759 F.3d 299 (3rd Cir. 2014), 13-2876, United States v. Thornhill

Docket Nº:13-2876, 13-2877, 13-2878
Citation:759 F.3d 299
Opinion Judge:SMITH, Circuit Judge.
Attorney:Rebecca R. Haywood, Michael L. Ivory [ARGUED], Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee. Elisa A. Long [ARGUED], Office of Federal Public Defender, Pittsburgh, PA, Counsel for Appellant.
Judge Panel:Before: RENDELL, SMITH, and HARDIMAN, Circuit Judges. RENDELL, Circuit Judge, Concurring in part and Dissenting in part. RENDELL (In Part) RENDELL, Circuit Judge, Concurring in part and Dissenting in part:
Case Date:July 08, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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759 F.3d 299 (3rd Cir. 2014)




Nos. 13-2876, 13-2877, 13-2878

United States Court of Appeals, Third Circuit

July 8, 2014

Argued March 6, 2014

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On Appeal from the United States District Court for the Western District of Pennsylvania. District Court Nos. 2-02-cr-00084-001; 2-07-cr-00388-001; 2-09-cr-00154-001. District Judge: The Honorable Terrence F. McVerry.

Rebecca R. Haywood, Michael L. Ivory [ARGUED], Office of United States Attorney, Pittsburgh, PA, Counsel for Appellee.

Elisa A. Long [ARGUED], Office of Federal Public Defender, Pittsburgh, PA, Counsel for Appellant.

Before: RENDELL, SMITH, and HARDIMAN, Circuit Judges. RENDELL, Circuit Judge, Concurring in part and Dissenting in part.


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SMITH, Circuit Judge.

In 1984, Congress enacted the Sentencing Reform Act, a measure which profoundly " revise[d] the old sentencing process." Mistretta v. United States, 488 U.S. 361, 367, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). One of the reforms effected by the Act was the elimination of special parole and the establishment of a " new system of supervised release." Gozlon-Peretz v. United States, 498 U.S. 395, 397, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). The " new system" was codified in 18 U.S.C. § 3583, and included a provision at subsection (g) which mandates the revocation of supervised release and the imposition of a term of imprisonment under certain enumerated circumstances. 18 U.S.C. § 3583(g).1

The question we consider is: once § 3583(g)'s mandatory revocation provision is triggered, what guides a district court's exercise of discretion in determining the length of the defendant's term of imprisonment? We conclude that this exercise of discretion is guided by the sentencing factors set forth in 18 U.S.C. § 3553(a).


In 2002, Theresa Thornhill pled guilty to a single count of bank fraud in violation of 18 U.S.C. § 1344(a) in the United States District Court for the Western District of Pennsylvania. On May 23, 2003, the District Court sentenced Thornhill to, inter alia, 21 months of imprisonment and a five-year term of supervised release. She was also directed to make restitution in the amount of $25,521.12 (2003 Conviction).

Thornhill's five-year term of supervised release for the 2003 Conviction commenced on December 30, 2004. In a Petition on Supervised Release dated May 30, 2007 (First Petition), Thornhill's probation officer advised the District Court that: Thornhill had submitted six urine samples that tested positive for marijuana; she had failed to attend her outpatient treatment for substance abuse; she had neither reported

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to her probation officer nor filed the requisite reports; and she had not made any payments toward restitution.

The District Court issued a bench warrant, and Thornhill was arrested in July 2007. Thereafter, the probation officer filed a Motion to Supplement the Petition on Supervised Release (Second Petition), alleging additional violations of the conditions of her supervised release. The Second Petition charged that Thornhill had engaged in fraudulent conduct by opening four bank accounts at four different branches of National City Bank using four different Social Security numbers. It alleged that she had deposited checks drawn on closed accounts into these new accounts, and concluded that this conduct amounted to bank fraud under 18 U.S.C. § 1344(1), fraudulent use of social security numbers under 42 U.S.C. § 408(a)(7)(B), and aggravated identity theft under 18 U.S.C. § 1028A(a)(1). Exhibits attached to the Second Petition established that National City Bank sustained a loss of $7,648.65.

On November 16, 2007, Thornhill waived her right to an indictment and pled guilty to a one-count information charging her with bank fraud in violation of 18 U.S.C. § 1344(1) (2007 Conviction). The information was based on the criminal conduct described in the Second Petition.

