United States v. Jiles , 229 F. App'x 401 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0260n.06
Filed: April 6, 2007
No. 06-5832
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
TERRELL JILES, ) TENNESSEE
)
Defendant-Appellant. )
Before: SUTTON and SILER, Circuit Judges, and JORDAN, District Judge*
LEON JORDAN, District Judge. This is an appeal from a sentence imposed
upon the revocation of the defendant’s term of supervised release. The defendant
contends that his sentence of eighteen months is unreasonable because the district
court considered an impermissible factor and because the sentence is greater than
the guidelines advisory range of six to twelve months. For the following reasons, we
AFFIRM.
I. Background
*
The Honorable Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.
The defendant Terrell Jiles was convicted in August 2001 of being a felon in
possession of a firearm and sentenced to forty-one months in prison followed by
three years supervised release. His term of supervised release began December,
30, 2004. On November 29, 2005, the defendant’s supervising probation officer filed
a petition for a warrant for the defendant’s arrest based on the defendant’s recent
state conviction for assaulting a police officer. On November 5, 2005, the defendant
was stopped by a Memphis police officer for a violation of the vehicle registration
law. A scuffle ensued and the defendant was accused of punching the police officer
in the eye with a closed fist. On November 8, 2005, the defendant pled guilty in
Shelby County General Sessions Court to “Assault-Bodily Harm” and received a
four-day sentence with credit for time served.
In addition to the recent conviction, the petition also alleged that the defendant
failed to attend scheduled mental health sessions, failed to notify his probation
officer of a change in address, and failed to seek and maintain employment. At the
revocation hearing, the probation officer testified as to the basis of each of the
violations. The defendant also testified and attempted to explain the reasons for the
violations. First, the defendant stated that he did not hit the police officer, but
entered a “best interest” plea to the assault to get out of jail. Second, he explained
that he quit going to mental health treatment because he did not like his new
counselor. Finally, he admitted that he was living with another relative instead of
his mother and said he was looking for a job but thought he needed some kind of
2
training. After hearing testimony of the probation officer and the defendant, the
district court found that the defendant had committed all four violations and
sentenced the defendant to eighteen months in prison followed by six months
supervised release.
The district court was very concerned that the defendant had been convicted
of the assault of the police officer, but found that it was the cumulative effect of all
the violations that required the sentence imposed. The district court characterized
the defendant’s actions as “negative” responses to the conditions of release. The
court stated:
So the difficulty in the case is that where there is a pattern of an inability
to get one’s life together enough to get to counseling, to get to a job,
which I think you could do before, to advise your officer of the changes
of address, to stay in compliance with those requirements, and then
you’re stopped by an officer, and there was enough of an incident to
result in a guilty plea in the state court system, we have a situation
where I should not be blind to the direction which things are going.
....
I can’t ignore where we’re going and not be concerned about my
ultimate responsibilities under 18 U.S.C. § 3553 to - - which includes
responsibility to protect the public where I can . . . .
....
[W ]e need to talk about the criteria and the things that we have to
consider . . . . W e consider the nature of the offense conduct, and we
have talked about that because it’s not just one thing, it’s a pattern of
things, but it does involve a dispute with an officer, which is a negative
thing, but it involves a number of other things, difficulties in complying
with the rules and regulations in a serious way. We also look at the
history and characteristics of the defendant, and, frankly before all
these things occurred, before we had the problems in prison and didn’t
get our good time and all that, I would not have predicted we would be
here. . . .
3
The sentence needs to reflect the seriousness of the offense,
and I have already said that all these are serious offenses. W hat the
court obviously is always concerned about is when it involves an officer.
...
The need to afford adequate deterrence, and for a sentence to
do that, there needs to be a clear message that you can’t get in a
dispute with an officer, and also you can’t disregard the instructions of
the court officers in what you need to do while you’re on supervised
release. . . .
The need to protect the public, I come back to that one, there’s
some problem here, and it has become one which we have attempted
unsuccessfully. . . . W e attempted mental health counseling . . . .
The need for training, mental health counseling, so forth, there’s
no doubt that it would be beneficial, but we have sort of played that
card.
The kinds of sentences available, well, it could be a six-month
sentence, a 12-month sentence, no sentence at all, put him back out
there for additional assistance or it can be up to 24 months and no
period of additional supervision.
The policy considerations of the guidelines, it is always very
important. Obviously, I prefer a sentence usually within the guidelines
because they’re very well reasoned, it makes a lot of sense. It takes
into consideration all the factors. . . .
The need to avoid unwarranted sentencing disparity, that’s the
best argument really for a sentence of 12 months as opposed to 24. . . .
W hat can we do is we can provide something to protect the public. I
have always been impressed with Mr. Jiles’ basic abilities, that was true
the first time, it has not changed; but there’s something fundamentally
different now that causes the court to be, based on this record,
genuinely concerned about what is going on. . . .
I really think that there is some significant and somewhat
additional period of incarceration is appropriate here.
II. Analysis
A district court’s revocation of supervised release is reviewed for an abuse of
discretion. United States v. Kirby, 418 F.3d 621, 625 (6th Cir. 2005) “The
4
revocation of supervised release and imposition of imprisonment should be affirmed
if the district court’s decision ‘shows consideration of the relevant statutory factors’
and if the sentence imposed is not ‘plainly unreasonable.’” Id. (citations omitted).
W e need not resolve the question of whether our review should be for
“reasonableness” in light of United States v. Booker, 543 U.S. 220 (2005), as
applying that standard would not impact our ruling. See United States v. Williams,
No. 06-1492, 2007 W L 163012, at *2 (6th Cir. Jan. 23, 2007).
The defendant first argues that the district court erroneously considered an
impermissible factor when determining his sentence. The factors a district court may
consider when revoking a term of supervised release are found in 18 U.S.C.
§ 3583(e). The factors are cross references to the sentencing factors set out in
§ 3553, with one exception. Omitted from the list of permissible factors is the need
“to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense.” 18 U.S.C. § 3553 (a)(2)(A).
As can be seen from the court’s statements set out above, the court
mentioned the seriousness of the offense one time in the midst of considering the
permissible factors. Further, the nature and circumstances of the offense are factors
the court may consider, and the court’s mention of the seriousness of the offense
related only to the violation that was before the court. Nothing the court said related
in any way to the underlying offense and its seriousness.
5
The defendant’s second argument is that the eighteen-month sentence is
unreasonable in light of the advisory guideline range of six to twelve months. Again,
referring to the district court’s statements, it is evident that the court carefully
analyzed the factors and applied them reasonably and appropriately. The court
expressed its concern that the defendant was responding negatively to authority,
which resulted in a misdemeanor for assault and the other violations, and found that
this behavior justified the sentence imposed. Thus, the defendant’s second
argument must also fail.
AFFIRMED.
6