U.S. v. Schmidt, 95-10440

• Citation: 99 F.3d 315
• Decision Date: 29 October 1996
• Docket Number: No. 95-10440,95-10440
• Parties: 96 Cal. Daily Op. Serv. 7892, 96 Daily Journal D.A.R. 13,077 UNITED STATES of America, Plaintiff-Appellee, v. Lonnie G. SCHMIDT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 315

99 F.3d 315

96 Cal. Daily Op. Serv. 7892, 96 Daily Journal

D.A.R. 13,077

UNITED STATES of America, Plaintiff-Appellee, v. Lonnie G. SCHMIDT, Defendant-Appellant.

No. 95-10440.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 14, 1996.

Decided Oct. 29, 1996.

Matthew C. Bockmon, Assistant Federal Public Defender, Sacramento, CA, for defendant-appellant.

Daniel S. Linhardt, Assistant United States Attorney, Sacramento, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, District Judge, Presiding. D.C. No. CR-88-00114-LKK.

Before: BOOCHEVER, JOHN T. NOONAN, Jr., and THOMPSON, Circuit Judges.

BOOCHEVER, Circuit Judge:

The district court found that Lonnie G. Schmidt ("Schmidt") violated the terms of his supervised release and probation by failing to turn over financial records requested by his probation officer. The district judge sentenced Schmidt to 90 days in jail for the probation violation and a concurrent sentence of one year and one day for the supervised release violation. Schmidt appeals, and we affirm.

On April 12, 1990, Schmidt received a sentence later reduced to a 33 month prison term and to a consecutive three-year term of supervised release, for conspiracy to impede and impair the Internal Revenue Service ("the Supervised Release Case"). The fraud involved selling "putative trusts" in unincorporated business organizations, which he in turn used to help others fraudulently conceal income and assets. This prison term expired on June 25, 1992.

On September 6, 1990, Schmidt was sentenced to four years in jail and to a five-year term of probation for conspiracy and failure to file currency transaction reports ("the Probation Case"). This conviction again centered on a conspiracy to defraud. Schmidt, acting as a financial institution, converted cash into cashier's checks and failed to report transactions involving substantial sums of money. This practice allowed his clients to evade the notice of the Internal Revenue Service. Schmidt's prison term for these offenses expired on April 20, 1993.

On November 8, 1994, Schmidt's probation officer filed a petition for warrant or summons for alleged supervised release violations, including failure to provide requested financial information. The district court held a hearing on May 18, 1995, to determine whether Schmidt had committed the alleged violations.

According to the probation officer, Schmidt claimed that he earned a salary of approximately $2,000 per month from April 1993 through December 1993 working as a manager at Jack London Graphics. The only address that Schmidt ever provided for Jack London Graphics was his own home address. Schmidt was also the person who signed and issued his salary checks from Jack London Graphics.

At the revocation hearing, Schmidt explained that much of the money he reported earning from Jack London Graphics was actually money he received from prisoners he helped as a paralegal. Schmidt said that he had placed the money in the Jack London Graphics account because he had no other account available. Schmidt had not previously In response to a pre-hearing request made by his probation officer, Schmidt refused to provide his telephone records, citing his family's first amendment rights. He also did not provide the probation officer with personal financial records or those relating to Jack London Graphics. Schmidt asserted that his boss at Jack London Graphics, Ron Anderson, refused to turn over the requested business records on advice of counsel. Anderson, however, never appeared to support Schmidt's assertion.

mentioned his work as a paralegal to the probation officer.

On August 29, 1995, the district court found that Schmidt violated the terms of his supervised release by failing to turn over financial records requested by the probation officer. On October 3, 1995, the probation officer indicated that he still did not know what Schmidt was doing and therefore could not perform his duties. The district court then revoked Schmidt's term of supervised release and sentenced Schmidt to jail for one year and one day.

1. The Jurisdictional Challenges

"Jurisdiction is a question of law subject to de novo review." United States v. Neville, 985 F.2d 992, 994 (9th Cir.), cert. denied, 508 U.S. 943, 113 S.Ct. 2425, 124 L.Ed.2d 646 (1993).

