U.S. v. Lewis

• Decision Date: 15 September 2005
• Docket Number: Docket No. 04-4105-CR.
• Citation: 424 F.3d 239
• Parties: UNITED STATES of America, Appellee, v. Myrisa V. LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

424 F.3d 239

UNITED STATES of America, Appellee, v. Myrisa V. LEWIS, Defendant-Appellant.

Docket No. 04-4105-CR.

United States Court of Appeals, Second Circuit.

Argued: March 31, 2005.

Decided: September 15, 2005.

COPYRIGHT MATERIAL OMITTED

Pablo Quiñones, Assistant United States Attorney for the Southern District of New York (David N. Kelley, United States Attorney, Marc Litt, Assistant United States Attorney, of counsel), for Appellee.

Edward S. Zas, Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: FEINBERG, SACK, and KATZMANN, Circuit Judges.

BACKGROUND

SACK, Circuit Judge.

In 1997, the defendant-appellant, Myrisa V. Lewis, pleaded guilty to, and was convicted in the United States District Court for the District of South Carolina (C. Weston Houck, Chief Judge) of, one count of possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On June 19, 1997, she was sentenced principally to seventy months' imprisonment to be followed by five years' supervised release, with the special condition that she participate in a program of drug treatment, which might include testing, approved by the United States Probation Office.

Lewis began her term of supervised release on December 21, 2001. She then moved to New York City, where she was supervised by the United States Probation Office for the Southern District of New York. In May 2002, jurisdiction over her case was transferred to the United States District Court for the Southern District of New York, where it was assigned to the Hon. Deborah A. Batts. Lewis received outpatient counseling at a substance abuse program provided by A.R.E.B.A. Casriel Institute by contract with the Probation Office.

In February 2003, the Probation Office sent Judge Batts a "Non-Compliance Summary" advising the court that Lewis had tested positive for cocaine use eight times between August and December, 2002. The Office nonetheless requested that no additional action be taken with respect to Lewis in order to allow her to continue to seek to benefit from the outpatient counseling services. The district court agreed to take no action at that time.

On April 5, 2004, however, the Probation Office filed a "Request for Court Action" and a "Report for a Warrant" charging Lewis with repeated violations of three conditions of her supervised release. The Office alleged that Lewis had: 1) used cocaine on four occasions between March 3, 2003, and January 13, 2004; 2) failed to report to her probation officer on fifteen occasions between December 30, 2003, and March 30, 2004; and 3) failed to abide by court-ordered treatment in that she failed to attend outpatient counseling sessions on nine occasions between January 8, 2004, and March 4, 2004.

The Probation Office advised the district court that the applicable policy statements under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") suggested a term of imprisonment of three to nine months because Lewis's supervised release violations were "Grade C" and she had a criminal history category of I. In addition, the Office asserted that because Lewis was originally convicted of a Class A felony, the maximum statutory term of imprisonment that she could be required to serve for her supervised release violations was five years. Finally, the Office noted that, under 18 U.S.C. § 3583(g), the district court is required to revoke a supervised release term and require that the defendant serve a term of imprisonment not to exceed the statutory maximum if a defendant is found to have possessed a controlled substance. "[U]se of narcotics amounts to possession thereof for the purposes of § 3583(g)." United States v. Wirth, 250 F.3d 165, 170 (2d Cir.2001) (per curiam). The Office recommended that Lewis's supervised release term be revoked and that she receive a sentence of imprisonment within the three-to-nine-month range recommended by a policy statement contained in the Guidelines.

On July 12, 2004, Lewis pleaded guilty to the three charges of violating her supervised release. Her lawyer had previously advised the district court that Lewis intended to plead guilty and had urged the court to sentence her to three months' imprisonment; the government made no sentencing recommendation. But, in addition to revoking Lewis's supervised release term, the court sentenced her principally to a term of imprisonment of twenty-four months, stating:

The Court has considered the factors set forth in 18 United States Code Section 3583(e) and Section 3553(a)(4) and (5), the applicable Sentencing Guidelines and policy statements, and the applicable holding of United States v. W[i]rth, 250 F.3d 165 (2d Cir.2001), which states that 18 United States Code, Section 3583(g) mandates revocation of supervised release and imposition of a term of imprisonment. However, a defendant may be eligible to avoid a sentence of imprisonment, pursuant to 18 United States Code Section 3583(d), if the Court determines that a substance abuse prevention program is available and appropriate. The defendant's consistently poor adjustment history in such programs does not support assigning her to one now. For violation of your supervised release conditions, Ms. Lewis, I hereby sentence you to a term of imprisonment of 24 months. Upon completion of said term of imprisonment, the defendant is placed on supervised release for a period of three years under the applicable standard conditions and previously imposed special conditions.

