United States v. Booker

• Decision Date: 28 March 2023
• Docket Number: 22-7000
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD JOE BOOKER, JR., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DONALD JOE BOOKER, JR., Defendant-Appellant.

No. 22-7000

United States Court of Appeals, Tenth Circuit

March 28, 2023

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00037-JFH-1)

Dean Sanderford, Assistant Federal Public Defender (Virginia L Grady, Federal Public Defender, with him on the briefs) Denver, Colorado, for Defendant-Appellant.

Linda A. Epperley, Assistant United States Attorney (Christopher J Wilson, United States Attorney, with her on the brief) Muskogee, Oklahoma, for Plaintiff-Appellee.

Before MORITZ, SEYMOUR, and EBEL, Circuit Judges.

EBEL CIRCUIT JUDGE

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised release, the district court revoked his supervision and sentenced him to twenty-four months in prison, the statutory maximum. For the first time on appeal, Mr. Booker argues that the district court erroneously based his sentence for violating supervised release on retribution whereas the statute governing the revocation of supervised release implicitly prohibits considering retribution. See 18 U.S.C. § 3583(e).

We review Mr. Booker's sentence for plain error. Clarifying the scope of 18 U.S.C. § 3583(e), we hold that district courts may not modify or revoke a term of supervised release based on the need for retribution. Because the district court quoted from a § 3553(a) sentencing factor representing retribution, we conclude that the district court erred. But even assuming this error was plain, Mr. Booker has not shown that it affected his substantial rights because we conclude there is no reasonable probability that his sentence would have been shorter had the court not erred. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM Mr. Booker's twenty-four-month sentence.

I. BACKGROUND

In 2010, Mr. Booker pled guilty to one count of felon in possession, 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced in the Northern District of Oklahoma to thirty-three months of imprisonment and three years of supervised release. Mr. Booker's term of supervision began in 2020 after a concurrent state sentence ended. After a series of transfers, the Eastern District of Oklahoma took jurisdiction over his supervised release in March 2021.

Mr. Booker's probation officers first petitioned to revoke his supervised release on May 3, 2021. The district court issued a warrant for his arrest that day. The probation officers amended the petition twice, with the final amended petition approved by the district court on June 29, 2021. The final amended petition alleged that Mr. Booker had violated several conditions of supervised release by

• violating traffic laws by speeding, driving without a license or insurance, and refusing to submit to sobriety testing,

• testing positive for amphetamine or methamphetamine use on four separate occasions,

• being found in possession of methamphetamine when he was booked into jail on the revocation warrant,

• leaving the Eastern District of Oklahoma without permission on three separate occasions,

• failing to notify his probation officer about contacts with law enforcement on three separate occasions, and

• failing to appear for drug testing on five separate occasions.

Mr. Booker was arrested for these alleged violations and made an initial appearance in the Western District of Oklahoma on September 21, 2021, where he waived his right to an identity hearing. The Magistrate Judge ordered him transported back to the Eastern District of Oklahoma that day. In the Eastern District of Oklahoma, Mr. Booker waived his preliminary hearing at an initial appearance on September 28, 2021. A final revocation and sentencing hearing was set for December 16, 2021.

In a sentencing memorandum filed before the final revocation hearing, Mr. Booker indicated that he intended to stipulate to the alleged violations and requested a guideline sentence. The memorandum explained that Mr. Booker suffered from "elements of schizophrenia" that "he need[ed] to treat with appropriate prescribed drugs rather than . . . illegal drugs." R Vol. 1 at 57. It also indicated that Mr. Booker was prepared to undertake mental health treatment.

The district court conducted the final revocation hearing on December 16, 2021. At the hearing, the court stated that it had calculated the guideline range to be 5 to 11 months in prison and that the statutory maximum sentence was a 24-month term of imprisonment. The court recited the factual bases for Mr. Booker's charged supervised release violations, and Mr. Booker admitted to the violations. Mr. Booker apologized to the court, admitted that he had been self-medicating with illegal substances including methamphetamine, and represented that he was presently taking Risperdal and engaging in mental health treatment in detention.

The court then revoked Mr. Booker's supervised release and sentenced him to the statutory maximum, a 24-month term of imprisonment. The court justified the sentence as follows:

The Court has considered the violation policy statements in Chapter 7 of the United States Sentencing Guideline manual now in effect and the guidelines in general. The Court views these policies and guidelines as advisory in nature for the purpose of these proceedings. Nevertheless, the Court has considered the sentencing guidelines along with all the factors set forth in Title 18, U.S.C., Sections 3553(a), which are applicable in the revocation context pursuant to Title 18, U.S.C. 3583(e), and I've done this to reach an appropriate and reasonable sentence in this case.

Specifically, I've considered the nature and circumstances of the numerous violations and the violation conduct and the history and characteristics of Mr. Booker. Defendant has shown repeated disregard for rules and condition of his supervised release. He has continued to commit new law violations and he has illegally possessed controlled substances, which he acknowledges. He has on multiple occasions failed to report to his law enforcement contact as required by the conditions of his supervision and he has also travelled outside the district of supervision without permission of his probation officer.

Based upon these factors, a sentence outside the advisory guideline range is necessary to serve as an adequate deterrent to this defendant as well as others, promote respect for the law, and provide just punishment for the offense, and provide protection for the public.

R. Vol. 2 at 22-23 (emphasis added). Mr. Booker appeals, arguing that the district court's reference to the need to "promote respect for the law, and provide just punishment for the offense" was reversible error in the context of a supervised release revocation proceeding. (Aplt. B. 5.) We agree that the district court erred, but affirm because Mr. Booker has not shown that the error affected his substantial rights.

II. STANDARD OF REVIEW

Because Mr. Booker did not raise this argument below, we review for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). Plain-error review requires Mr. Booker to "establish that (1) the district court committed error; (2) the error was plain-that is, it was obvious under current well-settled law; (3) the error affected the [d]efendant's substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." United States v. Perez-Perez, 992 F.3d 970, 974 (10th Cir. 2021) (quoting United States v. Dalton, 918 F.3d 1117, 1129-30 (10th Cir. 2019) (alteration in Perez-Perez)).

III. DISCUSSION

A district court may revoke a term of supervised release and impose a term of imprisonment "when a person violates a condition of his or her supervised release." United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004). "However, in doing so the district court is required to consider" a subset of the § 3553(a) sentencing factors incorporated by reference into the statute governing the modification and revocation of supervised release. Id.; 18 U.S.C. § 3583(e). Section 3583(e) provides that a district court "may" terminate, modify, or revoke a term of supervised release "after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)." 18 U.S.C. § 3583(e).

Notably absent from this list is § 3553(a)(2)(A), which directs courts to consider the

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense[.]

Section 3553(a)(2)(A) represents "retribution," one of the "four purposes of sentencing" that courts must consider when fashioning a sentence during the initial sentencing process. Tapia v. United States, 564 U.S. 319, 325 (2011).

The district court justified Mr. Booker's sentence for violation of supervised release in part as "necessary to serve as an adequate deterrent to this defendant as well as others, promote respect for the law, and provide just punishment for the offense, and provide protection for the public." R. Vol. 2 at 23. By referencing the need to "promote respect for the law, and provide just punishment for the offense," the district court quoted from § 3553(a)(2)(A), the omitted factor.

Mr Booker argues that the district court erred by quoting from § 3553(a)(2)(A) because its omission in § 3583(e) means that district courts may not consider it when modifying or revoking a term of supervised release. In a series of unpublished opinions, we have acknowledged that our circuit has not decided whether it is error to consider this "retribution" factor when...