Conditional Release from Insanity Civil Commitment Revoked Because Refused to Follow Group Home Rules

United States v. Washington, No. 13-50870 (5th Cir. Aug. 22, 2014) (Stewart, Wiener, Costa)

First, the background to this case concerning civil commitment pursuant to 18 U.S.C. § 4243.  Washington was found not guilty by reason of insanity at a bench trial in 2009 for the charged offense of robbery by force and violence (a threat to stab the teller with a non-existent knife in exchange for $2,711).  The district court committed him to a mental health facility for evaluation and treatment.  In 2012, the Bureau of Prisons certified that Washington had recovered from his mental disease or defect.  The district court held a hearing in April 2012 and conditionally released Washington “based on its finding, by clear and convincing evidence, that his release under a regimen of care and treatment would not pose a substantial risk of bodily injury to another person or serious damage to the property of another.”  One of the conditions of Washington’s release was that he reside at a group home, and this condition was an express component of the FMC Butner release plan.

In July 2013, the probation office filed a petition for a warrant for Washington’s arrest alleging that he violated the condition of residing at the group home.  Testimony at the revocation hearing established that Washington refused to sign a commitment to follow the group home’s rules, knowing that his refusal would result in an eviction notice.  One letter written by the group home’s program director that was admitted into evidence indicated that she “supported Washington’s exploration of less-restrictive housing options.”  Another letter indicated that Washington was becoming more aggressive to others, telling them not to report his breaking of house rules.

The probation officer testified that Washington was in compliance with his medicines, completed his GED, was enrolled in community college, was not mentally unstable, and had not been involved in any physical assaults or criminal charges while on conditional release.  The probation officer also testified, however, that she believed Washington tried to physically intimidate her at one point and that—while she could recommend a transitional home if an appropriate facility could be found—Washington could not be safely maintained in the community because he was not willing to follow the rules at any facility.

Based on this evidence, would you find that Washington “failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, and that his continued release will create a substantial risk of bodily injury to another person or serious damage to the property of another”?  See § 4243(g).

Well, the district court did, and the panel affirms “[b]ecause the doctors who crafted Washington’s release plan included residence in a group home as an express element, and because the district court’s substantial-risk finding was not clearly erroneous[.]”  The panel tries to curb what could “appear to lower the bar for re-commitment proceedings insofar as . . . earlier precedents generally have addressed individuals who refused to follow their doctors’ advice” by emphasizing that “every substantial-risk assessment must turn on the unique factual circumstances of each case rather than on an attempt to compare one individual to another.” 

Still, a record that simply reflects that Washington “was not getting along well with the people around him” without any professional medical opinion as to any risk posed by Washington’s release seems a little skim for a judicial “infer[ence] that his increasingly verbal aggressiveness was a sign of dangerousness, or even potential illness, rather than a sign of recovery and attendant resurgence of his desire for autonomy.”  Given district judges’ “awesome responsibility to protect the public and to strike the difficult balance with individual liberty,” however, the panel does not disturb the district judge’s order.

No Notice Required in Revocation Hearing for Court to Rely on Behavior Not Alleged

United States v. Warren, No. 12-20203 (July 22, 2013) (Stewart, Barksdale, Higginson)

Warren appealed his twenty-four-month sentence for violating his conditions of release. His guideline range was eight to fourteen months of imprisonment for the two listed violations of testing positive for marijuana and failing to participate in drug treatment counseling sessions. During the revocation hearing, the court raised the concern that eleven of nineteen of Warren’s urine samples had returned with an invalid result. The court determined that Warren was uncooperative and was "gaming the system." Warren objected to the court’s reliance on the invalid urine samples without pre-hearing notice and to the sentence being outside the guideline range.

The panel could not find any authority resolving "whether pre-hearing notice is required for all facts on which the district court may rely at revocation sentencing" and concludes that no notice is required. 

We hold that the district court was not required, by Federal Rule of Criminal Procedure 32.1 or the Due Process Clause, to provide Warren with pre-sentencing notice of all points raised in the revocation sentencing colloquy . . . .

