United States v. Johnny Franklin, Jr.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1937
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Johnny Franklin, Jr., *
also known as Jack Culpepper, *
*
Appellant. *
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Submitted: November 15, 2004
Filed: February 7, 2005
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Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Johnny Franklin, Jr. appeals the 24-month prison sentence the district court1
imposed after revoking his supervised release. For the reasons discussed below, we
affirm the judgment of the district court.
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
In May 1995, Franklin pled guilty to possession of an unregistered firearm, in
violation of 26 U.S.C. § 5861(d). Franklin was sentenced to 120 months in prison
and three years of supervised release. He commenced supervised release on June 24,
2003. In December 2003, Franklin’s probation officer submitted a report to the
district court alleging that Franklin began violating several conditions of his
supervised release less than two months after commencing his term of supervised
release.
At his revocation hearing, Franklin admitted to five of the alleged violations
in the report.2 Franklin’s counsel advised the district court that the maximum
statutory prison sentence applicable to Franklin for revocation of his supervised
release was two years, see 18 U.S.C. § 3583(e)(3), and that the probation officer
recommended Franklin serve the full two years. Counsel for the Government
recommended a 21-month sentence, and counsel for Franklin asked the district court
to consider sentencing Franklin within the range of 8-14 months of imprisonment
recommended under the Chapter 7 policy statements in the Sentencing Guidelines.
See U.S. Sentencing Guidelines Manual § 7B1.4, p.s. (2003); United States v. White
Face, 383 F.3d 733, 738 (8th Cir. 2004) (noting that the Chapter 7 policy statements
in the Guidelines are advisory, rather than binding on the district court). After
hearing arguments from counsel, the district court revoked Franklin’s supervised
release and sentenced him to 24 months in prison without further explanation.
Franklin first argues that the district court abused its discretion by failing to
consider certain sentencing factors set forth in 18 U.S.C. § 3553(a), including the
2
Franklin admitted the following: (1) he had not been employed since August
2003; (2) he was cited for an open container violation in October 2003; (3) he tested
positive for marijuana five times and admitted to a probation officer that he had
smoked marijuana; (4) he failed to appear for scheduled urinalysis tests eleven times;
and (5) he failed to participate in community service.
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Chapter 7 policy statements in the Guidelines. After carefully reviewing the record,
we conclude that the district court acted within its discretion.
Although the district court is required to consider certain factors set forth in
§ 3553(a) in a supervised-release-revocation sentencing,3 “there is no requirement
that the district court make specific findings relating to each of the factors
considered.” United States v. Graves, 914 F.2d 159, 160 (8th Cir. 1990); see White
Face, 383 F.3d at 740 (noting that “[a] district court need not mechanically list every
§ 3553(a) consideration when sentencing a defendant upon revocation of supervised
release”). “All that is required is evidence that the court has considered the relevant
matters . . . .” White Face, 383 F.3d at 740. Evidence that the district court was
aware of the relevant § 3553(a) factors required to be considered is sufficient. See
id. (holding, after careful review of the record, that the district court adequately
considered the relevant § 3553(a) factors because it showed awareness of each
3
18 U.S.C. § 3583(e) provides that, when imposing a sentence after revocation
of supervised release, the district court must consider only certain provisions of 18
U.S.C. § 3553(a): (a)(1) (“the nature and circumstances of the offense and the history
and characteristics of the defendant”); (a)(2)(B) (“the need for the sentence imposed
. . . to afford adequate deterrence to criminal conduct”); (a)(2)(C) (“the need for the
sentence imposed . . . to protect the public from further crimes of the defendant”);
(a)(2)(D) (“the need for the sentence imposed . . . to provide the defendant with
needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner”); (a)(4) (“the kinds of sentence and the
sentencing range established for the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines issued by the
Sentencing Commission . . . or in the case of a violation of probation or supervised
release, the applicable guidelines or policy statements issued by the Sentencing
Commission”); (a)(5) (“any pertinent policy statement issued by the Sentencing
Commission . . . in effect on the date the defendant is sentenced”); (a)(6) (“the need
to avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct”); and (a)(7) (“the need to provide
restitution to any victims of the offense”).
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defendant’s violation of specific conditions of supervised release, criminal history
category, suggested Chapter 7 range, and the statutory maximum).
In this case, evidence that the district court was aware of the relevant § 3553(a)
factors required to be considered can be inferred from the record. The revocation
hearing transcript shows that the district court was aware of Franklin’s numerous and
repeated violations of the conditions of his supervised release, beginning less than
two months after his term of supervised release commenced. In addition, through
counsel’s arguments at the revocation hearing, the district court was made aware of
both the suggested range under Chapter 7 of the Guidelines and the statutory
maximum sentence. It also is worth noting that the judge who presided over
Franklin’s sentencing after revocation of supervised release was the same judge who
imposed Franklin’s initial sentence; therefore, at the revocation hearing, the district
court was aware of Franklin’s history and characteristics. See 18 U.S.C. § 3553(a)(1);
United States v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001) (noting, among other
things, that the district court judge presiding over the defendant’s sentencing after
revocation of supervised release was the same judge who imposed the initial sentence,
and concluding that the district court implicitly considered the § 3553(a) factors in
sentencing the defendant). In sum, after careful review of the record, we are satisfied
that the district court adequately considered the relevant § 3553(a) factors, including
the Chapter 7 policy statements in the Guidelines, and we conclude that there was no
abuse of discretion.
Franklin also challenges the district court’s failure to state a reason for the
sentence it imposed. Because Franklin did not object at the time of sentencing, we
review for plain error only. See United States v. Evans, 272 F.3d 1069, 1089 (8th Cir.
2001). “Plain error is error that is ‘plain’ (that is, clear or obvious), ‘affects
substantial rights’ (that is, prejudicial) and ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” United States v. Rashid, 383 F.3d 769,
775 (8th Cir. 2004), cert. denied, 73 U.S.L.W. 3399 (U.S. Jan. 10, 2005) (No. 04-
7610) (citing United States v. Olano, 507 U.S. 725, 732-37 (1993)).
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Even assuming that there was error and it was plain, we conclude that the
sentence imposed by the district court did not affect Franklin’s substantial rights:
Franklin admitted violating conditions of his supervised release; the district court
informed Franklin that he could be sentenced to two years in prison; and the
sentenced imposed did not exceed the statutory maximum.
For the reasons explained above, we affirm the judgment of the district court.
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