U.S. v. Dillard
| Decision Date | 01 November 1990 |
| Docket Number | No. 89-3056,89-3056 |
| Citation | 910 F.2d 461 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jerome R. DILLARD, also known as Carl Williams, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John W. Vaudreuil, Daniel P. Bach, Asst. U.S. Attys., Madison, Wis., for plaintiff-appellee.
David Engel, Sidley & Austin, Chicago, Ill., David L. Mandell, Madison, Wis., for defendant-appellant.
Before CUDAHY and EASTERBROOK, Circuit Judges, and SNEED, Senior Circuit Judge. *
On September 18, 1989, the district court revoked defendant-appellant Jerome Dillard's term of supervised release and imposed a sentence of imprisonment of one year and one day. Dillard appeals and we affirm.
This case began on August 18, 1988, when Dillard pleaded guilty to falsely representing a social security account number as his own with the intent to deceive a bank, in violation of 42 U.S.C. Sec. 408(g)(2) (1982). He was sentenced to 90 days imprisonment, which he completed on January 24, 1989, and a two-year term of supervised release. Dillard's term of supervised release required him to abide by fifteen standard conditions and two special conditions.
On May 3, 1989, Dillard's probation officer filed a violation report with the district court, specifically alleging that Dillard had violated the conditions of his supervised release by leaving the judicial district without permission and by not reporting for drug abuse counseling and urine screening. The district court at that time decided that no judicial review would be necessary if Dillard henceforth complied fully with the conditions.
Four months later, on September 6, 1989, the probation officer filed a petition for judicial review, in which she alleged that Dillard had continued to miss drug counseling and urine screening appointments, that he had failed to report twice weekly to his probation officer as required, that he had failed to maintain regular employment in a lawful occupation, and that, although his August 10 urine test results had not yet been received, he admitted to using cocaine on August 9.
A hearing before the district court was set for September 13, 1989. At the hearing, the parties fixed by stipulation the dates on which Dillard had missed meetings with his probation officer and on which he had failed to appear for drug counseling and urine testing. 1 Dillard also stipulated to his violation of the travel restrictions and his employment status.
At the hearing, Dillard's attorney sought to emphasize the positive side to appellant's record. He asserted that Dillard had attended at least one appointment with his probation officer weekly, that he had attended the overwhelming majority of such appointments and that he missed most of his drug counseling and urine surveillance appointments at the same time he had missed meetings with the probation officer. The government asserted that Dillard falsely represented to his probation officer that he was satisfying Standard Condition No. 6, the employment condition, by working as a locksmith apprentice at a hardware store, Service Hardware. To confirm this representation, the government asserts that the probation officer called Service Hardware and was told by the cashier that no one by Dillard's name worked there. In response to this evidence, Dillard's attorney presented to the court an apprentice locksmith card issued to Dillard by Service Hardware, and asserted that Dillard's possession of the card revealed that "he has maintained sporadic involvement with Service Hardware as evidenced by this document."
The district court found that Dillard had violated the terms of his supervised release in the following respects: (1) he failed to "report to the probation officer as directed," (2) he failed to " 'work regularly at a lawful occupation unless excused by a probation officer,' " (3) he "falsely stated that he was working as a locksmith at the Service Hardware," (4) he failed to " 'participate in a drug abuse program, urine surveillance,' " (5) he "admitted cocaine use on August 9, 1989 and that testing by the PharmCem Laboratory confirmed this illicit drug use." The district court then revoked the term of supervised release and sentenced Dillard to a term of imprisonment of one year and one day.
Dillard's appeal raises several challenges to the district court's decision. He claims that the court's revocation of the supervised release was improper because it was based on inadequate evidence that Dillard violated the travel restriction and employment condition. He challenges the district court's imposition of a term of incarceration and the length of the sentence. Finally, Dillard claims that he received ineffective assistance of counsel at the revocation hearing and that the ineffectiveness prejudiced him before the district court.
We have jurisdiction of this appeal pursuant to 28 U.S.C. Sec. 1291 (1988).
Revocation of a term of supervised release is governed by 18 U.S.C. Sec. 3583(e)(3) (1988), which authorizes a district court to:
revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony.
(Footnote omitted.)
Our standard of review of a district court's decision to revoke a supervised release term is abuse of discretion. See United States v. Barber, 881 F.2d 345, 349 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990) (). 2
Dillard argues that certain of the facts found by the district court are not supported by a preponderance of the evidence. First, he states that it was not properly established that he had violated the travel and employment conditions of his supervised release. The district court actually did not make a specific finding that Dillard violated the travel restriction. Rather, it based its revocation decision on other grounds. These were, to repeat, Dillard's failure to regularly attend meetings with his probation officer, his failure to appear regularly for drug abuse and urine testing, his failure to work regularly at a lawful occupation, and his confirmed use of cocaine on one occasion. Dillard no doubt relies on the fact that the district court did, at one point, state that there were "two violation reports in this case," the second of which concerned the probation officer's report that Dillard "failed to tell her that he was driving a truck and was traveling outside of the area." However, no finding concerning this alleged violation was ever made. Therefore, it does not help Dillard to argue that the evidence does not properly show that he violated the travel restriction.
The district judge concluded, however, that Dillard did not "work regularly in a lawful occupation," as required by the terms of his supervised release. We see no error in this finding. The issuance and possession of a locksmith apprentice card proves nothing other than that Dillard initially signed up with Service Hardware and that Service Hardware was prepared to take him on as a locksmith apprentice. The card in no way demonstrates that Dillard was engaged in "regular" employment with Service Hardware. Even Dillard represented at the revocation hearing that the card revealed only that "he has maintained sporadic involvement with Service Hardware." That is not enough. "Sporadic" involvement does not constitute "regular" employment.
Dillard points to the alleged weaknesses of the government's proof. He says that his probation officer's call to Service Hardware was improperly documented. He hints that the person who indicated that Dillard did not work there might have not had accurate information. Yet, Dillard fails to produce any credible proof, such as pay stubs or an affidavit from a supervisor, that would show that he was a regular employee of Service Hardware. We thus hold that the preponderance of the evidence establishes a violation of the employment condition.
Moreover, Dillard's use of cocaine violated the first condition of his supervised release that he not "commit another federal, state or local crime." 3 That alone provided a sufficient basis for the district court's revocation of the supervised release. 4 We hold that the district court did not abuse its discretion in revoking Dillard's term of supervised release.
Dillard's principal challenges are directed at the imposition of a term of incarceration. He asserts that the district court failed to identify the factors on which it based its decision to impose a sentence of incarceration. Moreover, he contends that the violations of supervised release conditions were but failures to comply fully with "several technical requirements" of the release term.
A district court is required by 18 U.S.C. Sec. 3553(c) (1988) to "state in open court the reasons for its imposition of the particular sentence." See United States v. White, 888 F.2d 490, 495 (7th Cir.1989). In this case, the district court did so. The judge said:
[V]ery few of the people that are placed on probation or supervised release ever come back into court for any...
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...Id. at 487 n. 3. The Kindred court, in stating that "[k]nowing use of drugs is akin to possession," cited United States v. Dillard, 910 F.2d 461 (7th Cir.1990), as its sole authority. In Dillard, the Seventh Circuit affirmed a revocation of supervised release based upon the district court's......
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United States v. Lamirand, 11–6033.
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