The court also focused on the outstanding amount owed in
restitution. After questioning the Sensings about their assets and income, the
court increased the amount the Sensings were to pay monthly and ordered
the Sensings to turn over all the money in their bank account and to sell one
of their vehicles. The court also encouraged the Sensings to voluntarily agree
to extend their term of supervised release, which they did. At the second and
third hearings, the court focused solely on the Sensings’ financial situation
with an eye toward cutting their expenses, especially their monthly car
payments. The court ultimately ordered the Sensings to sell two of their
vehicles and to not make any major purchases.
Three weeks after the third hearing, the Sensings’ probation officer
moved the court to revoke the Sensings’ supervised release on the basis of
the original alleged violations and, additionally, the Sensings’ failure to sell
their vehicles as ordered by the court during the show-cause hearings. The
court held a formal revocation hearing and appointed counsel, see Fed. R.
Crim. P. 32.1(b)(2), who argued, among other things, that the district court
lacked authority to conduct the show-cause hearings without counsel present
or to order the Sensings to sell their vehicles absent a showing that they were
behind on their payments. The Sensings admitted, however, that they each
had violated at least some conditions of their supervised release.
After hearing the admissions and evidence, the court found that the
Sensings had violated the conditions of their supervised release, as well as the
court’s show-cause orders to sell their vehicles, and it revoked their
supervised release on this basis. Upon hearing mitigation evidence, however,
the court declined to impose a term of imprisonment and instead sentenced
the Sensings to three more years of supervised release.
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Case: 21-60662 Document: 00516608829 Page: 4 Date Filed: 01/12/2023
No. 21-60662
c/w No. 21-60691
The Sensings appealed the revocation, and we granted their motions
to consolidate their appeals.
II
“We review for abuse of discretion a decision to revoke supervised
release.” United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995). “A
district court may revoke a defendant’s supervised release if it finds by a
preponderance of the evidence that a condition of release has been violated.”
Id.; see 18 U.S.C. § 3583(e)(3). We apply the harmless-error rule to
revocation judgments, disregarding “[a]ny error, defect, irregularity, or
variance that does not affect substantial rights.” Fed. R. Crim. P. 52(a);
see United States v. Jimison, 825 F.3d 260, 262 (5th Cir. 2016); United States
v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010); United States v. English, 400
F.3d 273, 276 (5th Cir. 2005). “Where there is an adequate basis for the
district court’s discretionary action of revoking [supervised release], the
reviewing court need not decide a claim of error as to other grounds that had
been advanced as a cause for revocation.” English, 400 F.3d at 276 (quoting
McCormick, 54 F.3d at 219 n.3).
On appeal, the Sensings raise a number of statutory and constitutional
challenges to the district court’s show-cause hearings and related orders. But
they do not contest that they violated at least some of the conditions of their
release, any of which is sufficient to justify revocation. See 18 U.S.C.
§ 3853(e)(3). Therefore, even if there were deficiencies in the show-cause
hearings, such errors were harmless with respect to the court’s ultimate
decision to revoke their supervised release. See McCormick, 54 F.3d at 219(affirming revocation, while rejecting legal challenges to the revocation
hearing as harmless, where defendant did not contest that he violated the
conditions of his supervised release).
AFFIRMED.
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