United States v. Irvin Kenny , 846 F.3d 373 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2016 Decided January 24, 2017
No. 14-3092
UNITED STATES OF AMERICA,
APPELLEE
v.
IRVIN C. KENNY, ALSO KNOWN AS HOOP,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:96-cr-00295-1)
A.J. Kramer, Federal Public Defender, argued the cause and
filed the briefs for appellant.
Jennifer Loeb, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief were Elizabeth Trosman, John
P. Mannarino, and Katherine M. Kelly, Assistant U.S.
Attorneys.
Before: ROGERS, KAVANAUGH and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
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ROGERS, Circuit Judge: Upon revocation of Irvin Kenny’s
supervised release as a result of his conviction on drug charges
in Maryland, the district court sentenced him to 30 months’
imprisonment, to be served consecutively to his drug sentence
in Maryland. Kenny appeals on the grounds the district court
treated the Sentencing Guidelines policy statement on
consecutive sentences as mandatory and also failed to consider
several factors in 18 U.S.C. § 3553(a) as required by § 3583(e).
Because Kenny did not raise these objections in the district
court, our review is for plain error. United States v. Simpson,
430 F.3d 1177, 1183 (D.C. Cir. 2005). For the following
reasons, we hold that Kenny fails to show “clear” or “obvious”
error, United States v. Olano, 507 U.S. 725, 734 (1993), that
“affects substantial rights” based on “a reasonable likelihood
that the sentencing court’s obvious errors affected his sentence,”
United States v. Gomez, 431 F.3d 818, 822 (D.C. Cir. 2005)
(quoting United States v. Coles, 403 F.3d 764, 767 (D.C. Cir.
2005); United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994)).
I.
On September 5, 1996, Kenny was indicted on federal
charges for unlawful distribution of 50 grams or more of cocaine
base and unlawful distribution of cocaine base within 1,000 feet
of a school in the District of Columbia. He pleaded guilty to one
count of unlawful distribution, and was sentenced to 121
months’ imprisonment and five years’ supervised release.
At the time of the drug offense in the District of Columbia,
Kenny was on probation in Virginia. Based on his plea in the
District of Columbia, Virginia revoked his probation and
ordered him to serve his suspended sentence upon completion of
his sentence in the District of Columbia. Kenny was
incarcerated from 1997 through 2005 on the federal charges and
then transferred to Virginia to serve the remainder of his
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suspended sentence. He was released by Virginia in December
2008, and at that time began his five-year term of supervised
release for the 1996 federal conviction. While on supervised
release, he was arrested in Maryland for drug offenses, for
which he was sentenced to four years’ imprisonment.
On December 5, 2014, following issuance of a habeas ad
prosequendum to the Maryland detention facility, the district
court held a hearing on revocation of Kenny’s supervised
release. Kenny moved to dismiss the violation, which the
government opposed. At the hearing, the government
recommended a sentence “at the low end” of the Guidelines
sentencing range of 30–37 months, to run consecutive to his
Maryland sentence. Rev. Hr’g Tr. 3 (Dec. 5, 2014). The district
court denied Kenny’s motion to dismiss, revoked his supervised
release, and sentenced him to 30 months’ imprisonment,
consecutive to the Maryland sentence. Kenny appeals.
II.
On appeal, Kenny does not dispute that the Guidelines
sentencing range was 30–37 months’ imprisonment for his
violation of supervised release, or that the Sentencing
Guidelines policy statement in U.S.S.G. § 7B1.3(f) instructs that
supervised release revocation sentences “shall be ordered to be
served consecutively.” It is also undisputed that the Sentencing
Guidelines (including the policy statements) are advisory.
United States v. Booker, 543 U.S. 220, 245 (2005); United States
v. Gardellini, 545 F.3d 1089, 1091–92 (D.C. Cir. 2008).
