United States v. Kenneth Haag

United States Court of Appeals
For the Eighth Circuit
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No. 16-3974
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kenneth David Haag
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: October 16, 2017
Filed: November 28, 2017
[Unpublished]
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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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PER CURIAM.
Kenneth D. Haag pled guilty to interstate transmission, via telephone, of a
threat to injure another person in violation of 18 U.S.C. § 875(c). The district court1
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The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
sentenced him to 33 months’ imprisonment and three years’ supervised release. He
violated the conditions of release and served another 10 months. He again violated
the conditions of release. The court sentenced him to an additional 10 months and
one year of supervised release. He appeals. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
Haag violated the conditions of his first term of supervised release by failing
to comply with mental-health treatment, substance-abuse testing, and probation-
officer directions. The district court modified the conditions. About a year later,
Haag violated them. The court revoked his supervised release, sentencing him to 10
months’ imprisonment and two years’ supervised release with the following special
conditions: “participate in a mental health evaluation and/or treatment program,”
“take all medications prescribed to [him] by a licensed psychiatrist or physician,” and
“reside in a Residential Reentry Center for a period of up to 120 days” after release
and “abide by all [its] rules and regulations.”
Within a month of his second release, Haag violated the conditions. He failed
to comply with mental-health treatment and reentry-center rules. The center
requested his removal. The district court again revoked his supervised release,
sentencing him to 10 months’ imprisonment and one year of supervised release. Haag
appeals.
This court reviews “the decision to revoke supervised release for abuse of
discretion.” United States v. Frosch, 758 F.3d 1012, 1014 (8th Cir. 2014). A court
may revoke if it “finds by a preponderance of the evidence that the defendant violated
a condition of supervised release.” 18 U.S.C. § 3583(e)(3). “A sentence within the
Guidelines range is accorded a presumption of substantive reasonableness on appeal.”
United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009).
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Haag argues his sentence is “greater than necessary” for his violations. This
argument is without merit. One condition required Haag to take “all medications
prescribed” by his licensed psychiatrist or physician. The district court found, by a
preponderance, he violated this condition based on his extensive history of non-
compliance:
Mr. Haag does not accept a diagnosis of schizophrenia. He always, is
my memory, having had him in court multiple times, he always
questions the diagnoses, as well as the treatment. He has consistently
refused to comply, knowing full well that that is going to result in court
action, and that hasn’t changed. This is just a continuing position by
Mr. Haag. I understand that people who take certain medications for
mental illness don’t like the side effects. I appreciate that. But if the
choice is living in the community and not being a danger or enduring
some of the side effects or working with a psychiatrist to get the dosage
level such that the side effects are minimized, it seems to me that Mr.
Haag is fully capable of making the latter decision, but he chooses
instead to just fight the thing continually.
Another condition required Haag to follow the rules of the reentry center.
Noting “a pattern” of “threatening behavior,” the district court found a violation by
a preponderance of the evidence. Breaking “rules of the reentry center” may “warrant
the revocation of a supervised release,” if a defendant’s actions indicate “pervasive
unwillingness to comply with court orders and the orders of a reentry center.” See
United States v. Melton, 666 F.3d 513, 515-16 (8th Cir. 2012) (internal quotation
marks omitted). See also United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir.
1978) (upholding probation revocation where the defendant’s “violations are not
particularly serious in terms of their danger to society,” but “his behavior indicates
a pervasive unwillingness to follow the rehabilitation program” and an “inability to
accept responsibility and to live within the rules of his probation”). Revocation is
“within the sound discretion of the district court.” Melton, 666 F.3d at 517.
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Haag also believes the district court failed to consider his preferred treatment
options or other “kinds of sentences available.” The district court considered
alternative placements, including Haag’s proposed Penn Center placement:
And the other problem is, because of his behavior, he has been removed
from the residential reentry center. He needs supervision. I don’t have
anyplace to put him. He’s a threatening person. That’s been his history
with this Court since I met up with him when I sentenced him in 2013.
....
When somebody is in a residential reentry center and they don’t obey
the rules and they get kicked out and the Court thinks that supervision
is necessary to reorient someone to the community, it doesn’t leave me
many options.
....
I have no place to put him in the community that would assure the safety
of the community. I know absolutely nothing about the Penn Center.
It’s pure speculation that they have facilities for him, that the facilities
would be appropriate for him. It certainly would not be a controlled
environment like you have in a community corrections center or in the
Bureau of Prisons.
Imposing a within-guideline sentence, the district court thoroughly considered Haag’s
mental health, history of non-compliance, and “each and every factor under 18 United
States Code Section 3553(a) that apply in a revocation proceeding.” The court did
not abuse its discretion in revoking Haag’s supervised release and sentencing him to
10 months.
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The judgment is affirmed.
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