United States v. Richey

• Decision Date: 15 September 2014
• Docket Number: No. 13–2523.,13–2523.
• Citation: 758 F.3d 999
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Christina M. RICHEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

758 F.3d 999

UNITED STATES of America, Plaintiff–Appellee

v.Christina M. RICHEY, Defendant–Appellant.

No. 13–2523.

United States Court of Appeals, Eighth Circuit.

Submitted: March 25, 2014.

Filed: July 14, 2014.

Rehearing Denied Sept. 15, 2014.

Richard Haile McWilliams, AFPD, on the brief and argued, Omaha, NE, for Plaintiff–Appellee.

Thomas J. Kangior, AUSA, on the brief and argued, Omaha, NE, for Defendant–Appellant.

Before RILEY, Chief Judge, GRUENDER and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

After Christina Richey admitted to violating one condition of her supervised release, the district court ¹ revoked Richey's supervised release. The district court imposed a 24–month prison sentence, in excess of the 6 to 12–month advisory guidelines range, based on Richey's numerous prior violations. In passing, the district court referenced “all of the reasons set out in the adjustment report and recommendation,” which Richey asserts included unproven, disputed facts. At the hearing, Richey, through counsel, objected on the ground that “the recommendation is predicated upon conduct that we have not admitted to, nor which has been proven by the government,” and now appeals. Concluding the district court did not rely on disputed factual evidence in reaching an appropriate revocation sentence under 18 U.S.C. § 3583(e)(3), we affirm.

I. BACKGROUND

The government initially alleged Richey violated four conditions of her supervised release by (1) committing another crime; (2) failing to report to the probation office for a scheduled urinalysis; (3) lying to her probation officer; and (4) associating with a felon without receiving permission from her probation officer. Richey denied the first three allegations, but admitted the fourth. The government then moved to dismiss the first three allegations without prejudice, choosing not to offer any evidence. The district court granted the motion.

Associating with a felon was not Richey's first violation. Less than a year earlier, Richey admittedly violated three other conditions of her supervised release:

1. Defendant shall not commit another federal, state, or local crime;

2. Defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer; and

3. Defendant shall report to the Probation Officer.

She violated the first of these conditions on May 1, 2012, when she drove without a license—a Class III misdemeanor in Nebraska—and without wearing a seatbelt, which is an infraction in Nebraska. Richey pled guilty to these charges on June 6, 2012. By failing to report the citation she received for these offenses, she violated the second condition. And she violated the third condition by failing to submit monthly reports to her probation officer in June, July, and August 2012.

Based on Richey's troubling history on supervised release, the government asserted “that a term of 24 months with no supervision to follow is a reasonably calculated sentence.” Richey's counsel requested a custodial sentence of time served (approximately 2 months). The district court recognized “the particular offense to which [Richey] admitted may not be as serious as those that we often see,” but found “her general history of conduct on supervised release [to be] very serious and very troubling.” The district court opined that Richey's “history of adjustment on supervised release has been abysmal” and Richey “had continued, repeated, consistent violations.” Then, referencing “all the reasons set out in the adjustment report,” the district court sentenced Richey to 24 months in prison.

Richey's counsel objected “on the grounds that [the sentence] d[id] not comply with the 3553(a) factors” because “there are facts contained in the adjustment report which are related to allegations that [Richey] ha[d] not admitted to.... [and] which ha[d not] been proven by the government.” The district court acknowledged the objection and adjourned the hearing. Richey now appeals.²

II. DISCUSSION

A revocation of supervised release ordinarily presents our court with two questions on appeal. First, did the district court err in revoking supervised release? That question calls for abuse of discretion review, while “the factual determinations underlying the court's decision to revoke [receive] clear error” review. United States v. Smith, 576 F.3d 513, 515 (8th Cir.2009).

Second, did the district court err in imposing a particular revocation sentence? Because a sentence imposed upon revocation of supervised release is not a new punishment but rather “relate[s] to the original offense,” Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (emphasis added), we review that question “under the same ‘deferential abuse-of-discretion’ standard that applies to initial sentencing proceedings,” United States v. Young, 640 F.3d 846, 848 (8th Cir.2011) (per curiam) (emphasis added). The Supreme Court enunciated this familiar standard in Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), which requires us first to “ensure that the district court committed no significant procedural error” and second, if there is no procedural error, to ensure the sentence was “substantive[ly] reasonable[ ].” In this regard, the only difference between an initial sentence and a revocation sentence is that at a revocation hearing the district court need consider only the § 3553(a) factors specifically listed in 18 U.S.C. § 3583(e).