While it is procedural error to sentence on erroneous facts, "the burden is on the defendant ‘to demonstrate that the district court relied on materially untrue information.’" Warren never argued that the court incorrectly concluded that eleven urine samples yielded invalid results. Therefore, the panel finds no procedural error in his revocation sentence. The panel also finds that his sentence was not substantively unreasonable.

Alien Is "Released from Imprisonment," for Supervised Release Purposes, When He Is Transferred from BOP to ICE Custody to Await Removal

United States v. Garcia-Rodriguez, Nos. 09-20406 & 09-40635 (5th Cir. May 2, 2011) (per curiam) (Smith, DeMoss, Owen)

Title 18 U.S.C. § 3624(e) instructs that a "term of supervised release commences on the day the person is released from imprisonment."  Seems straightforward enough.  But what if the person is an alien, completes his sentence, and is transferred from BOP to ICE custody and remains in administrative detention pending his removal from the country?  When is he released from imprisonment?

The court holds that "a straightforward reading of the applicable statute [§ 3624] shows that administrative detention by ICE is not the same as imprisonment by the BOP."

The statutory language of subsections (a) and (e) makes several things clear. First, imprisonment ends upon a prisoner’s release from the custody of “the Bureau of Prisons.” See id. § 3624(a), (e). Second, any other term of imprisonment must be “in connection with a[separate] conviction” for a “crime” if such imprisonment is to toll the term of supervised release. Id. § 3624(e). Third, the release shall be made “to the supervision of a probation officer.” Id. And finally, only the specific terms “imprisonment” or “imprisoned” are used, not the term administrative detention or other specific types of custody. Id. § 3624(a), (e).

"Moreover," the court added, "it is clear under federal immigration law that administrative detention of an alien is not the same as imprisonment for a crime."  Consequently, "administrative detention by ICE does not qualify as imprisonment and that, for purposes of § 3624(e), Garcia was 'released from imprisonment' the moment he was transferred from BOP custody to ICE custody to await deportation."

Why does this matter?  Because of the tolling provision found in § 3583(i), which permits a court to revoke a term of supervised release within a reasonably necessary period after the term expires, if a warrant or summons issued before the expiration of the term.  In this case, Garcia's 3-year term of supervsised release was revoked after it expired.  The question was whether the revocation warrant issued before the term expired, a question which turned on when he was released from imprisonment.  As it happens, it wasn't clear from the record exactly when Garcia was transferred from BOP to ICE custody, so the court remanded for findings on that point.

Revocation Aggregation

United States v. Shabazz, No. 10-10553 (5th Cir. Jan. 6, 2011; rev. Jan. 12, 2011) (King, Stewart, Owen)

United States v. Hampton, No. 10-10035 (5th Cir. Jan. 6, 2011) (King, Stewart, Owen)

In these cases, the court addresses an issue concerning revocation imprisonment terms that has been lurking since the passage of the PROTECT Act in 2003.  Namely, is there an aggregate limit on the amount of imprisonment that a defendant can receive over the course of multiple supervised release revocations?  As the answer to this question necessarily involves tedious forays into the text, structure, and amendment history of 18 U.SC. § 3583, I'll spare you the "why" and just stick with the bottom line.  And the answer: yes, albeit indirectly, but not if a defendant was convicted of an offense carrying a maximum supervised release term of life.  Details after the jump . . .

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Court May Not Impose Special Assessment When Revoking Supervised Release, Nor Reimpose Unpaid Assement Ordered More Than Five Years Ago

United States v. Pineda, No. 08-41301 (5th Cir. Jan. 22, 2010) (per curiam) (Jones, Smith, Elrod)

This opinion is so brief and to the point, you might as well read the whole thing. Here 'tis:

This appeal concerns a $100 assessment.

In 2001, Jose Carlos Pineda pled guilty to illegal reentry after deportation and was sentenced to seventy months of imprisonment and three years of supervised release. Pursuant to 18 U.S.C. § 3013, he was also ordered to pay a $100 special assessment, the proceeds of which would be deposited in the Crime Victims Fund. After serving his sentence of imprisonment, Pineda was deported to Mexico in 2005. He did not pay the assessment.

