United States v. Jannice Frank

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
________________________ AUGUST 10, 2005
THOMAS K. KAHN
No. 04-15632 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 98-00427-CR-MHS-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee
versus
JANNICE FRANK,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 10, 2005)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Jannice Frank appeals her sentence of 24 months’ imprisonment for
violating the conditions of her supervised release. On appeal, Frank contends that
the district court erred and violated her due process rights when it imposed a 24-
month sentence in excess of the range established in section 7B1.4 of the
sentencing guidelines because the court did not consider the Chapter 7 policy
statements prior to imposing sentence. Frank notes that although the Chapter 7
guidelines are not binding, the district court must at least consider the Chapter 7
guidelines prior to imposing sentence after revocation of supervised release.
Specifically, Frank maintains that court failed to consider the grade of the
violation alleged in the revocation petition, as well as U.S.S.G. § 7B1.4’s
sentencing range for violating supervised release, which, according to Frank’s
calculations, was 8 to 14 months.
Additionally, on appeal, Frank asserts the district court imposed an
unreasonable sentence after revoking Frank’s supervised release because the court
failed to consider the Chapter 7 policy statements, and “her criminal history [did]
not establish her as being particularly deserving of harsh treatment.”
I. Frank’s claim that the district court erred and violated Frank’s
due process rights by imposing a sentence above the presumptive
guideline range, without allegedly considering the Chapter 7
policy statements
Ordinarily, we review “the district court’s decision to exceed the Chapter 7
sentencing range for an abuse of discretion.” United States v. Hofierka, 83 F.3d
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357, 361 (11th Cir. 1996). However, when a defendant fails to state clearly the
grounds for an objection, her objection is waived on appeal and reviewed for plain
error. United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003); see also
United States v. Hayes, 40 F.3d 362, 364 (11th Cir. 1994) (noting that when due
process issues are not raised before the district court, this Court reviews due
process claims for plain error). Also, when a defendant raises an argument for the
first time on appeal, we review only for plain error. See United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Plain error exists when: (1) an
error exists that, (2) is plain, (3) seriously affects a defendant’s substantial rights,
and (4) “seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Acevedo, 285 F.3d 1010, 1012 (11th Cir. 2002).
Here, we review Frank’s claim that the district court erred by failing to consider
the Chapter 7 policy statements before sentencing her under the plain error
standard because she failed to raise this issue at the revocation hearing. See Zinn,
321 F.3d at 1087.
Upon finding that the defendant violated a condition of supervised release, a
court, after considering factors set forth in § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7),
may revoke a term of supervised release. 18 U.S.C. § 3583(e). The § 3553(a)
factors include, in relevant part: “(1) the nature and circumstances of the offense
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and the history and characteristics of the defendant; (2) the need for the sentence
imposed . . . (C) to protect the public from further crimes of the defendant; . . .
(4) the kinds of sentence and the sentencing range established for . . . (B) in the
case of a violation of probation or supervised release, the applicable guidelines or
policy statements issued by the Sentencing Commission . . . ; and (5) any pertinent
policy statement issued by the Sentencing Commission. . .” 18 U.S.C. § 3553(a).
The sentencing court “shall state in open court the reasons for its imposition of the
particular sentence, and, if the sentence . . . is not of the kind, or is outside the
range, described in subsection (a)(4), the specific reason for imposition of a
sentence different from that described.” 18 U.S.C. § 3553(c)(2).
Chapter 7 of the Sentencing Guidelines, which governs violations of
supervised release, contains policy statements. One of the policy statements,
U.S.S.G. § 7B1.4, provides recommended ranges of imprisonment applicable upon
revocation. Policy statements are merely advisory and thus, non-binding. United
States v. Cook, 291 F.3d 1297, 1301 (11th Cir. 2002). “Section 3553 requires a
court only to consider [them] in determining a defendant’s sentence” upon
revocation. Id. at 1302 (emphasis in original). It is enough if “there is some
indication the district court was aware of and considered [the guidelines.]”
Aguillard, 217 F.3d at 1320.
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In this case, a review of the transcript from the revocation hearing fails to
reveal that there was, at a minimum, some indication that the district court was
aware of and considered the sentencing guidelines. Although Frank advised the
district court that the court could sentence her to (a) 24 months’ imprisonment,
with no supervised release to follow, or (b) a shorter term, with further
supervision, there is nothing in the record to support the conclusion that the court
implicitly considered and rejected the Chapter 7guidelines. As such, the district
court erred by failing to consider the applicable Chapter 7 sentencing range.
Cook, 291 F.3d 1297, 1302.
