U.S. v. Hofierka

• Decision Date: 16 May 1996
• Docket Number: Nos. 95-2151,95-2258,s. 95-2151
• Citation: 83 F.3d 357
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael A. HOFIERKA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronald Carl ANDREWS, a/k/a "Barracuda", Defendant-Appellant. Non-Argument Calendars. United States Court of Appeals, Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 357

83 F.3d 357

UNITED STATES of America, Plaintiff-Appellee, v. Michael A. HOFIERKA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Carl ANDREWS, a/k/a "Barracuda", Defendant-Appellant.

Nos. 95-2151, 95-2258

Non-Argument Calendars.

United States Court of Appeals,

Eleventh Circuit.

May 16, 1996.

James H. Burke, Jr., Asst. Fed. Public Defender, Jacksonville, Florida, for Appellant in No. 95-2151.

Thomas Morris, Charles L. Truncale, Asst. U.S. Attys., Jacksonville, Florida, Tamra Phipps, Asst. U.S. Atty., Tampa, Florida, for the U.S. in No. 95-2151.

William M. Kent, Asst. Fed. Public Defender, Jacksonville, FL, for Appellant in No. 95-2258.

James R. Klindt, Peggy M. Ronca, Asst. U.S. Attys., Jacksonville, FL, Tamra Phipps, Asst. U.S. Atty., Tampa, FL, for the U.S. in No. 95-2258.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, and HATCHETT and ANDERSON, Circuit Judges.

PER CURIAM:

This case comes to us on consolidated appeal. Appellants Michael A. Hofierka and Ronald Carl Andrews separately appeal the sentences imposed on them for violating the terms of their supervised release. In both cases, the sentencing judge exceeded the sentencing range set forth in Chapter 7 of the Sentencing Guidelines. See U.S.S.G. § 7B1.4(a). On appeal, appellants argue: 1) that the district court was bound by the Chapter 7 sentencing range and erred in imposing a sentence in excess of this range; and 2) that the district court erred in failing to provide notice of its intent to exceed the sentencing range. In addition, Andrews argues that the district court erred in its reliance on his state conviction in revoking his supervised release. ¹ We affirm.

I. BACKGROUND

A. Appellant Hofierka

In 1993, Hofierka pleaded guilty to making a false claim to an agency of the United States in violation of 18 U.S.C.A. § 287. On August 19, 1993, the district court sentenced him to nine months of imprisonment and three years of supervised release. As one of the terms of Hofierka's supervised release, the court ordered that he participate in a drug treatment program and refrain from using illegal drugs. Hofierka's term of supervised release began in May 1994, but by December of that year, revocation proceedings had begun.

The petition seeking revocation of his supervised release alleged that Hofierka violated the conditions of his release by using cocaine and failing to participate in a drug treatment program. At his revocation hearing, Hofierka admitted that he had been dismissed from his drug treatment program because of his drug use. The district court revoked Hofierka's supervised release and sentenced him to twenty-four months of imprisonment. ² The twenty-four-month sentence exceeded the applicable Chapter 7 sentencing range of seven to thirteen months. See U.S.S.G. § 7B1.4(a). The court imposed this sentence over Hofierka's objection that it exceeded the applicable range.

B. Appellant Andrews

In 1988, Andrews pleaded guilty to possession of marijuana, in violation of 21 U.S.C.A. § 844(a), and possession of cocaine with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1). The district court sentenced Andrews to imprisonment of sixty-three months and five years of supervised release. As one of the conditions of his supervised release, Andrews could not commit another federal, state, or local crime.

In October 1992, Andrews began his term of supervised release. Within one year, in September 1993, Andrews was arrested in Florida for violations of state law which included conspiracy to traffic in cocaine and possession of a firearm by a convicted felon. On October 19, 1993, Andrews pleaded guilty to these charges; however, he subsequently moved to set aside his plea. He argued that he had not been advised that the offense to which he pleaded guilty carried a fifteen-year mandatory minimum prison sentence and that the state court had improperly promised that his state sentence would run concurrently to any federal sentence he received for violating the terms of his supervised release. The state court denied Andrew's motion. His conviction was affirmed on appeal.

