U.S. v. Pelensky

• Decision Date: 12 September 1997
• Docket Number: No. 2322,D,2322
• Citation: 129 F.3d 63
• Parties: UNITED STATES of America, Appellee, v. George A. PELENSKY, Defendant-Appellant. ocket 97-1265.
• Court: U.S. Court of Appeals — Second Circuit

Page 63

129 F.3d 63

UNITED STATES of America, Appellee, v. George A. PELENSKY, Defendant-Appellant.

No. 2322, Docket 97-1265.

United States Court of Appeals, Second Circuit.

Argued Aug. 4, 1997.

Decided Sept. 12, 1997.

Peter G. Neiman, Assistant United States Attorney for the Southern District of New York, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Dietrich L. Snell, Assistant United States Attorney for the Southern District of New York, of counsel), for Appellee.

John L. Pollok, Hoffman Pollok & Pickholz, LLP, New York City (Michael S. Pollok, of counsel), for Appellant.

Before: CALABRESI, CABRANES, and PARKER, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

Defendant-appellant George Pelensky appeals from a Judgment and Commitment Order filed on April 23, 1997 in the United States District Court for the Southern District of New York (Deborah A. Batts, Judge ), revoking his term of supervised release and sentencing him to 36 months in prison. Pelensky's principal arguments on appeal are: (1) the district court erred when it accepted his admission of supervised release violations without conducting the type of voluntariness colloquy required by Rule 11 of the Federal Rules of Criminal Procedure and Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 1711-13, 23 L.Ed.2d 274 (1969), when a court accepts a defendant's guilty plea; (2) Rule 32(b) of the Federal Rules of Criminal Procedure required the Probation Department to prepare a new presentence report, despite the fact that one had already been prepared before Pelensky's original sentencing hearing, prior to Pelensky's sentencing for violating the terms of his supervised release; (3) the court's sentence of 36 months in prison was unreasonable, and was imposed without due consideration of the policy statements found in Chapter Seven of the Federal Sentencing Guidelines; and (4) this sentence is invalid because it was imposed without notice to Pelensky of the court's intention to depart from the sentencing range recommended by these policy statements. We reject these arguments and affirm for the reasons set forth below.

I.

Pelensky pled guilty in the United States District Court for the Eastern District of Virginia, on April 12, 1992, to one count of conspiracy to possess with intent to distribute 100 grams or more of heroin. On June 12, 1992, the court sentenced Pelensky principally to a prison term of 63 months and four years of supervised release, with the special condition of substance abuse testing and treatment. After Pelensky cooperated with the government in prosecuting his co-conspirators, the court reduced his prison term to 24 months, but did not otherwise alter the original sentence. Pelensky was released from custody and began serving his supervised release term on February 3, 1994. Jurisdiction over his case was transferred to the United States District Court for the Southern District of New York, where Pelensky had established residence, on September 6, 1996.

Under the terms of his supervised release, Pelensky was required to submit to periodic drug testing. Pelensky tested positive for drug use on June 24, 1996, and again on August 8, 1996. On both occasions, when confronted by his probation officer, he denied having used drugs. During a drug test on August 22, 1996, Pelensky was discovered to be wearing an "intricate tubing system" designed to allow him to foil the test. He was referred to a drug detoxification clinic by his probation officer, but chose instead to travel outside the jurisdiction, in violation of the terms of his supervised release, to attend a one-day detoxification program of his choosing. Thereafter, Pelensky again twice tested positive for drug use. Finally, after Pelensky visited the Probation Department in what appeared to be a drug-induced stupor and failed to produce a urine sample for testing, the Department petitioned the district court to institute supervised release revocation proceedings, based on Pelensky's continued drug use and his refusal to seek treatment.

When Pelensky first appeared before the district court for a supervised release revocation hearing on November 12, 1996, the court acceded to Pelensky's request that he be released on his own recognizance and that the hearing be adjourned until November 25 so that he could enter a detoxification program. ¹ The court warned Pelensky, however, that he would be arrested if he did not appear at the Probation Department on November 14 for placement in a designated program. Pelensky nevertheless failed to show up at the appointed time, and the court promptly issued a bench warrant. Pelensky was brought before a magistrate judge on November 18, who again released him on the condition that he would immediately begin a detoxification program that the Probation Department had arranged for him to enter. This time, Pelensky did enter the treatment program.

