U.S. v. Webb

• Decision Date: 26 July 1994
• Docket Number: No. 93-5893,93-5893
• Citation: 30 F.3d 687
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elvis E. WEBB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 687

30 F.3d 687

UNITED STATES of America, Plaintiff-Appellee, v. Elvis E. WEBB, Defendant-Appellant.

No. 93-5893.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 24, 1994.

Decided July 26, 1994.

Terry Cushing, Asst. U.S. Atty. (argued and briefed), Alan E. Sears, Asst. U.S. Atty., Louisville, KY, for plaintiff-appellee.

Samuel Manly (briefed and argued), Louisville, KY, for defendant-appellant.

Before: JONES, NORRIS, and SUHRHEINRICH, Circuit Judges.

NORRIS, Circuit Judge, delivered the opinion of the court, in which SUHRHEINRICH, Circuit Judge, joined. JONES, Circuit Judge (pp. 691-92), delivered a separate opinion concurring in part and dissenting in part.

ALAN E. NORRIS, Circuit Judge.

Elvis Webb appeals his sentence for violating supervised release and the continued obligation to pay restitution ordered at the time of his original sentence. For the reasons stated below, we remand the cause for resentencing. We affirm the continued obligation to make restitution payments.

I.

In 1992, defendant pleaded guilty to altering United States Postal Service money orders, in violation of 18 U.S.C. Sec. 371 and Sec. 500. As a result, he was sentenced to fifteen months' imprisonment and a three-year term of supervised release, and was ordered to pay a $150 special assessment and restitution in the amount of $22,906.25.

When defendant was released from prison in March 1993, he was instructed to meet with his probation officer in Louisville, Kentucky. He made one unsuccessful attempt to meet his probation officer on the day he was released. He then went to Florida to live with his daughter without notifying the probation office. Several weeks later he called his probation officer, but refused to provide information as to his whereabouts or how he could be contacted. He was again told to report to the Louisville office. When defendant did not appear, a warrant for his arrest was issued. He voluntarily surrendered several weeks later.

The district court held a hearing to determine what punishment, if any, defendant would receive for violating supervised release. The district court considered evidence that defendant had reestablished contact with his family and was gainfully employed in Florida. The court then, on June 16, 1993, revoked his supervised release, sentenced him to twelve months' incarceration, resentenced him to a term of supervised release ending March 2, 1996, and ordered that he pay the balance of the special assessment and restitution originally ordered.

II.

Defendant first argues that the district court abused its discretion when it revoked his term of supervised release. We review a district court's actions in supervised release cases for abuse of discretion. United States v. Stephenson, 928 F.2d 728, 731-32 (6th Cir.1991).

A district court is authorized to revoke a term of supervised release for a non-criminal violation of the terms of the supervision, 18 U.S.C. Sec. 3583(e)(3), U.S.S.G. Sec. 7B1.3(a)(2), although other options, such as modifying the terms of supervised release or imposing home confinement, are available to the court. See 18 U.S.C. Sec. 3583(e)(2) & (4). In this case, the district court determined that defendant had substantially ignored reporting and monitoring provisions of his supervised release. Defendant was not only aware of those specific provisions, but had extensive contact with the criminal justice system and was aware of the importance of abiding by the conditions of release. The court concluded that defendant's decision simply to disobey the supervised release conditions was detrimental "to the conduct of the business of the Probation Office." Accordingly, the district court's decision to revoke supervised release was clearly within its discretion.

Defendant next argues that the district court's decision to sentence him to twelve months' imprisonment for violation of his supervised release was plainly unreasonable. Under 18 U.S.C. Sec. 3583(e)(3), a district court may sentence a defendant "to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision if it finds by a preponderance of the evidence that the person violated a condition of supervised release." ¹ The Sentencing Guidelines also provide a non-binding policy statement, United States v. O'Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Cohen, 965 F.2d 58, 61 (6th Cir.1992), that recommends that a person with defendant's criminal history category be imprisoned for a period of six to twelve months on revocation of supervised release. U.S.S.G. Sec. 7B1.4(a).

