U.S. v. Lewis

• Citation: 498 F.3d 393
• Decision Date: 13 August 2007
• Docket Number: No. 06-6011.,06-6011.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrance L. LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

498 F.3d 393

UNITED STATES of America, Plaintiff-Appellee, v. Terrance L. LEWIS, Defendant-Appellant.

No. 06-6011.

United States Court of Appeals, Sixth Circuit.

Argued: July 18, 2007.

Decided and Filed: August 13, 2007.

ARGUED: Anne-Marie Moyes, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. William L. Deneke, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Ronald C. Small, Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. William L. Deneke, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: MARTIN and McKEAGUE, Circuit Judges; GREER, District Judge.^*

OPINION

McKEAGUE, Circuit Judge.

Defendant appeals the revocation of his supervised release, arguing that the district court incorrectly interpreted the conditions of supervised release and relied on improper considerations in determining his sentence. For the reasons stated below, Defendant's conviction and sentence are affirmed.

I. BACKGROUND

On September 5, 1995, Defendant Terrance Lamont Lewis pled guilty to one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He was sentenced on November 30, 1995, by the United States District Court for the Middle District of Georgia to 137 months' imprisonment, followed by five years of supervised release. Among the "standard conditions" of supervised release the court imposed was that "the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer." Judgment of Nov. 30, 1995, at 3. On June 4, 1999, Defendant's sentence was reduced to 92 months by order of the court. Defendant began serving his supervised release term on October 26, 2001, in Tennessee; on June 5, 2003, jurisdiction over his supervised release was formally transferred from the Middle District of Georgia to the Middle District of Tennessee.

On February 16, 2006, the United States Probation Office filed a petition for summons of Defendant with the district court alleging that he had committed multiple violations of his supervised release. At a hearing on May 1, 2006, the district court held that Defendant had violated the conditions that he "notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer"; that he "submit a truthful and complete written report within the first five days of each month"; that he "answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer"; and that he "permit the probation officer to visit him at home or elsewhere." Tr. at 60-63. Defendant was sentenced to six months of in-home detention, followed by twenty-four months of supervised release. He now appeals both the finding of violation and the sentence.

II. VIOLATION OF SUPERVISED RELEASE

This court reviews a district court's decision to revoke supervised release for abuse of discretion. United States v. Carr, 421 F.3d 425, 429 (6th Cir.2005) (quoting United States v. Webb, 30 F.3d 687, 688 (6th Cir.1994)). Defendant first disputes the district court's determination that he violated the supervision condition that he "permit a probation officer to visit him . . . at any time at home or elsewhere." Judgment of Nov. 30, 1995, at 3. The court found that he violated this condition because he expressly refused to give the probation officer the address at which his two daughters resided, and at which he spent up to several nights per week. Defendant points out that the statute listing discretionary conditions of probation¹ which the court "may" impose includes the condition that a defendant "permit a probation officer to visit him at his home or elsewhere as specified by the court." 18 U.S.C. § 3563(b)(16) (emphasis added). The 1995 sentence did not name any specific locations other than his home. Defendant argues, in essence, that the condition in his case should be read as if it included the italicized words even if it did not in fact include them; that if interpreted without the italicized words, the condition would have involved a "greater deprivation of liberty than is reasonably necessary" for the purposes of supervised release in violation of 18 U.S.C. § 3583(d)(2); and that because the original sentence did not specify any locations other than his home, he did not violate the condition by refusing to provide the probation officer with the address at which his daughters resided so that she could visit him there.

Defendant's arguments suffer from a number of flaws. Principally, as the government points out, Defendant is attempting to use this appeal of the revocation of his supervised release to challenge the reasonableness of his original sentence imposed in 1995. The proper vehicle for such a challenge, after the lapse of the ten-day period for filing a notice of direct appeal, Fed. R.App. P. 4(b)(1)(A), would be the habeas corpus procedure provided in 28 U.S.C. § 2255. As the Sixth Circuit has noted in unpublished cases, an appellant may not "attempt to invalidate his original conviction at a supervised release revocation hearing." United States v. Meacham, 65 Fed.Appx. 529, 533 (6th Cir. 2003); see also United States v. Flanory, 45 Fed.Appx. 456, 459 (6th Cir.2002). We are thus limited to reviewing the district court's determination that Defendant violated the condition at issue.

Defendant's citation to § 3563(b)(16) is not instructive with regard to the correct understanding of the supervision condition at issue here. As noted above, the discretionary supervision conditions in § 3563(b) are named in § 3583(d) as conditions that the court "may order" in addition to the mandatory supervised release conditions; a court may also order "any other condition it considers to be appropriate." 18 U.S.C. § 3583(d).² Thus, courts are not bound to adopt the discretionary considerations under the wording used in § 3563(b), and the district court need not have supposed that the words "as specified by the court" are therefore implicitly included in the condition in this case.

Moreover, the permit-to-visit condition on Defendant's supervised release does not appear to be taken from § 3563(b) at all. According to the policy statements regarding sentences of supervised release, several "`standard' conditions are recommended for supervised release." U.S.S.G. § 5D1.3(c). Among these is § 5D1.3(c)(10), "[T]he defendant shall permit a probation officer to visit the defendant at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer." It is this version of the condition that was included in Defendant's 1995 sentence, as indicated by the fact that the condition includes the "and shall permit confiscation" clause, which appears in § 5D1.3(c)(10) but not § 3563(b)(16); the fact that the condition appears in Defendant's 1995 sentence under the heading "Standard Conditions of Supervision," consistent with the recommendation of § 5D1.3(c); and the fact that the visit condition appears in a list with the other standard conditions³ recommended by § 5D1.3(c), almost verbatim. Unlike the discretionary condition in § 3563(b)(16), the condition in § 5D1.3(c)(10) does not contain the words "as specified by the court." The wording of the visit condition on Defendant's supervised release sentence thus was not only permissible, but identical to the wording of the standard condition provided in the Guidelines.

The question is therefore whether the requirement that the condition that Defendant "permit a probation officer to visit him . . . at any time at home or elsewhere," as written, was violated by Defendant's conceded refusal to give his probation officer the address at which his minor daughters resided, despite the fact that by his own admission Defendant spent as many as "several nights a week" there. Tr. at 51. Defendant contends in this regard that "or elsewhere" could be read to "allow the probation officer . . . to visit the subject wherever he or she pauses long enough to be visited; the officer could visit a traveling sales representative in her hotel room, could visit a vacationer at a family beach retreat, or could visit a subject at the homes of each and every acquaintance he visited." Appellant's Brief at 19. While these examples do not sound as unreasonable as Defendant doubtless means them to, especially in view of the requirement that Defendant permit the probation officer to visit "at any time," these sorts of visits are not at issue here. The only visits in which the probation officers in this case were interested were visits to Defendant's reported residence, to his workplace, and to the unreported address of his daughters at which he spent as many as half the nights in a week, and at which his probation officer believed he primarily resided. Notably, Defendant does not contend that it was unreasonable for probation officers to visit him at work, although his place of employment is not specified in the supervision conditions as a location at which he must permit visits.

The district court explained that it found a violation of the visit requirement because "[w]here he physically is and allows himself to be visited is the importance of the requirement. And it frustrates the purpose of supervision when one does not allow himself or herself to be supervised except at his or her own choosing." Tr. at 63. This is consistent with what the Supreme Court has recognized to be the purpose of supervised release. The Court explained in Johnson v. United States, 529 U.S. 694, 708-09, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), that "[t]he congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty." Supervised release is...