Meanwhile, on October 29, 1993, proceedings had begun in federal court to revoke Andrews' supervised release. At his final revocation hearing, Andrews refused to admit he had committed a violation of the terms of his supervised release. He argued that the denial of his motion to withdraw his guilty plea was pending before a state appellate court. The district court granted the government's motion for a continuance of the revocation hearing. ³ By the time the proceedings resumed, Andrews' conviction had been affirmed on appeal. He continued to argue, however, that his guilty plea was invalid for the same reasons he pressed before the state court.

In support of its contention that Andrews violated the terms of his supervised release, the government offered only Andrews' state judgment of conviction. Andrews did not challenge the fact of his conviction or the admission of the judgment into evidence. Instead, he offered a copy of his plea agreement into evidence. ⁴ Andrews argued that the plea agreement on its face proved that his state conviction was based upon an invalid guilty plea. ⁵ The district court rejected these contentions and found that Andrews had violated the terms of his supervised release. Andrews was sentenced to five years of imprisonment. ⁶ Before imposing this sentence, the court noted that Andrews had committed the violation within one year of beginning supervised release and that, based on this history, "that seems to be a course of conduct he periodically follows." The term of imprisonment imposed on Andrews exceeds the range of twenty-four to thirty months set forth in Chapter 7 of the Sentencing Guidelines. See U.S.S.G. § 7B1.4(a).

II. DISCUSSION

A. Sentences under Chapter 7

Hofierka and Andrews argue that the district court improperly imposed a sentence in excess of the range specified in U.S.S.G. § 7B1.4(a). Chapter 7 of the Sentencing Guidelines contains policy statements which provide ranges of imprisonment that a court may follow when revoking probation or supervised release. See U.S.S.G. Ch. 7, Pt. A, intro. We have unequivocally held that the Chapter 7 policy statements are merely advisory, i.e., they are not binding. United States v. Thompson, 976 F.2d 1380, 1381 (11th Cir.1992). Appellants argue that this holding has been undercut by two recent decisions of the Supreme Court: Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), and Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). This argument is frivolous as we have held that our rule in Thompson is unaffected by either Stinson or Williams. ⁷ United States v. Milano, 32 F.3d 1499, 1502-03 (11th Cir.1994).

Appellants go further, however, by arguing that the recent amendment of 18 U.S.C.A. § 3553(a)(4)(B) requires sentencing courts to follow the Chapter 7 policy statements. The Violent Crime Control & Law Enforcement Act of 1994, effective September 13, 1994, amended § 3553 to read, in relevant part:

(a) Factors to be considered in imposing a sentence.--The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider--

. . . . .

(4) the kinds of sentence and the sentencing range established for--

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing

Commission pursuant to section 994(a)(1) of title 28, United States Code, and that are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code;

(5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2) that is in effect on the date the defendant is sentenced;

....

(b) Application of guidelines in imposing a sentence.--The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described.

(new text underlined). Appellants argue that subsection (b) requires the sentencing court to impose a sentence within the range specified for a violation of probation or supervised release.

The Sixth Circuit in United States v. West, 59 F.3d 32 (6th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 486, 133 L.Ed.2d 413 (1995), recently rejected this argument. The court held that the amendment to § 3553 does not render the sentencing range in Chapter 7 mandatory. First, it found that, under the plain meaning of subsection (b), a sentencing court is only required to impose a sentence within the applicable guideline range. Id. at 35. The court held that because Chapter 7 is merely a policy statement and not a guideline, sentencing courts are not bound by it. Id. ⁸ We readily follow the court in West and adopt its reasoning. See also United States v. Escamilla, 70 F.3d 835 (5th Cir.1995).

The plain language of § 3553 indicates that the sentencing court, in imposing a sentence upon revocation of a defendant's supervised release, must at least consider the sentencing range prescribed by the Sentencing Commission's policy statements. The heading and text of subsection (b) make clear that its mandatory language refers only to those situations in which sentences are imposed pursuant...