United States v. Mary Schipke

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 08 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-10266
Plaintiff - Appellee, D.C. No.
4:04-cr-02195-CKJ-BPV-1
v.
MARY ELIZABETH SCHIPKE,
MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted February 12, 2013**
Stanford, California
Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.
Mary Elizabeth Schipke appeals the district court’s second revocation of
supervised release and imposition of fourteen months imprisonment followed by
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
two years of supervised release. We affirm.
1. A standard condition of Schipke’s supervised release was that she “not
commit another federal, state, or local crime during the term of supervision.” The
district court’s finding that Schipke violated supervised release, because she
committed harassment, in violation of Arizona Revised Statute § 13-2921(A)(1),
was not an abuse of discretion. United States v. Daniel, 209 F.3d 1091, 1094 (9th
Cir. 2000), amended on other grounds by 216 F.3d 1201 (9th Cir. 2000).
After an evidentiary hearing, the district court found that Schipke contacted
the chambers of Judge John Roll on the first business day after his murder in order
to knowingly or intentionally harass his staff. Testimony by court staff and
Schipke supports by a preponderance of the evidence the district court’s conclusion
that Schipke’s inflammatory comments would cause a reasonable person to be
harassed and that her comments indeed had such an effect on court staff. See Ariz.
Rev. Stat. § 13-2921; 18 U.S.C. § 3583(e)(3). Because the district court’s factual
findings regarding the harassing phone calls were not clearly erroneous, there was
no abuse of discretion. See United States v. Lomayaoma, 86 F.3d 142, 146-47 (9th
Cir. 1996).
2. The district court’s finding that Schipke violated supervised release,
because she committed trespass, in violation of Arizona Revised Statute § 13-
2
1502(A)(1), was also not an abuse of discretion. The district court found that
Schipke knowingly entered or remained in the cordoned off media area at the
Together We Thrive: Tucson and America memorial service after a reasonable
request to leave by law enforcement. Testimony by security personnel who were
working at the memorial service supports by a preponderance of the evidence the
district court’s conclusion that when Schipke was found protesting in the media
area she refused to leave after being asked to do so. See Ariz. Rev. Stat. § 13-
1502(A)(1). Because the district court’s factual findings about Schipke’s refusal to
leave were not clearly erroneous, there was no abuse of discretion. See
Lomayaoma, 86 F.3d at 147.
3. The district court sentenced Schipke to fourteen months imprisonment
followed by two years of supervised release. This sentence was not unreasonable.
See United States v. Simtob, 485 F.3d 1058, 1061 (9th Cir. 2007). Before
sentencing, the district court considered Schipke’s physical and mental health, the
underlying terrorism offense, and testimony in support of Schipke’s character.
However, the court noted that it could not ignore Schipke’s disturbing criminal
history, including very violent behavior. The court sentenced Schipke based on
her escalating behavior and recommended incarceration at a medical facility or
mental health facility. The sentence imposed was within the recommended 8-14
3
months range of imprisonment under the Sentencing Guidelines, and the district
court had discretion to impose an additional term of supervised release. See
U.S.S.G. § 7B1.4(a); 18 U.S.C. § 3583(a).
Further, the sentence was not cruel and unusual punishment under the Eighth
Amendment. Schipke fails to explain how this sentence was either inherently
barbaric or grossly disproportionate to her offenses of harassment and trespass.
See Graham v. Florida, 130 S. Ct. 2011, 2021 (2010); United States v. Williams,
636 F.3d 1229, 1232 (9th Cir. 2011).
AFFIRMED.1
1
We have taken under advisement Schipke’s counsel’s emergency request to
file under seal and ex parte a motion to withdraw as counsel. For good cause
shown, we GRANT the request to file under seal and ex parte. Fed. R. App. P. 27-
13. We also GRANT counsel’s motion to be relieved.
4