On December 2, 1996, Pelensky appeared before Judge Batts for a hearing on the petition for revocation of his supervised release. At this hearing, Pelensky admitted to two of the instances of drug use charged in the Probation Department's petition, and to having further violated his supervised release by leaving the jurisdiction without permission. Pelensky's counsel requested that the court adjourn the proceeding without sentencing to allow Pelensky to enter a long-term residential drug treatment program. The court at first considered sentencing Pelensky to attend the residential program, noting that failure to attend would constitute a further violation of supervised release and would cause the court to impose a prison term. "[I]f he leaves the program," Judge Batts stated, "which I consider the carrot, we are back to the stick.... And I think it is only fair to say that would be the full amount of time he could be sentenced to prison.... If he comes back before me, I promise 11 months in prison." "Eleven months" was apparently a reference to the maximum sentence recommended by the Sentencing Guidelines' Chapter Seven policy statements for a person in Pelensky's Criminal History Category who commits supervised release violations of the type he committed. ²

The court ultimately decided not to impose sentence at the December 2, 1996, hearing, but to adjourn sentencing until March 3, 1997, so that Pelensky could enter and complete a long-term residential treatment program. In so doing, the court warned Pelensky that the consequences of failing to complete the program would be dire:

If there is any additional difficulty and you haven't been able to work it out with [the probation officer's] assistance or on your own, you are facing being sentenced to 11 months, and perhaps longer, depending upon what is permissible under the statute. (Emphasis supplied).

Pelensky left the treatment program after only one day. A new bench warrant was issued on December 3, 1996. Pelensky initially could not be located, but was finally arrested on March 18, 1997; a magistrate judge ordered that he be held in custody.

At the ensuing sentencing hearing on April 14, 1997, Judge Batts noted the five- to eleven-month range recommended by the Sentencing Guidelines' policy statements, but given Pelensky's continued drug use and his repeated disregard for the rehabilitation opportunities he had been given, decided to impose the statutory maximum of 36 months in prison. ³ Pelensky now appeals.

II.

Pelensky first argues that before the district court accepted his admission of supervised release violations, the court was required to engage in the type of voluntariness colloquy that, when a court accepts a defendant's guilty plea, is mandated by Rule 11 of the Federal Rules of Criminal Procedure ("Rule 11") ⁴ and the due process standard established in Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 1711-13, 23 L.Ed.2d 274 (1969). In the absence of a formal, on-the-record colloquy of the type required by Rule 11 and Boykin, Pelensky argues that he was improperly caused to waive the protections to which he was entitled under Rule 32.1 of the Federal Rules of Criminal Procedure ("Rule 32.1"), ⁵ governing revocation of probation or supervised release. We disagree.

We endorse the conclusion reached by the four circuits that have previously considered the applicability of Rule 11 in revocation proceedings, ⁶ none of which found a statutory or constitutional requirement of a voluntariness colloquy in such proceedings. See United States v. Rapert, 813 F.2d 182, 184-85 (8th Cir.1987); United States v. Stehl, 665 F.2d 58, 59-60 (4th Cir.1981); United States v. Johns, 625 F.2d 1175, 1176 (5th Cir. (Unit B) 1980); United States v. Segal, 549 F.2d 1293, 1296 (9th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977). ⁷

Rule 11 on its face applies only to the procedures a court must follow "[b]efore accepting a plea of guilty or nolo contendere," Fed. R. C rim. P. 11(c), and nothing in the advisory committee notes suggests the rule's applicability when a court accepts admissions of probation or supervised release violations. See Rapert, 813 F.2d at 184-85; Segal, 549 F.2d at 1296. The rule is addressed to "the taking of the plea, not the imposition of sentence or the revocation of probation," Segal, 549 F.2d at 1296, or supervised release. Although Congress remains free to amend Rule 11 if it wishes the rule to apply to the revocation of supervised release, it is not for a court to do so.

Moreover, the due process concerns that animated the Court's holding in Boykin--that a guilty plea must be supported by an affirmative, on-the-record showing of voluntariness and an awareness of the rights being relinquished, see 395 U.S. at 242-44, 89 S.Ct. at 1711-13--do not apply with equal force in the context of revocation of supervised release. Unlike guilty pleas, admissions to violations of supervised release are "not made in the course of a criminal trial and do...