United States v. Minor

• Decision Date: 14 November 2011
• Docket Number: No. 10-3209,10-3209
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD L. MINOR, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD L. MINOR, Defendant-Appellant.

No. 10-3209

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Date: November 14, 2011

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 11a0763n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

OPINION

BEFORE: ROGERS, McKEAGUE and DONALD,^* Circuit Judges.

Donald, Circuit Judge. Defendant Ronald Minor was convicted in 1992 on one count of conspiracy to possess cocaine base with the intent to distribute. Defendant began supervised release in August 2007. In 2008 and 2009, he committed multiple violations of the conditions of his supervised release, resulting in a petition for warrant being filed in December 2009. The district court modified Defendant's supervised release by adding a 120-day term at a halfway house. Defendant argues that when modifying his supervised release, the district court failed to consider the purpose of supervised release and the mitigating arguments, resulting in procedural error, and thatthe modification was substantively unreasonable given the facts presented. We AFFIRM the district court's modification.

I. BACKGROUND

On December 2, 1992, Defendant was convicted of one count of conspiracy to possess with the intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 846, and sentenced to 210 months' incarceration to be followed by five (5) years supervised release. Defendant began his supervised release on August 14, 2007.

On December 14, 2009, a petition for warrant or summons was filed, alleging that Defendant violated four terms of the supervised release. (Pet. for Warrant or Summons, R. 8) First, on January 19, 2008, Defendant left the judicial district without permission and got a speeding ticket in Tennessee. (Id. at 2.) Second, Defendant failed to report to the probation officer as directed on December 29, 2008, May 1, 2009, September 9, 2009, October 6, 2009 (drug screen), November 6, 2009, November 16, 2009, and December 4, 2009. (Id.) Third, Defendant failed to notify his probation officer within 72 hours of any change in his residence or employment address. (Id.) On June 9, 2009, Defendant left a voicemail stating that he was living with his uncle and refusing to provide the address. (Id.) On July 17, 2009, the probation officer visited Defendant's reported address, and his mother told her that he was living with a friend at an unknown location. (Id.) On September 28, 2009, the probation officer sent an appointment letter to the same address. (Id.) On October 7, 2009, Defendant left a message for his probation officer saying that he had just received the letter from his mother "because he had recently moved." (Id.) Fourth, Defendant did not report that he had been arrested or questioned by police within 72 hours of the incident when (1) on January 19, 2008, he was stopped by police in Tennessee for speeding; (2) he was arrested on March 18, 2008, after being indicted on a felony drug possession charge; and (3) he was arrested on August 1, 2009, and charged with receiving stolen property, but he did not report the arrest to his probation officer until September 13. (Id. at 3; Appellee's Br. 9-10.)

In the Supervised Release Violation Report, the probation officer stated that "Minor's pattern of unstable residency and employment have been evident since th[e] start of his supervision" and his "whereabouts are consistently being questioned." (Id. at 10.) The report also noted a June 2009 non-compliance hearing with the probation officer and stated:

In light of Mr. Minor's continued non-compliance and instability, it was determined that a half-way house placement would best assist him in addressing the above issues. After being confronted with his chronic non-compliance, Minor finally admitted that outside influences had begun to crawl back into his life. Initially he agreed to the modification, though he then retracted, indicating that he had gotten his life back in order.

(Id.)

The district court conducted a hearing on February 3, 2010. (Supervised Release Modification Proceedings Tr., R. 19.) Defendant admitted the Grade C violations as they were alleged in the Supervised Release Violation Report. (Id. at 2.) The probation office sought to modify the conditions of the supervised release by adding a term of 90 to 120 days in a halfway house. (Id. at 4.)

Defendant argued for a sentence of house arrest because of his recent accomplishments. (Id. at 3.) He had begun attending college as a full-time student at Columbus State University during the winter quarter. (Id.) In December 2009, he got his own apartment, signed a one-year lease, and was hired as the Development Director/Coordinator at the New Song Community Church. (Id.)Defendant had also worked as an intern at an insurance agency in conjunction with his school work. (Id. at 6.) Defendant stated that there was a period where his transition was difficult, but since then, he has had the opportunity to get into school, secure employment, and do positive things in the community. (Id. at 4-5.) Defendant believed that a period of 90 to 150 days of house arrest would be a fair sanction. (Id. at 4.)

The probation officer informed the Court that it was her understanding that Defendant was no longer working at the insurance agency, that she had no details about his new employment position, and that she was concerned that there may be third-party risks with the position at the church. (Id. at 7.) The probation officer also noted her concerns about Defendant's pending receiving stolen property case. (Id.)

The Court stated:

Your work with the development and work on the project there at the church is admirable, and the Court will take that - is taking that into consideration, along with your prospective job there in the insurance industry. And I acknowledge that they are positive aspects of your quest.

(Id. at 6.) The Court noted that from its experience, the Development Director position was a volunteer position, not full-time employment. (Id. at 8.) The Court stated,

So, you have got to get with it on that full-time employment. And the insurance business, if you are no longer with them, I don't know what the - what that means. They have got to sponsor you, don't they, for the insurance, to get your license?

(Id.)

The Court applied the suggested modification because Defendant failed to show cause why his supervised release should not be modified. (Id. at 8-9.) There were no objections to the modification. (Id. at 9.)

On February 3, 2010, Defendant's conditions of supervised release were modified to include one hundred twenty (120) days at the Ralph W. Alvis house, a halfway house. (R. 15.) A timely notice of appeal was received by the district court on February 12, 2010. (R. 17.)

II. ANALYSIS

The district court has broad discretion to impose appropriate conditions of supervised release. United States v. Brandenburg, 157 F. App'x 875, 879 (6th Cir. 2005) (citing United States v. Ritter, 118 F.3d 502, 506 (6th Cir. 1997). Pursuant to 18 U.S.C. § 3583(e),

The court may, 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) . . . modify . . . the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision.

18 U.S.C. § 3583(e)(2). Section 3553(a)(1) addresses the "nature and the circumstances of the offense and the history and characteristics of the defendant." Section 3553(a)(2)(B) addresses the need for the sentence imposed "to afford adequate deterrence to criminal conduct." Section 3553(a)(2)(C) addresses the need for the sentence imposed "to protect the public from further crimes of the defendant." Section 3553(a)(2)(D) addresses the need for the sentence "to provide the defendant with needed educational or vocational training, medical care, or other correctional

treatment in the most effective manner." The court may also consider the kinds of sentence, the sentencing range established for the applicable category of offense, the applicable guidelines, policy statements, or amendments issued by the U.S. Sentencing Commission, the need to avoid unwarranted sentence disparities, and the need to provide restitution to victims. See 18 U.S.C. §§ 3553(a)(4-7).

The United States Sentencing Guidelines further direct that "[u]pon a finding of a Grade C violation, the court may (A) revoke probation or supervised release; or (B) extend the term of probation or supervised release and/or modify the conditions of supervision." U.S. Sentencing Guidelines § 7B1.3(a)(2) (2010). At the initial setting of a condition of supervised release, the court may order a condition that

(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a).

18 U.S.C. § 3583(d).

The district court's imposition of special conditions of supervised release is reviewed for an abuse of discretion. United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007). Appellate review of the imposition of a special condition of supervised release has procedural and substantive dimensions. United States v. Carter, 463 F.3d 526, 528-29 (6th Cir. 2006). To satisfy the procedural dimension, "'The [district] court, at the time of sentencing, [must] state in open court the reasons for its imposition of the particular sentence,' including its rationale for mandating special...