This appeal therefore relates primarily to the statement by
the district court at the revocation hearing:
Well, based on the Maryland conviction, I do revoke
your term of supervised release in this case. I sentence
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you to the low end of the [G]uidelines, which is 30
months. But the whole scheme of the [G]uidelines,
with which I agree, is that that has to be a consecutive
sentence. The new conduct has its own penalty, but the
conduct in this case is a violation of supervised release.
The sentence should be, and I find it is appropriate, that
it be consecutive to the Maryland sentence.
Rev. Hr’g Tr. 5 (emphasis added). Kenny contends that use of
the phrase “has to be” indicates that the district court failed to
appreciate the full range of its sentencing discretion and that had
it appreciated its discretion it might have imposed a concurrent
sentence, as defense counsel requested. We disagree.
The district court is presumed to know the law and apply it
correctly, United States v. Godines, 433 F.3d 68, 70 (D.C. Cir.
2006); Simpson, 430 F.3d at 1186, and the advisory nature of the
Guidelines’ policy statements is long established in this circuit,
even prior to the Supreme Court’s decision in Booker. In United
States v. Bruce, 285 F.3d 69 (D.C. Cir. 2002), this court held
that under 18 U.S.C. § 3553(b) a court must “merely consider
(i.e., ‘reflect on,’ ‘think about,’ ‘deliberate,’ ‘ponder’ or ‘study’)
policy statements” because Congress had not “require[d]
adherence to policy statements,” id. at 74. Similarly, in United
States v. Hooker, 993 F.2d 898 (D.C. Cir. 1993), the court
observed that the policy statements on supervised release and
probation in Chapter VII of the Sentencing Guidelines are
“merely advisory,” id. at 900. Moreover, even putting Booker
aside, given the law of the circuit, see LaShawn A. v. Barry, 87
F.3d 1389, 1393 & n.3, 1395 (D.C. Cir. 1996), the observation
noted in United States v. Head, 817 F.3d 354 (D.C. Cir. 2016),
that the Guidelines “would seem to contain a default bias in
favor of the [consecutiveness] requirement,” id. at 359 n.1,
cannot properly be read to hold to the contrary.
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In any event, the district court’s statement at the revocation
hearing is not fairly understood other than as indicating that the
court recognized and exercised its sentencing discretion. Kenny
strains to suggest otherwise. First, the district court stated that
it “agree[d]” with the Sentencing Guidelines, a statement that,
in context, itself indicates the court’s recognition of their
advisory nature. Rev. Hr’g Tr. 5. Had the district court viewed
the Guidelines as mandatory, its agreement with them would
have been superfluous, if not irrelevant. Second, the district
court’s “has to be” reference simply paraphrased the policy
statement that “[a]ny term of imprisonment imposed upon the
revocation of probation or supervised release shall be ordered to
be served consecutively,” U.S.S.G. § 7B1.3(f) (emphasis
added). This is clear from the fact that the district court
immediately proceeded to explain its rationale for imposing a
consecutive sentence — Kenny had committed two separate law
violations, one in Maryland and one in violating his D.C.
supervised release, and he had a long history of drug offenses.
At the hearing, the district court referred to Kenny’s “continued
sale of drugs,” admonishing him that “[y]ou got to stop,” Rev.
Hr’g Tr. 6, to avoid severe consequences upon another drug
conviction, and also denied Kenny’s motion to dismiss for the
reasons set forth in the government’s opposition, which
described Kenny’s recidivist drug offense history, id. at 7.
Third, the district court stated not only that, in its opinion, the
sentence for the supervised release violation “should be” a
consecutive penalty but that such a penalty was “appropriate.”
Id. at 5.
This is the language of discretion, not application of
mandatory requirements. Neither the district court’s accurate
recitation of the mandatory formulation in the policy statement,
nor its reference to the Guidelines as a guide, see Gall v. United
States, 522 U.S. 38, 46 (2007), vitiate the court’s expressions of
individual determination based on discretionary sentencing
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authority.