Because there are no binding sentencing guidelines, the district court's sentence must reflect consideration of the factors listed in 18 U.S.C. Sec. 3553, ² and may not be plainly unreasonable. See 18 U.S.C. Sec. 3742(a)(4); United States v. Graves, 914 F.2d 159, 160-61 (8th Cir.1990). It is clear from the record that the district court considered the factors listed in 18 U.S.C. Sec. 3553. Under the facts of this case, the decision to incarcerate defendant for twelve months was not plainly unreasonable.

Nevertheless, in United States v. Truss, 4 F.3d 437 (6th Cir.1993), we held that a district court lacks the statutory authority to impose an additional term of supervised release after a defendant has been imprisoned upon revocation of his initial term of supervised release. Id. at 439. Defendant was sentenced to such an additional term in this case. Therefore, his sentence must be vacated and the cause remanded for resentencing in light of this court's opinion in Truss.

Finally, defendant argues that, under the reasoning employed in Truss, the district court's decision to revoke supervised release relieved him of his obligation to make restitution as originally ordered. Truss states:

Supervised release is wholly a creation of Congress. While discretion is granted to the courts concerning certain aspects of its imposition and administration, that discretion is expressly limited by statute. As to the modification or revocation of a defendant's supervised release, the district court's powers are limited to those found in section 3583(e).... [S]ection 3583(e)(3) contemplates only a complete revocation of an offender's supervised release term and the discretion to impose a prison term not longer than the original supervised release term, subject to a two-or-three-year cap....

Id. at 441.

Defendant contends that restitution is a condition of supervised release pursuant to 18 U.S.C. Sec. 3663(g), and that when supervised release is revoked, the duty to pay restitution cannot survive the revoked term of supervised release of which it was a part. The government argues that defendant's reasoning frustrates congressional intent and undermines the purpose of imposing restitution in the first place.

There are two statutory sources for the authority to impose restitution: (1) a court may impose an order of restitution as an element of the sentence of conviction, 18 U.S.C. Secs. 3551 & 3556, or (2) a court may impose restitution as a discretionary condition of supervised release or probation, 18 U.S.C. Secs. 3583(d), 3563(b)(3). In either case, the restitution order is governed by the Victim and Witness Protection Act of 1982 ("VWPA"), 18 U.S.C. Secs. 3663, 3664.

Prior to the VWPA, restitution could not be ordered independently of a sentence of probation. See The Federal Probation Act, 18 U.S.C. Sec. 3651 (repealed 1984). One of the express reasons for the VWPA was to change this result. See S.Rep. No. 532, 97th Cong., 2d Sess. 30, reprinted in 1982 U.S.C.C.A.N. 2515, 2536. As the legislative history makes clear, the purpose of restitution is to compensate victims The premise of [proposed 18 U.S.C. Sec. 3579] ³ is that the court in devising just sanctions for adjudicated offenders, should insure that the wrongdoer make[s] good[ ], to the degree possible, the harm he has caused his victim.

....

The principle of restitution is an integral part of virtually every formal system of criminal justice, of every culture and every time. It holds that, whatever else the sanctioning power of society does to punish its wrongdoers, it should also insure that the wrongdoer is required to the degree possible to restore the victim to his or her prior state of well-being.

Id.

The first section of the VWPA makes clear that Congress intended restitution to be an independent term of the sentence of conviction, without regard to whether incarceration, probation, or supervised release were ordered. It states: "The court, when sentencing a defendant convicted of an offense under this title ... may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense." 18 U.S.C. Sec. 3663(a)(1) (emphasis added). This intent is further evidenced by Sec. 3663(f)(3), which permits a court to make an obligation to pay restitution due immediately upon sentencing. Were restitution simply a term of supervised release or probation, it could not be due prior to the commencement of such a term. See United States v. Angelica, 859 F.2d 1390, 1392-93 (9th Cir.1988).

The confusion as to whether restitution is a separate term of the sentence or merely a part of supervised release or probation is created by 18 U.S.C. Sec. 3663(g): "If such defendant is placed on probation or sentenced to a term of supervised release under this title, any restitution ordered under this section shall be a condition of such probation or supervised release." Standing by itself, this phrase could be construed as making restitution merely a term of supervised release or probation. But, looking at the statute in its entirety ⁴ and in light of the legislative history, a more natural reading of the provision is that it provides an efficient and relatively uncomplicated enforcement provision for orders of...