U.S. v. White Face

• Decision Date: 07 September 2004
• Docket Number: No. 04-1030.,No. 03-4043.,No. 03-4059.,No. 04-1527.,No. 04-1239.,03-4043.,03-4059.,04-1030.,04-1239.,04-1527.
• Citation: 383 F.3d 733
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cornell WHITE FACE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. George Charles Hawk Wing, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gene Alan Rossman, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Warren Red Cloud, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Joseph Evans, Defendant — Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

383 F.3d 733

UNITED STATES of America, Plaintiff-Appellee, v. Cornell WHITE FACE, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. George Charles Hawk Wing, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Gene Alan Rossman, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Warren Red Cloud, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Joseph Evans, Defendant — Appellant.

No. 03-4043.

No. 03-4059.

No. 04-1030.

No. 04-1239.

No. 04-1527.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2004.

Filed: September 7, 2004.

Appeal from the United States District Court for the District of South Dakota, Richard H. Battey and Karen Schreier, JJ.

Gary G. Colbath, Jr., argued and briefed, Rapid City, SD, for appellant.

Jonathan Allen Kobes, argued, Asst. U.S. Attorney, Rapid City, SD (Gregg S. Peterman, Asst. U.S. Attorney, Rapid City, SD, for White Face, Carolyn G. Royce, Asst. U.S. Attorney, Rapid City, SD, for Hawk Wing, Mark A. Vargo, Asst. U.S. Attorney, for Rossman and Evans, Jonathan Allen Kobes, for Red Cloud, on the brief), for appellee.

Before WOLLMAN, HEANEY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Appellants violated the conditions of their supervised release and each was sentenced after revocation to a longer period than recommended in Chapter 7 of the United States Sentencing Guidelines Manual. They appeal and seek resentencing, contending that the district courts departed from the guidelines without notice and written statement of reasons. We affirm.

In 1990 the Sentencing Commission adopted policy statements in Chapter 7 which suggest penalties for violations of supervised release. See United States Sentencing Guidelines [U.S.S.G.] ch. 7, pt. B, introductory cmt. The Sentencing Commission explained that it chose to issue advisory policy statements for the revocation of supervised release because they provide the district court with "greater flexibility" than a guideline. U.S.S.G. ch. 7, pt. A, § 3(a); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993). Although it indicated it would in the future issue guidelines for the revocation of supervised release, see U.S.S.G. ch.7, pt. A, § 3(a), it has not yet done so.

Appellants contend that the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act), Pub.L. No. 108-21, 117 Stat. 650 (Apr. 30, 2003) (codified in scattered sections of 18, 28, and 42 U.S.C.), added new requirements for revocation sentencing and that the district courts departed from the sentencing guidelines by not sentencing within the Chapter 7 range and did so without notice and written reasons. They also argue that the district court failed to consider the statutory sentencing factors in 18 U.S.C. § 3553(a). They request remand with instructions to sentence within the Chapter 7 range or to give notice of intent to depart from that range and provide written reasons. The government counters that the Chapter 7 policy statements are not binding, that the district court was not required to give written reasons for a revocation sentence, and that the district court adequately considered the § 3553(a) factors.

In each case before the district court the defendant admitted that he had violated conditions of supervised release. Supervised release was revoked for each after the PROTECT Act went into effect, and each was sentenced to a longer period than the range suggested in Chapter 7. In all cases the revocation sentence was within the statutory maximum, however.¹ Each appellant timely filed a notice of appeal.

Cornell White Face was convicted of the class C felony of sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153 & 2243, and sentenced to serve 15 months with 2 years of supervised release. While on supervised release, White Face failed to participate in a residential agreement and in sex offender treatment and to follow his probation officer's instructions. The district court² admonished White Face for not returning to his supervision facility and for his "cavalierish attitude" toward the conditions of his release, revoked his supervised release, and sentenced him to 12 months incarceration and 12 months of supervised release. The suggested Chapter 7 range for White Face was 3 to 9 months, U.S.S.G. § 7B1.4(a), and he moved to correct his sentence on the ground that the district court had not complied with the requirements of the PROTECT Act and had departed from the guidelines without notice and written statement of reasons. The district court filed an amended judgment containing a written Revocation Statement of Reasons which identified the aggravating factor that White Face had "exerted very little effort to comply with the conditions of supervised release" and reimposed the original revocation sentence.

