U.S. v. Thomas

• Decision Date: 30 May 1991
• Docket Number: No. 90-3053,90-3053
• Citation: 934 F.2d 840
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth L. THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 840

934 F.2d 840

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth L. THOMAS, Defendant-Appellant.

No. 90-3053.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 15, 1991.

Decided May 30, 1991.

Luis F. Sanchez, Asst. U.S. Atty., Robert L. Michels, Chicago, Ill., for plaintiff-appellee.

Carl M. Walsh, Chicago, Ill., Andrew B. Spiegel, Wheaton, Ill., for defendant-appellant.

Before WOOD, Jr., and KANNE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

After serving a period of incarceration for his violations of the income tax laws, defendant Kenneth Thomas began to serve a five-year term of probation. ¹ As spelled out by the sentencing order, that term was contingent upon compliance with a number of conditions. Thomas, however, appeared unwilling to comply with these conditions, and this attitude prompted the probation office to request a status hearing before the district court.

At that hearing, on September 22, 1989, the government filed a motion to revoke Thomas's probation. Attached to the motion was a special report by Thomas's probation officer, Joseph Tylenda, which asserted that Thomas had violated three conditions of his probation; he had failed to submit monthly reports to the probation office, had failed to work regularly at a lawful occupation, and had failed to make payments on a $10,000 fine. On September 12, 1990, the district court conducted a hearing on the government's motion. ²

To support its request for revocation, the government submitted Tylenda's report and also produced a witness. Dave Harper, another probation officer, testified about the preparation, maintenance, and interpretation of special reports prepared by the probation office and also applied that background knowledge to Tylenda's report. Thomas, who was represented by counsel, was then permitted to cross-examine Harper. Thomas was also given the opportunity to present evidence and was apprised of his right to testify. He chose not to testify, however, and did not otherwise avail himself of the opportunity to present a defense or to offer any mitigating circumstances.

After arguments by counsel, the district court found that Thomas had violated the conditions of his probation by failing to submit monthly reports and by failing to work regularly at a lawful occupation. ³ The district court then announced, "I am going to reject the Government's motion to revoke probation, but on this violation, I am ordering that the defendant will serve 30 days [of jail time] ..., and upon his release, he will continue on probation until its termination date...." Hearing Transcript at 24. The district court thereafter entered the following minute order:

Hearing on rule to show cause why probation should be revoked. Evidence heard. The government's motion to revoke porbation [sic] is denied. However, the court finds that the defendant has violated conditions (three and six) of his probation and orders that defendant's probation be modified as follows: IT IS [H]EREBY ORDERED that the defendant shall serve thirty (30) days in custody and upon release from custody, defendant shall remain on probation....

On appeal, Thomas takes issue with both prongs of his restructured sentence. He first contends that the district court exceeded its authority by "modifying" his probation to include a term of incarceration. Thomas concedes that the district court had authority under 18 U.S.C. Sec. 3653 ⁴ to revoke his probation and thereafter to impose a split sentence. Under his reading, however, the district court refused to revoke his probation and, thereafter, modified it to include a period of incarceration. This action, Thomas argues, was impermissible because "[p]robation must be revoked before any sentence depriving [him] of his liberty may be imposed." Thomas also contends that he had an absolute right to reject continued probation. Neither of these contentions requires reversal.

Thomas's initial argument hinges upon our willingness to read the third sentence of the district court's order as an absolute refusal to revoke probation. By its terms, however, the third sentence merely denies a motion to revoke probation; it does not reject the possibility that revocation may nevertheless be appropriate. This observation is relevant, moreover, because a motion to revoke probation is oftentimes offered and interpreted as a request that the defendant be taken into custody and confined in jail for the remainder of his or her sentence. And indeed, the government took exactly this position before the district court. The government did not ask the district court to revoke probation and impose a split sentence; it asked the district court to convert Thomas's term of probation into a pure term of incarceration. Hearing Transcript at 18.

