United States v. Vandergrift

• Citation: 754 F.3d 1303
• Decision Date: 18 June 2014
• Docket Number: No. 12–13154.,12–13154.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Walter Henry VANDERGRIFT, Jr., Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

754 F.3d 1303

UNITED STATES of America, Plaintiff–Appellee,

v.Walter Henry VANDERGRIFT, Jr., Defendant–Appellant.

No. 12–13154.

United States Court of Appeals,Eleventh Circuit.

June 18, 2014.

Susan R. Redmond, Sandra J. Stewart, George L. Beck, Jr., U.S. Attorney's Office, Montgomery, AL, for Plaintiff–Appellee.

Kevin L. Butler, Federal Public Defender, Birmingham, AL, James Tobia Gibson, Federal Public Defender, Huntsville, AL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Alabama. D.C. Docket No. 2:04–cr–00033–WHA–SRW–1.

Before TJOFLAT and WILSON, Circuit Judges, and BUCKLEW,^* District Judge.

WILSON, Circuit Judge:

Walter Henry Vandergrift appeals his 24–month sentence imposed upon revocation of his supervised release. After review of the parties' briefs, and with the benefit of oral argument, we affirm.

I. BACKGROUND

After serving a 97–month sentence for the possession and distribution of child pornography, Vandergrift began a three-year term of supervised release. Before the expiration of supervised release, Vandergrift's probation officer filed a petition seeking revocation of his supervised release. According to the petition, Vandergrift had violated the conditions of his supervised release by: (1) failing to obtain lawful employment; (2) failing to obey instructions to search for and obtain employment; (3) knowingly giving false information to a probation officer when questioned about the whereabouts of another federal supervisee (his roommate); (4) possessing or having access to a pornographic DVD and a Maxim magazine, both of which contained sexually stimulating material; and (5) violating 18 U.S.C. § 1001, which prohibits making materially false statements to a federal agent, when he knowingly lied to a probation officer about his roommate's absence.¹

Following a revocation hearing, the district court found by a preponderance of the evidence that Vandergrift had committed each of the five alleged violations and subsequently revoked his supervised release. At sentencing for these violations, the district court imposed an above-guidelines sentence of 24 months' imprisonment to be followed by one year of supervised release. The court explained its reasons for imposing the sentence as follows:

In assigning what the appropriate and just punishment would be in this case, I've got to consider all factors set out in 18 U.S.C. Section 3553. I've got to consider the safety of the public. I've got to consider the example set to others to deter similar conduct. I've got to consider just punishment for the crime that was committed, and here being a violation of these terms of supervised release. I've also got to consider what's best for the defendant as a factor in the equation.

It is difficult to decide what really is best for the defendant in this case. I'm impressed with the testimony from Dr. Kirkland [Vandergrift's expert witness] that [Vandergrift] does not thrive in an unstructured environment; that he came out of prison at least in better physical condition than he got when he was out under fairly close supervised release, but still his physical condition and stamina deteriorated.

I'm also impressed with Dr. Kirkland's testimony as to the lack of ability and the difficulty in finding, outside the prison system, any vocational training and help that might assist the defendant. But I'm also considering the fact that while Dr. Kirkland is not an M.D., he is a psychologist with a great deal of experience in these kinds of things, and he suggests bipolar disorder on the part of the defendant, which may can be helped in some way in the prison system. That and vocational training for a period of time in the prison system not only would benefit the public, or could, at least more than not having that, but could also help save the defendant's life. I don't know, but that's a possibility.

So having considered all of these, I'm going to—and I do find that a reasonable sentence in this case is going to be 24 months in prison, the maximum under statute, to be followed by one year of supervised release, during which time—and having had the experience of the imprisonment, during which time I hope that something can be found to put him on a better course.

....

Pursuant to 18 U.S.C. Section 3553(c)(2), the sentence is being imposed in excess of the guidelines at 24 months to promote respect for the conditions of supervised release ordered by the Court; to reflect the seriousness of the defendant's conduct; to provide just punishment for the violation offenses; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and also for the benefit of the defendant.

