United States v. Lonnel Porter ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3325
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Lonnel Porter
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Waterloo
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Submitted: April 16, 2020
Filed: September 11, 2020
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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LOKEN, Circuit Judge.
Lonnel Porter pleaded guilty to a felon-in-possession charge, served his prison
sentence, and began a three-year term of supervised release in August 2019 at the
Waterloo Residential Reentry Center (“WRRC”). Six weeks later, the Northern
District of Iowa Probation Office petitioned to revoke Porter’s supervised release,
alleging four violations including failure to return to the WRRC after signing out for
employment. Porter had refused a protection officer’s direction to return and his
whereabouts were unknown. An arrest warrant issued, and the U.S. Marshall’s
Service arrested him without incident in early October.
At the revocation hearing, Porter admitted violating terms of his supervised
release, the most serious being a Grade C violation. With a Category VI criminal
history, this resulted in an advisory guidelines revocation sentencing range of eight
to fourteen months imprisonment. See USSG § 7B1.4(a). Porter urged a sentence of
ten months; the government urged an upward variance to twenty-four-months The
district court1 revoked Porter’s supervised release and sentenced him to fourteen
months imprisonment followed by two years of supervised release. Porter appeals,
arguing the revocation sentence is substantively unreasonable because the district
court “gave significant weight to an improper or irrelevant factor,” namely, “the need
to promote respect for the law.” Reviewing the revocation sentence under the same
deferential abuse-of-discretion standard that applies to initial sentences, we affirm.
United States v. White, 840 F.3d 550, 552 (8th Cir. 2016) (standard of review).
Governing sentencing statutes provide that, in determining an initial sentence,
the court “shall consider” seven factors enumerated in 18 U.S.C. § 3553(a). In
determining whether to include a term of supervised release in that sentence, the court
“shall consider” several § 3553(a) factors listed in § 3583(a). The list does not
include the § 3553(a)(2)(A) factor -- the need for a sentence to “reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” When a defendant has violated the terms of his
supervised release, in determining the appropriate sanction, the court “may, after
considering the [§ 3553(a)] factors set forth in [§ 3583(a)], revoke supervised release”
and impose an authorized prison sentence. § 3583(e)(3).
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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Because § 3583(e) does not reference § 3553(a)(2)(A), like many circuits we
have characterized consideration of the factors in § 3553(a)(2)(A), such as “respect
for the law,” as “improper” or “irrelevant” in revocation proceedings. United States
v. Mitchell, 798 F. App’x 968, 970 (8th Cir. 2020). This is questionable, or at least
careless, statutory construction. Section 3583(a) provides that the court “shall
consider” some § 3553(a) factors in imposing supervised release. But this is not an
affirmative declaration that the court “may not” consider others. Likewise, § 3583(e)
provides, as it must, that the court “may consider” factors mandated by § 3583(a) in
a revocation proceeding. Again, this is not a declaration that the court “may not”
consider other factors it deems relevant to the revocation sentence. It is “the
traditional understanding of the sentencing process [that] a sentencing judge may
appropriately conduct an inquiry broad in scope, largely unlimited either as to the
kind of information he may consider, or the source from which it may come.”
Nichols v. United States, 511 U.S. 738, 747 (1994) (quotation omitted). We should
not construe ambiguities in sentencing statutes as reflecting a congressional intent to
depart from this traditional understanding.
Happily, our court (unlike some others) has not so construed § 3583(e).
Although we have labeled § 3553(a)(2)(A) an improper, irrelevant, or “excluded”
factor, we have not declared its consideration an error of law and therefore an abuse
of discretion. Rather, in determining whether the district court abused its discretion,
we examine whether the court “gave significant weight” to that factor. United States
v. Hall, 931 F.3d 694, 697 (8th Cir. 2019); see United States v. Martin, 757 F.3d 776,
779-80 (8th Cir. 2014); Mitchell, 798 F. App’x at 970.
At Porter’s sentencing, after the district court determined the advisory
sentencing range and counsel stated their sentencing positions, the court called on
Porter for allocution. His lengthy comments repeatedly expressed frustration with his
placement at the WRRC, characterizing it as punishment and citing what he perceived
as unfairly restrictive conditions. “I felt like it was a form of disrespect,” he declared.
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To be put in a residential facility and be told he cannot spend time with his young
daughter, “[t[hat’s disrespectful.” “[Y]eah, I walked away,” Porter concluded. “All
. . . I wanted was to spend time with my child. . . . The two weeks I was gone, I was
able to spend with my child.” The district court’s response to this allocution is the
basis for Porter’s appeal:
In arriving at a sentence that is sufficient but not greater than
necessary, I have taken into account and considered all the [§ 3553(a)]
factors . . . that apply in a revocation hearing. . . . When I look at the
defendant’s criminal history, his criminal history is replete with violence
and assaultive behavior. He’s been assaultive while in custody.
. . . [W]hat comes through very clearly in all the documents, the
presentence report, and the defendant’s allocution here, is that the
defendant feels the world owes him something and owes him respect
. . . . And if he doesn’t get to do what he wants to do . . . he’s just going
to do what he wants to do, regardless of what the rules are.
Well, Mr. Porter, we all live by rules in this society. And when
you obey rules, then people show you respect. When you disobey rules
and you violate rules, then you violate the right to have anybody show
you respect. . . . For you to tell your probation officer you are just not
going to turn yourself in and you are going to walk away from it, shows
a complete disrespect to me, to your probation officer, and to the law.
Porter argues the court abused its discretion by relying on an impermissible
sentencing factor in § 3553(a)(2)(A) -- the need for a sentence “to promote respect
for the law.” We disagree.
As we have explained, no case has held that the district court abused its
discretion by mentioning “respect for the law” at a revocation hearing. The record
must establish the district court “gave significant weight” to an improper or irrelevant
factor. In its supervised release guidelines, the Sentencing Commission advises that
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“at revocation the court should sanction primarily the defendant’s breach of trust
[reflected in the supervised release violations], while taking into account, to a limited
degree, the seriousness of the underlying [criminal conduct that formed the basis of
the] violation and the criminal history of the violator.” USSG Part A, 3(b); see
United States v. Clay, 752 F.3d 1106, 1108-09 (7th Cir. 2014). Here, the court’s
“disrespect for the law” comment was highly relevant. Porter walking away from his
assigned location and then telling the probation officer he was not going to turn
himself in was the serious breach of trust being sanctioned. Using the word
“disrespect” that Porter invoked in allocution, the court accurately described his
breach of trust as “show[ing] complete disrespect to me, to your probation officer,
and to the law.”
In explaining the revocation sentence it was imposing, the district court began
with a discussion of Porter’s history and characteristics, observing that his criminal
history was “replete with violence and assaultive behavior,” and assaultive incidents
illustrated Porter’s “impulsive and violent behavior.” The court further stated that it
had “taken into account and considered all the factors set forth at Title 18 United
States Code Section 3553(a) that apply in a revocation hearing.” It then directly
responded to the “disrespect” complaint in Porter’s allocution, using the same term
to explain why his refusal to obey the conditions of his supervised release warranted
the sanction the court was imposing. The court neither gave significant weight to an
improper or irrelevant factor nor abused its substantial discretion by imposing a
substantively unreasonable sentence.
The judgment of the district court is affirmed.
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