In 2008, seven years after the 2001 judgment, Pineda was found illegally present in this country again, in violation of federal law and his supervised release terms. Pineda’s supervised release was revoked, and in a written order, the district court reimposed the unpaid special assessment.

On appeal, Pineda argues that this act was ultra vires. The government agrees that the district court exceeded its authority, regardless whether it sought to reinstate the previous unpaid assessment or to impose a new assessment. Section 3013(c) states that “The obligation to pay an assessment ceases five years after the date of the judgment.” Neither § 3013 nor 18 U.S.C. § 3583, which concerns supervised release, sanctions the imposition of a § 3013 assessment for revocation of a term of supervised release. The district court therefore lacked authority to impose or reimpose a special assessment.

Accordingly, we VACATE in part and REMAND for amendment of the judgment consistent with this opinion.

So there you have it.

Fives Address Issues Concerning Reasonableness Review and Plain Error In Course of Rejecting Various Challenges to Revocation Sentence

United States v. Whitelaw, No. 08-50346 (5th Cir. Aug. 19, 2009) (Davis, Owen, Haynes)

If the court imposes a term of imprisonment on revocation of supervised release, may it order that term to run consecutively to any other sentence, even though the sentence for the original offense—as required by the terms of the plea agreement—ran concurrently with an already-imposed state sentence? That question, and others concerning plain error and reasonableness review (including a circuit split!), are answered in Whitelaw.

The lengthy backstory:

Alan Whitelaw was convicted of theft of money in an amount exceeding $200,000 in state court and was sentenced to 60 years of imprisonment. Whitelaw subsequently pleaded guilty to federal bank fraud charges in the Southern District of Texas. While the same type of fraudulent conduct was the basis for both of Whitelaw’s convictions, the federal and state convictions involved different specific conduct, dates, and victims.

Although Whitelaw pleaded guilty to the federal charge without a written plea agreement, the Government made an oral agreement at rearraignment that it would recommend that Whitelaw’s sentence run concurrently with his state court sentence. The district court accepted the agreement as a plea agreement under FED. R. CRIM. P. 11(c)(1)(C), ruling that Whitelaw would be allowed to withdraw his guilty plea if it did not order that his sentence run concurrently with his state court sentence. The district court sentenced Whitelaw to 46 months of imprisonment, the sentence to run concurrently with his state court sentence, and five years of supervised release.

For reasons not explained in the opinion, Whitelaw was released from state prison after serving just five years of his sentence. He then began serving his federal supervised release term.

A little over three years later, Whitelaw was arrested on a revocation violation warrant. The Government then filed two motions to revoke Whitelaw's supervised release, the latter of which alleged six violations, including "committing the felony offense of theft of copper wire valued in excess of $1,000 or possession of stolen copper wire valued in excess of $1,000," lying to his probation officer about it (both orally and with forged documents), and technical violations.

After a hearing, the court found all but one of the alleged violations (a failure to report) to be true. Whitelaw requested a sentence at the low end of the advisory 4- to 10-month Guidelines range. The court instead sentenced him to 36 months—the statutory maximum—"and ordered that sentence run consecutively to any other state or federal sentence."

Following the revocation of his supervised release, Whitelaw filed a pro se motion that included a claim that he should be allowed to withdraw his guilty plea because his sentence upon the revocation of supervised release was not ordered to run concurrently with any state court sentence he received. The district court struck the motion because Whitelaw was represented by counsel and, therefore, not entitled to make pro se filings. In the alternative, the district court denied the motion on its merits.

Which finally gets us to the issues on appeal . . .

