USA v. Musa
| Citation | 220 F.3d 1096 |
| Decision Date | 02 May 2000 |
| Docket Number | No. 99-50183,99-50183 |
| Parties | (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DRAGO CARL MUSA, Defendant-Appellant. Office of the Circuit Executive |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Cara DeVito, Berley & DeVito, West Hills, California, for the defendant-appellant.
Mark A. Young, Assistant United States Attorney, Criminal Division, Los Angeles, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding; D.C. No. CR-97-00029-R-1
Before: David R. Thompson, William A. Fletcher and Raymond C. Fisher, Circuit Judges.
While on supervised release following convictions on three counts of bank fraud, appellant Drago Carl Musa ("Musa") was convicted of misdemeanor witness intimidation in violation of California Penal Code S 136.1(b)(1). Based on that conviction, the United States Probation Office ("USPO") sought to revoke Musa's supervised release. At the outset of the revocation hearing, Musa made a request for substitute counsel. The district court denied the request without inquiry. Then, after finding Musa to be a "danger to the community," the district court sentenced Musa to the statutory maximum three-year prison term, exceeding the threeto nine-month range listed in S7B1.4 (policy statement) of the sentencing guidelines and suggested by the USPO. Musa does not contest the revocation of his supervised release, but he appeals the length of the sentence imposed, the district court's alleged failure to state the reasons for departing from the guideline range and the district court's denial of his request for substitute counsel. We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742.
We hold that the district court did not abuse its discretion by imposing the three-year sentence and stated a legitimate reason for departing from the range listed in the Sentencing Commission's non-binding policy statement. We hold, however, that the court abused its discretion in not inquiring into Musa's reasons for seeking substitute counsel. Accordingly, we vacate the sentence and remand to the district court for a hearing on the nature of the conflict between Musa and his attorney.
On January 8, 1998, Musa began a period of supervised release following incarceration for Class B felony convictions on three counts of bank fraud. On December 9, 1998, the USPO filed a letter with the district court requesting the issuance of a bench warrant, and alleging that, on December 2, 1998, Musa was convicted of misdemeanor witness intimidation, which constituted a violation of the conditions of his supervised release.
The victim, Ms. Hummer, a 79-year-old widow, gave Musa permission to take her car to get an oil change. According to Musa, he had a relationship with Ms. Hummer, and the car was registered (by Musa) in both their names. According to the USPO, Ms. Hummer called the police after Musa failed to return the car. Musa called Ms. Hummer while the police were still at her house investigating the call. The police advised Musa that he was in possession of a vehicle that did not belong to him and that the victim was requesting that he return the vehicle. Musa refused to bring the vehicle back and told the officer that he was going to call his attorney.
The next day, Ms. Hummer reported to the police that Musa had called her three times. During these calls, Musa told her that he wanted her to drop the stolen vehicle charge against him. When Ms. Hummer refused, Musa became angry and stated, "I am going to die, and you are going to die too." Musa then claimed he was going to put Ms. Hummer in a vehicle with him and drive over a cliff. According to the USPO, Ms. Hummer feared that Musa would carry out the threats, and she feared for her life. In addition, Ms. Hummer subsequently obtained a restraining order against Musa.
Musa offers a different version of the underlying events. He portrays the whole situation as a misunderstanding and denies ever threatening to kill Ms. Hummer. Nonetheless, he eventually pled "no contest" to misdemeanor witness intimidation and was sentenced to time served. The USPO's final letter to the court noted Musa's belief that he was forced to accept a no contest plea to the witness intimidation charge:"He reported that he was in a life threatening situation while in custody [pending the resolution of the charge ] and he had to plead guilty in order to get out of jail." The USPO candidly reported that Musa "strongly feels that he has been falsely accused."
The USPO advised the district court that Musa has a history of major depression, for which he takes medication. It also noted that Musa had two prior arrests involving violent acts, but that those arrests did not lead to convictions. The USPO concluded that, "[g]iven Mr. Musa's unstable mental state and his apparent propensity to make rash decisions, it is felt that he poses a threat to the community." In its final letter to the court, the USPO cited the restraining order obtained by Ms. Hummer against Musa to support its belief that Musa also continued to pose "a significant threat to the victim."
At the beginning of the revocation hearing, Musa's courtappointed public defender notified the court of Musa's intention to request substitute counsel for the hearing. Without inquiring into Musa's reasons for the request, the court rejected it and directed the government to begin presenting its case.
The government's case consisted of a certified public record of Musa's witness intimidation conviction. In opposition, Musa's counsel characterized the underlying conviction as "the result of an unfortunate misunderstanding between Mr. Musa and the alleged victim." The court then gave Musa an opportunity to explain his side of the story, which Musa did. Following Musa's explanation, the court found that he had violated his supervised release and sentenced him to prison for three years. When Musa's counsel reminded the court that the guideline range before the court was three to nine months, the court replied, "I can go outside the guidelines," and gave as the basis for its departure that Musa "is a danger to the community."
Musa filed a timely notice of appeal. Thereafter, Musa's counsel filed a motion for reconsideration with the district court, to which he attached the report of a mental evaluation performed by Dr. Manuel St. Martin and the declaration of Ms. Hummer, which stated that she had given Musa permission to take her car and that she has "never felt threatened by Mr. Musa nor afraid of him." The government opposed the motion for reconsideration on the grounds that it was not timely filed and set forth no new facts warranting reconsideration. The district court summarily denied the motion.
This court reviews for an abuse of discretion a district court's decision to revoke a term of supervised release. See United States v. Schmidt, 99 F.3d 315, 320 (9th Cir. 1996).
According to 18 U.S.C. S 3583(e)(3), a district court may revoke a defendant's supervised release if it finds by a preponderance of the evidence that the defendant violated a condition of his supervised release. However, because the offenses that resulted in Musa's original term of supervised release were Class B felonies, the district court could not sentence Musa to more than three years in prison for violating his supervised release. See 18 U.S.C. S 3583(e)(3). Musa concedes that his conviction for witness intimidation gave the court a proper basis to revoke his supervised release; he challenges only the length of sentence imposed and the court's alleged failure to set forth its reasons for departing from the guideline range.
When a court revokes supervised release, 18 U.S.C. S 1583(e) requires the court to consider the factors set forth in 18 U.S.C. SS 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(6)1. Subsection (a)(4)(B) specifically addresses sentencing for violations of supervised release and directs the court to consider "the applicable guidelines or policy statements issued by the Sentencing Commission." The Sentencing Commission has only issued "advisory policy statements" applicable to revocations of probation and supervised release instead of mandatory guidelines. U.S.S.G. Ch. 7, Pts. A1, A3(a); see also United States v. George, 184 F.3d 1119, 1121 (9th Cir. 1999) (). We have held that a district court, when revoking supervised release, has discretion to go outside the suggested sentencing range of the policy statements up to the statutory maximum listed in 18 U.S.C. S 3583(e)(3). See George, 184 F.3d at 1122-23 (). The policy statement range for Musa's violation of the conditions of his supervised release is three to nine months, see U.S.S.G. S7B1.4, but the statutory maximum, as previously noted, is three years, see 18 U.S.C. S 3583(e)(3).
Musa contends that the sentence is illegal because the district court failed adequately to set forth its reasons for departing from the recommended guidelines as required by 18 U.S.C. S 3553(c). Because the district court went outside the policy statement range, 18 U.S.C. S 3553(c)(2) applies and requires the district court to state "in open court" ...
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