U.S. v. Marvin

• Decision Date: 03 February 1998
• Docket Number: No. 96-2721,96-2721
• Citation: 135 F.3d 1129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey B. MARVIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1129

135 F.3d 1129

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey B. MARVIN, Defendant-Appellant.

No. 96-2721.

United States Court of Appeals Seventh Circuit.

Argued April 11, 1997.

Decided Feb. 3, 1998.

John W. Vaudreuil (argued), Larry Wszalek, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Joseph L. Sommers (argued), Madison, WI, for Defendant-Appellant.

Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-appellant, Jeffrey B. Marvin, upon pleading guilty to one count of wire fraud, was convicted in 1993 and sentenced to twenty-seven months' imprisonment, followed by three years' supervised release subject to the usual standard, as well as special, conditions. In November of 1995, after completing his term of confinement, he commenced serving the supervised release portion of that sentence. Over the next six months, Marvin repeatedly violated the conditions and terms of his supervised release, and a warrant was issued to bring him before the court, which was done on July 2, 1996. The following day, July 3, the district court conducted a revocation sentencing hearing, at which Marvin stipulated to eight separate release violations. The judge subsequently terminated Marvin's release privileges, and sentenced him to two years' imprisonment, the statutory maximum under 18 U.S.C. § 3583 for a supervised release violation by an individual whose original offense of conviction was a class C or D felony. ¹ The court thus deviated upward from the applicable five to eleven month sentencing range set forth in § 7B1.4 of the United States Sentencing Guidelines ("U.S.S.G."). Marvin appeals his sentence. ² We affirm.

I. BACKGROUND

In 1993, defendant-appellant, Jeffrey B. Marvin ("Marvin"), pled guilty to, and was convicted of, one count of wire fraud, 18 U.S.C. § 1343, for having swindled five individuals out of their investments, totalling $72,043, in a fictitious self-help manual marketing scheme. ³ He was ordered to serve a twenty-seven month period of confinement, followed by three years' supervised release subject to certain special and standard conditions, as well as to make full restitution of the $72,043 no later than six months prior to the expiration of his supervised release. The special written terms of Marvin's release, approved by the court on December 9, 1993, provided that "the defendant [Marvin] is to ... not obtain any loans, open new checking and/or savings accounts, obtain or use credit cards, nor enter into any financial agreements without advance permission of the supervising U.S. Probation Officer." The standard conditions of Marvin's supervision further stipulated, inter alia, that "[w]hile the defendant is on ... supervised released pursuant to this judgment:

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2) [he] shall not leave the judicial district without the permission of the court or probation officer; [and]

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12) [he] shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer."

Marvin was made aware of the fact that once he was discharged from prison, any violation of these conditions could result in the revocation of his supervised release and additional imprisonment.

On November 20, 1995, Marvin completed his initial twenty-seven month term of incarceration and commenced serving his period of supervised release. Almost immediately after Marvin was released from prison, he began to flout the law when, on November 22, 1995, he left the Western District of Wisconsin without permission from either the court or his probation officer. He engaged in the same type of violative conduct on three more occasions during the following six month period. ⁴ Also during the month of November 1995, Marvin, with the assistance of his mother, applied for, received and used a Bank One Visa credit card, without receiving permission from the federal court authorities, in contravention of special condition number five of his supervised release. One of the two Violation Reports submitted to the court in support of the Government's "Petition for Revocation" detailed Marvin's seemingly fraudulent conduct with respect to his procurement and use of the credit card:

On November 24, 1995, Mr. Marvin advised Officer Baskfield [Marvin's parole officer] his mother had opened a credit card account in his name for use. He was told he would not be allowed to use this account, given his previous history of credit card fraud.

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On January 2, 1996, Officer Baskfield received a credit card report which revealed Mr. Marvin opened a Bank One credit card account in June 1995.... As of February 21, 1996, Mr. Marvin had a balance of $504.71....

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On May 6, 1996, Officer Baskfield received a call from Amy Kroprude, Fraud Investigator for Bank One in Columbus, Ohio, advising there may be fraudulent activity on Mr. Marvin's Visa card.... Ms. Kroprude advised [Baskfield that] his [Marvin's] debt is currently $7,000, and he appears to be giving false addresses.