Standard of Review
For at least the third time, the court declined to decide whether revocation sentences are reviewed for reasonableness or plain unreasonableness, because all the issues Whitelaw raised were subject to plain error review:

• "Whitelaw did not raise any of the specific claims of procedural error that he argues in this appeal when he was before the district court for sentencing[,]" so plain error review for those (failure to consider the policy statements in Chapter 7 of the Guidelines Manual, and an inadequate statement of reasons for the sentence).
• Whitelaw's motion challenging the consecutiveness order "was stricken by the district court because Whitelaw was represented by counsel. Accordingly, Whitelaw did not properly raise this claim of specific legal error below, and this court reviews it for plain error only."
• "Whitelaw also did not object to the substantive reasonableness of the sentence below. Whitelaw’s contest of the revocation charges and request for a sentence at the low end of the guidelines range are insufficient to preserve the substantive reasonableness of the sentence for review." See Peltier. (But don't forget that circuit split.)

No Error In Running Sentence Consecutive to Any Other Sentence, Notwithstanding Plea Agreement on Original Offense
Whitelaw challenged the consecutive order on his revocation sentence on two grounds, both of which the court rejected. First, he argued that the district court didn't indicate it realized that it could order the sentence to run concurrently with any other sentence. While the district court didn't specifically acknowledge it's discretion in the matter, the Government asked for the revocation sentence to run consecutively, and the district court express doubt that it could do that. "In the absence of evidence to the contrary, this court assumes that the district court knows the law and applies it correctly[,]" so no plain error.

Second, Whitelaw argued that the terms of his original plea agreement required any revocation sentence to run concurrently to any other sentence, as was the case with his original sentence. Not so, said the court. The rearraignment transcript wasn't in the record, but the PSR

describes the plea agreement as requiring that Whitelaw’s sentence run concurrently with the state court sentence Whitelaw was then serving. We see no indication that the plea agreement applied to any sentence other than for the crime upon which he was charged. The judgment of conviction provides only that Whitelaw’s sentence of imprisonment would run concurrently with the state court sentence that Whitelaw was then serving; it did not impose any restrictions upon possible sentences that could be imposed if Whitelaw’s later term of supervised release was revoked.

(emphasis added). Is that right? It may be the case that the plea agreement didn't purport to cover what would happen in the event of a revocation of supervised release (and given the lack of a written plea agreement or a rearraignment transcript, it's impossible to say the court's wrong about that). But to the extent that the court is suggesting that a revocation sentence is for a crime other than the one for which a defendant was originally convicted, the court applies a mistaken understanding of revocation. As the Supreme Court explained in Johnson v. United States, a post-revocation sanction is an additional punishment for the original offense, not a punishment for the violation of the terms of release. 529 U.S. 694, 699–701 (2000). Treating post-revocation sanctions as punishment for violations of conditions of supervised release would raise "serious constitutional questions," given that "the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt." Id. at 700. The court doesn't address Johnson here, but it's something to keep in mind if you find yourself with a case similar to Whitelaw.

Whitelaw Failed to Show that the District Court Failed to Consider the Guidelines' Revocation Policy Statements
Whitelaw argued on appeal that the district court failed to consider the Chapter 7 policy statements. But the court of appeals held that he failed to show that, because 1) the district court correctly calculated the advisory revocation range and referred to it before imposing sentence, 2) "[d]efense counsel referred to that range in its argument[,]" and 3) the Government also referred to that range in its motions to revoke, and "made arguments for an above range sentence related to the § 3553(a) factors[.]"

District Court Plainly Erred in Failing to State Reasons for the Sentence, but That Error Did Not Affect Whitelaw's Substantial Rights Because the Record Reveals the Reasons
Given that the district court imposed a sentence that was more than three times the high end of the advisory Guidelines range, Rita required some explanation. The district court gave no reasons. That was clear and obvious error. But did the error affect Whitelaw's substantial rights? And how does the court of appeals assess that?

As it turns out, up until now the Fifth Circuit "ha[d] not yet applied plain error review to a district court’s failure to state reasons for an above guideline sentence." (emphasis added). As you'll recall, Mondragon-Santiago reviewed such an error in the context of a within-Guidelines sentence. It held that that the defendant must "show that the error actually did make a difference [in the sentence]: if it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mondragon-Santiago rejected the approach of "other circuits [that] have relaxed this requirement in the sentencing context[.]"

