United States v. Kippers

• Decision Date: 21 June 2012
• Docket Number: No. 11–30414.,11–30414.
• Citation: 685 F.3d 491
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Joseph KIPPERS, also known as Uncle Joe Kippers, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

685 F.3d 491

UNITED STATES of America, Plaintiff–Appellee,

v.Joseph KIPPERS, also known as Uncle Joe Kippers, Defendant–Appellant.

No. 11–30414.

United States Court of Appeals,Fifth Circuit.

June 21, 2012.

Theodore R. Carter, III (argued), Diane Hollenshead Copes, Carol Loupe Michel, Asst. U.S. Attys., New Orleans, LA, for Plaintiff–Appellee.

Robin Elise Schulberg (argued), Gary V. Schwabe, Jr., Asst. Fed. Pub. Defenders, New Orleans, LA, for Defendant–Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH, GARZA and SOUTHWICK, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant–Appellant Joseph Kippers (“Kippers”) appeals the 48–month sentence the district court imposed upon revoking his probation. We AFFIRM.

I

Kippers was one of several people named in a multi-count indictment centered on a conspiracy to sell illegal drugs. The indictment charged Kippers in Count 1 with conspiracy to possess 500 grams or more of cocaine hydrochloride with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 21 U.S.C. § 846; in Count 2 with conspiracy to possess methamphetamine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 21 U.S.C. § 846; and in Count 5 with using a communication facility (a telephone) in committing conspiracy to possess cocaine hydrochloride with the intent to distribute it, in violation of 21 U.S.C. § 843(b). Kippers reached a plea agreement with the Government in 2008. Kippers pled guilty to Count 5, and in exchange, the Government dismissed him from Counts 1 and 2.

At sentencing, his guidelines range provided for ten to sixteen months in prison, one year of supervised release, and a $3,000 to $30,000 fine. Information in Kippers' presentence report (“PSR”), provided by Kippers and his sister, reflected a range of mental and physical conditions, including a mental health issue that was treated through psychotropic medications associated with thought disorders such as schizophrenia. The district court, expressly considering Kippers' mental and physical limitations, sentenced him below the guidelines range to three years of probation and imposed no fine, stating:

I don't see anything to be served considering his serious physical disabilities, his mental disabilities, and so forth, that there would be any good purpose served by putting him in prison, none of which is to lessen the seriousness of what you did, Mr. Kippers, and I hope we don't see you around here again.

Two years later, the probation office successfully petitioned the district court to issue a warrant for Kippers based on a violent incident that resulted in his arrest. At his revocation hearing, Kippers admitted to violating his probation by pleading guilty to simple assault.¹ Kippers asked the court not to revoke his probation but instead to impose additional, modified conditions on his existing probation. In support, he stressed that he had already spent about five months in parish custody due to the incident underlying his state court conviction (despite receiving only a ten-day sentence) and that he had served the first two years of his probation without any problems. The Government represented that Kippers' daughter, the victim of Kippers' assault, did not believe that imprisonment would do society or Kippers any good and that she had requested that the district court not revoke his probation but add an anger management condition.

The district court asked Kippers' daughter to explain the events underlying Kippers' probation violation. She testified that her father came over early in the morning while she and three of her five children were at home and entered the kitchen. She told the district court:

He had a big gas can in one hand. He walked over to the counter in the kitchen where my knife block was sitting and grabbed a knife and turned around and said that I would give him his money or he would blow our house up with me and the kids in it.

Kippers' daughter called the police and was able to get her children out of the house safely. Kippers ignored the police's demands to exit the house and came out only as they were about to enter with guns. Even after leaving the house, he continued to hold the gas can and ignored police's demands to surrender. The police tackled him to the ground.

The district court asked if anything had provoked Kippers. Kippers' daughter explained that she was allocated money from the BP oil spill settlement and told her father she would give him some money after receiving her check. The day before Kippers threatened to burn down her house, his daughter had received her check and deposited it. Kippers demanded the entire sum, but she refused to give him anything because the check had not yet cleared. Kippers' daughter testified:

He didn't even give me a chance to come to an agreement with him or offer him any of it before he basically demanded that I give him all of it, and then I didn't even have it to give to him that day. And he stormed off angry, and then next morning he arrived.