At her guilty plea, Thornhill's defense counsel advised the District Court that, according to the pretrial services office, Thornhill was cooperating with the conditions of her release. Specifically, counsel told the court that she was reporting to her probation officer as required and that her weekly drug screens tested negative. In addition, defense counsel noted that the supervising probation officer hoped that Thornhill could move out of the residence of a third-party custodian, and was agreeable to eliminating the electronic monitoring that had been a condition of her pre-trial release. The probation officer confirmed counsel's representations. The District Court agreed to the modifications.

On February 25, 2008, Thornhill's probation officer filed a Supplemental Petition on Supervised Release (Third Petition). This new petition alleged that Thornhill had again tested positive for marijuana on three occasions in January and February of 2008, thereby violating conditions of supervised release stemming from her 2003 Conviction. The Third Petition also referenced Thornhill's guilty plea to the 2007 information, which established the commission of a federal crime.

On March 28, 2008, the District Court conducted both a sentencing hearing for the 2007 Conviction and a hearing on the First, Second, and Third Petitions, which alleged violations of the terms of her supervised release on the 2003 Conviction. Defense counsel offered several exhibits intended to provide insight into Thornhill's personal circumstances, including a fourteen page, single-spaced report from clinical psychologist Jolie S. Brams, Ph.D.

Dr. Brams's report was thorough. She noted that, contrary to an earlier presentence report, Thornhill had a significant history of psychiatric issues as a child. This history included hospitalizations, and noted " a complete lack of parental concern or nurturing." The report also described a history of sexual abuse at the hands of a family member which had resulted in her placement into foster care. Thornhill's marriage was similarly marked by physical and mental abuse. Dr. Brams opined that Thornhill had many of the signs and symptoms of posttraumatic stress disorder and that her " mental health difficulties impacted her ability to deal with her life in a consistently efficacious manner, cloud[ed] her judgment, and made her more vulnerable to [the] manipulations of her husband." Dr. Brams described at length the impact

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of the domestic violence Thornhill experienced and characterized her extended family situation as " toxic." The report highlighted the limited resources available to help Thornhill.

According to Dr. Brams, Thornhill had some insight into her predicament, and she opined that there could be a " good prognostic outcome if the correct resources are put in place." The report concluded by stating:

Appropriate psychiatric treatment is also crucial, and she has demonstrated a willingness to comply and recognizes her need for these services. She clearly wants to have a " normal" life, but has had little opportunity to learn how to create one. However, underneath a history of dysfunction appears to be a young woman who has the potential to change.

Defense counsel also provided the District Court with a six page, single-spaced supplemental report from Dr. Brams. The supplemental report discussed Thornhill's progress over the previous six months. Dr. Brams opined that

Thornhill's life is as stable as it likely has ever been, and while she recognizes the support of her probation officer, attorney, and counselor, in reality it is Ms. Thornhill who has generally dealt in an appropriate manner with her life, as an adult, parent, employee, and citizen. It is important for the Court to note that she has done so in the face of continuing stressors, and immense family dysfunction with purposeful threats to her emotional and physical safety by various family members.

The supplemental report advised that Thornhill was employed part time as a licensed nursing assistant. According to Dr. Brams, Thornhill was receiving counseling services and complying with her medication regime.

Thornhill's family continued to present obstacles for her, especially those created by her abusive husband. Dr. Brams noted that Thornhill was concerned about who would care for her children if she were to be incarcerated. And Thornhill expressed a belief that the progress she had made would be negated if she were to be incarcerated. Dr. Brams opined that Thornhill " has done well during the last few months," making " solid and positive recovery from many traumatic events."

Beyond her written reports, Dr. Brams testified at the hearing. She acknowledged that Thornhill had used marijuana, but noted that it was on a therapeutic basis when she had run out of her medication and when she " was under a great deal of stress." According to Dr. Brams, Thornhill did not use marijuana " for recreational purposes." Thornhill's probation officer also testified about her progress following the 2007 Conviction.

After hearing the testimony, the District Court imposed sentence. Looking at a guideline range for bank fraud of eight to fourteen months of imprisonment, the Court granted a substantial downward variance based on Thornhill's diminished mental capacity and her responsibility for raising her two sons. He sentenced her to one day of imprisonment, imposed a five-year term of supervised release, and directed that she pay restitution to National City Bank.

The hearing then turned to the violations alleged in the First, Second, and Third Petitions. Thornhill admitted the allegations in the petitions, and the government encouraged the judge to impose a within-guideline sentence of...

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