United States v. Justin Clark

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3462
_____________
UNITED STATES OF AMERICA
v.
JUSTIN J. CLARK,
a/k/a HECTOR,
Justin J. Clark,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 2:05-cr-00099-001)
District Judge: Hon. Alan N. Bloch
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 16, 2013
Before: SMITH, FISHER, and CHAGARES, Circuit Judges.
(Filed: August 13, 2013)
____________
OPINION
____________
Karen Sirianni Gerlach, Esq.
Lisa B. Freeland, Esq.
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
David J. Hickton, Esq.
Donovan Cocas, Esq.
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
CHAGARES, Circuit Judge.
Justin Clark violated the conditions of his supervised
release. At his revocation hearing, the District Court revoked
Clark’s release and imposed a new term of imprisonment
followed by another term of supervised release. On appeal,
Clark challenges only the new term of supervised release,
arguing that its imposition was procedurally unreasonable and
that the procedural defects rendered the sentence
substantively unreasonable as well.
The statute that governs imposition and revocation of
supervised release directs the sentencing court to consider
factors enumerated in 18 U.S.C. § 3553(a). See 18 U.S.C. §§
3583(c), 3583(e). Clark’s appeal presents a question of first
impression for this Court: whether a district court must
2
conduct one § 3553(a) analysis for post-revocation
incarceration and another § 3553(a) analysis for a new term
of supervised release. We hold that it need not. A district
court may provide a single analysis that reflects meaningful
consideration of the relevant § 3553(a) factors to support each
portion of a revocation sentence.
Though we reject Clark’s contention that a district
court imposing a post-revocation term of supervised release
must conduct a second § 3553(a) analysis, we nonetheless
hold that the sentence imposed was procedurally
unreasonable. The record before us does not reflect
meaningful consideration of the relevant § 3553(a) factors.
We will therefore vacate and remand the District Court’s
judgment of sentence.
I.
Clark pled guilty to one count of possession with intent
to distribute a substance containing cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). In 2006, he
was sentenced to 120 months of imprisonment followed by
five years of supervised release. Clark later moved for a
reduction of sentence pursuant to 18 U.S.C. § 3582. The
District Court granted the motion and reduced Clark’s
sentence to 100 months of imprisonment. The Government
later moved for another reduction pursuant to Federal Rule of
Criminal Procedure 35(b). The District Court granted that
motion as well and reduced Clark’s sentence to time served.
Clark began his five-year term of supervised release in
November 2009.
3
During his term of supervised release, Clark agreed to
two modifications to the conditions of his release — to
participate in mental health and anger management
counseling and to be subject to electronic monitoring. On
July 24, 2012, Clark’s probation officer filed a Petition on
Supervised Release, alleging that Clark had left the judicial
district without the permission of the court or his probation
officer in violation of the conditions of his release. The
petition reported that Clark was a passenger in a vehicle that
had been pulled over in Iowa and that Clark “was found to be
in possession of $20,000 cash.” Appendix (“App.”) 32.
Clark admitted to the violation. At his revocation
hearing, where he faced an advisory United States Sentencing
Guidelines (“Guidelines”) range of 7 to 13 months of
imprisonment, Clark requested house arrest instead of a new
term of incarceration and emphasized that he had not been
arrested or charged with any crime in connection with the
incident in Iowa. The Government sought revocation and
asked the District Court to impose 13 months of
incarceration, the top of the advisory Guidelines range. The
Government also represented that two separate amounts of
money were found in the car — $10,000 and $20,000.
