US v. Steele

• Decision Date: 26 April 2010
• Docket Number: No. 09-7108.,09-7108.
• Citation: 603 F.3d 803
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian STEELE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

603 F.3d 803

UNITED STATES of America, Plaintiff-Appellee, v. Brian STEELE, Defendant-Appellant.

No. 09-7108.

United States Court of Appeals, Tenth Circuit.

April 26, 2010.

Submitted on the briefs:^*

Bret A. Smith, Muskogee, OK, for Defendant-Appellant.

Sheldon J. Sperling, United States Attorney, and Christopher J. Wilson, Assistant United States Attorney, Muskogee, OK, for Plaintiff-Appellee.

Before TACHA, BRISCOE, and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Brian Steele appeals from an 18-month sentence of imprisonment imposed for his second violation of the terms of supervised release. He complains of procedural irregularities and claims the sentence is unreasonable. We affirm.

I. BACKGROUND

In June 2004, Steele pled guilty to possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 63 months imprisonment and 36 months supervised release. It is unclear from the record when he began serving that (his first) supervised release. In any event, in March 2008, he violated the terms by unlawfully possessing and using a controlled substance, failing to truthfully answer questions and otherwise follow the instructions of his probation officer, and committing another crime. The court revoked supervised release and sentenced him to 6 months imprisonment followed by another 18 months of supervised release. He began the second supervised release on October 2, 2008.

On April 18, June 6, June 29 and July 24, 2009, he tested positive for marijuana. He admitted his violations of supervised release in open court. The policy provisions of Chapter 7 of the United States Sentencing Guidelines recommended a sentencing range of 4 to 10 months imprisonment, see U.S.S.G § 7B1.4(a)—the statutory maximum is 24 months. See 18 U.S.C. § 3583(e)(3). Defense counsel argued he was entitled to a lenient sentence because he maintained a job and supported his two children while on the most recent supervised release.¹

The court sentenced Steele to 18 months imprisonment, explaining:

You know, a year ago, I was in hopes that six months would get your attention.... And I appreciate that you have two children and are paying child support. That's the most positive thing I've heard.... From my perspective, it's not consistent, though. That you're paying child support and apparently taking care of your kids is a good thing obviously.... If I told you that that was common for me to see guys in your situation taking care of their kids and taking care of their wife, I'd say it's unusual. You're the exception there. What I don't understand is why you would sacrifice that relationship over marijuana....

Marijuana is ... illegal.... And when someone comes in, the truth is, in my old age, I've gotten more lenient than I used to be. I used to get one positive and I thought I ought to send people to jail right then because you defied the Court, defied the law. So at the urging, primarily of probation, I let it go two or three—go through some counseling and some treatment. You've been through all that. And I'm just concerned there's not much I can do. And probably what you would like me to do is ... let you serve your time, and then you can go do with your life whatever you choose to do. I just hope you ... do something constructive that doesn't involve marijuana.

....

The Court has considered the violation policy statements ... in Chapter 7 of the United States Sentencing Guideline manual now in effect, and views those policies as advisory in nature for the purpose of these proceedings. I've considered the nature and circumstances of the violation conduct and history and characteristics of the offender. Mr. Steele has shown little regard for the rules and conditions of supervised release as indicated by his possession and use of marijuana during his term of supervised release.

The sentence imposed is within the authority specified in 18 United States Code, Section 3583(e)(3). Said sentence is reasonable, provides just punishment for noncompliance, is an adequate deterrent to criminal conduct, and promotes respect for the law.

(R. Vol. II at 24-27.)

The court informed Steele of his right to appeal and then asked each party whether there was "anything further." (Id. at 28.) The government said "no" and defense counsel responded with a request that the court recommend Steele be permitted to serve his sentence in Beaumont, Texas. (Id.)