Ms. Kroprude further indicated in the past, Mr. Marvin tried to claim fraud on his account from an electronic store in which he attempted to make purchases of electronic equipment; however, the owner of the store knew Mr. Marvin and identified him as the individual who actually made the purchases. ⁵

But Marvin's disrespect for the court's orders did not end there; he continued to violate the terms of his supervised release during the ensuing months. On or about March 29, 1996, he executed a sales agreement to purchase a 1994 Chevrolet Corvette without the prior approval of his probation officer, despite the fact that special condition number four in his probation release form set forth an explicit prohibition against "enter[ing] into any financial agreements without advance permission of the supervising U.S. Probation Officer." The Violation Reports also recounted the suspicious circumstances surrounding the Corvette purchase agreement. According to Rory Burton ("Burton"), owner of Blue Diamond Automobile Sales, Marvin arrived at his dealership, "flashed a wad of cash," and requested to test-drive the Corvette. Burton allowed Marvin to do so, but required him to leave his Jeep Cherokee as security for the Corvette's prompt, safe return. The defendant drove the Corvette for two days before Burton was able to locate him and convince him to bring it back. Marvin thereafter executed the sales agreement on the vehicle, but never returned to the dealership. Marvin would later testify in a family court proceeding that he had been acquainted with Burton before the incident and that Burton had loaned him the Corvette for purposes of exercising his visitation rights, since his automobile was in need of repair at the time. Burton, however, told a police officer, one Deputy Shadick, that he did not know Marvin prior to letting him test drive the vehicle, and that "Marvin ... inform[ed] Mr. Burton if anyone called regarding his Jeep, he should tell them it was in for repairs."

Marvin's final two supervised release violations, also recited within the Violation Reports as well as during his July 2, 1996, initial appearance, ⁶ arose when he failed to notify his probation officer within seventy-two hours of "being arrested or questioned by a law enforcement officer" on December 20, 1995, and June 23, 1996, respectively. Specifically, the former incident transpired when Marvin entered a restaurant armed with a baseball bat and approached a man with whom he had just engaged in a disagreement. The police arrived as Marvin was poised to strike his intended victim. Marvin was charged with disorderly conduct, and when he failed to appear in court therefor as summoned on May 14, 1996, a warrant was issued for his arrest. ⁷ As to the July 23rd episode:

A woman ... who is apparently a girlfriend of the defendant's, told police that when she tried to leave the defendant's apartment, that the defendant would not let her use the telephone to call for a ride. The defendant shut [the woman's] leg in a door, and then threw her against a wall. And then worst, the worst thing he, Mr. Marvin, wrapped a telephone cord around [the woman's] neck, pushed her to the floor, and began choking her.

(Initial App. Trans., R. 61, at 5). This final incident brought the final count of Marvin's violations to eight, and the total number of conditions breached to four. As noted above, the sentencing judge was appraised of the above contemptuous acts in two Violation Reports, one dated June 6, and the other June 26, 1996, which Marvin's probation officer submitted to the court. Due to Marvin's numerous probation violations, a warrant was issued for his arrest. He was taken into custody and brought before the court on July 2, 1996, for a bail-detention hearing.

When Marvin appeared before the court on July 3, 1996, for his revocation-sentencing hearing, the judge began by advising him "that in the event of revocation it may be that a sentence of two years could be imposed." The court then asked Marvin whether he was ready to proceed; his attorney responded, "Yes, Your Honor, he is." The defendant went on to orally stipulate to each of the eight aforementioned violations of his supervised release. ⁸ The stipulations were expressed in general terms, rather than in the same minute detail as set forth in the above-quoted Violation Reports. As such, a reading of the facts adduced and stipulated to at sentencing would not have led one to conclude that Marvin had again engaged in unlawful activity similar to his wire fraud offense of conviction. For example, the stipulations concerning Marvin's conduct with respect to the Visa credit card, Corvette automobile, and police encounters, merely recounted that Marvin violated the terms of supervised release when he "opened on his behalf and used [a] Bank One Visa credit card[;] ... complet[ed] a purchase to buy form ... to purchase a 1...