United States v. Warren

• Decision Date: 22 July 2013
• Docket Number: No. 12–20203.,12–20203.
• Citation: 720 F.3d 321
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Desrick Vaughn–Michael WARREN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

720 F.3d 321

UNITED STATES of America, Plaintiff–Appellee

v.Desrick Vaughn–Michael WARREN, Defendant–Appellant.

No. 12–20203.

United States Court of Appeals,Fifth Circuit.

July 22, 2013.

Eileen K. Wilson (argued), Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Molly Estelle Odom (argued), Esq., Assistant Federal Public, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before STEWART, Chief Judge, and BARKSDALE and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Defendant–Appellant, Desrick Vaughn–Michael Warren, appeals the district court's twenty-four-month sentence for violating two conditions of supervised release. Finding no procedural or substantive error in Warren's supervised release revocation sentence, we AFFIRM.

FACTS AND PROCEEDINGS

Warren pleaded guilty to one count of possession with intent to distribute phencyclidine (“PCP”) in violation of 21 U.S.C. § 841(a)(1). He received a sentence of 110 months of imprisonment, within the guidelines range, followed by a three-year term of supervised release. After serving his prison sentence, Warren commenced supervised release in July 2011. In February 2012, the U.S. Probation Office filed a petition to revoke Warren's supervised release, alleging that Warren had: (1) tested positive for marijuana in February 2012 and subsequently denied using the drug in writing; and (2) failed to participate in drug treatment counseling sessions in October and November 2011. The petition to revoke noted also that in October 2011, the district court previously had taken “no action after Mr. Warren was arrested for possession of marijuana and fail[ed] to report his arrest within 72 hours.”

Prior to Warren's revocation hearing, the Probation Office prepared a Sentencing Options Worksheet (“SOW”). The Probation Office determined that Warren's two supervised release violations were Grade C, and that Warren's criminal history category was VI. SeeU.S. Sentencing Guidelines Manual §§ 7B1.1(a), 7B1.4(a) (hereinafter “U.S.S.G.”). It accordingly found that Warren's statutory maximum sentence was twenty-four months of imprisonment and calculated that Warren's advisory guidelines range was between eight and fourteen months of imprisonment. See18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4(a).

At the revocation hearing, the government recommended the district court revoke supervised release, explaining that to continue Warren's supervised release would be an ineffective use of limited resources. Warren pleaded true to the allegations in the petition to revoke. The court then raised the concern that eleven of nineteen of Warren's urine samples had returned with an invalid result, a separate issue from the positive test forming the basis for count one of the petition to revoke:

The Court: [Warren's] not having a hard time. He's not. He's doing exactly what he wants to do. A hard time would be straightening up, flying right, get a job, get up early, work hard, save money, mow your old neighbor's yard. That might be hard. Laying around, buying drug user [sic] is not hard. So the probation—the halfway house doctor took urine samples; is that right?

[Warren]: No, sir.

The Court: That's what you told the probation officer.

[Defense Counsel]: I'm sorry, Your Honor. What are we talking about?

The Court: Well, the probation officer says that ... his sample [was] not quite right because the halfway house's doctor, the problem was the probation officer took the sample. But out of 19 samples, 11 of them were irregular?

[Defense Counsel]: Your Honor, I don't believe that's one of the allegations. I mean, if we're going to go forward on that, then I would ask for more time to get prepared for that.

The Court: To get prepared to do what?

[Defense Counsel]: I'm just saying I don't think that that was one of the allegations[.]

The Court: It's not one of the counts, counsel, but it's part of his behavior while on probation.

[Defense Counsel]: I understand, Your Honor.

The Court: That's the problem. He's belligerent, he's uncooperative, and I don't know exactly how it works, but apparently he's using something that distorts the quality of his urine before the urine test. I don't know anything about that, but he's gaming the system because he doesn't want to do what he's supposed to do.

