United States v. Eunice Husband ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 22, 2020 *
Decided July 8, 2020
Before
KENNETH F. RIPPLE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
Nos. 19-3247 & 19-3248
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. Nos. 3-98-cr-30050-1 & 3-19-cr-30016-1
EUNICE HUSBAND, Sue E. Myerscough,
Defendant-Appellant. Judge.
ORDER
Months after he was released from prison, the government charged that Eunice
Husband committed a battery. The government sought revocation of his terms of
supervised release. After continuances delayed the revocation hearings, the district
court found that Husband had violated his terms of release, revoked his release, and re-
sentenced him. Husband challenges both the revocation order and new sentences. We
*
We have agreed to decide these cases without oral argument because the briefs
and records adequately present the facts and legal arguments, and oral argument
would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
Nos. 19-3247 & 19-3248 Page 2
affirm. The continuances were harmless, the finding of a violation justified, and the
sentences reasonable.
In 2018 Husband began serving terms of supervised release for two federal
convictions. In 1998, he was charged with a drug offense and, after pleading guilty,
sentenced to 10 years in prison and 8 years of supervised release. While still in prison in
2009, he was convicted of possessing a weapon and drugs with the intent to distribute.
For that, he was then sentenced to 10 more years in prison and 4 years of supervised
release. He left prison in June 2018.
Nine months after he began his terms of supervised release, Husband reportedly
punched and beat Keith Davis, leading to the petition to revoke his release. Davis had
let Husband share his apartment, and the two clashed over property that Husband left
in the apartment. Husband knocked Davis down and hit him with a cane, causing
multiple injuries. After state battery charges were filed and a local warrant for arrest
issued, the government petitioned to revoke Husband’s two terms of release. (Although
the petition referred to both Husband’s 1998 and 2009 cases, it was docketed only under
his 1998 case.) Husband was then arrested on a federal warrant on May 22. The court
appointed him counsel, held preliminary hearings over the next two days (without
referring to his 2009 case), and set his revocation hearing for July 8.
A series of continuances delayed his final revocation hearing for five months. In
July, counsel for Husband stated that Husband “affirmatively waive[d] his right to an
earlier revocation hearing” and successfully moved to continue the hearing in order to
investigate the case. The court set the hearing for August 2 but later reset it to August 28
because of its own scheduling conflict. The government then filed an unopposed
motion to continue the hearing, noting that Husband’s state case, scheduled for trial,
might avoid the need for a contested revocation hearing. The court continued the
hearing to October. After the state battery case was dismissed (Davis did not appear to
testify), the government sought, over Husband’s objection, a two-week continuance to
locate a witness to the battery. The court granted the motion, continuing the hearing to
November 1. The hearing was rescheduled for a week later because of a scheduling
conflict with Husband’s counsel.
By the time of the revocation hearing in November, the district court realized
that, although the petition listed both of Husband’s cases, the court had held hearings
only on the 1998 case. To make the record clear, the court held the initial appearance for
the 2009 case just before the scheduled revocation hearing. Husband’s counsel reported
that Husband believed that this delay in the initial hearing for the 2009 case violated
Nos. 19-3247 & 19-3248 Page 3
Federal Rule of Criminal Procedure 32.1. But counsel “declined” to contest the delay;
she explained that she told Husband that she could not identify any “non-frivolous
arguments” about the timing of the hearing on the 2009 case.
Husband’s revocation hearings followed. Both Davis (the government’s witness)
and Husband testified. Davis stated that on March 5 Husband beat him after an
argument over papers that Husband had left in the apartment they had shared. The
government also offered four photographs the police took of Davis’s injuries the day
after the battery. Husband denied Davis’s account, stating that he did not even see
Davis that day. In closing argument, Husband’s counsel contended that Husband was
the more credible witness, noting Davis’s past drug use and some inconsistencies in his
testimony. The district court disagreed and found that Husband had violated the
conditions of his two terms of supervised release by committing the battery and
revoked both terms of release. It sentenced Husband to a within-Guidelines range of
20 months’ imprisonment and 7 years of supervised release for both cases.
We have consolidated Husband’s appeals from both cases; he first contends that
the five-month delay in his hearings violated his rights to due process. This contention
faces insuperable problems. First, Rule 32.1(a)(1) and (b)(2) govern the timing of
hearings, and they require only that the initial appearance and revocation hearing occur
without “unnecessary delay” and “within a reasonable time.” Husband does not
challenge the constitutionality of this rule. Second, Husband waived any argument
about delay. When he moved to continue his revocation hearing in July, counsel stated
that Husband “affirmatively waive[d]” his right to an earlier hearing, citing Rule
32.1(b)(2), and he requested or did not oppose three months of extensions. Although he
contested one two-week continuance that the government later requested, at his initial
appearance in November on the 2009 case, counsel said that she “declined” to contest
any delay because she had no “non-frivolous arguments” to raise.
Even if we considered Husband to have merely forfeited a contention that Rule
32.1 was violated, he cannot satisfy plain-error review. See United States v. Grayson
Enters., Inc., 950 F.3d 386, 400 (7th Cir. 2020). It is not obvious that the five-month delay
between his initial appearance and revocation hearings was unreasonable.
