U.S. v. Butler–acevedo

• Decision Date: 31 August 2011
• Docket Number: 09–2624.,Nos. 09–2623,s. 09–2623
• Citation: 656 F.3d 97
• Parties: UNITED STATES of America, Appellee,v.Jessie BUTLER–ACEVEDO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

656 F.3d 97

UNITED STATES of America, Appellee,

v.Jessie BUTLER–ACEVEDO, Defendant, Appellant.

Nos. 09–2623

09–2624.

United States Court of Appeals, First Circuit.

Heard May 2, 2011.Decided Aug. 31, 2011.

Anita Hill Adames, for appellant.Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez, United States Attorney, and Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.TORRUELLA, Circuit Judge.

Jessie Butler–Acevedo (“Butler”) appeals from two concurrent five-year sentences following the revocation of supervised release, pursuant to 18 U.S.C. § 3583(e). Butler argues that the district court committed procedural error in imposing the statutory maximum sentences available. For the reasons stated below, we affirm.

I. Background

Butler pleaded guilty in 2000 to two drug-related conspiracies. At the sentencing following the guilty plea, the district court imposed two concurrent ten-year sentences with subsequent five-year terms of supervised release, also to be served concurrently. In 2008, Butler was released from custody and began his supervised release.

The supervised release was not successful. Approximately fourteen months after Butler's release, the U.S. Probation Office (“USPO”) filed a motion notifying the court of four violations; a later filing supplemented the initial motion, reporting six additional violations. At his revocation hearing, Butler admitted to these ten violations,¹ which ranged in severity from failing to obtain lawful employment to associating with individuals engaged in the trafficking of narcotics.² Although the recommended sentence under the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) was three to nine months of incarceration,³ the court ultimately sentenced Butler to sixty months in each case, which was the statutory maximum sentence available because the underlying offenses were Class A felonies. See 18 U.S.C. § 3583(e)(3). Butler now appeals these sentences.

II. Discussion

Butler argues that his sentencing was procedurally flawed because the district court failed to consider the factors set out in 18 U.S.C. § 3553(a) that it was required to consider under 18 U.S.C. § 3583(e). He also contends that the sentence should be vacated because the district court was not clear about what sentence it was imposing. We address each argument in turn after providing the relevant legal background.

A. Standard of Review

“We review revocation sentences for abuse of discretion.” United States v. McInnis, 429 F.3d 1, 4 (1st Cir.2005). In doing so, we examine “both the procedural and the substantive propriety of a challenged sentence.” United States v. Santiago–Rivera, 594 F.3d 82, 84 (1st Cir.2010).

B. Legal Framework for Revocation

A court may revoke a defendant's supervised release and impose a term of incarceration. See 18 U.S.C. § 3583(e). Before revocation, the court must weigh a number of factors borrowed from traditional sentencing considerations. See id. These factors include, among others, the history and characteristics of the defendant, the need to provide effective correctional treatment, and the need to avoid sentencing disparities among similarly situated defendants. See id. § 3553(a)(1), (a)(2)(D), (a)(6).

The Sentencing Guidelines provide for advisory ranges of incarceration following revocation. These ranges are based on the severity of the violation of the terms of supervised release and the defendant's criminal history. See U.S.S.G. § 7B1.4(a). The statutory maximum sentence available varies depending on the underlying crime, ranging from five years for a Class A felony to one year for any crime that is not at least a Class D felony. 18 U.S.C. § 3583(e)(3). Regardless of its decision, the district court must leave a sufficient record for an appellate court to review. See United States v. Franquiz–Ortiz, 607 F.3d 280, 282 (1st Cir.2010) (“[W]e need a record that provides a basis for evaluating the district court's exercise of its broad authority.”).

C. Consideration of the 18 U.S.C. § 3553(a) Factors

Butler argues that the district court gave no consideration to the required section 3553(a) factors. The government responds that the district court sentenced the defendant after contemplating these factors, and we agree.

Specifically, Butler contends that the district court did not sufficiently consider his “history and characteristics,” as required by 18 U.S.C. § 3553(a)(1). In explaining why it was departing from the Guidelines range and imposing a sixty-month sentence in Butler's first case, the district court made the following statement:

Having considered the lack of Mr. Butler's disposition to comply with even the minimum simplicity of submitting monthly supervision reports—according to the probation officer, the last time she saw him was on December 27, 2008. She did not see him again until August 17, 2009, when he gave the urine sample and it was positive to the use of marijuana.

He has failed to contact his probation officer reporting any change of address.

Coupled not only with his unavailability but also having absconded, aggravated by his drug use and intensified by his refusal to accept drug treatment, the Court finds that a term of imprisonment at the upper end of the recommended policy statement is in order.

In imposing the concurrent five-year sentence in Butler's second criminal case, the court said that it had “considered the nature of the offender's original offenses, ... as well as the responsible conduct and total absence of interest to exert any effort towards compliance, which is what has again brought [Butler] before this Court.” Given this record, we cannot say that the district court failed to consider Butler's history and characteristics, even though it did not explicitly refer to these factors. Cf. United States v. Manzanares, Nos. 10–50124, 10–50126, 435 Fed.Appx. 366, 367, 2011 WL 3279836, at *1 (5th Cir. Aug. 2, 2011) (noting, in reviewing for plain error, that “[a]lthough the district court did not expressly state that it had considered the 18 U.S.C. § 3553(a) factors, the court's comments implicitly indicate[d] that it considered,” among other things, “the history and characteristics of the defendant” (quoting 18 U.S.C. § 3553(a)(1)) (internal quotation mark omitted)). That the district court handed down a harsher sentence than Butler desired does not reveal an inattentiveness to his history and characteristics, but rather that it weighed them differently than Butler did.

In addition, Butler suggests that the district court failed to consider the 18 U.S.C. § 3553(a)(2)(D) factors, arguing that the court did not allow him to benefit from educational or vocational training or from substance abuse treatment programs when it refused to sentence him to a Guidelines term of imprisonment followed by supervised release. Section 3553(a)(2)(D) is a consideration among many, and does not require the court to grant certain requests; the fact that the district court chose not to sentence Butler according to his counsel's recommendation does not establish that it failed to consider the relevant factors.

Lastly, Butler claims that the court failed to consider potential sentencing disparities, as required by section 3553(a)(6). Although the court may not have specifically referenced this factor directly, “it is not required to address [each] factor[ ], one by one, in some sort of rote incantation when explicating its sentencing decision.” United States v. Dixon, 449 F.3d 194, 205 (1st Cir.2006) (reviewing a post-conviction sentence). The court subsumed sentencing disparity concerns within its overall decision. The fact that the court sentenced Butler to a sixty-month term does not, by itself, demonstrate that it failed to consider the relevant factors. ⁴

D. District Court's Misstatement Regarding the Sentence

Butler finally argues that the district court's record was contradictory and that we should remand so that it may clarify its decision. Butler suggests that the record was unclear as to whether he was being sentenced to sixty months of supervised release or sixty months of incarceration. We disagree.

The district court first sentenced Butler to a five-year term of imprisonment based on the violations in criminal case number 99–232. It then said the following:

Upon release from confinement, you shall be placed on supervised release under the following conditions.

You shall not commit another federal, state, or local crime and not possess firearms, controlled substances, comply with the standard[ ] conditions of supervised release.

You shall enter into an inpatient or outpatient substance abuse treatment program for evaluation and[ ]/or treatment.

You shall submit to urinalysis.

After the five-year period, then there will be no more supervision.

The district court then moved on to criminal case number 99–269 and imposed a term of five years, “to be served concurrently with the sentence in the other...