United States v. Mark A. Perkins ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3943
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Mark A. Perkins, *
*
Appellant. *
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Submitted: January 14, 2008
Filed: June 2, 2008
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Before WOLLMAN and SMITH, Circuit Judges, and GRITZNER,1 District Judge.
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WOLLMAN, Circuit Judge.
After finding that Mark A. Perkins violated special and mandatory conditions
of his supervised release from prison, the district court2 revoked Perkins’s release and
sentenced him to twenty-four months’ imprisonment without further supervised
release. Perkins appeals the district court’s finding that he assaulted a law
enforcement officer in violation of a mandatory condition of release, as well as the
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa, sitting by designation.
2
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
subsequent revocation of his supervised release. He also appeals his sentence as
unreasonable. We affirm.
I.
In May 2006, Perkins violated a special condition of his supervised release from
prison by failing to reside in and satisfactorily participate in a community corrections
center program for substance abuse treatment. On September 30, 2006, when deputy
marshals of the U.S. Marshal Service attempted to execute the resulting arrest warrant
against Perkins at a location believed to be his residence, they saw an individual
whom they believed to be Perkins enter a car with another individual and attempt to
leave. In response, the deputies set up a partial road block to prevent the car from
leaving the scene. The individual drove toward a deputy who was outside of his
vehicle, forcing the deputy to move aside in order to avoid being struck by the car.
The driver of the car was not apprehended that day.
On October 2, 2006, Perkins was arrested at the location believed to be his
residence. At Perkins’s revocation hearing, a deputy who was at the scene of the
escape identified Perkins as the driver of the car that had nearly struck his colleague.
Perkins did not testify at the hearing, but denied, through counsel, that he was the
driver of the escaping car. Although Perkins was not charged with assault, the district
court found that he had violated a mandatory condition of his supervised release by
committing the assault on the deputy. Perkins conceded that he had violated a special
condition by leaving the substance abuse program.
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II.
A. Revocation of Supervised Release
A district court has discretion whether to revoke supervised release if it finds
by a preponderance of the evidence that the defendant violated a condition of
supervised release other than those listed in 18 U.S.C. § 3583(g). 18 U.S.C. §
3583(e)(3). A defendant violates a mandatory condition of supervised release if he
commits a federal, state, or local crime. § 3583(d). The district court may find that
the commission of a crime violates a mandatory condition of release without regard
to whether the defendant has been charged with the crime. United States v. Jolibois,
294 F.3d 1110, 1114 (9th Cir. 2002); U.S.S.G. § 7B1.1 cmt. n.1. We review a district
court’s decision to revoke supervised release for abuse of discretion and its factfinding
as to whether a violation occurred for clear error. United States v. Carothers, 337 F.3d
1017, 1019 (8th Cir. 2003).
The district court found by a preponderance of the evidence that Perkins
committed second-degree assault in violation of Mo. Rev. Stat. § 565.082.1 by
“recklessly placing a law enforcement officer in danger” of serious physical injury.
The testimony before the district court positively identified Perkins as the driver of a
car that drove directly toward the deputy, forcing him to move out of its path. The
testimony, which the district court implicitly found to be credible, sufficiently
established a violation of section 565.082.1, and thus the district court did not clearly
err in its determination that Perkins had violated a mandatory condition of his release.
See Missouri v. St. George, 215 S.W.3d 341 (Mo. Ct. App. 2007) (driving directly
toward a law enforcement officer and forcing him to move may be considered second-
degree assault of an officer in violation of section 565.082); Missouri v. Brown, 989
S.W.2d 652, 653 (Mo. Ct. App. 1999) (same). Furthermore, Perkins conceded that
he had violated a special condition of his release. The district court did not abuse its
discretion by revoking Perkins’s supervised release after it determined that he had
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committed Grade B and Grade C supervised release violations by assaulting an officer
and absconding from his substance abuse program. See Carothers, 337 F.3d at 1019;
U.S.S.G. § 7B1.3(a)(1) (policy statement calling for the revocation of supervised
release upon a finding of a Grade A or B supervised release violation as defined in
U.S.S.G. § 7B1.1(a)).
B. Sentence
A district court’s discretion to impose a prison sentence upon revocation of
supervised release is limited by statute. 18 U.S.C. § 3583(e)(3). If the sentence
imposed is within the bounds of § 3583(e)(3), we will not disturb it absent an abuse
of discretion. United States v. Walker, 513 F.3d 891, 893 (8th Cir. 2008).
