U.S. v. Hammons

• Decision Date: 11 March 2009
• Docket Number: No. 08-50329.,08-50329.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kelly HAMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

558 F.3d 1100

UNITED STATES of America, Plaintiff-Appellee, v. Kelly HAMMONS, Defendant-Appellant.

No. 08-50329.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 12, 2008.

Filed March 11, 2009.

Sean K. Kennedy, and Michael Tanaka, Federal Public Defender's Office, Los Angeles, CA, for the defendant-appellant.

Thomas P. O'Brien, Robb Adkins, and Ashleigh E. Aiken, Central District of California United States Attorney's Office, Santa Ana, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:08-cr-00280-SVW-1.

Before: HARRY PREGERSON and D.W. NELSON, Circuit Judges, and JAMES K. SINGLETON,^* Senior District Judge.

PREGERSON, Circuit Judge:

The district court sentenced Kelly Hammons to ten months in prison upon revoking his supervised release. On appeal, Hammons argues: (1) that the district court committed plain error by failing to state any reasons for its decision to sentence Hammons to ten months in prison; and (2) that the district court committed plain error by failing to calculate the appropriate guideline range and by relying upon an incorrectly calculated Criminal History Category. We have jurisdiction under 28 U.S.C. § 1291. We vacate the ten month sentence and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Hammons was convicted of conspiracy to possess with intent to distribute cocaine base (crack), in violation of 21 U.S.C. § 846. The United States District Court for the Southern District of Alabama sentenced Hammons to 144 months of imprisonment, followed by five years of supervised release. On January 21, 2006, Hammons was released from prison and began serving his five year term of supervised release.

On February 22, 2008, Hammons was convicted in Los Angeles Superior Court of violating California Vehicle Code Section 23152(B): Driving Under the Influence of Alcohol. On March 6, 2008, the Southern District of Alabama transferred jurisdiction for Hammons's supervision to the Central District of California. On April 4, 2008, the United States Probation Office ("Probation Office") filed a petition in the district court alleging that Hammons had violated the conditions of his supervised release by committing a federal, state, or local crime—i.e., driving under the influence.¹

On April 15, 2008, the Probation Office prepared a Violation Report. In the Violation Report, the Probation Office did not recommend that the district court impose a term of imprisonment. Rather, the Probation Office recommended that Hammons be required to participate in a Residential Reentry Center program for up to 180 days. Additionally, the Probation Office incorrectly listed Hammons as having a Category III Criminal History rather than a Category II Criminal History. Accordingly, the Violation Report incorrectly calculated the appropriate guideline range for Hammons's violation as five to eleven months.²

On May 12, 2008, Hammons appeared before the district court at a revocation hearing and admitted to violating the terms of his supervised release by driving under the influence. Sentencing was continued until July 7, 2008. On July 1, 2008, the Probation Office filed a Supplemental Report alleging that Hammons tested positive for alcohol on June 21, 2008.³ In the Supplemental Report, the Probation Office again recommended that Hammons not be imprisoned but instead be required to participate in a Residential Reentry Center program.

On July 7, 2008, Hammons appeared before the district court for sentencing. During the continued revocation hearing, Hammons's counsel detailed for the court Hammons's efforts at rehabilitation, including Alcoholic Anonymous classes, a drug treatment and rehabilitation program, a work-placement program, and volunteer work.

Next, the district court provided Hammons an opportunity to be heard. In particular, the district court asked three pointed questions regarding drinking and driving:

THE COURT: Do you wish to be heard Mr. Hammons?

THE DEFENDANT: Yes, Your Honor. I would like to ask the court for mercy and a little lenience. I'm trying to move my life forward in a different direction so that I can better myself and better my family.

THE COURT: How did you go about that exactly? Do you think driving under the influence [of] alcohol is helping you move your life forward?

THE DEFENDANT: No, Your Honor. I never said driving under the influence was helping me. Actually I learned a lot for the class. I'm actually not drinking now—

THE COURT: Have you learned that you shouldn't be driving under the influence of alcohol?

