U.S. v. Bolds

• Citation: 511 F.3d 568
• Decision Date: 20 December 2007
• Docket Number: No. 07-5062.,07-5062.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roxie Nicole BOLDS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

511 F.3d 568

UNITED STATES of America, Plaintiff-Appellee, v. Roxie Nicole BOLDS, Defendant-Appellant.

No. 07-5062.

United States Court of Appeals, Sixth Circuit.

Submitted: December 14, 2007.

Decided and Filed: December 20, 2007.

ON BRIEF:

Richard C. Strong, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Scott F. Leary, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: KEITH and CLAY, Circuit Judges; HOOD, District Judge.^*

OPINION

CLAY, Circuit Judge.

Defendant Roxie Nicole Bolds ("Bolds") challenges, on reasonableness grounds, the twenty-four-month sentence imposed by the district court following its revocation of Bolds' four-year term of supervised release. Bolds argues that the district court committed procedural error by failing to adequately explain its upward departure from the four to ten month advisory sentencing range contained in the United States Sentencing Commission's ("Sentencing Commission") policy statements regarding supervised release revocation sentences. For the reasons that follow, we AFFIRM the sentence imposed by the district court.

I. BACKGROUND

On January 3, 2003, Bolds pled guilty to one count of aiding and abetting in the distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On March 21, 2003, the district court sentenced Bolds to fifty-seven months imprisonment followed by four years of supervised release. Bolds served this fifty-seven-month sentence and commenced her supervised release on April 4, 2006.

The terms of the supervised release imposed by the district court required Bolds to participate in a program, approved by her probation officer, for the treatment of narcotic addiction or drug or alcohol dependency and to report for regular drug screens. Bolds initially reported for the drug screens, but ceased to do so after June 6, 2006. Bolds missed two drug screens in June 2006 and three drug screens in July 2006. In early August 2006, Bobby Appleton ("Appleton"), the probation officer assigned to Bolds' case, confronted Bolds about these missed drug screens and "gave her an absolute final warning, stating that she had already gone past the limit that [is] ordinarily allow[ed] before the court is notified and court action is requested." J.A. at 36. Shortly thereafter, on August 16, 2006, Bolds missed another drug screen.

Instead of reporting for her drug screen on August 16, 2006, Bolds was arrested for shoplifting. Sargent Rita Barnett of the City of Ripley police arrested Bolds and three other persons for stealing merchandise, with an after tax value of over one thousand dollars, from a Wal-Mart store. Bolds and her co-conspirators put items in a shopping cart and, without paying for the items, took the cart out of the store pushing past an elderly Wal-Mart greeter who attempted to stop them. After putting the items in a vehicle, Bolds and her co-conspirators fled the scene and were eventually pulled over by the police who discovered a three-year-old child in the vehicle.

Based on these incidents, Appleton petitioned the district court to revoke Bolds' supervised release on August 17, 2006. On August 22, 2006, pursuant to this petition, the district court issued an arrest warrant for Bolds for violations of the terms of her supervised release. Bolds was also subsequently charged with misdemeanor shoplifting in the local Tennessee court.

At her initial detention hearing in federal district court on September 1, 2006, Bolds was released on bond. The district judge then scheduled a supervised release hearing for September 28, 2006.

During early September 2006, Bolds refused to report to her probation officer and failed to appear for her drug screens. In response to these further violations of the terms of her supervised release, on September 7, 2006, Appleton filed a notification of additional violations and a request for bond revocation with the district court.

On September 28, 2006, Bolds failed to appear at her supervised release revocation hearing in the federal district court and also failed to appear in Tennessee court for her shoplifting charge. In response to her failure to appear, the district judge issued a second warrant for Bolds' arrest.

After Bolds was re-apprehended, the district court held a supervised release violation hearing on December 21, 2006. At this hearing, the district court heard testimony from Appleton and Sargent Barnett regarding Bolds' violations of the terms of her supervised release. Based upon this undisputed testimony, the district court found Bolds in violation of the terms of her supervised release, which it accordingly revoked.