But given that Mondragon-Santiago involved a within-Guidelines sentence, Whitelaw had to decide whether that approach to the third plain-error prong also applies to review of above-Guidelines sentences. To that end, Whitelaw canvassed what appears to be a circuit split on the question:

In cases involving above guidelines sentences, the D.C. Circuit and the Second Circuit have relaxed the showing required by a defendant to demonstrate that the error affected the defendant’s substantial rights. These courts reason that the absence of a statement of reasons affects the appellate court’s ability to perform a meaningful review of the sentence. Both circuits also conclude that the failure to state reasons undermines “the public reputation of judicial proceedings” because the statement of reasons indicates to the public that the sentencing judge has thoughtfully discharged his responsibilities and demonstrates that the judgment is not arbitrary. [So has the Sixth Circuit.]

Other circuits have declined to follow that lead. The Tenth Circuit affirmed a below guidelines sentence in which the government argued procedural error for failure of the sentencing court to cite reasons for a downward departure. The Tenth Circuit refused to find that the error affected the government’s substantial rights because, applying traditional plain error analysis, the government could not explain how a more detailed reasoning process might have led the court to select a higher sentence. In other words, the government could not show that the error made a difference in the sentencing outcome. The court refused to presume prejudice.

(cites omitted). Ultimately, Whitelaw found it unnecessary to take sides on this question, because "our review of the record reveals the reasons for Whitelaw’s sentence, even if not explicitly stated by the district court." The revocation hearing was extensive. The district court heard evidence, and both parties presented sentencing arguments. "The government then urged the court to sentence Whitelaw to 36 months in prison (the statutory maximum) for the five reasons set forth in its motion to revoke and that the sentence be consecutive to any other sentence. The district court then granted the government’s motion and sentenced Whitelaw to the government’s recommended 36 month term of imprisonment." (By the way, a portion of the Government's motion is reproduced in the opinion, and is predictably purple.) The court then reaches this troubling conclusion:

We have no trouble concluding that by granting the government’s Motion to Revoke and sentencing Whitelaw to the term of imprisonment recommended and supported in that motion, the district court implicitly adopted the government’s rationale for that sentence as set forth in the motion. These reasons thoroughly explain Whitelaw’s sentence. The factual basis supporting them is implicit in the district court’s findings that most of the revocation charges were true. By reviewing the record of the sentencing proceedings in this case, we are able to conduct a meaningful appellate review. Accordingly, the district court’s failure to state these reasons on the record has not prejudiced Whitelaw.

Will that give prosecutors an incentive to paper the case with overheated arguments for a stiff revocation sentence, in hopes that the district court won't state reasons of its own? Perhaps. If possible, you might consider trying to blunt the effect of such pleadings with your own written submission (which may or may not be possible, depending on whether the releasee challenges the alleged violations, and on whether the court will allow time for written arguments before deciding on a disposition). Of course, it's also a good reason to object to procedural errors at the hearing so you're not stuck with plain error review in the first place.

On Review for Substantive Reasonableness, Whitelaw's Sentence was not Plain Error
After all that, the court's resolution of Whitelaw's substantive reasonableness challenge was pretty brief. The court simply said that because the sentence did not exceed the statutory maximum, it wasn't plain error, citing other Fifth Circuit opinions that also so held. Is the court relying on a broader principle that a sentence within the statutory range can never be plain error? If so, that sounds questionable. Hopefully, the court is just saying that, as a descriptive matter, such sentences will have a very hard time satisfying all four plain error prongs. And given the poor track record of preserved substantive reasonableness challenges, that's probably true.

Revocation Sentence Vacated as Plainly Unreasonable; Panel Purports to Limit Holding to Cases "Indistinguishable . . . In All Material Respects"

United States v. Willis, No. 08-10018 (5th Cir. Mar. 24, 2009) (Jolly, Smith, Owen)

In 1998, Willis was convicted of two counts of being a felon in possession of a firearm. "The two counts were premised on Willis’s simultaneous possession of two firearms and were, therefore, multiplicitous in violation of the Fifth Amendment’s prohibition against double jeopardy." Unfortunately, Willis never objected to the indictment, and he did not raise the issue on direct appeal or in two subsequent § 2255 petitions.