George Charles Hawk Wing was originally sentenced to 121 months with a 2 year term of supervised release for sexual abuse, a class C felony, in violation of 18 U.S.C. §§ 1153 & 2242. (The sentence was later reduced to 72 months after the government filed a Rule 35(b) motion.) Hawk Wing admitted that while on supervised release he had used alcohol, committed an assault, and operated a vehicle while under the influence. Upon revocation, he was sentenced to 24 months incarceration without supervised release; his Chapter 7 range was 3 to 9 months. At sentencing the district court noted that Hawk Wing had been unsuccessful in his previous treatment programs and that it would impose a sentence to "protect other people during [that] time."

Gene Alan Rossman was originally sentenced to 24 months imprisonment and five years of supervised release for the class A felony of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). While on supervised release Rossman consumed alcohol, failed to submit a required urine sample, and possessed and used methamphetamine. Rossman was sentenced to 24 months incarceration and 24 months supervised release; his suggested Chapter 7 range was 3 to 9 months. The district court at the revocation sentencing stated

[Y]ou continue to sabotage the court's efforts to provide successful supervision.... [C]onfinement would provide a period of time where you would be forcibly drug-free. And that confinement should be long enough so that you get yourself dried out from this addiction and perhaps come to know that you do have the ability, with assistance, to return to the community as a good and productive member of society.

Rossman moved to correct his sentence. The district court filed an amended judgment containing a written Revocation Statement of Reasons which stated that Rossman had consistently sabotaged efforts to provide successful supervision and that confinement could help him fight his drug addiction. The district court reimposed the original revocation sentence.

Warren Red Cloud received a 144 month prison sentence and 4 years of supervised release for the class A felony of second degree murder, in violation of 18 U.S.C. §§ 1111(a) & 1153. While on supervised release, Red Cloud had consumed alcohol, used marijuana, failed to complete a substance abuse program, failed to participate in a community corrections program, and committed an assault. The district court determined that based on Red Cloud's conduct and for the protection of society, a 48 month revocation sentence was appropriate even though he had a 5 to 11 month range under Chapter 7. The district court stated, "You're going to have to make it on your own. You are wasting the time of good people who are trying to help those folks who want to be helped."

Joseph Evans was sentenced to 24 months and 4 years of supervised release for the class C felony of distribution of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) & 860(a). Evans admitted that while on supervised release he had possessed and used a controlled substance. He was sentenced to 18 months without supervised release; his suggested Chapter 7 range was 8 to 14 months. The district court³ made reference to Evans' extensive criminal history, his continued use of controlled substances despite numerous attempts at treatment, and his continued criminal conduct while on supervised release. The court told Evans, "If you want to use drugs and if you want to commit assault, that's your choice, but you are going to sit in jail for it.... So far you haven't shown any inclination at all that you want to quit using drugs." Evans filed a motion to correct his sentencing alleging violations of the PROTECT Act, and the district court denied it.

We review questions of statutory interpretation de novo. See United States v. Sumlin, 317 F.3d 780, 781-82 (8th Cir.2003). When there is no applicable sentencing guideline, as in the case of a revocation sentence, we review to determine whether the sentence was plainly unreasonable. See 18 U.S.C. § 3742(e)(4). A district court's decision to sentence a defendant to a longer term than suggested by Chapter 7 is reviewed for an abuse of discretion. See United States v. Martin, 371 F.3d 446, 449 (8th Cir.2004) (rejecting argument that under PROTECT Act de novo standard of review applies to a revocation sentence exceeding the suggested range in U.S.S.G. § 7B1.4(a)).

Congress has set standards for revocation of supervised release. A district court may return a defendant to prison upon finding by a preponderance of the evidence that any condition of supervised release was violated. 18 U.S.C. § 3583(e). The district court should consider the factors listed in 18 U.S.C. § 3553(a) in determining the length of the term and the conditions of supervised release. 18 U.S.C. §§ 3583(c) & (e). These factors include: the nature and circumstances of the offense the need for the sentence to provide just punishment for the offense, deter criminal conduct, protect the public, and provide the defendant with educational or...