U.S. v. Carr

• Decision Date: 31 August 2005
• Docket Number: No. 04-2208.,No. 04-1983.,04-1983.,04-2208.
• Citation: 421 F.3d 425
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Otis D. CARR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

421 F.3d 425

UNITED STATES of America, Plaintiff-Appellee, v. Otis D. CARR, Defendant-Appellant.

No. 04-1983.

No. 04-2208.

United States Court of Appeals, Sixth Circuit.

Submitted: July 7, 2005.

Decided and Filed: August 31, 2005.

ON BRIEF: Robert J. Dunn, Bay City, Michigan, for Appellant. Karen L. Reynolds, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

Otis D. Carr pled guilty in 1998 to misapplying the funds of a financial institution and was sentenced to 12 months in prison followed by five years of supervised release. In 2004, Carr's probation officer notified the district court that Carr was in violation of his supervised-release obligations. After the district court afforded Carr three different hearings in which to demonstrate that he was capable of complying with his obligations, the court revoked his supervised release and sentenced him to 16 months in prison followed by an additional 44 months of supervised release.

Carr argues on appeal that the district court (1) abused its discretion in revoking his supervised release and imposing a 16-month term of imprisonment, and (2) violated his due process rights in filing an amended sentencing order 23 days after the entry of the court's original judgment. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Carr was the owner of Broadway Builders, a construction company that received several fraudulent loans from a Detroit bank in 1995 and 1996. An acquaintance of Carr's, Major Taylor, was the bank loan officer who disbursed the funds. Together, Carr and Taylor converted the proceeds of these loans to their personal use. Much of Carr's share was spent at several Canadian casinos.

In 1998, Carr pled guilty to misapplying the funds of a federally insured financial institution, in violation of 18 U.S.C. § 656. Carr was sentenced to 12 months in prison in October of that year. After his term of imprisonment ended, he began a period of five years of supervised release in January of 2000. Carr was required to comply with certain conditions while on supervised release. Alleging that Carr had consistently failed to do so, his probation officer, Heather Rapotec, filed a petition with the district court in February of 2004. The petition charged Carr with (1) failing to make his monthly restitution payments of $400, (2) not maintaining regular employment in a lawful occupation, (3) being unavailable for home visits by his probation officer, and (4) neglecting to report a new arrest to his probation officer within 72 hours.

In March of 2004, at the first of Carr's three hearings in the district court, Rapotec was called to testify. She explained that she had made numerous attempts to bring Carr into compliance with the conditions of his supervised release, and that she had filed the petition with the district court only as a "last resort." Rapotec reported that Carr had missed at least one payment in 2000, that he had made only four of his monthly restitution payments in 2002 and again in 2003, and that he had made the two payments due to date in 2004. With respect to his failure to maintain regular employment, Rapotec said that Carr had given her documentation to support his claim that he was a diabetic and on disability for a knee injury. But when Rapotec called Carr's doctors in January of 2002 to see how long he would be disabled, she was told that he could return to work after four weeks of physical therapy.

Rapotec further testified that she had scheduled a home visit with Carr in March of 2002 to discuss his difficulties in making timely restitution and in maintaining regular employment. Carr called Rapotec on the day of the scheduled visit and informed her that he would be away from his house for a short time. Because Rapotec had previously arrived at Carr's home for planned visits only to discover that he was not there, she agreed to reschedule the visit for the next day. When Rapotec arrived for the rescheduled visit, however, Carr was not at home. Rapotec said that she moved the visit to a later date in April, but that Carr also missed this meeting.

Following Rapotec's testimony, the district court asked Carr how he wished to plead with respect to the four alleged violations. Carr pled guilty to failing to report to Rapotec within 72 hours after he was arrested on state-law charges in 2001, but insisted that he was not aware that he was required to do so as a condition of his supervised release. He pled not guilty to the remaining charges that he had failed to make monthly restitution payments, maintain regular employment, or be present for home visits with his probation officer. Although he did not claim to have made all of his restitution payments, Carr maintained that he was unable to do so because he could not find work in the only field for which he was qualified (construction) on account of his felony record, his age of 64 years, and his health problems. He insisted that the monthly restitution payments of $400 were simply too high for his income.