Under questioning from the court, Warren admitted that he had successfully abstained from drugs while in prison but that he returned to using them on supervised release. The court admonished Warren that he was to blame for his relapse: “You didn't have an addiction. You had a choice. Temptation is a choice.” The court added that “[w]e spent a fortune trying to help you straighten out.” Warren's counsel responded that he understood the court's position and agreed that Warren “had opportunities to straighten up, and that he is [sic] not availed himself of those opportunities.” He asked the court to consider giving Warren a second chance on supervised release with inpatient treatment, with the understanding that the court could impose the maximum sentence for any subsequent violation. In a frank and affirmative dialogue, counsel explained to the court:

I think that you're getting the point across to him in maybe a way that has not been done before.... That's initially what probation wanted to do with him, was to put him in inpatient treatment because they recognize that he does have a drug problem. He was not willingto admit it at that time. He came in here today prepared to admit after a heart-to-heart, and I think the Court has gotten that message across even stronger.

The court responded, however, that Warren had already been unsuccessful in substance-abuse treatment on supervised release. After hearing directly from Warren, the court asked:

The Court: When did the probation office first receive the urine sample with traces of drugs from you?

....

[Warren]: It says local results and it says NLT results.

Probation Officer: First confirmed uranalysis [sic] positive was on February 1st [2012], Your Honor. There were numerous [other] urinalysis [sic] that were taken that came back with invalid results.

The Court: And you get invalid results either because you're physically ill or you've done something to help invalidate them.

Warren's counsel later reiterated the request for continued release paired with inpatient treatment, and, in the alternative, a revocation sentence of six months with no additional supervised release.

The district court sentenced Warren to the statutory maximum term of twenty-four months in prison with no additional term of supervised release. Warren's counsel responded that “[t]o the extent that the sentence is outside the guidelines range, we will object, and also to the extent that the Court did consider some information that we had not given notice of, specifically—,” before the court interjected. The court stated: “You have no evidence that he was cooperative, that he did not turn in 11 inconclusive out of 19. It doesn't matter what the numbers are. Six months he was out before he started missing—getting caught misbehaving.” Warren timely appealed. SeeFed. R.App. P. 4(b).

STANDARD OF REVIEW

When the defendant properly preserves his objection for appeal, seeFed.R.Crim.P. 51(b), we review a sentence imposed on revocation of supervised release under a “plainly unreasonable” standard, in a two-step process. United States v. Miller, 634 F.3d 841, 843 (5th Cir.), cert. denied,––– U.S. ––––, 132 S.Ct. 496, 181 L.Ed.2d 345 (2011). First, we “ensure that the district court committed no significant procedural error, such as failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence, including failing to explain a deviation from the Guidelines range.” United States v. Kippers, 685 F.3d 491, 497 (5th Cir.2012) (internal quotation marks omitted). “If the district court's sentencing decision lacks procedural error, this court next considers the substantive reasonableness of the sentence imposed.” Id. If we find the sentence unreasonable, we may reverse the district court only if we further determine “the error was obvious under existing law.” Miller, 634 F.3d at 843.

When the defendant fails to bring a sufficient objection to the attention of the district court, we may correct an unpreserved “plain error that affects substantial rights.” Fed.R.Crim.P. 52(b); Henderson v. United States, ––– U.S. ––––, ––––, 133 S.Ct. 1121, 1124, 185 L.Ed.2d 85 (2013). However, under plain error review, the defendant bears the burden to show “(1) error (2) that is plain and (3) that affects his substantial rights.” United States v. Broussard, 669 F.3d 537, 553 (5th Cir.2012) (internal quotation marks omitted). “To be ‘plain,’ legal error must be clear or obvious, rather than subject to reasonable dispute.” Id. (internal quotation marks omitted). We assess the error's plainness based on the law “applying at the time of review.” Henderson, 133 S.Ct. at 1127. “To affect the defendant's substantial rights, the defendant must demonstrate that the error affected the outcome of the district court proceedings.” Broussard, 669 F.3d at 553. Even if the defendant succeeds in making that showing, we exercise our discretion to correct the error only “if it seriously affected the fairness, integrity, or public reputation of the judicial proceeding.” Id. (internal quotation marks omitted).

DISCUSSION

Warren urges us to vacate his sentence and remand for resentencing on the basis that the district court procedurally erred, in failing to provide advance notice that it would invoke the eleven invalid urine samples at sentencing, and substantively erred, in relying on improper considerations in assessing its twenty-four month sentence.

I. Procedural...