Nevertheless, assuming without deciding that Frank’s applicable guideline
range was 8-14 months’ imprisonment, the district court did not commit plain
error in imposing Frank’s sentence without considering the Chapter 7 range
because her substantial rights were not seriously affected. In imposing a sentence
for violating supervised release, a district court is not bound by the policy
statements of Chapter 7 and is not “restricted to the guideline range applicable at
the time of the initial sentencing hearing.” See Cook, 291 F.3d at 1300. Here, the
court’s decision to sentence Frank to 24 months’ imprisonment far exceeded the
presumptive Chapter 7 sentencing range of 8 to 14 months’ imprisonment, so it is
unlikely that the court would have applied the Chapter 7 sentencing range had it
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explicitly considered it, especially given the district court’s conclusion that Frank
was “hopeless.” Additionally, Frank was sentenced within the statutory maximum
sentence of 24 months’ imprisonment for the revocation of supervised release
imposed for the violation of 18 U.S.C. § 2314. See 18 U.S.C. § 3583(e)(3).1
Therefore, because (a) it is unlikely that the district court would have applied the
Chapter 7 sentencing range, and (b) Frank was sentenced within the statutory
maximum sentence, we hold that Frank’s rights were not substantially affected by
the court’s failure to consider the Chapter 7 sentencing range.2
II. Frank’s claim that her sentence is unreasonable
We review the district court’s interpretation of the sentencing provisions de
novo and the imposition of a sentence following revocation of supervised release
for abuse of discretion. United States v. Quinones, 136 F.3d 1293, 1294 (11th Cir.
1998); see also United States v. Thompson, 976 F.2d 1380, 1381 (11th
Cir.1992)(held that a sentence of twenty-four months following the revocation of
supervised release was not an abuse of discretion).
1
Frank was convicted of interstate transportation of stolen property, in violation of 18
U.S.C. § 2314, an offense punishable by imprisonment of not more than 10 years. 18 U.S.C. § 2314.
An offense is classified as a Class C felony if the maximum term of imprisonment authorized is less
than 25 years but 10 or more years. 18 § 3559(a)(3). The court may impose a term of imprisonment,
not to exceed 2 years if the offense that resulted in the supervised release was a Class C felony. 18
U.S.C. § 3583(e)(3).
2
Because Frank’s rights were not substantially affected by the court’s failure to consider the
Chapter 7 sentencing range, Frank’s due process claims are without merit.
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A sentencing court, in imposing a sentence upon revocation of a defendant’s
supervised release, must consider the factors enumerated in 18 U.S.C. § 3553,
including the nature and circumstances of the offense, the characteristics and
history of the defendant, and the need to deter future criminal conduct and to
protect the public. The Sentencing Commission expressly “adopted [the] approach
that . . . at revocation the court should sanction primarily the defendant’s breach of
trust, while taking in account, to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator.” U.S.S.G. Ch. 7, Pt.
A, intro. comment. (3)(b).
In the instant case, Frank was sentenced to the statutory maximum sentence
of 24 months’ imprisonment for the revocation of supervised release imposed for
the violation of 18 U.S.C. § 2314. The district court sentenced Frank to the
maximum sentence because Frank had a previous forgery conviction, had three
fraud convictions, and was currently on state probation for theft and forgery and
theft by taking. Accordingly, the court determined that Frank’s criminal behavior
and similar course of conduct warranted the maximum sentence. Frank does not
dispute the district court’s findings regarding her criminal history. Nor does she
contest the district court’s finding that she violated the conditions of her
supervised release by (1) violating state law between April 1, 2002, and December
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31, 2002, by making unauthorized credit purchases on company accounts without
the prior knowledge or approval of her employer; (2) failing to make ordered
restitution payments; (3) failing to report to the probation officer as directed; and
(4) associating with a convicted felon without the permission of the probation
officer. While each of Frank’s underlying violations may not have been severe
individually, it is evident that she continuously ignored the explicit conditions of
her supervised release. This pattern of disregard for the system demonstrates a
breach of trust sufficient to support the district court’s decision to sentence Frank
to the statutory maximum of 24 months. U.S.S.G. Ch. 7, Pt. A, intro. comment.
(3)(b).
Accordingly, we hold that (1) the district court’s apparent failure to consider
the presumptive sentencing range under U.S.S.G. § 7B1.4 did not prejudice
Frank’s substantial rights as the sentence imposed far exceeded the presumptive
range under § 7B1.4, indicating that consideration of the § 7B1.4 range would not
have influenced the length of Frank’s sentence; and (2) Frank’s sentence was not
unreasonable, given her violation of state law, and other non-compliance with the
conditions of her release.
AFFIRMED.
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