Vandergrift now appeals.

On appeal, Vandergrift argues that the district court erred with respect to two of the alleged supervised release violations. Specifically, Vandergrift claims that he did not fail to obtain employment “willfully,” and that he did not constructively possess the pornographic DVD and Maxim magazine. He also challenges the procedural reasonableness of his 24–month sentence, arguing that the district court relied on impermissible factors in arriving at the sentence in violation of Tapia v. United States, –––U.S. ––––, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011).

II. DISCUSSION

“We ... review a district court's revocation of supervised release for an abuse of discretion.” United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir.2010) (per curiam). “We review the sentence imposed [by the district court] upon the revocation of supervised release for reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir.2008) (per curiam). But because Vandergrift did not object to the procedural reasonableness at the time of his sentencing, we review for plain error. See United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc) (per curiam). In Jones, we held:

Where the district court has offered the opportunity to object and a party is silent or fails to state the grounds for objection, objections to the sentence will be waived for purposes of appeal, and this court will not entertain an appeal based upon such objections unless refusal to do so would result in manifest injustice.

Id. And “[o]ur case law equates manifest injustice with the plain error standard of review.” United States v. Quintana, 300 F.3d 1227, 1232 (11th Cir.2002). Thus, in order to prevail, Vandergrift must demonstrate (1) that the district court erred; (2) that the error was “plain”; and (3) that the error “affect[ed his] substantial rights.” United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 1776–78, 123 L.Ed.2d 508 (1993). “If all three conditions are met, [we then decide whether] the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (internal quotation marks omitted).

A. Revocation of Supervised Release

Vandergrift first argues that the government failed to prove that he committed violations (1) and (4)—failing to obtain lawful employment and possessing or having access to a pornographic DVD and a Maxim magazine. But he admits the conduct underlying violations (3) and (5)—knowingly giving false information to a probation officer and violating 18 U.S.C. § 1001. He also does not challenge the district court's conclusion that he committed violation (2)—failing to obey instructions to search for and obtain employment. Because Vandergrift pleaded guilty to conduct underlying two of the supervised release violations, the district court did not abuse its discretion in revoking his supervised release. See United States v. Brown, 656 F.2d 1204, 1207 (5th Cir. Unit A Sept.1981) (per curiam) (holding that where the district court's decision to revoke a defendant's supervised release is supported adequately by one alleged violation, a possible error in consideration of other allegations is harmless).²

B. Reasonableness of the Sentence

Vandergrift also challenges the procedural reasonableness of his 24–month sentence. Vandergrift contends that the district court made two errors when fashioning his post-revocation sentence. First, he argues that it was impermissible to consider the factors set out under 18 U.S.C. § 3553(a)(2)(A)—the seriousness of his offense, the need to promote respect for the law, and the need to provide just punishment for the offense-when crafting Vandergrift's post-revocation sentence. See18 U.S.C. § 3583(e). Second, he argues that it was also error to consider the benefits of rehabilitation when sentencing Vandergrift to 24 months' imprisonment. See Tapia, ––– U.S. at ––––, 131 S.Ct. at 2388–89. We address each alleged error in turn.

1. Alleged Impermissible Sentencing Factors

In assessing procedural reasonableness, a court's “fail[ure] to consider the § 3553(a) factors” constitutes “significant procedural error.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). “It is only logical that a court's consideration of an improper § 3553(a) factor is likewise erroneous.” United States v. Bennett, 698 F.3d 194, 200 (4th Cir.2012), cert. denied ––– U.S. ––––, 133 S.Ct. 1506, 185 L.Ed.2d 559 (2013).

Section 3583(e) governs the revocation of supervised release. It states that a district court must consider factors outlined in “section[s] 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6) and (a)(7).” Absent from this list is § 3553(a)(2)(A), which allows a court to impose a sentence that “reflect[s] the seriousness of the offense, ... promote [s] respect for the law, and ... provide[s] just punishment for the offense.” The text of § 3583(e) does not, however, explicitly forbid a district court from considering § 3553(a)(2)(A).

The Supreme Court has not...