The government's brief focuses on the first question (the decision to revoke Richey's supervised release) and the second part of the second question (the substantivereasonableness of the revocation sentence). But Richey does not actually raise these issues. Instead, Richey bases her appeal on the first part of the second question, asserting the district court procedurally erred in imposing the 24–month revocation sentence on the basis of disputed, unproven allegations.

A. Legal Question

Richey's appeal is built on a strong legal foundation. It is well established that a district court commits procedural error under Gall by basing a sentence on unproven, disputed allegations rather than facts. See, e.g., Gall, 552 U.S. at 50, 128 S.Ct. 586 (requiring district courts to “make an individualized assessment based on the facts presented” (emphasis added)). Gall expressly prohibits district courts from “selecting a sentence based on clearly erroneous facts,” id. at 51, 128 S.Ct. 586 (emphasis added), and a district court finding “ without record support [is] clearly erroneous,” United States v. Hudson, 129 F.3d 994, 995 (8th Cir.1997) (per curiam) (emphasis added).

For this reason, when a defendant specifically disputes facts contained in a report prepared by the probation office “ ‘and the relevant responsive evidence has not already been produced at trial, the government must present evidence at the sentencing hearing to prove the existence of the disputed facts.’ ” United States v. Davis, 583 F.3d 1081, 1095 (8th Cir.2009) (emphasis added) (quoting United States v. Wintermute, 443 F.3d 993, 1005 (8th Cir.2006)). “ ‘If the sentencing court chooses to make a finding with respect to [any] disputed facts, it must do so on the basis of evidence, and not the presentence report.’ ” ³United States v. Morehead, 375 F.3d 677, 679 (8th Cir.2004) (emphasis added) (quoting United States v. Greene, 41 F.3d 383, 386 (8th Cir.1994) (per curiam)). “A ‘presentence report is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact.’ ” United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc) (quoting United States v. Streeter, 907 F.2d 781, 791–92 (8th Cir.1990)); see also, e.g., United States v. Gramling, 417 F.3d 891, 896 (8th Cir.2005). To the extent a revocation sentence is based on disputed and uncorroborated factual allegations containedin an adjustment report, the sentence is procedurally erroneous under Gall.⁴See, e.g., Wise, 976 F.2d at 404.

The government's disagreement is apparently ⁵ based on United States v. Carr, 66 F.3d 981 (8th Cir.1995) (per curiam), where we said “[a] due process violation is established only if the defendant shows that the district court relied on materially false information and that the information is demonstrably the basis for the challenged sentence,” id. at 983 (emphasis added). As should be evident from our added emphasis, this statement in Carr has nothing to do with the statutory and procedural requirements interpreted by the Supreme Court in Gall—nor could our panel opinion in Carr survive Gall if the two cases were inconsistent. Instead, this statement in Carr solely addressed a constitutional sentencing requirement developed in a long line of cases stretching back to Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), where the Supreme Court held it “is inconsistent with due process of law” for a defendant to be “sentenced on the basis of assumptions ... which [a]re materially untrue.”

In Carr, the defendant “challenge[d] the validity of his sentence on due process grounds,” arguing the sentencing “court acted in violation of his Fifth Amendment rights.” 66 F.3d at 983 (emphasis added). Relying on our cases interpreting Townsend, see, e.g., United States v. Wright, 799 F.2d 423, 426 (8th Cir.1986), we rejected this constitutional challenge because the disputed facts were “neither manifestly false nor the demonstrable basis for the district court's sentence,” Carr, 66 F.3d at 983. Our opinion in Carr did not address the government's statutory and procedural burden to prove disputed factual allegations contained in a probation officer's sentencing report because the question was not presented. To read Carr otherwise would not just create an untenable inconsistency with Gall, but an unacceptable departure from our earlier en banc opinion in Wise, where we squarely held a “district court erred...