After serving his sentences on the two counts---which ran concurrently---Willis commenced serving two concurrent terms of supervised release. He violated, and was revoked. Willis raised the multiplicity argument at the revocation hearing, asking that a sentence be imposed for just one of the revoked terms. The district court rejected Willis's argument, and sentenced him to two consecutive 24-month terms of imprisonment.

Willis appealed. He did not challenge the underlying convictions or sentences; as the court points out, "[i]t is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence." Instead, Willis argued that the second of the two revocation sentences was unreasonable because it was multiplicitious.

The court held that the second sentence was plainly unreasonable (and, for that reason, declined for at least the second time "to decide whether to subject revocation sentences to the 'unreasonable' or the 'plainly unreasonable' standard of review"):

There is no question but that the second revocation sentence is multiplicitous in its own right. We do not hold, however, that the second revocation sentence is not a legal sentence. That revocation sentence stems from one of the two original sentences; that original sentence, which Willis has already served, remains undisturbed and therefore legal. If the original sentence is legal, then the revocation sentence, which depends upon it, is also legal. Our opinion does not question the revocation sentence’s legality.

We question instead the mere fact of the second revocation sentence, which would require that Willis serve two revocation sentences, consecutively, as a penalty for what all parties now agree was only one offense. The second revocation sentence would therefore have the practical effect of incarcerating Willis for an additional twenty-four months. We especially note that the original sentence, including the term of supervised release, was imposed to run concurrently. The fact of its multiplicity, although legal, is, under all circumstances present, plainly unreasonable.

Intriguingly, the court goes on to not only emphasize the narrowness of its holding, but also to "limit the precedential value of our holding to cases presenting indistinguishable facts in all material respects." Which of course prompts two questions: 1) Can a panel (or even the court sitting en banc, for that matter) do that? 2) Given the narrowness of the holding, is such a purported limit even necessary?

Court May Not Order Sentence to Run Consecutively to Anticipated, But Not-Yet-Imposed, Federal Sentence

United States v. Quintana-Gomez, No. 07-10139 (5th Cir. Mar. 25, 2008) (Jolly, Barksdale, Benavides)

May a district court order that a sentence run consecutively to an anticipated, but not-yet-imposed, federal sentence? Nope.

Let's get a little more concrete. Quintana pleaded guilty to illegal reentry in the Northern District of Texas. At that time, he had a supervised release revocation petition pending in the Southern District. The Northern District judge sentenced Quintana to 57 months on the new case, and ordered the sentence to run consecutively to any sentence Quintana might receive on revocation. Later, the Southern District judge revoked Quintana's supervised release, sentenced him to six months' imprisonment, and ordered the sentence to run concurrently to the 57-month sentence for the new case.

Quintana appealed the Northern District judgment, arguing that when an unstoppable force meets an immovable object . . . wait, that's not right . . . (leafing through opinion) . . . ah, here it is: Quintana argued that the court lacked authority to order the sentence to run consecutively to an anticipated, but not-yet-imposed, federal sentence. He contended that under the plain language of 18 U.S.C. § 3584, a court may order a sentence to run consecutively only if 1) "multiple terms of imprisonment are imposed on a defendant at the same time," or 2) "a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment[.]"

The Government countered that the Fifth Circuit's decision in United States v. Brown foreclosed Quintana's argument. Relying on the doctrine of dual sovereignty, Brown held that § 3584 doesn't preclude a federal court from ordering its sentence to run consecutively to any not-yet-imposed state sentence. (As Quintana-Gomez mentions in a footnote, there's a long-standing circuit split on this issue.)

The court here rejected the Government's reliance on Brown, pointing out that the opinion did not discuss the dual-sovereignty concerns, or the actual text of § 3584(a), in great detail. In fact, the dual-sovereignty rationale of Brown distinguishes it from this case, which involves a battle of wills between two courts of the same sovereign. Also, "it should be noted that the Brown panel did not hold that the state court was so legally bound by the federal court’s order that the state court could not order its sentence to run concurrently with the federal sentence if it chose to do so."