A. Jurisdiction to Revoke Probation

Because Schmidt has completed his 90-day sentence for the probation violation, we first consider whether his appeal is moot. If an imposed sentence "may have collateral consequences for a defendant in any possible future sentencing, the appeal from such a sentence, even if already served, is not moot." United States v. Dickey, 924 F.2d 836, 838 (9th Cir.), cert. denied, 502 U.S. 943, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991). While the 90-day sentence cannot have a direct effect on any future sentence imposed on Schmidt in federal court, it could indirectly affect a future sentence. The federal Sentencing Guidelines account for criminal history in determining appropriate sentence ranges. Section 4A1.2 (k) of the Guidelines instructs that "[i]n the case of a prior revocation of probation ... add the original term of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used to compute the criminal history points...." In this case, Schmidt's underlying sentence of 33 months already warrants the maximum of three points allocated to a single sentence of imprisonment exceeding one year and one month. See U.S.S.G. § 4A1.1(a). The 90 days added to that sentence will not change the number of criminal history points assessed. A future district court may, however, weigh the revoked probation and resulting sentence against Schmidt when deciding discretionary issues such as where within the applicable range a sentence should fall. Likewise, a future state court may be permitted to consider the sentence when imposing a new term of imprisonment.

We conclude that in accordance with the Dickey criterion, Schmidt's appeal from the 90-day sentence for probation violation is not moot. Schmidt's argument, however, fails on the merits.

Schmidt argues that no warrant or summons was issued prior to the expiration of his term of probation, and consequently the district court lacked jurisdiction to revoke his probation pursuant to 18 U.S.C. § 3565(c). Section 3565(c) permits a court to revoke a term of probation after that term has expired only if, prior to that expiration, a warrant or summons has been issued on the basis of an alleged violation of a condition of the probation. 18 U.S.C. § 3565(c). We reject Schmidt's argument because the requirements of section 3565(c) were satisfied.

On September 6, 1990, Schmidt was sentenced to a five-year term of probation. The term of probation therefore was not due to expire until September 6, 1995. Because the district court revoked Schmidt's term of probation on October 3, 1995, one month after the sentence of probation expired, the district court had to comply with the conditions of section 3565(c). As noted above, section 3565(c) permits a court to revoke a term of probation after that term has expired only if, prior to the expiration, a warrant or summons has been issued on the basis of an Schmidt contends that no warrant or summons was issued because the district court file contains no such document. Although no such document is in the district court file, de novo review of the district court record reveals that a summons was issued as required by 18 U.S.C. § 3565(c).

alleged violation of a condition of the probation.

On October 3, 1994, almost one year before Schmidt's term of probation was due to expire, Schmidt's probation officer filed a petition for warrant or summons for alleged probation violations. On October 12, 1994, the district judge ordered that a summons be issued. The docket sheet reflects that on October 18, 1994, a summons was issued for Schmidt to appear for a hearing on November 8, 1994. The district court minutes and the reporter's transcript reflect that Schmidt was present for the hearing held on November 8, 1994 and that he denied the alleged probation violations. At the hearing, Schmidt also acknowledged receipt of the petition for summons filed by Schmidt's probation officer.

Based on this evidence, we find that a summons was issued on October 18, 1994, almost one year before the term of probation expired on September 6, 1995. Consequently, we conclude that the district court had jurisdiction to revoke Schmidt's probation on October 3, 1995, pursuant to 18 U.S.C. § 3565(c).

B. Jurisdiction to Revoke the Term of Supervised Release

Schmidt also argues that no warrant or summons was issued prior to the expiration of his term of supervised release, and consequently the district court lacked jurisdiction to revoke his supervised release pursuant to 18 U.S.C. § 3583(i). Section 3583(i) permits a court to revoke a term of supervised release after that term has expired only if, prior to the expiration, a warrant or summons has been issued on the basis of an alleged violation of a condition of the supervised release. 18 U.S.C. § 3583(i). ¹ We reject Schmidt's argument because section 3583(i) did not apply to the revocation of supervised release in the present case.

Schmidt was released from prison for the crime that resulted in the term of supervised release on July 25, 1992. Because Schmidt was subject to a three-year period of supervised release, he contends that the period of supervised release expired on July 25, 1995. This contention is incorrect.

On July 25, 1992, although Schmidt was released from jail in the Supervised Release Case, Schmidt was still in jail for the crime he committed in the Probation Case. In fact, Schmidt was not released from confinement in the Probation Case until April 20, 1993. Because "[a] term of supervised release does...