U.S. v. Stephens, Docket No. 03-1006.

Decision Date22 October 2003
Docket NumberDocket No. 03-1006.
Citation347 F.3d 427
PartiesUNITED STATES of America, Appellee, v. Illaya STEPHENS, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Steven M. Statsinger, Legal Aid Society, Federal Defender Division Appeals Bureau, New York, NY, for Appellant.

Peter Katz, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Barbara D. Underwood, Chief Assistant United States Attorney, Susan Corkery, Assistant United States Attorney, on the brief), Central Islip, NY, for Appellee.

Before: WALKER, Chief Judge, CARDAMONE and SOTOMAYOR, Circuit Judges.

JOHN M. WALKER, Jr., Chief Judge.

This appeal presents an issue of first impression in the Second Circuit: whether § 5F1.1, Application Note 2 of the United States Sentencing Guidelines ("U.S.S.G." or "the Guidelines") prohibits a sentence of community confinement longer than six months when the confinement is unrelated to a specific rehabilitative program, such as drug rehabilitation. We hold that, although generally application notes are binding, by its language the commentary to § 5F1.1 is not mandatory. Because, in this case, the sentence of one year of community confinement was "reasonably related" to the "nature and circumstances of the offense and the history and characteristics of the defendant," see, 18 U.S.C. §§ 3553(a)(1), 3563(b), we affirm the sentence imposed by the district court.

BACKGROUND

On March 5, 2002, armed robbers stole $1,389, a money order imprinter, and 76 blank money orders, as well as other items from a Virginia post office. Between March 8, 2002, and March 15, 2002, Illaya Stephens used fifteen of those stolen money orders to purchase approximately $6,000 worth of electronic equipment and obtain $1,440 in cash. He was arrested on May 17, 2002, and released subject to standard conditions and further conditions that he participate in the Pretrial Special Options Services ("SOS") Program, submit to random drug testing, obtain mental health treatment, and obey a 9:00 p.m. curfew at his mother's house. On September 19, 2002, pursuant to a plea agreement, Stephens pled guilty to possession of stolen United States Postal Service money orders with intent to convert them to his own use in violation of 18 U.S.C. § 500.

On October 21, 2002, the Pretrial Services Agency notified the district court that Stephens had violated his bail conditions by failing to report on seven occasions and by testing positive for marijuana three times. Although required to report once a week in person to his pretrial services officer, Stephens had not reported in almost two months. The agency reported that "[s]upervision of this defendant has, since his release, been very problematic[,] and despite considerable effort to stabilize the case, he remains unmanageable." The agency attributed these problems to "his mother's lack of cooperation, her oppositional nature, and the very volatile relationship they share." It also reported that several of his curfew violations occurred because his mother had locked him out of the house.

Stephens's plea agreement had estimated that the guideline range for his sentence would be zero to six months, and his Presentence Report calculated his sentencing range to be zero to six months, based on an offense level of six and a criminal history category of I. On December 19, 2002, the district court sentenced Stephens to five years of probation, on the condition that he serve twelve months of community confinement, and that he participate in a vocational program and obtain employment. The district court declined to sentence him to any time in prison. The district court noted that it considered giving him six months in prison "to give him a taste of what jail is like," but declined to do so because community confinement was a better alternative "which basically gets him out of the house, where he has a difficult relationship with his mother, which puts him in a halfway house ... in which he has the ability to work and ... to obtain employment.... If I didn't sentence him to that, I'd sentence him to six months in jail." After defense counsel questioned the sentence, the court explained that probation alone was insufficient: "[T]he best situation is [not] to walk him out of here. He's young. There's a potential for him to be saved from the kind of life he's heading into .... [Community confinement] will provide a structured setting and ... will get him out of a home situation that is not at all conducive to his continued well-being."

DISCUSSION

On appeal, Stephens argues that his sentence of twelve months to community confinement was an upward departure from the six months prescribed by U.S.S.G. § 5C1.1, and that it was not reasonably related to the nature of the offense or the characteristics of defendant as required by 18 U.S.C. § 3553(a)(1) and § 3563(b).

We review the district court's imposition of probation conditions for abuse of discretion. United States v. Peterson, 248 F.3d 79, 82 (2d Cir.2001). However, we have stated that we will "carefully scrutinize unusual and severe conditions," and that "[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence." Id. (quoting United States v. Doe, 79 F.3d 1309, 1319-20 (2d Cir.1996)).

Stephens first cites the substitute punishments in U.S.S.G. § 5C1.1(e) which permits a court to substitute "one day of community confinement ... for one day of imprisonment." § 5C1.1(e)(2). Stephens argues that this rule restricted the district court to sentencing Stephens to a term of community confinement no longer than six months, the maximum prison sentence under the Guidelines. This argument overlooks that Stephens's twelve months of community confinement was part of his sentence of probation, and not a substitute for all or part of a prison term. Chapter 5, Part C, entitled "Imprisonment," upon which Stephens relies, contains the guidelines for imprisonment, and § 5C1.1 is entitled "Imposition of a Term of Imprisonment." U.S.S.G. § 5C1.1(b) states that "[i]f the applicable guideline range is in Zone A of the Sentencing Table, a sentence of imprisonment is not required, unless the applicable guideline in Chapter Two expressly requires such a term." Stephens's guideline range of zero to six months, based on an offense level of six and a criminal history category of I, fell within Zone A. See U.S.S.G. Manual ch. 5, pt. A, sentencing table (2001). Consistent with this rule, Stephens was not sentenced to any prison term.

Stephens's community confinement is governed by the rules relating to probation. See, U.S.S.G. Manual ch. 5, pt. B probation; ch. 5, pt. F, sentencing options (2001). U.S.S.G. § 5B1.1(a)(1) permits a court to impose probation as an alternative to incarceration for those defendants subject to Zone A sentencing ranges. U.S.S.G. § 5B1.2(a)(1) states that when probation is imposed instead of incarceration, the term shall be "at least one year, but not more than five years if the offense level is 6 or greater." Stephens's offense level was six, and thus his sentence of five years' probation instead of incarceration was permissible.

One of the governing provisions relating to sentencing options states that "[c]ommunity confinement may be imposed as a condition of probation or supervised release." § 5F1.1. Its first application note includes residence in a halfway house, with vocational training and work...

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    ...United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (internal quotation marks omitted); accord United States v. Stephens, 347 F.3d 427, 430 (2d Cir.2003). Thus, we must independently consider whether the one-book rule violates the Ex Post Facto A majority of circuit court......
  • Brown v. United States
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    • U.S. Supreme Court
    • October 15, 2018
    ...on federal district courts"); accord, United States v. Lafayette , 337 F.3d 1043, 1051–1052 (C.A.D.C.2003) ; United States v. Stephens , 347 F.3d 427, 430 (C.A.2 2003) ; United States v. Barbosa , 271 F.3d 438, 465 (C.A.3 2001) ; United States v. Bahe , 201 F.3d 1124, 1129, n. 5 (C.A.9 2000......
  • United States v. Marino
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 9, 2016
    ...cannot be accomplished within six months, the judge may impose a longer period of community confinement.” See United States v. Stephens, 347 F.3d 427, 430 (2d Cir. 2003) (citing United States v. Lominac, 36 F.3d 1095, 1994 WL 510242 (4th Cir. 1994) (per curiam) (unpublished)). True, the jud......

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