United States v. Miklos Kontrol

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0049p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-1185
v.
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Defendant-Appellant. -
MIKLOS KONTROL,
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Appeal from the United States District Court
for the Western District of Michigan at Kalamazoo.
No. 00-00082-001—Paul Lewis Maloney, Chief District Judge.
Argued: January 16, 2009
Decided and Filed: February 12, 2009
Before: SUHRHEINRICH, BATCHELDER, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant.
Raymond E. Beckering III, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC, Portage,
Michigan, for Appellant. Raymond E. Beckering III, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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SUTTON, Circuit Judge. Miklos Kontrol appeals the district court’s decision
revoking his supervised release and imposing a 15-month prison sentence. We affirm.
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I.
In September 2000, Kontrol pleaded guilty to interstate and foreign travel in aid of
drug-related racketeering. See 18 U.S.C. § 1952(a)(3). In December 2001, the district court
sentenced him to 60 months’ imprisonment followed by three years of supervised release.
In May 2005, Kontrol began serving his supervised-release term subject to several
conditions, including a requirement that Kontrol “notify [his] probation officer 15 days prior
to any change in residence or employment.” JA 58; cf. U.S.S.G. § 5D1.3(c)(6).
For the first year of his supervised release, Kontrol did not encounter any problems.
The same was not true of his second year. In connection with a business he founded,
“Homemaid Fantasy,” in which maids provided cleaning services in their lingerie, Kontrol
created a website that offered a “members only sex club.” 1st Pet. for Warrant at 4 (Dec. 7,
2006). Kontrol also had two encounters with probation staff: He confronted a case manager
at a private dance club and accosted a probation officer in a grocery store. In the probation
department’s view, both encounters suggested that Kontrol had “anger management issues,”
“lack[ed] appropriate boundaries” and might have mental-health problems. Id. at 3. At the
probation department’s urging, the district court modified Kontrol’s supervised-release
conditions in January 2007, ordering him to seek mental-health treatment, to abandon the
online-sex-club component of his Homemaid Fantasy endeavor and to perform 20 hours of
community service per week whenever he was not employed full time for more than 60 days.
These new conditions did not improve Kontrol’s behavior or his relationship with
the probation staff over the next year. He changed his residence at least once without telling
his probation officer, Rhonda Wallock, that he had moved or where he had gone. And he
began refusing to answer questions in his monthly supervision reports, eventually filing an
unsuccessful lawsuit to enjoin his probation officer from asking him these questions.
Kontrol also neglected to apprise Wallock of a change in his employment. At “some
time” in late November 2007, JA 123, Kontrol began soliciting customers for Fresh Start
Solutions, a company specializing in “foreclosure prevention services,” JA 165. Fresh Start
identified homeowners on the brink of foreclosure, helped them to find buyers to purchase
their property and negotiated with the mortgage owners to take a loss on the loans without
damaging the homeowners’ credit. Kontrol’s task was to visit potential clients in their
No. 08-1185 United States v. Kontrol Page 3
homes, persuade them to hand over their property to Fresh Start and help them to fill out the
initial paperwork (which included confidential details such as social-security numbers). He
earned $350 for each homeowner he brought on board.
Kontrol neglected to tell Wallock about his new employment until December 6,
2007, after he completed his first successful transaction. That day, Kontrol reported to the
probation department for a regular meeting. Before he made it to Wallock’s office, he got
into an argument with the building security guards. When Wallock confronted him about
the incident, Kontrol became irate, telling Wallock that “[she] only ha[d] the power for six
more months,” at which time he would “ha[ve] the power.” JA 75. To another officer
standing with Wallock, Kontrol said, “I know everything about [Wallock],” and added with
his finger pointed at Wallock, “I know where she lives, I know she’s 36, I know she’s
divorced, I know everything about her.” JA 76. Kontrol walked out after this exchange.
At Wallock’s direction, Kontrol returned on December 10 to discuss his new
employment further. Wallock asked when his work for Fresh Start began, explaining that
his supervised-release conditions required him to notify her of employment changes in
advance. In Wallock’s account, Kontrol responded: “[O]h, you want trouble, you start this.
Find the needle in the haystack. You start this if you want trouble.” JA 81.
