United States v. Pisanu Sukhtipyaroge ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-3200
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Pisanu Sukhtipyaroge
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: April 11, 2023
Filed: August 14, 2023
[Unpublished]
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Before GRUENDER, WOLLMAN, and ARNOLD, Circuit Judges.
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PER CURIAM.
Following Pisanu Sukhtipyaroge’s violations of the conditions of his
supervised release, the district court1 revoked his supervision and sentenced him to
eighteen months’ imprisonment to be followed by one year of supervised release.
Sukhtipyaroge appeals, arguing that the district court committed procedural errors in
imposing his revocation sentence and that his revocation sentence is substantively
unreasonable. We affirm.
Sukhtipyaroge sexually and financially exploited A.S.M., a high-school student
from the Dominican Republic. He pleaded guilty in 2018 to visa fraud and harboring
an alien. See United States v. Sukhtipyaroge, 1 F.4th 603 (8th Cir. 2021) (affirming
restitution order). As relevant here, Sukhtipyaroge took sexually explicit photos of
A.S.M. and recorded sex acts between him and A.S.M. Law enforcement officers
also found text message correspondence on Sukhtipyaroge’s cell phone, in which he
inquired about recruiting a “poor boy” from Haiti to exploit and sexually abuse in
exchange for visa sponsorship, essentially seeking to engage in the same conduct that
he had engaged in with A.S.M. A.S.M. testified at an evidentiary and restitution
hearing that he had seen Sukhtipyaroge “on his computer talking to other teenagers.”
Sukhtipyaroge was sentenced to a term of imprisonment to be followed by a three-
year term of supervised release.
Sukhtipyaroge was released from prison and commenced supervised release in
July 2020. The conditions of release required him to answer his probation officer’s
questions truthfully and to not possess or use a computer or have access to any online
service without prior approval from his probation officer. After receiving a tip that
Sukhtipyaroge and his sister were attempting to buy land in Venezuela on which to
build an orphanage, his probation officer made an unannounced home visit in August
2022. He found cell phones, computers, laptops, and evidence of a prohibited
1
The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota.
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internet connection. Sukhtipyaroge lied to the probation officer, telling him that the
devices belonged to his sister. Sukhtipyaroge later admitted to having possessed
internet-capable devices for about a year and a half.
Based on these violations, the court granted the probation officer’s petition for
an order to show cause why Sukhtipyaroge’s release should not be revoked. Prior to
the revocation hearing, a magistrate judge modified the conditions of Sukhtipyaroge’s
release, requiring him to surrender his passport and prohibiting him from obtaining
any new passport or foreign travel document.
Sukhtipyaroge admitted during the revocation hearing that he had failed to
truthfully answer the probation officer’s questions and that he had possessed or used
a computer or had access to an online service without prior approval. The district
court determined that because those violations were Grade C and Sukhtipyaroge’s
criminal history category was I, the advisory revocation sentencing range under the
U.S. Sentencing Guidelines was three to nine months’ imprisonment. See U.S.S.G.
§ 7B1.4. The court explained, “[B]efore I make any decision about revocation, Mr.
Sukhtipyaroge, you have the right to make a statement and present any relevant
information.” Invited by the court to speak on his client’s behalf, defense counsel
requested a sentence of time served and continued supervised release. Joining in the
request, the government explained that it was satisfied with the passport surrender
and continued supervision.
The district court varied upward and imposed an eighteen-month term of
imprisonment. After explaining that it had considered the sentencing factors under
18 U.S.C. § 3553(a) and that it had tailored the sentence to the facts and
circumstances, the court stated:
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[Y]ou violated the terms of your supervised release and you did so by
possessing unauthorized internet devices and providing untruthful
information to your probation officer.
And these accusations are particularly concerning given your use
of internet communication and the deception that you’ve engaged in
when you committed your criminal offenses and the fact . . . of your
apparent motive to access the internet again despite being prohibited
from doing so in your underlying offenses.
It’s especially important in cases like yours when you not only
broke the rules before, but you did so in a manner that endangers others.
If you wish to have your freedom, you need to accept responsibility for
your actions and the impact of your actions on other people.
The district court denied Sukhtipyaroge’s request for self-surrender and his
later motion for release pending appeal.
Sukhtipyaroge argues that the district court committed several procedural
errors in imposing his revocation sentence. Because he did not object at sentencing,
we review them only for plain error. United States v. Fleetwood, 794 F.3d 1004,
1005 (8th Cir. 2015).