The district court then considered the appropriate penalty to impose for Bolds' violation of the terms of her supervised release. Bolds argued for a sentence within the advisory range of four to ten months suggested by the Sentencing Commission's supervised release revocation policy statements.¹ The government, in contrast, contended that due to Bolds' blatant disregard of the conditions of her supervised release, a sentence of twenty-four months was more appropriate. In considering these arguments, the district judge noted that he was concerned by the "pattern of contempt for the Court and refusal to abide by mandatory conditions" exhibited by Bolds. The district judge also indicated that he considered Bolds' shoplifting offense to be a "very serious crime" given the assault on the elderly greeter and the involvement of a minor. The district judge was especially concerned about the offense because it occurred within the context of Bolds' refusal to abide by the conditions of her supervised release. See J.A. at 69 ("She has a history — a substantial history of not participating in drug screens. She was warned. And her response to this warning is to commit a serious crime."). In particular, the district judge stated:

I won't say that her offense is the most serious that I have seen in this context, but I will say that she is as consistently contumacious in her conduct as any defendant I am able to recall. That simply means that she is consistently refusing to abide by the mandatory requirements of this Court as anyone.

J.A. at 68. The district court further observed that Bolds had "never accepted responsibility" for her conduct in the shoplifting case which led it to the conclusion that "there is a significant need to protect the public from Ms. Bolds." J.A. at 69. Finally, the district judge recognized the "need to deter others who are on supervised release, who may agree that these are suggestions, instead of requirements." J.A. at 70.

Evaluating all of these factors, the district court imposed a sentence of twenty-four months imprisonment. The district judge explained:

As to a Guidelines sentence, I think one ought to have respect for Congress's mandate in those regards. But I am charged with exercising my independent judgment and considering the factors of 3553. And, of course, I have discretion to sentence anywhere within the statutory limits, which is zero to 36 months.

It is also apparent to me that Ms. Bolds is not a candidate for further supervised release. There is nothing in this record that suggests she is going to comply with the conditions of supervised release, to [sic] the instructions of the probation officer, the instructions of the Court, or anybody else.

So for those reasons, I believe the government has made a correct recommendation and a sentence of 24 months in this case is appropriate. I'm aware that Ms. Bolds is expecting a child . . . But this is one of those sad cases where the child is probably better off if Ms. Bolds is in a controlled situation than the child would be if she is in the situation that she was in during the period she was on supervised release.

J.A. at 70-71. After the district court imposed its sentence, Bolds raised one further objection to the sentence on health grounds which was overruled.

On January 10, 2007, Bolds filed this timely appeal.

II. STANDARD OF REVIEW

A. The Appropriate Standard to Review Post-Booker Challenges to Supervised Release Revocation Sentences

While not an issue of first impression, the question of which standard governs our post-Booker review of sentences imposed upon revocation of supervised release has not been previously answered by this Court. See, e.g., United States v. Lewis, 498 F.3d 393, 397 (6th Cir.2007) ("The Sixth Circuit has not yet determined whether sentences for violation of supervised release are to be reviewed under the `plainly unreasonable' standard the Circuit employed for these sentences before the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), or the `unreasonableness' standard applicable to sentences under the Guidelines post-Booker."). In every case in which we have previously confronted this issue, we have refused to decide which standard of review — "unreasonableness" or "plainly unreasonable" — applies, concluding instead that the particular sentence under review would survive under either standard or fail under both. See United States v. Brown, 501 F.3d 722, 724 (6th Cir.2007); Lewis, 498 F.3d at 397; United States v. Yopp, 453 F.3d 770, 773 (6th Cir.2006); United States v. Johnson, 403 F.3d 813, 817 (6th Cir.2005). See also United States v. Younger, 241 Fed.Appx. 308, 310 (6th Cir.2007) (unpublished); United States v. Jiles, 229 Fed.Appx. 401, 404 (6th Cir. 2007) (unpublished); United States v. Williams, 214 Fed.Appx. 552, 554 (6th Cir. 2007) (unpublished); United States v. Morrow, 207 Fed.Appx. 591, 592 (6th Cir. 2006) (unpublished); United States v. Reid, 206 Fed.Appx. 493, 497 (6th Cir. 2006) (unpublished); United States v. Soto, 189 Fed.Appx. 470, 471 n. 2 (6th Cir.2006) (unpublished); United States v. Brown, 163 Fed.Appx. 370, 372 n. 1 (6th Cir.2006) (unpublished); United States v. Tugen, 157 Fed.Appx. 838, 840 (...