After hearing the testimony of Rapotec and Carr, the district court decided to continue the proceedings for a month. The court instructed Carr to keep a daily journal during the interim period and to "keep track of all his time. I want to know what he does with his time, which will include contacts and everything else. Keep track of every penny ... so we get some idea of what goes in and out." The court explained that it had decided to wait to rule on Carr's case "in fairness to him" because "maybe restitution is too high," and the journal would show if Carr had "complied in good faith" with the conditions of his supervised release.

When the violation hearing continued a month later, in April of 2004, the district court expressed displeasure with Carr for having kept an incomplete journal. Carr had failed to record all of his time and expenses, as directed by the district court, and omitted from the journal the fact that he had moved residences and obtained employment. The district court decided to give Carr one more opportunity to demonstrate that he was capable of complying with the terms of his supervised release, so it continued the hearing again and directed Carr to compile a "detailed" journal in the interim.

On June 10, 2004, before Carr's next hearing, Rapotec was at a Detroit casino and saw Carr there. When Rapotec confronted Carr at their next meeting, he denied having been at the casino. Rapotec then called and spoke with an official at the casino, who informed her that Carr had a "player's card." The government subpoenaed the records of the casino relating to the gambling activity reflected on this player's card, and learned that Carr had gambling losses of $13,000 in 2001, $15,000 in 2002, $11,000 in 2003, and $2,000 to date in 2004. These losses suggested that Carr had enough money to pay as much as $1,000 per month in restitution. When Rapotec confronted him with this evidence, Carr insisted that he had been to the casinos only a few times to eat dinner and that his friends were using his player's card to gamble.

At the third violation hearing in July of 2004, the district court was presented with this evidence of Carr's gambling habits. The district court also had before it Carr's journal entries for the past three months. Although the district court had instructed Carr to record all of his activities, there was no mention anywhere in his journal of his trips to the casino. The court was greatly troubled by this. Its concern was not that Carr had been going to the casino (because the court acknowledged that he was "entitled to some recreation"), but that he had lied in the journal that he presented to the court.

Recalling that Carr had earlier testified that he was attempting to make his restitution payments but did not have the economic resources to fulfill this obligation, the district court now concluded that it had been "conned" by Carr's misrepresentations, and that Carr "ha[d] not even come close to fulfilling the requirements of [his] supervised release." The court announced that it was revoking Carr's supervised release, telling him: "You've made no effort and it doesn't appear that you're going to make any effort to rehabilitate yourself and at this point you need further punishment." The court stated that it was aware that the suggested maximum sentence under the Sentencing Guidelines was nine months, but "that the guidelines are way too low in this case." After listing several reasons why it had concluded that the suggested sentence was inadequate, the court sentenced Carr to 16 months of imprisonment.

Following the pronouncement of Carr's sentence, a colloquy ensued between the court, the prosecutor, Rapotec, and counsel for Carr concerning the period of supervised release that would begin after Carr was released from prison. The court stated that it had not done the mathematical calculations, but that "the record [was] to reflect that the supervision is to follow for the maximum that's permissible under the law." Rapotec stated that this would be 44 months. The court said that this was "okay," and that Carr's counsel should inform the court if Carr contended that Rapotec's calculation was incorrect.

On July 20, 2004, the district court issued an order that sentenced Carr to 16 months of imprisonment. The order contained no term of supervised release. On August 13, 2004, however, the district court issued an amended order that included a 44-month term of supervised release. This timely appeal followed.

II. ANALYSIS

A. Standard of review

"We review a district court's actions in supervised release cases for abuse of discretion." United States v. Webb, 30 F.3d 687, 688 (6th Cir.1994). A district court's sentence of imprisonment upon revocation of supervised release should be affirmed "if it shows consideration of...