Sukhtipyaroge first argues that the district court failed to allow him to allocute.
Federal Rule of Criminal Procedure 32.1(b)(2)(E) provides that a person subject to
revocation “is entitled to . . . an opportunity to make a statement and present any
information in mitigation.” We have “assume[d] without deciding that the Rule at
least requires the district court, at some point during a revocation hearing, to address
the defendant personally and make it clear he has a right ‘to make a statement and
present any information in mitigation,’” United States v. Robertson, 537 F.3d 859,
862 (8th Cir. 2008), which is precisely what the district court did here. After the
court informed Sukhtipyaroge of this right, defense counsel spoke on his client’s
behalf, explaining that Sukhtipyaroge understood that what he had done was wrong
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and that he had promised to “try and do better in the future.” The district court did
not commit any clear or obvious error when it did not later invite Sukhtipyaroge to
speak, because it appeared that “defense counsel took control of his client’s part of
the colloquy, which was entirely appropriate.” Id. at 863. Moreover, defense counsel
did not indicate that Sukhtipyaroge wished to allocute, despite the district court
asking whether he had any further objections. “In these circumstances, the issue was
forfeited, and [any] error was not plain.” Id.Sukhtipyaroge next argues that the district court based his sentence on the
unproven allegation that he was attempting to establish an orphanage in Venezuela.
“[A] revocation sentence may not be based on disputed, unproven allegations in the
probation officer’s reports.” United States v. Richey, 758 F.3d 999, 1003 (8th Cir.
2014). The court did not refer to the orphanage allegation, but characterized
Sukhtipyaroge’s violations as concerning in light of the conduct underlying his
convictions and his “apparent motive to access the internet again.” Having accepted
his guilty plea, presided over a four-day evidentiary hearing, and sentenced him, the
district court was well aware that Sukhtipyaroge had used the internet in perpetrating
his underlying offenses. The court thus reasonably inferred at revocation sentencing
that he intended to use his internet-capable devices to connect to the internet. We do
not read the “apparent motive” language as reflecting any reliance by the court on the
orphanage allegation, as Sukhtipyaroge contends, or as otherwise presenting any
plain procedural error.
Sukhtipyaroge argues that the district court erred in considering the seriousness
of his conduct and the need for just punishment under 18 U.S.C. § 3553(a)(2)(A). At
revocation, a district court must consider certain § 3553(a) sentencing factors, but
§ 3553(a)(2)(A) is not among them. See 18 U.S.C. § 3583(e) (modification of
conditions or revocation). Sukhtipyaroge concedes that whether a court may consider
§ 3553(a)(2)(A) at revocation is an open question in our circuit. Accordingly, any
error in the district court’s consideration of the seriousness of his conduct or the need
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for just punishment was not plain. Fleetwood, 794 F.3d at 1005 (to prevail on plain
error review, defendant “must show an error that is clear or obvious under current
law” (quoting United States v. Hinkeldey, 626 F.3d 1010, 1012 (8th Cir. 2010)). We
likewise reject the argument that the district court failed to adequately explain the
upward variance. The court’s explanation satisfies us that it had “considered the
parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
Sukhtipyaroge challenges the substantive reasonableness of his revocation
sentence, an issue we review for abuse of discretion. United States v. McGhee, 869
F.3d 703, 705 (8th Cir. 2017) (per curiam). Sukhtipyaroge argues that the district
court failed to adequately consider his age, his ill health, and his prompt admission
to the violations, as well as the parties’ agreement that additional supervision alone
would adequately address the violations. Against these mitigating factors, the district
court weighed the following considerations: that Sukhtipyaroge used internet-
capable devices, text messaging, and other digital technology to commit his original
offenses; that he acquired cell phones and computers without prior approval; and that
he lied to his probation officer. The district court did not abuse its discretion in
concluding that Sukhtipyaroge’s history and characteristics, as well as the need to
protect the public, outweighed any mitigating factors. See United States v. King, 898
F.3d 797, 810 (8th Cir. 2018) (“The district court’s decision not to weigh mitigating
factors as heavily as [the defendant] would have preferred does not justify reversal.”
(cleaned up)). We thus conclude that Sukhtipyaroge’s revocation sentence is not
substantively unreasonable.
The judgment is affirmed.
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