U.S. v. Kirby

• Decision Date: 15 August 2005
• Docket Number: No. 04-6226.,04-6226.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary A. KIRBY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

418 F.3d 621

UNITED STATES of America, Plaintiff-Appellee, v. Mary A. KIRBY, Defendant-Appellant.

No. 04-6226.

United States Court of Appeals, Sixth Circuit.

Argued: April 27, 2005.

Decided and Filed: August 15, 2005.

ARGUED:

Nikki C. Pierce, Federal Defender Services of Eastern Tennessee, Greeneville, Tennessee, for Appellant. Michael E. Winck, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Nikki C. Pierce, Federal Defender Services of Eastern Tennessee, Greeneville, Tennessee, for Appellant. Gregg L. Sullivan, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: DAUGHTREY and GIBBONS, Circuit Judges; SARGUS, District Judge.^*

OPINION

GIBBONS, Circuit Judge.

Mary A. Kirby appeals from the district court's revocation of her supervised release and its subsequent imposition of twenty months imprisonment. At the revocation hearing, Kirby admitted that she violated certain terms of her supervised release, namely that she had left the judicial district, did not truthfully answer questions from her probation officer, and did not submit truthful reports to her probation officer. Kirby's probation officer also alleged that she had committed additional crimes by passing or attempting to pass several stolen checks. The probation officer testified to Kirby's additional criminal conduct at the revocation hearing. Based on this testimony, the district court found that Kirby had engaged in additional criminal conduct. The district court revoked Kirby's supervised release. It sentenced her to twenty months imprisonment, the statutory maximum, and an upward departure from the advisory policy statements set forth in the Sentencing Guidelines for her violations. Kirby filed a timely notice of appeal. For the following reasons, we affirm the district court's decision.

I.

Kirby was convicted of possession and theft of mail matter in violation of 18 U.S.C. § 1708 in the Northern District of Georgia. She was sentenced to eighteen months imprisonment to be followed by three years of supervised release. Kirby was released from prison on May 2, 2002, and her supervised release began on that day. Jurisdiction over Kirby's case was transferred to the Eastern District of Tennessee on January 23, 2003.

After her release from prison, Kirby started working at an Eckerd Drugs in Chattanooga, Tennessee. In November 2002, Kirby informed her probation officer that she had quit her job at Eckerd to begin working at Southern Medical Supply. In her written monthly report, she stated that she had been fired from Eckerd for missing too many days of work. Kirby's probation officer spoke with an Eckerd manager, who told the probation officer that Kirby had actually been terminated for making fraudulent refunds. Kirby's actions cost Eckerd $243.36. In lieu of prosecution, Eckerd agreed to accept a promissory note from Kirby for $243.36.

Kirby reported to the United States Probation Office after this incident. She initially denied taking the money from her employer; however, she eventually admitted both that she stole the money and that she did not provide truthful information to her probation officer. As a result of her breach of the conditions of supervised release, the government offered Kirby the option of halfway house placement instead of revocation of her supervised release. The court subsequently modified Kirby's supervised release on January 9, 2003, requiring her to reside at the Salvation Army Comprehensive Sanction Center for three months.

On March 27, 2003, Kirby was spotted taking a box containing thirty-six packs of Yu-Gi-Oh cards from the Golden Gallon in Chattanooga. Kirby did not pay for the items, which were valued at $143.64. She was arrested that same day and charged with theft of property.

On April 10, 2003, Kirby pled guilty to theft of property in the Hamilton County General Sessions Court. She was sentenced to eleven months and twenty-nine days, suspended upon payment of a fine and costs and conditioned on good behavior for eleven months and twenty-nine days.

Kirby's conviction in the Tennessee state court resulted in the revocation of her term of supervised release related to her federal conviction on May 5, 2003. She was sentenced to four months of imprisonment followed by thirty-two months of supervised release.

Kirby was released from the federal prison on July 29, 2003. She then began serving her second term of supervised release.

