U.S. v. Felix, 92-3169

• Decision Date: 07 June 1993
• Docket Number: No. 92-3169,92-3169
• Parties: UNITED STATES of America, Appellee, v. Kingsley FELIX, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 550

994 F.2d 550

UNITED STATES of America, Appellee, v. Kingsley FELIX, Appellant.

No. 92-3169.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 16, 1993.

Decided June 7, 1993.

Frank Schulte, Legal Intern, Minneapolis, MN, argued (Virginia G. Villa, on brief), for appellant.

Douglas R. Peterson, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Kingsley Felix appeals the district court's ¹ decision to revoke his supervised release. We affirm.

I.

In 1989, Felix was arrested for his involvement in a bank fraud scheme. Eventually he pled guilty in United States District Court for the District of Minnesota to use of a false social security number. See 42 U.S.C. § 408(g)(2) (1988). The district court sentenced Felix to serve a one-year term of imprisonment followed by a three-year term of supervised release. Felix completed his term of imprisonment in August 1989 and was immediately turned over to authorities in Norfolk, Virginia, where he appeared before and was convicted in a Virginia state court on pending state bank fraud charges. The Commonwealth of Virginia turned Felix over to the custody of the Immigration and Naturalization Service (INS), and the INS deported Felix to Nigeria on July 3, 1990.

Despite the deportation order, Felix returned to the United States. His exact date of return is unclear, but we know that he must have arrived in the United States after July 3, 1990, the date of his deportation, and before October 31, 1991, when he was arrested in Florida. In February 1992, Felix pled guilty in Florida federal district court to two counts of bank fraud. The Florida district court sentenced Felix to a 20-month term of imprisonment and a five-year term of supervised release.

In July 1992, Felix was ordered to return to Minnesota to appear before the Minnesota district court that had sentenced him on the social security fraud conviction. At this hearing, the district court found that Felix had violated the condition of his supervised release that he not commit another federal, state, or local crime. As a result, the district court revoked Felix's supervised release and imposed an 18-month term of imprisonment to be served consecutively to the prison term imposed by the federal district court in Florida. On appeal, Felix asserts that he did not receive notice of the conditions of his supervised release and therefore that the district court lacked the authority to revoke his supervised release on the basis that Felix had violated one of the conditions.

II.

A district court may, and in most cases is required by the Sentencing Guidelines to, impose a term of supervised release to be served after imprisonment as a part of a federal defendant's sentence. 18 U.S.C. § 3583(a); U.S.S.G. § 5D1.1. If a court does impose a term of supervised release, "[t]he court shall order, as an explicit condition of supervised release, that the defendant not commit another Federal, State, or local crime during the term of supervision." 18 U.S.C. § 3853(d); see also U.S.S.G. § 5D1.3(a). The district court included this condition as a requirement of Felix's term of supervised release. See Judgment Including Sentence Under the Sentencing Reform Act ("Judgment") at 3-4, United States v. Felix, No. 4-88-113(01) (D.Minn. Mar. 2, 1989).

When imposing a term of supervised release, the district court must comply with 18 U.S.C. § 3583(f), which reads as follows:

The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject, and that is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.

18 U.S.C. § 3583(f). Felix argues that because the district court failed to carry out this directive, the court was therefore powerless to revoke his term of supervised release when Felix violated the condition that he not commit another crime during his term of supervision.

The purpose behind the requirement that the court order a written statement of the conditions of supervised release be furnished to the defendant is to provide "a guide for the defendant's conduct and for such supervision as is required." 18 U.S.C. § 3583(f). Because the ultimate goal is notice and guidance for the defendant, we decline to impose a rule that failure to order or to provide a written statement automatically results in the inability of the sentencing court to revoke supervised release based on a violation of one of the conditions. See United States v. Ramos-Santiago, 925 F.2d 15 (1st Cir.) (despite failure to order written statement of conditions of supervised release, the "essentials" of the notice requirement were met by attaching the conditions of supervised release to the copies of the sentence sent to both defendant and defense counsel), cert. denied, --- U.S. ----, 112 S.Ct. 129, 116 L.Ed.2d 96 (1991); United States v. Johnson, 763 F.Supp. 900 (W.D.Tex.1991) ("[d]espite the lack of any evidence that [defendant] received a written copy of the terms of his supervised release," defendant understood he was not to commit any federal, state, or local crime and as a result his supervised release was properly revoked). The question before this court, therefore, is whether Felix received adequate actual notice that, as a condition of his supervised release, he must not "commit another Federal, State, or local crime."

The parties agree that the district court failed to order the probation officer to provide Felix with a written statement of conditions to which his term of supervised release would be subject. The district court did not read the conditions of the supervised release verbatim to Felix at the sentencing hearing, and the record does not indicate that Felix received a copy of the judgment and sentence, which set forth the exact terms of his supervised release. See Judgment at 3 ("While on supervised release the defendant shall not commit another Federal, state, or local crime, and shall comply with the standard conditions that have been adopted by this court (set forth on the following page)."); Standard Conditions of Supervision, Judgment at 4 ("While the defendant is on probation or supervised release pursuant to this Judgment: 1) The defendant shall not commit another federal, state or local crime."). Presumably because Felix was in the custody of the INS and was so quickly deported after the Virginia state court conviction and never returned to Minnesota for supervision, the federal probation officer also did not conduct an in-person interview and thus was unable to discuss with Felix the conditions under which he was expected to live for the next three years. The only actual notice we can be sure Felix received of the conditions, therefore, was what the district court said to him at the sentencing hearing when imposing sentence.

At the sentencing hearing, the district court told Felix that he was to serve a 12-month term of imprisonment to be followed by a three-year term of supervised release. The court further explained that supervised release was "like probation," and admonished Felix as follows: "I will tell you, sir, that you had better not mess up on my probation. And it would be a very bad idea for you to do so." Sentencing transcript at 16. At the end of the sentencing hearing, Mr. Felix stated to the court "I promise--I promise I'll do my very best to stay clean, sir. Thank you." Id. at 17. The court responded: "Good luck to you. You behave yourself." Id. Mr. Felix acknowledged the court's statements with "Thank you, sir." Id. This dialogue indicates that the district court provided Felix with oral notice that the court expected him to remain law-abiding during his term of...