Transcript of Proceedings before District Court on July 12, 2004, United States v. Lewis, No. 02 CR 495 (S.D.N.Y.2004) ("Hr'g Tr."), at 4-5. Lewis did not at that time object to her sentence or to the district court's statement in open court regarding her sentence. In the written judgment, filed on July 26, 2004, the court stated, without explanation, that it thereby imposed a twenty-four-month sentence of imprisonment.¹

DISCUSSION

18 U.S.C. § 3553(c)(2) provides in pertinent part:

§ 3553. Imposition of a sentence

....

(c) Statement of reasons for imposing a sentence.—The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence —

....

(2) is not of the kind, or is outside the range, described in subsection (a)(4) [which refers to the Sentencing Guidelines or, in the case of a violation of probation or supervised release, to policy statements issued by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(a)(3)], the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and commitment....

Id. (boldface type in original). Lewis appeals her sentence, asserting that a remand to the district court is required because the sentence was imposed "in violation of law" and is "plainly unreasonable" insofar as the court violated section 3553(c)(2) by failing to explain why it imposed a sentence that exceeded the range recommended by the policy statements in the Sentencing Guidelines and by the Probation Office.

I. Standard of Review

After United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the standard for reviewing a sentence for which there are applicable policy statements but no applicable guidelines, such as the sentence imposed for violation of supervised release in this case, is that of "reasonableness." See United States v. Fleming, 397 F.3d 95, 99 (2d Cir.2005). This replaces the previous standard of "plainly unreasonable," id., to which the defendant and the government understandably refer. Lewis thus argues that the sentence is "plainly unreasonable" because the court failed to comply with section 3553(c)(2). Thus the claim on appeal pertains only to whether the district court, in imposing a sentence on Lewis, fulfilled the requirements of that statutory provision. This is an issue that we address by looking to the sentencing hearing transcript and the written judgment. See United States v. Dos Reis, 369 F.3d 143, 150 (2d Cir.2004).

II. "Plain Error" Analysis

A. "Plain Error" in the Sentencing Context

Lewis did not raise her 18 U.S.C. § 3553(c) objection at the time of her sentencing. It is unclear whether we therefore review her claim for plain error, see United States v. Molina, 356 F.3d 269, 277 (2d Cir.2004), 356 F.3d 269, 277 (2d Cir.2004) (reviewing for plain error the issue of the district court's lack of compliance with section § 3553(c) because the defendant did not object on that ground at the time of sentencing), under a less stringent standard, United States v. Sofsky, 287 F.3d 122, 125 (2d Cir.2002) (noting that "in the sentencing context there are circumstances that permit us to relax the otherwise rigorous standards of plain error review to correct sentencing errors"), cert. denied, 537 U.S. 1167, 123 S.Ct. 981, 154 L.Ed.2d 907 (2003), or whether we need not apply the four-part plain-error analysis at all, United States v. Zackson, 6 F.3d 911, 923-24 (2d Cir.1993) (holding that a sentence imposed in violation of § 3553(c)(1) is "a sentence imposed in violation of law" and must therefore "be vacated unless the district court provides a statement of reasons"). Because we conclude that remand is necessary even under the stringent, four-part plain-error standard, we need not resolve this issue here.

B. The "Statement of Reasons"

Under 18 U.S.C. § 3583(e), a sentencing court "may, after considering" a variety of factors set forth in § 3553(a) — including any relevant policy statements issued by the United States Sentencing Commission pursuant to 28 U.S.C. § 994(a)(3), see 18 U.S.C. § 3553(a)(4)(B) — revoke a defendant's term of supervised release and require the defendant to serve a term of imprisonment, if the court first determines that the defendant violated the terms of his or her supervised release. A...