United States v. Carter, Michael ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2578
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL CARTER,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 166—Rudolph T. Randa, Chief Judge.
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ARGUED JANUARY 5, 2005—DECIDED MAY 20, 2005
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Before KANNE, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Michael Carter pled guilty in
federal district court to the fraudulent use of a social secur-
ity number in violation of 42 U.S.C. § 408(g). Carter ad-
mitted in the plea agreement to using a false social security
number to obtain financing on a 2002 Mazda 626 automo-
bile. That was one in a series of such purchases, in which
Carter obtained eight automobiles from eight Milwaukee
area dealerships using false financial information and false
social security numbers. Carter never made payments to-
ward any of those vehicles. Carter was sentenced to a six-
month term of imprisonment and three years of supervised
release for that offense. In addition, the district court
2 No. 04-2578
ordered restitution in the amount of $52,285.87, or at least
$100 per month during supervised release.
After his release from prison and while on supervised
release, Carter engaged in several violations of the terms of
that release, the most serious of which resulted in a con-
viction for credit card theft. Other violations included the
failure to pay child support, failure to maintain employment,
and receipt of traffic citations. After conducting a revocation
hearing, the district court revoked Carter’s supervised re-
lease and ordered him to serve 8 months’ imprisonment
followed by 2 years of supervised release. In addition to the
standard conditions of supervised release, the district court
further ordered Carter: to participate in a cognitive interven-
tion program; to reimburse the clerk of court for the cost of
appointed counsel at the rate of no less than $50 per month;
to refrain from holding employment or self-employment having
fiduciary duties without first notifying his employer and/or
his supervising probation officer; not to open any new lines
of credit or use existing credit without the prior approval of
his supervising probation officer; to submit all tax returns in
a timely manner; to pay child support and arrearage; and
to participate in a mental health treatment program.
Carter was released from his second term of supervised
release in May 2003. In March 2004, he was indicted in the
district court for misuse of a social security number in viola-
tion of 42 U.S.C. § 408(a)(7)(B). The indictment alleged that
Carter used the name of his father, Stanley Carter, and a
false social security number to purchase an automobile from
a dealership in February 2004. Following that indictment,
Carter’s probation officer petitioned the court for an order
to show cause why Carter’s supervised release should not be
revoked. The petition noted the criminal charge and also
detailed that Carter had failed: to make any payment
toward his court-appointed counsel since his release from
prison; to tender monthly child support payments for almost
a year; to submit monthly restitution payments; and to file,
No. 04-2578 3
or to obtain an extension for, a 2003 tax return. The court
conducted a hearing in June 2004 on that petition. Con-
sistent with his plea agreement in the new federal criminal
case, Carter did not contest the revocation of his supervised
release, and the court proceeded to consideration of the ap-
propriate sentence. The government recommended that the
court sentence Carter at the high end of the 6-to12-month
sentencing guideline range. The court instead sentenced
Carter to 24 months’ imprisonment—the maximum term of
imprisonment permitted by statute—with no additional
supervised release. Carter now appeals that sentence.
Carter acknowledges that the guidelines for sentence re-
vocation are advisory, and that the court has discretion to
impose the sentence that it feels appropriate within the
statutory limits. He nevertheless contends that the court
abused that discretion in imposing the sentence of 24 months,
double the amount recommended by the guidelines.
We will not reverse the district court’s sentence upon re-
vocation of supervised release unless it is “plainly unreason-
able.” That standard is not met here.
The Sentencing Commission has promulgated a series of
policy statements for sentencing following a revocation of
supervised release, including a Revocation Table of recom-
mended sentencing ranges tied to the severity of a defendant’s
violations and his criminal history category, § 7B1.4(a) See
U.S.S.G. Ch. 7, Pt. A, §§ 3,4. Those policy statements are to
be given great weight by the sentencing judge, but are non-
binding and the recommended range “informs rather than
cabins the exercise of the judge’s discretion.” United States
v. Salinas, 365 F.3d 582, 588 (7th Cir. 2004). In determin-
ing the appropriate sentence upon revocation of supervised
release, the court also must consider the sentencing factors
enumerated in 18 U.S.C. § 3553(a), including: (1) the nature
and circumstances of the offense; (2) the defendant’s history
and characteristics; (3) the need of the sentence to deter future
4 No. 04-2578
crime, protect the public, and provide the criminal with nec-
essary services such as education and medical treatment;
(4) Sentencing Commission recommendations regarding
sentencing range; (5) Sentencing Commission policy; and (6)
sentence consistency for similar violations. 18 U.S.C.
§ 3583. Although the court need not make factual findings
on the record for each factor, the record should reveal that
the court gave consideration to those factors. Salinas, 365
F.3d at 589; United States v. Huusko, 275 F.3d 600, 603
(7th Cir. 2001).
The record provides ample evidence that the district court
in this case considered those factors. In fact, the court ex-
pressly noted that it must consider those factors, discussing
at length the nature of the offense, character of the defendant,
and the need to protect the community and meet the needs
of Carter as well.
The court recognized that the offense and prior conduct
involved paper crimes, but concluded that the serial nature
of the conduct while on supervised release rendered the
conduct more serious. The court noted that the pattern
indicated an inability or unwillingness to correct previous
mistakes. Regarding Carter’s character, the court pointed
to his good upbringing, fine education, and family support
as weighing positively. The court then turned to the needs
of the community, determining that a harsher sentence was
necessary given the pattern of conduct and the minimal
efforts to comply with other terms of supervised release in-
cluding child support and restitution. The court concluded
that a sentence of 24 months’ imprisonment and no super-
vised release was appropriate. Although the court recognized
that its sentence exceeded the Guidelines’ recommendation,
it also noted that it was not bound by that recommendation
if it believed, as it did, that there were circumstances in
light of the policy statements that demanded deviation. The
court further stated that the longer sentence was consistent
with the sentences the court had given in similar cases.
No. 04-2578 5
Thus, the record reflects careful consideration of the ap-
propriate factors by the district court. The court concluded
that the pattern of serial conduct and of non-compliance
with the requirements of supervised release required impris-
onment of a longer term. There is nothing “plainly unreason-
able” about that conclusion given the conduct by Carter. See
Salinas, 365 F.3d at 589 (upholding a district court’s
imposition of a 24-month sentence, well above the Guidelines
recommendation of 3 to 9 months, where Salinas violated
the conditions of supervised release on multiple occasions
notwithstanding increasingly onerous modifications of the
terms of release in an effort to modify his behavior); United
States v. Harvey, 232 F.3d 585 (7th Cir. 2000) (affirming
district court’s imposition of a 24-month sentence where the
Guideline range was 4 to 10 months, given the repeated and
serious nature of the violations of supervised release).
Accordingly, the decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-20-05