THE DEFENDANT: Well, Your Honor, I've learned what alcohol does to the body, and what the human being—

THE COURT: You know all of that. You've been drinking a long time, haven't you?

THE DEFENDANT: Well, you know, Your Honor, I've seen some horrific things going to these classes, and it woke me up in a lot of ways.

THE COURT: Any legal cause why sentence should not be imposed?

The district court then found that Hammons violated the terms of his supervised release and sentenced him to ten months imprisonment. The district court did not give any reasons for imposing a ten month sentence, nor did the district court calculate the guideline range. Moreover, the district court did not address any of the relevant sentencing factors set forth in 18 U.S.C. § 3583 and 18 U.S.C. § 3553. Finally, though not required to do so, the district court did not address the Probation Office's recommendation that Hammons not be imprisoned and instead be required to "reside at and participate in a Residential Reentry Center (RRC) program."

Hammons did not object to the sentence imposed. Hammons also failed to object to the incorrect Criminal History Category III stated in the Probation Office's Violation Report.

II. STANDARD OF REVIEW

We review de novo whether the district court provided an adequate statement of reasons for the sentence it imposed. United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir.2006) (citing United States v. Duran, 37 F.3d 557, 560 (9th Cir.1994)). In the context of sentencing upon revocation of supervised release, we review the sentence imposed under the Booker reasonableness standard. United States v. Simtob, 485 F.3d 1058, 1061 (9th Cir.2007); Miqbel, 444 F.3d at 1176 n. 5.

When a defendant does not raise an objection to his sentence before the district court, we apply plain error review. United States v. Waknine, 543 F.3d 546, 551 (9th Cir.2008). "Plain error is `(1) error, (2) that is plain, and (3) that affects substantial rights.'" United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). If these three conditions are met, the court may then exercise its discretion to grant relief if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.

III. DISCUSSION

A. The District Court's Failure to Give Any Reasons for the Sentence Imposed Constituted Plain Error

1. Applicable Sentencing Factors.

Revocation of supervised release is governed by 18 U.S.C. § 3583. Under § 3583, the court may "revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute." 18 U.S.C. § 3583(e)(3). In particular, § 3583(e) requires that the court consider the sentencing factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).

18 U.S.C. § 3553 states that "[t]he court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)" 18 U.S.C. § 3553(a) (emphasis added). Section 3553(a)(1) requires the court to consider "nature and circumstances of the offense and the history and characteristics of the defendant." The court must also consider the need for the sentence imposed:

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner

18 U.S.C. § 3553(a)(2). The court must also consider, but is not bound by, the applicable sentencing range as set forth in the guidelines. 18 U.S.C. § 3553(a)(4).

The district court, however, is not to consider "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A); see Miqbel, 444 F.3d at 1181-82 (stating that § 3583 "specifically omits, however, § 3553(a)(2)(A)"). This means that "at a revocation sentencing, a court may appropriately sanction a violator for his `breach of trust,' but may not punish him for the criminal conduct underlying the revocation." Id. at 1182; see also Simtob, 485 F.3d at 1063 (stating that the district court "may not impose a revocation sentence solely, or even primarily, based on the new criminal offense underlying the revocation") (emphasis in original).

2. The District Court Failed to Provide Any Reasons for Hammons's Sentence

Under 18 U.S.C. § 3553(c), a district court is required to explain the reasons for imposing a particular sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (en banc) ("Once the sentence is selected, the district court must explain it sufficiently to permit meaningful appellate review."); Miqbel, 444 F.3d at 1177 n. 7 (applying the requirements of § 3553(c) to the revocation of supervised release under 18 U.S.C. § 3583). Although such explanation should come from the district court, "adequate explanation in some cases may also be inferred from the PSR or the record as a whole." Carty, 520 F.3d at 992. We have stated that:

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