To the extent Kenny suggests our decision in Head, 817
F.3d 354, requires a different conclusion, he still fails to
demonstrate plain error. In Head, the district court stated that
“the [G]uidelines do require that [the sentence for violating
supervised release] be consecutive unless I find a basis for a
departure,” id. at 357. Kenny views the reference to “departure”
and consideration of the defendant’s “really poor prior record”
to be a clear signal that the district court in Head understood that
it had discretion, whereas he maintains there was no such signal
in his case. But this suggests there is a talismanic formulation
for signaling discretion when, in fact, there are multiple ways a
district court can indicate it understands that it has sentencing
discretion and is exercising that discretion. What Kenny ignores
in maintaining that Head controls his case is the different record
in that case. In Head, 817 F.3d at 358–59, the defendant raised
an ex post facto challenge based on the district court’s
application of the incorrect version of the Guidelines where the
correct version did not include a preference for consecutive
sentences. This court found plain error upon concluding that it
was unclear from the record how the district court would have
exercised its discretion had it relied on the correct version of the
Guidelines. See id. at 360–61. By contrast, the district court’s
understanding and intention are sufficiently clear in Kenny’s
case to indicate that the court understood it had and was
exercising sentencing discretion.
Head, then, neither compels a different result in Kenny’s
case nor requires that a district court say more than it did to
signal that it understood in imposing a 30 months’ consecutive
sentence on Kenny it had and was exercising discretionary
authority. Kenny’s reliance on United States v. Terrell, 696
F.3d 1257, 1261–64 (D.C. Cir. 2012), another ex post facto case,
is also unavailing. Unlike in Terrell, the district court’s
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statement at Kenny’s revocation hearing did not indicate an
erroneous understanding that the Guidelines were mandatory
unless the court could find “compelling reasons” to depart. Id.
at 1262. In sum, Kenny fails to show there was either “obvious”
error, Olano, 507 U.S. at 734, by the district court at the
revocation hearing or a “reasonable likelihood” that error
affected the district court’s imposition of Kenny’s consecutive
sentence, Gomez, 431 F.3d at 822.
III.
As for Kenny’s remaining contention, “there is no
requirement that sentencing courts expressly list or discuss every
Section 3553(a) factor at the sentencing hearing.” United States
v. Knight, 824 F.3d 1105, 1110 (D.C. Cir. 2016). Kenny does
not suggest this standard is inapplicable to revocation of
supervised release. As Kenny also has not “asserted the import
of a particular § 3553(a) factor, nothing in the statute requires
the court to explain sua sponte why it did not find that factor
relevant to its discretionary decision.” Simpson, 430 F.3d at
1187. Kenny never sought further explanation by the district
court of its reasoning. United States v. Pinnick, 47 F.3d 434,
439 (D.C. Cir. 1995); see also United States v. Brinson-Scott,
714 F.3d 616, 625–26 (D.C. Cir. 2013) (quoting Rita v. United
States, 551 U.S. 338, 356–57 (2007)).
Furthermore, the record is not as barren as Kenny
postulates. Kenny acknowledges that one of the statutory
factors — the “advisory sentencing range” — was discussed at
the revocation hearing. Appellant’s Br. 6; see 18 U.S.C.
§ 3553(a)(4). Given the hearing record, “it is impossible to
conclude that the District Court did not consider” that factor “as
part of the mix of considerations.” Knight, 824 F.3d at 1110.
That another factor — “the nature and circumstances of the
offense and the history and characteristics of the defendant,” 18
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U.S.C. § 3553(a)(1) — was considered at the hearing is evident
not only from the district court’s reliance on the prosecutor’s
recitation of Kenny’s drug history in opposing dismissal, but
from the prosecutor’s acknowledgment at the hearing that
Kenny’s Maryland arrest was his first infraction on supervised
release and defense counsel’s discussion of Kenny’s family and
employment history. Additionally, the district court considered
still another factor — the need to “afford adequate deterrence,”
18 U.S.C. § 3553(a)(2)(B) — referring to Kenny’s “continued
sale of drugs” and warning him of the severe consequences of
another offense. Rev. Hr’g Tr. 6.
Accordingly, we affirm the judgment on revocation.