United States v. Mark Fuehrer , 399 F. App'x 127 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1941
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Mark Fuehrer, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 16, 2010
Filed: July 19, 2010
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Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
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PER CURIAM.
Mark Fuehrer appeals from the 24-month sentence that the district court1
imposed upon revocation of his supervised release. Fuehrer argues that the court
violated his Fifth Amendment right against self-incrimination by questioning him
about his supervised release violations. He also argues that his sentence is
unreasonable. For the following reasons, we affirm.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
In 2001, Fuehrer pled guilty to distributing crack cocaine and was sentenced to
92 months’ imprisonment and six years of supervised release. Fuehrer began his first
term of supervised release in June 2006. In October 2006, the district court found that
Fuehrer violated the conditions of his supervised release by using cocaine and alcohol.
The court revoked Fuehrer’s supervised release and sentenced him to 12 months’
imprisonment followed by five years of supervised release. Fuehrer began his second
term of supervised release in October 2007. In January 2009, the court received a
petition to revoke Fuehrer’s second term of supervised release. Fuehrer admitted that
he violated the conditions of his supervised release by using alcohol, lying to
probation officers, and failing to comply with his alcohol testing program. In lieu of
revoking Fuehrer’s supervised release, the district court modified the conditions of his
supervised release.
In March 2009, the court received another petition to revoke Fuehrer’s
supervised release. The court held a revocation hearing at which Fuehrer, through his
attorney, admitted to violating his supervised release conditions on several occasions
by using alcohol and failing to comply with his alcohol testing program. The court
then questioned Fuehrer about the violations that he admitted. Upon finding that
Fuehrer violated the conditions of his supervised release, the court received
documents and heard arguments from Fuehrer regarding the appropriate remedy for
the violations. The court decided to revoke Fuehrer’s supervised release, and after
determining a Chapter 7 advisory guidelines range of 7 to 13 months’ imprisonment,
the court sentenced Fuehrer to 24 months’ imprisonment. In support of its decision,
the court stated that Fuehrer had repeatedly violated the conditions of his supervised
release by using alcohol and refusing to comply with his alcohol testing program. The
court found that Fuehrer consistently lied to his probation officers about his alcohol
use and stated that the court “has no more resources to offer [him].”
Relying on United States v. Rapert, 813 F.2d 182 (8th Cir. 1987), Fuehrer
argues that the court violated his Fifth Amendment right against self-incrimination by
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questioning him about his supervised release violations during the revocation hearing.
The Fifth Amendment privilege against self-incrimination permits a person to refuse
to testify in two situations: (1) where the person is compelled to testify against himself
in a criminal prosecution; or (2) where the person is compelled to testify “in any other
proceeding, civil or criminal, formal or informal, where the answers might incriminate
him in future criminal proceedings.” Rapert, 813 F.2d at 185 (quoting Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973)).
In Rapert, we rejected the proposition that a revocation hearing is a “stage of
the criminal prosecution” that gives rise to an automatic right not to testify (situation
one). 813 F.2d at 185.2 Thus, Fuehrer must show that he was compelled to testify
during the hearing and that “the answers might incriminate him in future criminal
proceedings” (situation two). See Lefkowitz, 414 U.S. at 77. First, Fuehrer cannot
show that he was compelled to testify during the revocation hearing. See Rapert, 813
F.2d at 185. Neither Fuehrer nor his attorney objected or asserted a Fifth Amendment
privilege when the court questioned Fuehrer. Id. (“A person must claim [the
privilege] or he will not be considered to have been compelled within the meaning of
the [Fifth] Amendment.” (quoting Minnesota v. Murphy, 465 U.S. 420, 427 (1984))
(alterations in original) (quotation marks omitted)). Second, Fuehrer previously
admitted the supervised release violations about which the court questioned him. See
id. (“[W]e believe Rapert lost the benefit of the privilege when he agreed to stipulate
to the violations of his probation.”). Finally, even assuming that Fuehrer’s testimony
was compelled, he has made no argument that any of his “answers might incriminate
2
While Rapert involved the revocation of probation, we have found it equally
applicable to the revocation of supervised release. See United States v. Kopp, 355
Fed. App’x 981, 983 (8th Cir. 2009) (unpublished per curiam); see also United States
v. Bennett, 561 F.3d 799, 801 n.3 (8th Cir. 2009) (finding jurisprudence governing
parole and probation revocation hearings applicable to supervised release hearings).
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him in future criminal proceedings.” See Lefkowitz, 414 U.S. at 77. Accordingly, we
reject Fuehrer’s Fifth Amendment argument.
Fuehrer also argues that his sentence is unreasonable because there is “no
indication in the record that the court considered any of the mitigating facts” Fuehrer
set forth at the revocation hearing. We disagree. We review Fuehrer’s sentence
“under a deferential abuse of discretion standard.” United States v. Bear Robe, 521
F.3d 909, 911 (8th Cir. 2008). The record shows that the court adequately considered
the documents Fuehrer submitted at the revocation hearing, the statements he made
at the hearing, and the relevant statutory factors in 18 U.S.C. § 3553(a). Furthermore,
based on Fuehrer’s repeated violations of the conditions of his supervised release by
using alcohol, refusing to comply with his alcohol testing program, and failing to be
honest with his probation officers, the court did not abuse its discretion in sentencing
Fuehrer to 24 months’ imprisonment. See id.For the foregoing reasons, we affirm the judgement of the district court.
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