Instead, the court agreed with Quintana's argument, finding the Fourth Circuit's decision in United States v. Smith persuasive on this question. Smith reasoned that "allow[ing] one federal court to order that its sentence run consecutively to or concurrently with an anticipated but not-yet-imposed federal sentence 'would place one federal court in the position of abrogating the sentencing authority of another[,]'" a result Congress likely did not intend. Additionally, a court making the consecutive-vs.-concurrent determination must consider the § 3553(a) factors, and "'[o]nly a court that sentences a defendant already subject to an undischarged term of imprisonment could properly consider whether a consecutive or concurrent sentence best serves the goals of § 3553(a), as only that court knows the circumstances attending the later sentence.'"

So Quintana wins, right? No. Well, maybe.

You see, Quintana did not object to the Northern District's order that the 57-month sentence run consecutively to any revocation sentence. So the court of appeals reviewed for plain error. And it concluded that even though there was error, it wasn't "plain" because the Fifth Circuit hadn't yet addressed this question and Brown "at least arguably indicated" otherwise. But then there's this intriguing footnote:

Because the Northern District Court was without authority to order that its sentence run consecutively, its order, in this limited respect, is without effect and may be disregarded by the Federal Bureau of Prisons in the light of this holding.

For discussion:

1) Anyone know how the BOP actually handles situations like this?

2) The court added, in addition to its statutory holding, that "as a general principle, one district court has no authority to instruct another district court how, for a different offense in a different case, it must confect its sentence." Might that (dicta?) be the more important part of this opinion?

(Helpful diagram courtesy of Wikipedia)

If Defendant Got §4A1.3 Departure at Original Sentencing, Revocation Guidelines Calculation Requires Use of Pre-Departure CHC

United States v. McKinney, No. 07-50170 (5th Cir. Mar. 7, 2008) (Jones, Davis, Garza)

Chapter 7 of the Guidelines Manual provides advisory sentencing ranges for probation and supervised release violations. The recommended ranges are determined by the grade of violation and the defendant's criminal history category. Policy statement §7B1.4(a) provides that "[t]he criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervision."

What if, at the original sentencing, the defendant received a downward departure to a lower criminal history category pursuant to policy statement §4A1.3? Does the Guidelines revocation calculation use the pre-departure or post-departure criminal history category?

McKinney holds that it's the former:

We . . . hold that where a district court granted a departure for the reasons set forth in U.S.S.G. § 4A1.3 at the time the defendant originally was sentenced to a term of supervised release, upon revocation of supervised release, the applicable criminal history category for determining the advisory revocation sentencing range under U.S.S.G. § 7B1.4(a), p.s., is that criminal history category determined prior to any such departure.

There's several pages worth of analysis in the opinion parsing the relevant Guidelines language, if you're interested in knowing why.

Dist. Ct. Effectively Sentenced Defendant for Uncharged Illegal Reentry When Revoking Supervised Release; COA Holds No Plain Error

United States v. Hernandez-Martinez, No. 06-40271 (5th Cir. Apr. 18, 2007) (Jones, Jolly, Stewart)

Hernandez, a Mexican citizen, was on (presumably non-reporting) supervised release for a drug offense. About a year-and-a-half after his deportation, he illegally reentered the United States and found work at a mattress factory in Chicago. He was later arrested for shoplifting and released on bond. While on bond he was detained during a traffic stop, and the U.S. Probation Office was notified. Hernandez was not prosecuted for theft or illegal reentry in Illinois. Instead, the Government sent him to Texas for revocation proceedings.