II. DISCUSSION

Steele does not challenge the revocation of his supervised release. Rather, he complains 18-months imprisonment is unreasonable in light of the guidelines' recommendation of 4 to 10 months and the facts and circumstances of this case. In addition, he says the court failed to adequately explain its decision to deviate from the guidelines' recommendation, especially after acknowledging Steele's demonstrated ability to maintain employment and support his children. To avoid plain error review, he claims the district court erred in failing to elicit objections after imposing sentence, thereby preventing him from ascertaining (or challenging) the court's reasons for deviating from the guidelines' recommendation.

A. Failure to Elicit Objections

In United States v. Jones, the Eleventh Circuit held that after imposing sentence, a district court must give the parties the opportunity "to object to the ... court's ultimate findings of fact and conclusions of law and to the manner in which the sentence is pronounced." 899 F.2d 1097, 1102 (11th Cir.1990), rev'd on other grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir.1993). It reasoned such a procedure would "serve the dual purpose of permitting the district court to correct on the spot any error it may have made and of guiding appellate review." Id. "In applying the Jones rule, the Eleventh Circuit has held that when the district court merely asks if there is `anything further?' or `anything else?' and neither party responds with objections, then the court has failed to elicit fully articulated objections and has therefore violated Jones." United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir.2007). "Under this rule, when a district court fails to elicit objections after imposing a sentence, the appellate court normally vacates the sentence and remands to the district court to give the parties an opportunity to present their objections." Id. at 1347. But a remand is not necessary when the record on appeal is sufficient to enable adequate review. Id. In the Eleventh Circuit Jones applies to supervised release revocation proceedings. Id. at 1348. Not all circuits agree. United States v. Starnes, 583 F.3d 196, 219 n. 12 (3d Cir.2009) (rejecting Jones rule, stating, inter alia, "we have never adopted such a supervisory rule and, in light of our precedents, we doubt the propriety of doing so"); United States v. Vanderwerfhorst, 576 F.3d 929, 934 (9th Cir.2009) (rejecting imposition of a requirement that district courts elicit objections after announcing sentence).

Relying on Jones and Campbell,² Steele argues the district court erred in failing to elicit objections from the parties after imposing sentence, thereby preventing him from determining the reasons behind the court's deviation from the guidelines' recommended sentencing range. Even though the court asked both parties whether there was "anything further" and neither party responded with an objection, Steele claims the court did not fulfill its obligation of eliciting objections. (R. Vol. II at 28.)

This issue has not previously been presented in this Circuit. We side with the Third and Ninth Circuits in concluding a trial judge is not required to specifically elicit objections after announcing a sentence. Competent professionals do not require such gratuitous superintendence; as long as there is a fair opportunity to register an objection, ask for an explanation or request factual findings, counsel must take the initiative thereby insuring that silence is not mistaken for acceptance. If a proper record is not made in the district court, we will only review for plain error.³

In this case a sufficient opportunity was made available. If Steele had objections to the sentence imposed or, more particularly, to the decision-making process, he could and should have raised them at a time and in such a way as to afford the trial judge an opportunity to correct any error, clarify any ambiguity or elaborate as necessary. In any event, this judge clearly articulated his (self evident) reasons for imposing a sentence outside the recommended range—Steele's serial violations of the law and supervised release terms, the failure of a shorter sentence to deter such violations and the apparent futility of substance abuse treatment.

B. Reasonableness in general

"A sentence in excess of that recommended by the Chapter 7 policy statements will be upheld if it can be determined from the record to have been reasoned and reasonable." United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006) (quotations omitted). This is the same analysis as the reasonableness standard of review under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1256-57 (10th Cir.2006) (citing United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.2004)).⁴ "Our appellate review for reasonableness includes both a procedural component, encompassing the method by which a sentence was calculated, as well as a substantive component, which relates to the length of the resulting sentence." United States v. Smart, 518 F.3d 800, 803 (10th Cir.2008). "In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Supreme Court identified failing to consider the § 3553(a) factors and failing to adequately explain the chosen sentence as forms of procedural error." Id. (quotations omitted). On the other hand, "a challenge to the sufficiency of the § 3553(a) justifications...