Before leaving the stand, Kippers' daughter added, “I just want to say that I love my dad and that I think he has problems mentally that he needs to address, and hopefully he'll get the help he needs so he can be a better person.”

The district court told Kippers that he had clearly violated the conditions of his probation and that his conduct was “very disturbing” and unjustifiable even in light of his “obviously ... serious mental health issues.” The district court added, “[B]ut for the fact that your daughter has said that she does not want you put in jail, I would be detaining you and putting you in jail today.” The district court informed Kippers that it would instead give him a “break” and would order a two-year extension to his previous three-year sentence of probation. The district court advised it would also order him to continue anger management and mental health counseling and explained that Kippers would have no contact with his daughter without the court's approval.

The district court then attempted to admonish Kippers:

THE COURT: Do you understand how serious this is?

THE DEFENDANT: I understand how serious she made it look to you.

THE COURT: How serious it is. If you come back here again with anything in any way similar to this where you are threatening anyone or causing other problems in violation of the terms of your probation, or if you don't follow through fully and completely with the anger management program and mental health program, then you are going to be back here, and I will send you to jail. Do you understand?

THE DEFENDANT: Yes, sir.

THE COURT: I won't hesitate.

THE DEFENDANT: Uh-huh (affirmative response).

THE COURT: It seems like you've got a chip on your shoulder right now, I have to tell you. That's my impression of you, okay?

THE DEFENDANT: Yes, sir, I do. Because she's a liar.

THE COURT: She's a liar. Your daughter is a liar.

THE DEFENDANT: Yes, sir. I went there to get a—

THE COURT: I tell you what, Mr. Kippers, I'm not going to extend your probation; instead, I'm going to revoke your probation, and I'm going to send you to jail right now, today.

What's the maximum sentence I can give this gentleman?

The Government informed the district court that the statutory maximum term of imprisonment was four years.

The district court continued,

You've been given break after break, Mr. Kippers. I should have sent you to jail the first time. You got a break by being allowed to plead to using a phone instead of what you were really guilty of, which was a drug offense. I gave you a big break by giving you a suspended sentence.

Frankly, I remember you very well. You came in and you were very pitiful looking, and I felt sorry for you, but I don't feel sorry for you any more. Not one bit.

Kippers' counsel reminded the district court that the Guidelines provided for a maximum sentence of nine months of imprisonment.The district court responded that the guidelines range of three to nine months in prison was “advisory” and “not nearly enough time here for the reasons I've said.” The district court then revoked Kippers' probation and sentenced him to four years of imprisonment with no term of supervised release. The district court noted that during this period of incarceration, Kippers would have the opportunity to enroll in mental health and anger management programs. The district court ordered Kippers not to have contact with his daughter.

Kippers' counsel objected to the district court's “unreasonable sentence” and “unreasonable application of the sentencing guidelines.” The district court overruled these objections. Kippers timely appealed.

II

Kippers presents two issues for our review: (1) whether the review of a sentence imposed on revocation of probation requires closer scrutiny than review of a sentence imposed on revocation of supervised release; and (2) whether the district court's sentence was plainly unreasonable.

Where, as here, no sentencing guideline applies, this court has previously held that it will not uphold a sentence that is plainly unreasonable. United States v. Teran, 98 F.3d 831, 836 (5th Cir.1996) (citing United States v. Mathena, 23 F.3d 87, 89 (5th Cir.1994) (involving revocation of supervised release)). This holding reflects Congress' limitation on appeals expressed in 18 U.S.C. § 3742(a)(4), which allows a defendant to appeal a sentence “imposed for an offense for which there is no sentencing guideline [only when it] is plainly unreasonable.” Although United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), called into question § 3742's application, this court confirmed in United States v. Miller, 634 F.3d 841, 842–43 (5th Cir.), cert. denied––– U.S. ––––, 132 S.Ct. 496, 181 L.Ed.2d 345 (2011), that Booker did not abrogate § 3742(a)(4). Thus, under Miller, it seems that § 3742(a)(4)'s plainly unreasonable standard continues to...