On August 17, 2004, Kirby's probation officer petitioned the court for a warrant for her arrest. The petition alleged that Kirby violated the terms of her supervised release by committing other crimes. Specifically, it alleged that Kirby cashed a stolen check in the amount of $2,892.40 at AmSouth Bank in Whitwell, Tennessee on July 1, 2004. Law enforcement authorities and bank officials issued a fraud alert on Kirby as a result of her passing this stolen check; the alert resulted in Kirby's being identified as having passed other stolen checks (valued at $985.47, $806.45, and $273.11) in Georgia during February and March 2004. Additionally, a surveillance video captured Kirby trying to pass a stolen check at a K-Mart in Dalton, Georgia in April 2004; K-Mart employees became suspicious and would not accept the check.¹

The petition also alleged that Kirby violated the conditions of her release by leaving the judicial district without permission of the court or her probation officer and by being untruthful in her monthly reports regarding whether she had left the judicial district. Store surveillance videos in Georgia showed that Kirby had traveled outside of the Eastern District of Tennessee. Kirby answered "no" to a question in her monthly supervision report asking if she had been outside of the judicial district.

Finally, the petition alleged that Kirby was untruthful with her probation officer. Specifically, Kirby told her probation officer that she had a trust fund established with her attorney valued at over $400,000, with the money coming from the sale of property owned by her mother. Kirby's attorney denied holding a trust for Kirby and stated that, as far as he knew, no trust fund existed containing money from the sale of property owned by Kirby's mother. The petition also indicated that Kirby was untruthful with her probation officer because she denied traveling out of the state and also denied passing any checks that were not payable to her.

The district court issued a warrant for Kirby's arrest and ordered Kirby to appear in court for a revocation hearing. At the revocation hearing, Kirby admitted that she violated certain terms of her supervised release, namely that she had left the district, did not truthfully answer questions from her probation officer, and did not submit truthful reports. These were Grade C technical violations, with a guideline range of three to nine months imprisonment. See U.S.S.G. § 7B1.4(a). Kirby invoked her Fifth Amendment right not to answer the court's question regarding whether or not she violated the terms of her supervised release by passing stolen checks. The alleged violation of state law was a Grade B violation with a guideline range of four to ten months imprisonment. Id.

The government called probation officer Anthony Green to testify about Kirby's criminal conduct. Green personally reviewed the surveillance tapes and identified Kirby as the person passing a stolen check at the AmSouth Bank in Whitwell, Tennessee and as the person passing stolen checks at several businesses in Georgia. Green also identified Kirby as the person attempting to pass a stolen check at the K-Mart in Dalton, Georgia and referenced the fact that the license plate number on the vehicle driven by the person attempting to pass the stolen check was registered to Kirby's husband. Green testified that law enforcement believed that the checks were stolen because they were made payable to companies rather than to the defendant. Some had been modified such that an individual's name was typed above the company name as a payee.

The district court found by a preponderance of the evidence that Kirby violated the conditions of her supervised release by passing stolen checks, leaving the district without permission, not submitting truthful reports, and not truthfully answering questions from the probation officer. As a result of these violations, the district court revoked Kirby's supervised release.

Kirby's attorney argued that Kirby should be sentenced below or within the guideline range of four to ten months of imprisonment. The government argued that Kirby should be sentenced above the recommended sentencing range at the statutory maximum of twenty months.² The district court agreed with the government. It stated:

Ms. Kirby, I've revoked you before and I gave you four months to be followed by 32 months of supervised release. And you were in for theft, basically, what's alleged, and as I've already concluded, has been proven here by a preponderance of the evidence that you have been cashing stolen checks. You were involved in other fraudulent activity the last time that you were here, the Eckerd's incident, and the Golden Gallon incident. And now a number of check incidents. And apparently, you haven't gotten yourself — you haven't got your head straight. And it's very frustrating to this Court to see you out doing the very same thing, the very same thing that you were originally convicted down there in Georgia. And this Court, this Court has to take action here, because the public needs to be protected from you because you're a threat to the public, to people who engage in financial transactions and people in retail stores and banks who cash checks, and, also, the businesses who write checks. We cannot have people engaged in this kind of conduct.

For these reasons, it concluded that the statutory maximum, rather than the recommended sentence in the policy statements, was appropriate for a sentence.

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