When viewed against this backdrop, the district court's order cannot be read in the manner suggested by Thomas. The district court's refusal to grant the government's motion appears to us as nothing more than a refusal to replace probation with a pure term of incarceration; the district court was merely indicating that it did not share the government's view as to how to address Thomas's behavior. That response left open the possibility that probation could be revoked and replaced with a split sentence, and it is this course that was ultimately taken. ⁵ While in hindsight the district court could have worded its order in a manner that more clearly expressed this intention, that failure does not constitute reversible error.

Even if Thomas were correct in his interpretation of the district court's order, and even if the district court's "modification" were impermissible, Thomas's argument for reversal would still fail. Under longstanding doctrine, an appellate court may affirm on any ground that finds support in the record. See, e.g., Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157, 82 L.Ed. 224 (1937) (Brandeis, J.); DeBruyne v. Equitable Life Assur. Soc'y, 920 F.2d 457, 464 n. 10 (7th Cir.1990) (citing Dairyland Financial Corp. v. Federal Intermediate Credit Bank, 852 F.2d 242, 244 (7th Cir.1988)). Here, the government requested a probation revocation hearing and Thomas received a hearing with all of the procedural attributes specified in rule 32.1 of the Federal Rules of Criminal Procedure. See FED.R.CRIM.P. 32.1(a)(2) (outlining procedural requirements for probation revocation hearings). After the government presented its evidence and Thomas presented no evidence whatsoever, the district court found that he had violated the conditions of his probation. Thomas has never claimed that this finding, if valid, would not allow the district court to revoke his probation. He also concedes that the district court, upon revocation, had the authority to impose a split sentence such as the one that he received. ⁶ Accordingly, even if the district court did not actually revoke Thomas's probation before imposing a split sentence, this court could modify the district court's order to achieve that result and then affirm the order as modified. ⁷

As to Thomas's assertion that he had an absolute right to reject the probation element of his restructured sentence, it would appear that this court has never directly addressed the question. An argument similar to Thomas's was raised in United States v. Atlantic Richfield Co., 465 F.2d 58, 59 (7th Cir.1972), but was ultimately left unresolved. Since that time we have twice quoted the following language from United States v. Mitsubishi Int'l Corp., 677 F.2d 785, 788 (9th Cir.1982): "A defendant generally may reject probation and elect to have a sentence imposed." See United States v. Warner, 830 F.2d 651, 657 (7th Cir.1987); United States v. Alexander, 743 F.2d 472, 479 (7th Cir.1984). Warner and Alexander, however, merely mentioned the quote from Mitsubishi in passing; they were not actually addressing the issue now before this court.

Mitsubishi itself offers no real reasoning (it does cite cases but they do not prove helpful, see infra note 9), and the other federal appellate courts offer little more in the way of useful guidance. In Cooper v. United States, 91 F.2d 195, 199 (5th Cir.1937), a panel of the Fifth Circuit addressed a probationer's contention that "probation, like pardon, may be refused by the convicted person" and rejected it with the observation that the predecessor of section 3653 "vest[ed] a discretion in the Court, not a choice in the convict." ⁸ Cooper was a 1937 decision, but a more recent Fifth Circuit opinion has reaffirmed that holding. See United States v. Howard, 577 F.2d 269, 271 (5th Cir.1978) ("defendant has no right to refuse probation and demand an immediate sentence"). ⁹

The Fifth Circuit's position is not without logic. It is the district court, not the defendant, who is given the task of determining the sentence for a crime. "[W]hen satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby," the district court may suspend a term of incarceration and place the defendant on probation "for such period and upon such terms and conditions as the court deems best." 18 U.S.C. Sec. 3651 (emphasis added). This scheme makes eminent sense when one recalls that a defendant is normally quite biased regarding the manner in which he or she should be sentenced.

Thomas's claimed right also raises problems of consistency. Presumably all defendants would prefer one form of sentence over another. Some defendants, for example, might prefer a fine over either incarceration or probation. Other defendants, in fact most, find incarceration more onerous than its alternatives. These defendants have no recourse based on their personal preference, yet Thomas would have us hold that defendants receiving a term of probation have an absolute and unchallengeable right to reject it. He has not attempted, however, to offer any justification for this...