The District Court observed that the amount of money
recovered from the car in Iowa was “questionable,” even
though Clark was not charged with any crime, and detailed
other misconduct that occurred during Clark’s supervised
release including three traffic citations, failure to make
payments on fines arising from those citations, failure to
make payments on a bank loan, and a drug test that indicated
the presence of marijuana. App. 52-53. The court concluded
that Clark’s “overall conduct has demonstrated a general
4
pattern of noncompliance with supervision and has indicated
that a term of imprisonment is necessary pursuant to Title 18
of the United States Code, Section 3553(a).” App. 53. The
court then revoked Clark’s supervised release and sentenced
him to 13 months of imprisonment followed by a 47-month
term of supervised release. The hearing concluded with
additional discussion of the relevant § 3553(a) factors:
After considering the sentences
available, the advisory guideline
range, and the factors set forth in .
. . Section 3553, the Court finds
that this sentence is consistent
with the nature, circumstances,
and seriousness of the defendant’s
violations and his history,
characteristics, educational,
vocational and corrective needs,
as well as the need for just, non-
disparate punishment, deterrence,
and protection of the public. . . .
We adjourn.
App. 55. Defense counsel immediately objected to the
imposition of 47 months of supervised release as unsupported
by the record and unreasonable based on the facts of the case.
The District Court did not address the objection on the record.
Clark filed this timely appeal, arguing that the
imposition of 47 months of supervised release for his
revocation violation was procedurally and substantively
unreasonable.
5
II.
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We exercise jurisdiction over Clark’s appeal
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
Clark challenges the imposition of a 47-month term of
supervised release for the revocation violation and contends
that the District Court committed procedural and substantive
error by failing to apply separately the § 3553(a) factors when
imposing the new term of supervised release. We review the
procedural and substantive reasonableness of a revocation
sentence for abuse of discretion. United States v. Doe, 617
F.3d 766, 769 (3d Cir. 2010). When considering a
procedural challenge to a revocation sentencing hearing, we
ask whether the district court has given “rational and
meaningful consideration to the relevant § 3553(a) factors.”
Id. (quotation marks omitted). If we conclude that the
sentence was procedurally sound, our inquiry shifts to
substantive reasonableness. To address a defendant’s
contention that the sentence imposed was substantively
unreasonable, we ask “whether the final sentence, wherever it
may lie within the permissible statutory range, was premised
upon appropriate and judicious consideration of the relevant
factors.” Id. at 770 (quotation marks omitted). A defendant
who alleges substantive unreasonableness carries a heavy
burden; “we will affirm the sentencing court ‘unless no
reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the
district court provided.’” Id. (quoting United States v.
Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc)).
III.
6
A.
Clark asserts that procedural error arose from the
District Court’s failure to adhere to the familiar three-step
sentencing process. A sentencing court must (1) calculate the
advisory Guidelines range, (2) formally rule on any departure
motions and state how those rulings affect the advisory range,
and (3) exercise its discretion pursuant to the factors set forth
in § 3553(a). United States v. Lofink, 564 F.3d 232, 237-38
(3d Cir. 2009). In a revocation hearing, however, the court
must also adhere to the statutory requirements set forth in 18
U.S.C. § 3583. See Doe, 617 F.3d at 771-72; United States v.
Bungar, 478 F.3d 540, 543-44 (3d Cir. 2007).
Section 3583 controls post-conviction and post-
revocation supervised release. When imposing a defendant’s
initial term of imprisonment, a district court may, after
considering certain factors set forth in § 3553(a), include a
term of supervised release. 18 U.S.C. §§ 3583(a), 3583(c). A
defendant serving a term of supervised release must adhere to
certain conditions, both mandatory and discretionary. See id.§ 3583(d). If the defendant violates those conditions, the
court may, after considering the same § 3553(a) factors
relevant to the initial term of supervised release, revoke or
modify the defendant’s supervised release. 18 U.S.C. §
3583(e). Even though § 3583(e) omits some of the § 3553(a)
factors, such as 18 U.S.C. § 3553(a)(2)(A) (directing the court
to consider the seriousness of the offense), consideration of
those omitted factors is not prohibited. United States v.
Young, 634 F.3d 233, 240-41 (3d Cir. 2011).