See United States v. Rasmussen, 881 F.2d 395, 398–400 (7th Cir. 1989) (discussing factors to
assess delay of revocation proceedings). As just stated, Husband was responsible for
almost three months of delay, having moved to continue the hearing to investigate the
case and not opposed the government’s similar motion when his state case was going to
trial. Regarding the delay in his initial appearance for the 2009 case, Husband cannot
identify prejudice from it. See Grayson Enters., 950 F.3d at 400. He asserts incorrectly
Nos. 19-3247 & 19-3248 Page 4
that, because of the delay, he was not timely appointed counsel. The district court
appointed him counsel at his May initial appearance, the day after his arrest on the
federal warrant. (Husband may be conflating his arrests by state and federal authorities.
He was arrested by state authorities on the battery charge in March, but his arrest on
the federal warrant was on May 22. Only the latter is relevant to his federal revocation
proceedings.) Husband also cites United States v. Pagan-Rodriguez, 600 F.3d 39, 41–42 (1st
Cir. 2010), where the court concluded that a 12-month delay was unreasonable. But that
delay was more than twice as long as here and, unlike here, the defendant had not
consented to any of it. Id. at 42.
Moving on from his procedural objections, Husband argues that the district court
erred in finding that he battered Davis, arguing that Davis’s testimony was not credible
or substantiated. He points us to counsel’s efforts to impeach Davis and the
government’s lack of “Medical Documentation” to support the injuries. But we do not
easily disturb a court’s factual finding based on a credibility determination. Ortiz v.
Martinez, 789 F.3d 722, 729 (7th Cir. 2015). Here, the district court observed Davis’s and
Husband’s conflicting testimony, evaluated their credibility firsthand, and received
corroborating photos of Davis’s injuries taken the day after the attack. With this
corroboration, Davis’s testimony was not “legally incredible” and adequately
supported the district court’s findings. Id. (quoting Whitehead v. Bond, 680 F.3d 919, 926
(7th Cir. 2012)).
Husband also challenges his sentences on two grounds. He first argues that the
district court miscalculated his new term of supervised release for his 1998 case because
it exceeds the maximum term authorized by 18 U.S.C. § 3583(e)(3). But this section sets
forth a maximum term of imprisonment after a revocation of supervised release. Any
new term of supervised release, on the other hand, is not to exceed the term “authorized
by statute for the offense that resulted in the original term of supervised release, less
any term of imprisonment that was imposed upon revocation of supervised release.”
18 U.S.C. § 3583(h). Husband was sentenced under 21 U.S.C. § 841(b)(1)(B), which
imposes a minimum 8-year term of supervised release. His new 7-year term of
supervised release for the 1998 case does not exceed even the minimum term of
supervised release required under § 841(b)(1)(B) because he was sentenced to only
8 months in prison.
Husband also contends that his prison sentences are too high. He observes that
he committed only a Grade C violation, notes that the state dismissed the battery
charge, and contends that his sentences reflect unwarranted disparities among similar
defendants. But sentences like his, falling within the Guidelines policy statement
Nos. 19-3247 & 19-3248 Page 5
ranges, are presumptively reasonable, see United States v. Jones, 774 F.3d 399, 404 (7th
Cir. 2014), because they “necessarily” comply with the goal of avoiding unwarranted
disparities, United States v. Bartlett, 567 F.3d 901, 907–09 (7th Cir. 2009). And nothing in
the record rebuts that presumption here. The district court adequately considered the 18
U.S.C. § 3553(a) factors, including the nature of his violation and the dismissal of the
state charge. But it also permissibly relied heavily on Husband’s history of violence
(even while in prison he had numerous citations for fighting, assault, and threatening
bodily harm) and the need to deter him from more criminal conduct. The sentence is
reasonable.
Husband raises two final contentions. First, he argues that his appointed counsel
was ineffective by not challenging the hearing delays, by failing to object to evidence at
his hearing, and by not calling favorable witnesses. To address these arguments fully,
we would need to augment the record with extrinsic evidence, which we may not do on
direct appeal. See Delatorre v. United States, 847 F.3d 837, 844 (7th Cir. 2017). For this
reason, claims of ineffective assistance “are almost ‘invariably doom[ed]’ on direct
review” and are better saved for collateral review. Id. (quoting United States v. Gilliam,
255 F.3d 428, 437 (7th Cir. 2001)); see also Massaro v. United States, 538 U.S. 500, 504–05
(2003); United States v. Eskridge, 445 F.3d 930, 932 (7th Cir. 2006). Husband has not given
us adequate assurance that he wants to forgo collateral review, so we do not pass on
these contentions. Finally, Husband argues that the district court’s adverse rulings and
hearing-management decisions reflect its bias against him. But unfavorable rulings and
reasonable methods of managing hearings are not themselves proof of impermissible
partiality. See Liteky v. United States, 510 U.S. 540, 555–56 (1994).
We have considered Husband’s other arguments, and none has merit.
AFFIRMED.