United States v. Johnny Hass

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4486
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY ALLEN HASS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:98-cr-00168-FDW-1)
Submitted: May 23, 2014 Decided: June 5, 2014
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, William M. Miller, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Allen Hass appeals the district court’s
judgment revoking his supervised release and sentencing him to
eighteen months in prison followed by an additional thirty
months of supervised release. On appeal, Hass contends that the
district court erred in denying his motion to dismiss the
petition on supervised release because it was filed beyond the
expiration of the supervised release term. In a related
argument, Hass argues that the district court, in fashioning its
sentence, failed to credit him the time he spent in Bureau of
Prisons (“BOP”) custody awaiting civil commitment proceedings.
We affirm.
In 1995, Hass pled guilty to interstate transportation
of child pornography via computer. In 1998, he pled guilty to
receiving child pornography shipped in interstate commerce via
computer. He was sentenced to eighty-five months’ imprisonment
followed by five years of supervised release. He began his term
of supervised release in December 2004. In August 2005, the
district court modified the terms of his supervised release
after a search revealed that he possessed pornographic materials
in his home. Five months later, the probation officer
petitioned for Hass’s arrest based on a series of violations,
including failure to comply with the terms of his home
detention, failure to report to his probation officer,
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possession of pornographic images depicting minors, and using a
computer to view pornography. The court revoked Hass’s
supervised release and sentenced him to twelve months followed
by four years of supervised release.
One day prior to Haas’s projected release, on January
10, 2007, the Government certified Hass as a sexually dangerous
person under the Adam Walsh Child Protection And Safety Act of
2006 (the “Act”). In accordance with the Act, the petition for
civil commitment stayed Hass’s release pending the outcome of a
hearing to determine whether Hass was sexually dangerous. In
September 2007, Hass moved to dismiss the petition, challenging
the constitutionality of the Act. The district court deferred a
ruling and placed this case in abeyance for appellate
consideration of the issue. On June 11, 2010, the district
court lifted the stay after the Supreme Court held the Act was
constitutional. See United States v. Comstock, 560 U.S. 126,
130 (2010); see also United States v. Timms, 664 F.3d 436, 449
(4th Cir. 2012) (upholding constitutionality of the Act under
the Equal Protection Clause). After lifting the stay, the
district court conducted an evidentiary hearing and, by order
entered on February 15, 2012, it concluded Hass was not a
sexually dangerous person. In light of this ruling, Hass was
released and he began serving his four-year term of supervised
release.
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Within a year of release, Hass’s probation officer
petitioned for his arrest based on Hass’s alleged possession of
child pornography and viewing adult and child pornography.
Prior to the revocation hearing, Hass moved to dismiss the
probation officer’s petition and to terminate supervised
release. Hass argued his supervised release commenced on
January 11, 2007, the date he was scheduled to be released from
prison, and that his term of supervision expired while he was
detained pending the civil commitment proceeding. The district
court concluded that Hass’s term of supervised release did not
begin until he was actually released from custody in February
2012, at the conclusion of the civil commitment proceeding, and
accordingly denied Hass’s motion.
Hass subsequently admitted to both violations. The
court calculated an advisory Guidelines range of eighteen to
twenty-four months in prison, based on a Grade B violation and a
criminal history category of V. Both parties recommend a low-
end sentence of eighteen months in prison but disagreed over
whether the sentenced should include a term of supervised
release; Hass requested no additional supervision and the
Government asked for thirty months. The district court revoked
Hass’s supervised release and sentenced him to eighteen months
in prison followed by thirty months of supervised release.
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On appeal, Hass first argues that the district court
lacked jurisdiction to revoke his supervised release because his
term of supervision expired while he was in custody awaiting the
resolution of his civil commitment proceedings. The issue of
when Hass’s supervised release began is a question of law, which
this court reviews de novo. 1 See United States v. Neuhauser, 745
F.3d 125, 127 (4th Cir. 2014); see also United States v.
Winfield, 665 F.3d 107, 109 (4th Cir. 2012); United States v.