If the court revokes supervised release and sentences
the defendant to a new term of imprisonment, it may include
a new term of supervised release as well. 18 U.S.C. §
7
3583(h) (“subsection (h)”). Though subsection (h) does not
specify a procedure for reimposition of supervised release, we
hold that sentencing courts are to consider those § 3553(a)
factors listed in 18 U.S.C. § 3583(c), the provision governing
imposition of the initial term of supervised release. See
United States v. Santiago-Rivera, 594 F.3d 82, 84 (1st Cir.
2010) (“As subsection (h) does not list the factors to be
considered in imposing a term of supervised release as part of
a revocation sentence, it is a reasonable inference that the
factors are the same as those to be considered in imposing an
initial term of supervised release.”).
We turn now to the issue of whether the District Court
was obligated to conduct two § 3553(a) analyses: one with
respect to Clark’s 13-month term of imprisonment and one
with respect to Clark’s 47-month term of supervised release.
The Court of Appeals for the Tenth Circuit has considered
this question and held that a district court did not err when it
conducted a single § 3553(a) analysis for both portions of a
defendant’s post-revocation sentence. United States v. Penn,
601 F.3d 1007, 1011-12 (10th Cir. 2010). In Penn, the
sentencing judge had discussed several of the § 3553(a)
factors and “stated his reasons for imposing both
reimprisonment and supervised release.” Id. at 1012. The
defendant challenged the imposition of supervised release as
part of the revocation sentence, arguing that the district court
erroneously failed to discuss the § 3553(a) factors as they
related to the new term of supervised release. Id. at 1011.
The court rejected the challenge and declined to require a
separate § 3553(a) discussion when imposing supervised
release. “Because we do not require ritualistic incantations of
these factors,” the court reasoned, “and because the district
court explained his consideration of the defendant’s
8
characteristics, protecting the public, and the appropriate
statutes and guidelines, we conclude the district court
adequately considered the relevant factors and therefore
committed no error, and certainly no plain error.” Id. at 1012.
Though this Court has not previously ruled on the
question raised by Clark’s appeal, our jurisprudence
regarding the required procedure for post-conviction
sentencing is instructive. District courts must exercise their
discretion to vary above or below the advisory Guidelines
range by considering the relevant § 3553(a) factors. Lofink,
564 F.3d at 238. But we have never required that a district
court conduct two § 3553(a) analyses, one related to the term
of imprisonment and a second related to the term of
supervised release. See United States v. Joline, 662 F.3d 657,
660 (3d Cir. 2011) (explaining that, when imposing a
sentence that includes supervised release, a sentencing court
must simply “furnish an explanation of the sentence . . .
sufficient for the reviewing court to see that the particular
circumstances of the case have been given meaningful
consideration within the parameters of § 3553(a)” (quotation
marks omitted)); see also United States v. Zobel, 696 F.3d
558, 572 (6th Cir. 2012) (holding that “a district court’s
consideration of the § 3553(a) factors sufficient to justify a
term of incarceration as procedurally reasonable can also
demonstrate that the imposition of special conditions [of
supervised release] is procedurally reasonable”); United
States v. O’Georgia, 569 F.3d 281, 289 (6th Cir. 2009)
(observing that “repetition” of the court’s § 3553(a) analysis
“would serve no useful purpose in the ordinary case”).
More broadly, we value formality in sentencing to the
extent that it promotes the goals of procedural uniformity,
9
meaningful review, and substantive fairness. See United
States v. Fumo, 655 F.3d 288, 318 (3d Cir. 2011) (explaining
that both the form and the substance of sentencing are “of
high importance . . . to ensure that a substantively reasonable
sentence has been imposed in a procedurally fair way”
(quotation marks omitted)); United States v. Ausburn, 502
F.3d 313, 328-29 (3d Cir. 2007) (requiring a record sufficient
for review, not a “rote statement of the § 3553(a) factors”
(quotation marks omitted)). We ultimately review a sentence
for reasonableness and ask “whether the record as a whole
reflects rational and meaningful consideration of the factors
enumerated in 18 U.S.C. § 3553(a).” United States v. Grier,
475 F.3d 556, 571 (3d Cir. 2007) (en banc). For instance, a
district court need not “discuss and make findings as to each
of the § 3553(a) factors” so long as the record makes clear
that the court has taken them into account. United States v.