Here's what happened next:

At the revocation hearing, Hernandez appeared before the same judge who had granted him a significant downward departure in his cocaine possession sentence, and he pleaded true to the three violations. The court expressed displeasure that Hernandez had blatantly disregarded the provisions surrounding his supervised release and that the prior sentence had not deterred his criminal activity. The court also expressed frustration with the failure of the U.S. Attorney’s office in Chicago to prosecute Hernandez, and others similarly situated, for illegal reentry into the United States, instead sending them to the Southern District of Texas for revocation proceedings. After discussing with counsel Hernandez’s violations, the prior downward departure, and the lack of an illegal reentry prosecution, the court inquired what the Guidelines sentence for illegal reentry would have been. The Probation Officer advised the court that Hernandez would have faced forty-six to fifty-seven months imprisonment had he been prosecuted in Illinois for illegal reentry. Concluding that the revocation Guideline of four to ten months did not adequately address this type of violation and that the prior sentence had served as an insufficient deterrent, the court sentenced Hernandez to forty-six months —significantly above the Guidelines range but well below the statutory maximum of five years for revocation.

(emphasis added). Hernandez appealed, naturally arguing "that he was impermissibly sentenced for his uncharged illegal reentry rather than for his underlying drug offense, and that his sentence is thus unreasonable, plainly unreasonable, and an abuse of discretion."

The court disagreed. It first held that Hernandez failed to preserve any claim of error, thus subjecting him to plain error review. The court held that Hernandez's request for a sentence at the low end of the advisory guideline revocation range was insufficient to preserve the specific legal errors he raised for the first time on appeal because it left the district court without the opportunity to clarify whether it was basing the sentence on its disagreement with the Government's exercise of prosecutorial discretion or on Hernandez's failure to abide by the law while on supervised release.

The court then discussed whether a revocation sentence is subject to Booker's reasonableness standard of review, or the pre-Booker "plainly unreasonable" standard. But it didn't decide that issue one way or the other (although the panel suggests strongly that its the latter), because it held that Hernandez could not show plain error under either standard:

Although the district court expressed displeasure at the Government’s failure to charge Hernandez with illegal reentry, it is not evident that it based his sentence on that ground; it is equally or more plausible that the court based his sentence on the fact that it gave Hernandez a significant downward departure in his original sentence. Thus, if there was any error, it is not plain. Because Hernandez did not object at sentencing and give the court an opportunity to clarify itself, we are unable to conclude that the court based his sentence on an impermissible factor. Moreover, that the forty-six month sentence is significantly below the statutory five-year maximum on revocation strongly counsels against its being held reversible on plain error review.

That's a troubling conclusion. Putting aside the question of whether any error was plain, it sure looks like the district judge was punishing Hernandez for the uncharged illegal reentry, and that the district court's decision to do so stemmed from its disagreement with the Government's exercise of prosecutorial discretion. That raises significant due process and separation of powers concerns (not to mention the likely venue problem given the fact that Hernandez was found in Illinois). And is a 46-month sentence really "significantly below" a 60-month statutory maximum? That would be a minor complaint, but for the fact that the court concludes that the extent of the deviation from the maximum "strongly counsels" against there being plain error.

But beyond that, the court's view of what is happening in a supervised release revocation appears to be at odds with that of the Supreme Court. In the course of discussing the reasonable-vs.-plainly-unreasonable issue, the court cites with approval a Fourth Circuit case that relies on a Chapter 7 policy statement for the proposition that "[t]he goal of a revocation sentence is to punish the defendant for the violation of supervised release, not the underlying offense." That line is a little ambiguous, but it sounds contrary to the Supreme Court's characterization of what happens in a supervised release revocation:

[One view considers a revocation of supervised release to be a punishment for the violation of the terms of release.] While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. Where the acts of violation are criminal in their own right, they may be the basis for separate prsosecution, which would raise an issue of double jeopardy if the revocation of the supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the intial offense, however (as most courts have done), avoids these difficulties.

Johnson v. United States, 529 U.S. 694, 700 (2000) (emphasis added, citations omitted). That view of revocation would weigh in favor of finding error, if not plain error, in this case.

So can a district court base a revocation sentence on its disagreement with the Government's charging practices, and effectively convict a releasee of a crime with which he's never been charged in a proceeding that lacks many of the critical substantive and procedural protections afforded defendants in criminal trials? I think not, but one thing's for sure: you don't want to have to argue that it's plain error.