Buchanan, 638 F.3d 448, 451 (4th Cir. 2011). Hass’s argument is
foreclosed by our recent decision in Neuhauser. In that case,
we noted, “[o]rdinarily, the BOP releases a prisoner from
confinement upon the expiration of his criminal sentence,”
Neuhauser, 745 F.3d at 127 (citing 18 U.S.C. § 3624(a)
[(2012)]), “[b]ut under certain conditions, a defendant’s
release from confinement will be stayed for some time beyond
that date.” Id. In Neuhauser, there was no dispute that the
defendant, like Hass, remained confined in civil detention by
the BOP beyond the expiration of his prison sentence pending the
resolution of his status under 18 U.S.C. § 4248. We held,
however, that Neuhauser’s supervised release did not begin until
1
There is no dispute that the district court would have
jurisdiction over the petition as long as it was filed (and the
warrant issued) prior to its expiration. See 18 U.S.C.
§ 3583(i) (2012).
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he was released from confinement four-and-a-half years later.
See also United States v. Johnson, 529 U.S. 53, 57, 59 (2000)
(noting its interpretation of 18 U.S.C. § 3624(e), that
supervised release “does not run while an individual remains in
the custody of the Bureau of Prisons,” was consistent with
Congressional intent, because “[t]he objectives of supervised
release would be unfulfilled if excess prison time were to
offset and reduce terms of supervised release”). Accordingly,
we conclude Hass’s supervised release term did not begin until
he was released by the BOP in February 2012 and therefore the
district court had jurisdiction to entertain the petition for
revocation.
Alternatively, Hass argues that the district court, in
fashioning its sentence, should have afforded him credit for the
time he spent in prison while awaiting his civil commitment
proceeding. “A district court has broad discretion when
imposing a sentence upon revocation of supervised release.”
United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).
Accordingly, in examining a sentence imposed upon revocation of
supervised release, this court “takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for guidelines sentences.”
United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007)
(internal quotation marks omitted). This court will affirm a
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revocation sentence that falls within the statutory maximum,
unless it finds the sentence to be “plainly unreasonable.”
United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). In
reviewing a revocation sentence, this court must first determine
“whether the sentence is unreasonable,” using the same general
analysis employed to review original sentences. Id. at 438.
Only if it finds a sentence to be procedurally or substantively
unreasonable will this court determine whether the sentence is
“plainly” so. Id. at 439.
A revocation sentence is procedurally reasonable if
the district court has considered both the applicable 18 U.S.C.
§ 3553(a) (2012) factors and the policy statements contained in
Chapter Seven of the Guidelines. Crudup, 461 F.3d at 439. The
district court also must provide an explanation of its chosen
sentence, although this explanation “need not be as detailed or
specific” as is required for an original sentence. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A
revocation sentence is substantively reasonable if the district
court states a proper basis for concluding that the defendant
should receive the sentence imposed. Crudup, 461 F.3d at 440.
Because Hass did not request a sentence different from
the one ultimately imposed, his claim is reviewed only for plain
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error. 2 United States v. Lynn, 592 F.3d 572, 577-79 (4th Cir.
2010). To establish plain error, Hass must show that an error
occurred, that the error was plain, and that the error affected
his substantial rights. United States v. Aidoo, 670 F.3d 600,
611 (4th Cir. 2012).
Hass argues the court erred by sentencing him to an
additional term of imprisonment rather than given him credit for
the time he spent in BOP custody awaiting his civil commitment
proceedings. Hass however overlooks the fact that he was being
sentenced for violating the terms of his supervised release and
he cites no precedent to support his claim that over-service of
a prior sentence is even a proper consideration for a court when
imposing a revocation sentence. This court has previously noted
that it is “unthinkable to lend support to any judicial decision
which permits the establishment of a line of credit for future
crimes.” Miller v. Cox, 443 F.2d 1019, 1021 (4th Cir. 1971)
(internal quotation marks omitted). We further conclude that
the district court adequately explained its rationale for
imposing the eighteen-month prison sentence and relied on proper
considerations in doing so. Based on the broad discretion that
2
Hass requested a sentence at the low end of the
Guidelines, which he received. Although the district court
denied Hass’s request for no additional term of supervised
release, Hass’s argument concerns the term of imprisonment and,
therefore, his claim is reviewed for plain error only.
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a district court has to revoke a term of supervised release and
impose a prison term up to the statutory maximum, Hass’s
revocation sentence is not clearly unreasonable. Therefore, we
conclude that Hass’s sentence is not plainly unreasonable.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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