Kulick, 629 F.3d 165, 176 (3d Cir. 2010) (quotation marks
omitted); see also Lofink, 564 F.3d at 238 n.13; Tomko, 562
F.3d at 568. The relevant inquiry is whether the District
Court gave “meaningful consideration to the relevant §
3553(a) factors,” United States v. Wise, 515 F.3d 207, 216
(3d Cir. 2008) (quotation marks omitted), such that, on
review, we may understand the “rationale by which [the]
district court reache[d] a final sentence,” Grier, 475 F.3d at
572.
Clark invites this Court to require additional procedure
when a post-revocation sentence includes a new term of
supervised release. Because these added layers of formality
would not necessarily further any substantive end, we decline
to add additional procedural requirements. We therefore hold
that, when imposing a post-revocation sentence, a district
court must conduct a § 3553(a) analysis that gives meaningful
10
consideration to the relevant factors, including those factors
made relevant to post-revocation sentencing by 18 U.S.C. §
3583(e) and (h). While a sentencing court may wish to divide
its analysis by discussing the § 3553(a) factors in the context
of incarceration and again in the context of supervised
release, such separation is not required. In many cases, such
a division would be unnecessarily redundant. A full
discussion of relevant factors, which include the nature of the
offense, the defendant’s history, the need for deterrence, and
the need to protect the public, will likely include analysis that
supports the punitive purposes of post-revocation
incarceration, see Bungar, 478 F.3d at 544 (explaining that
post-revocation imprisonment is imposed “primarily to
sanction the defendant’s breach of trust”), as well as the
rehabilitative purposes of supervised release, see United
States v. Murray, 692 F.3d 273, 280 (3d Cir. 2012)
(explaining that “the primary purpose of supervised release is
to facilitate the reentry of offenders into their communities,
rather than to inflict punishment”).
B.
We now evaluate the procedure followed at Clark’s
revocation hearing in light of the foregoing standards. In
particular, we ask whether the District Court’s § 3553(a)
discussion indicated meaningful consideration of those
factors that would support post-revocation incarceration and
supervised release.
The District Court focused its § 3553(a) discussion on
§ 3553(a)(1), which directs the court to consider “the nature
and circumstances of the offense and the history and
characteristics of the defendant.” The court first addressed
11
the nature of Clark’s offense that led to revocation and
considered Clark’s history — his “general pattern of
noncompliance with supervision.” App. 53. After a full
discussion of the first relevant factor, however, the court
merely enumerated the remaining § 3553(a) factors relevant
to a revocation sentence, stating that the sentence imposed “is
consistent with . . . the defendant’s . . . educational,
vocational and corrective needs as well as the need for just,
non-disparate punishment, deterrence, and protection of the
public.” App. 55. This rote recitation of the relevant factors,
see Ausburn, 502 F.3d at 328-29, cannot support a conclusion
that “the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. §
3553(a),” Grier, 475 F.3d at 571 (quotation marks omitted).
Nor can we determine, from the record before us, that the
court “reasonably applied those factors to the circumstance of
the case.” Bungar, 478 F.3d at 540.
When the record does not evidence “rational and
meaningful consideration [of] the relevant § 3553(a) factors,”
Doe, 617 F.3d at 769 (quotation marks omitted), we are
bound to conclude that the sentence imposed was
procedurally unreasonable, and we do so here. Because we
will vacate and remand on this basis, we need not address
Clark’s contention that his sentence was substantively
unreasonable as well.
IV.
For the foregoing reasons, we will vacate the District
Court’s judgment of sentence and will remand for
proceedings in accordance with this opinion.
12