On December 20, the government urged the district court to revoke Kontrol’s
supervised release on two grounds. It claimed that Kontrol’s statements to Wallock on
December 6 and 10 violated 18 U.S.C. § 111(a)(1), which proscribes “forcibly assault[ing],
resist[ing], oppos[ing], imped[ing], intimidat[ing], or interfer[ing] with [a federal officer or
employee] while engaged in or on account of the performance of official duties,” id. And
it claimed that Kontrol failed to comply with the supervised-release condition that required
him to notify his probation officer 15 days prior to a change in employment.
After holding an evidentiary hearing, the magistrate found probable cause to revoke
Kontrol’s supervised release based on the employment-notification requirement. The district
court, after holding a second hearing, agreed that Kontrol had violated this requirement, and
revoked his supervised release. Although it noted that a within-guidelines sentence
ordinarily would suffice for a failure-to-notify violation, the court concluded that Kontrol’s
threatening statements to Wallock made an above-guidelines sentence appropriate. It
No. 08-1185 United States v. Kontrol Page 4
imposed a 15-month sentence, which was above the 4–10 month advisory range but below
the 24-month statutory maximum, see 18 U.S.C. §§ 1952(a)(A), 3559(a)(4), 3583(e)(3).
II.
A.
Kontrol first challenges the revocation of his supervised release, arguing that the
district court erred in finding that he violated the terms of his release by failing to notify
Wallock of his job with Fresh Start at least 15 days in advance. We review a district court’s
decision to revoke supervised release for abuse of discretion, United States v. Cofield, 233
F.3d 405, 406 (6th Cir. 2000), giving fresh review to its legal conclusions, United States v.
Crace, 207 F.3d 833, 835 (6th Cir. 2000), and clear-error review to its fact findings, United
States v. Carter, 463 F.3d 526, 528 (6th Cir. 2006).
The district court acted well within its discretion in concluding that Kontrol violated
the employment-notification condition of his release. Kontrol conceded in his testimony that
he worked for Fresh Start, and on appeal he acknowledges that his work amounted to at least
“part-time employment,” Br. at 10. And he concedes that he failed to apprise Wallock of his
new job until after it began.
Kontrol nonetheless insists that he did not violate the requirement because he had
a good-faith belief that he was at most a freelance independent contractor, not a Fresh Start
employee, and thus had no duty to tell the probation department of his activities. Even if we
assume that such a defense might work in some circumstances, it does not work here. The
modified terms of Kontrol’s release required him to perform regular community service
when not “gainfully employed full time, as determined by the probation officer,” Order at
1 (Jan. 31, 2007) (emphasis added), who could make that decision only based on updates
provided by Kontrol. Kontrol’s release conditions thus made the probation officer, not
Kontrol, the judge of whether and to what extent he was employed, precluding Kontrol from
reasonably concluding that he could withhold information that he thought irrelevant to his
employment status.
Nor at any rate does it appear that Kontrol held such a belief. Keep in mind that
Kontrol did inform Wallock of his work for Fresh Start; he simply did so late, telling her of
No. 08-1185 United States v. Kontrol Page 5
his new employment “as soon as [he] came to see her on [December] 6th.” JA 124. That
behavior itself suggests that Kontrol himself did not think his employment fell outside the
scope of Wallock’s supervision. The district court did not err in concluding that Kontrol
violated the employment-notification provision.
B.
Kontrol next challenges his 15-month sentence. We review “[s]entences imposed
following revocation of supervised release . . . under the same abuse of discretion standard
that we apply to sentences imposed following conviction,” United States v. Bolds, 511 F.3d
568, 572–73, 578 (6th Cir. 2007), which means that we may overturn a sentence only if it
is procedurally or substantively unreasonable, see United States v. Houston, 529 F.3d 743,
753 (6th Cir. 2008).
There was nothing procedurally amiss about this sentence. The district court
correctly calculated the guidelines range, treated the range as advisory, considered the
§ 3553(a) factors and explained the sentence it imposed.