Section 3583(e)(3) imposes two limitations on the term for a sentence resulting
from the revocation of supervised release, and both are based on the “offense that
resulted in the term of supervised release” (original offense). First, the revocation
sentence may not exceed “the term of supervised release authorized by statute for the
[original offense] without credit for time previously served on postrelease
supervision,” and second, it may not exceed the absolute maximum revocation
sentence provided in § 3583(e)(3) with respect to the class of the original offense. §
3583(e)(3). The district court correctly determined that the statutory maximum for
Perkins’s original offense, felon in possession of a firearm, a class C felony, was two
years. See § 3583(b), (e)(3). Thus, the twenty-four-month revocation sentence
imposed by the district court did not exceed its statutory bounds.
A district court abuses its discretion in imposing a revocation sentence if the
sentence is unreasonable. United States v. Bear Robe, 521 F.3d 909, 910-11 (8th Cir.
2008) (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005) (same
standard of reasonableness applies to revocation hearings as to initial sentencing
proceedings)). A sentence is procedurally unreasonable if the district court, inter alia,
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“fail[ed] to consider the § 3553(a) factors, . . . or fail[ed] to adequately explain the
chosen sentence.” United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008)
(quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)); see also United States v.
Ellis, No. 06-6340, 2008 WL 2004276, at *3 (10th Cir. May 12, 2008). The § 3553(a)
factors relevant to the imposition of a revocation sentence and which the district court
must consider are set forth in § 3583(e). United States v. Franklin, 397 F.3d 604, 606
n.3 (8th Cir. 2005). A sentence within the Guidelines range is accorded a presumption
of substantive reasonableness on appeal. Robinson, 516 F.3d at 717.
Perkins argues that the district court failed to properly consider and articulate
the relevant § 3553(a) factors, including the Chapter 7 policy statements in the
Guidelines. A district court is not required to make specific findings; all that is
generally required to satisfy the appellate court is evidence that the district court was
aware of the relevant factors. Franklin, 397 F.3d at 606-07; see also Rita v. United
States, 127 S. Ct. 2456, 2468 (2007) (a district court is not required to provide a “full
opinion in every case,” but must “set forth enough to satisfy the appellate court that
[it] has considered the parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority”). In determining whether a district court has
considered the relevant factors, the context for the appellate court’s review is the
entire sentencing record, not merely the district court’s statements at the hearing. See
Rita, 127 S. Ct. at 2468; Franklin, 397 F.3d at 607. If a district court “references some
of the considerations contained in § 3553(a), we are ordinarily satisfied that the
district court was aware of the entire contents of the relevant statute.” United States
v. White Face, 383 F.3d 733, 740 (8th Cir. 2004) (internal quotation omitted).
At the time of sentencing, after hearing arguments from both parties, the district
court simply remarked that “the record speaks for itself.” Because Perkins did not
object to the district court’s articulation of its reasoning, we review that issue for plain
error. Franklin, 397 F.3d at 607. We note that the district court that presided over
Perkins’s revocation hearing was the same court that imposed Perkins’s initial
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sentence, modified the conditions of his supervised release to require participation in
the substance abuse program, and issued the warrant for his arrest after he absconded
from the program. Accordingly, we are satisfied that the court was familiar with
Perkins’s history, characteristics, and conduct. See id. The district court revoked
Perkins’s supervised release after finding that he had failed to participate in a
necessary rehabilitation program outside of the prison system and that he had
assaulted a law enforcement officer. At the outset of the revocation hearing, the
district court explicitly discussed with counsel the calculation of the suggested
sentence under Chapter 7 of the Guidelines, as well as the statutory maximum.
Perkins’s revocation sentence falls in the middle of the suggested range of twenty-
one-to-twenty-seven months and does not exceed the statutory maximum. In sum, our
review of the record satisfies us that the district court considered the relevant §
3553(a) factors and that it did not abuse its discretion in revoking Perkins’s supervised
release or in imposing the twenty-four month sentence, which we do not find to be
unreasonable. In any event, any error on the district court’s part in offering no more
than an abbreviated articulation of its reasoning did not prejudice Perkins’s substantial
rights. See id.
The judgment is affirmed.
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