Not so, Kontrol contends, because the district court placed great weight on
“unrelated” comments he made to Wallock. Br. at 19. Yet Kontrol’s threats were neither
unrelated nor unproved. The statements convey Kontrol’s response to his probation officer’s
inquiry about his delinquent employment updates, to say nothing of underscoring his
difficulty with handling the supervisor-supervisee relationship. What matters, at any rate,
is not whether the statements related to his underlying offense but whether they fit into the
§ 3553(a) equation. They did. Kontrol’s threatening remarks to Wallock bear on the
circumstances of the underlying offense, Kontrol’s recalcitrance, the need to protect Wallock
and other probation staff from Kontrol and the prospect of deterring other defendants from
going down a similar path. See 18 U.S.C. § 3553(a)(1), (2)(A)–(C).
Nor did the district court clearly err in finding that Kontrol made the statements or
that they were threatening. Two government witnesses testified about them, giving the
district court an ample basis for rejecting Kontrol’s contrary account. Viewed in context,
the statements—“I know everything about her,” JA 76, and “You start this if you want
trouble,” JA 81, among others—gave the district court a solid foundation for saying that they
No. 08-1185 United States v. Kontrol Page 6
were “unmistakabl[y]” threatening, JA 227, and that Kontrol’s effort to explain them away
was “incredible,” JA 226.
That the statements did not rise to the level necessary to establish probable cause for
“forcibl[e] . . . intimidat[ion]” and the like, 18 U.S.C. § 111(a), does not make them
irrelevant. No doubt, forcible intimidation of a probation officer would have supported a 15-
month prison sentence, but that hardly means run-of-the-mill intimidation does not.
Kontrol’s substantive-reasonableness argument meets the same fate. Even after
taking his threatening statements into account, he argues, a five-month upward variance in
his sentence or, perhaps more attention getting, a 50% upward variance in his sentence was
not justified. But the record establishes no cognizable basis for second guessing the district
court’s exercise of sentencing discretion, see Gall v. United States, __ U.S. __, 128 S. Ct.
586, 597 (2007), and several reasons why it deserves our respect. Failing to report new part-
time employment, to be sure, often will pose little danger to the public. But when a three-
time felon neglects to tell his probation officer about a job that involves obtaining social-
security numbers (and other sensitive information) from individuals for what the prosecution
described as a “predatory foreclosure company,” JA 176, the risk of harm to the public is
more acute.
Kontrol’s supervised-release track record did not help matters. His unmitigated and
well-documented difficulties in dealing with persons in authority (especially females) also
made an upward variance appropriate. So did the court’s concerns about the safety of its
probation staff. Kontrol showed an inability to appreciate boundaries in dealing with staff,
and his threatening statements suggested he had trouble dissociating his frustrations with
probation from the individuals charged with supervising him. The need to deter Kontrol
from transforming his threats into actions—and the need to deter similarly situated
supervisees, lest Kontrol’s example inspire others to do the same—justified an above-
guidelines sentence designed to make the message sink in. Cf. United States v. Polihonki,
543 F.3d 318, 325–26 (6th Cir. 2008).
Kontrol, last of all, complains that the real reason behind his stiff prison sentence was
not his failure to report a minor change in employment but the district court’s concern about
his statements to probation officers. He may be right. The district court said it would not
No. 08-1185 United States v. Kontrol Page 7
have varied the sentence upward but for the statements, and its discussion of the sentencing
factors focused heavily on the threats. But so long as Kontrol committed the underlying
violation and so long as the court’s consideration of the statements fits within the § 3553(a)
framework, there is nothing wrong with a district court featuring this kind of explanation in
announcing its sentence. Once it correctly calculates the advisory range, a district court has
broad discretion to determine what sentence will serve these statutory objectives, and that
is particularly so in the discretion-filled context of supervised release.
Far from confining the evidence sentencing courts may consider, Congress has
insisted that the door remain wide open: “No limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider for the purpose of imposing an
appropriate sentence.” 18 U.S.C. § 3661. Sometimes this latitude benefits defendants;
sometimes it does not. As the district court correctly appreciated, it had as much authority
to account for Kontrol’s promising conduct (of which there was little) as for his unpromising
conduct (of which there was a lot), so long as that conduct related to the encompassing
§ 3553(a) factors. Defendants, like prosecutors, must take the bitter of open-ended
sentencing with the sweet, and this case simply is one in which Kontrol’s conspicuously
failed rehabilitation had incarceration consequences.
III.
For these reasons, we affirm.