In Re Sealed Case

527 F.3d 188, 381 U.S. App. D.C. 237, 2008 U.S. App. LEXIS 11756, 2008 WL 2245367
Court of Appeals for the D.C. Circuit·Decided June 3, 2008·No. 07-3132·Published·Cited by 72 cases

Opinions

Opinion for the court filed by Circuit Judge BROWN.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

BROWN, Circuit Judge:

The defendant appeals his eighteen month prison sentence after revocation of supervised release. We vacate the sentence and remand for the district court to explain its reasoning.

I

Appellant pled guilty in 1999 to two counts of distribution of cocaine base, one count of unlawful use of a “communication facility,” see 21 U.S.C. § 843(b), and one count of carrying a firearm during a drug-trafficking offense. Under the terms of his plea agreement, he cooperated extensively with the Bureau of Alcohol, Tobacco, and Firearms (ATF), helping the government to convict an impressive number of drug traffickers. At his eventual sentencing in 2006, the government rewarded his remarkably productive efforts by moving for a downward departure from the Sentencing Guidelines. The district court obliged, sentencing him to time served and five years of supervised release.

After a series of disputes between Appellant and his probation officers, Appellant found himself back before the district court. At bottom, the disputes over supervision arose because Appellant moved out of the District of Columbia but continued to work in this area. His new probation officer might have approved of his occasional trips, but Appellant repeatedly failed to notify his probation officer about his travel plans. In addition, Appellant resisted requests to provide his probation officer with required financial information, proffering only his bank statement when he was asked for detailed accounting. In [190] May 2007, the officer decided to place Appellant on house arrest with electronic monitoring for four months. Appellant refused to accept this sanction; the probation officer responded by transferring the case back to the District of Columbia and filing a Non-Compliance Report. Finally, in August 2007, the District of Columbia probation office asked the sentencing court to revoke Appellant’s supervised release because of these violations.

During two days of hearings, Appellant explained his work, his travel, and his financial situation, and his probation officers testified about his failure to communicate with them. An ATF agent also vouched for the quality of Appellant’s cooperation. At the conclusion of the hearing, the district judge specifically found Appellant had committed several of the violations charged by the probation office. The judge also said any defendant who came back before him for violating his supervised release faced only one question: “how long he’s going to prison for, not whether he’s going,” Hr’g Tr. 298, Nov. 26-27, 2007. The district judge pointed out he had explained this policy to the defendant at the original sentencing. Further, the judge explained Appellant “cannot be supervised, he would not be supervised, he will not be supervised.” Id. Having decided to revoke the release, the district judge told counsel he was “going to consider an upward departure,” recognizing the Sentencing Guidelines recommendation was three to nine months in prison but observing he had discretion to sentence Appellant to five years because of his underlying convictions. Id. at 298-99. The probation office requested the full five-year sentence, while the government recommended twelve months; but Appellant’s counsel argued for a lenient sentence for violations even the government deemed relatively minor. In the end, the district judge sentenced Appellant to eighteen months’ incarceration, giving no further explanation of his reasons.

Appellant challenges this sentence as unreasonable, both substantively (because eighteen months is too much for what he claims were minor violations) and procedurally (because the district judge failed to state reasons for the sentence). Appellant also appeals the decision to revoke his supervised release because he claims the judge applied a uniform policy rather than considering his individual circumstances. We reject that challenge, but we cannot assess whether the eighteen-month sentence is unreasonable in the absence of any explanation. Accordingly, we vacate the sentence and remand the case to the district court.

II

A

Discretion over sentencing lies entirely with district courts, and we may only review a court’s decision for abuse of discretion if it is proeedurally sound. Gall v. United States, — U.S. -, 128 S.Ct. 586, 597-98, 169 L.Ed.2d 445 (2007); see also United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (applying Gall to a revocation of supervised release). This allocation of responsibility arises from the Sentencing Act, which continues, even after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to restrict our jurisdiction over sentencing appeals to such matters as sentences imposed “in violation of law.” 18 U.S.C. § 3742(a)(1); United States v. Dorcely, 454 F.3d 366, 373 (D.C.Cir.2006) (interpreting § 3742(a)(1) to allow review for reasonableness). “Practical considerations also underlie this legal principle.” Gall, 128 S.Ct. at 597. “[District courts have an institutional advantage over appellate courts in making these sorts of determina[191] tions,” since they see many more sentencing cases. Id. at 598. And a sentencing judge will generally have greater familiarity “with the individual case and the individual defendant before him,” due partly to its direct involvement with testimony. Id. at 597.

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In Re Sealed Case, 527 F.3d 188, 381 U.S. App. D.C. 237, 2008 U.S. App. LEXIS 11756, 2008 WL 2245367 (D.C. Cir. 2008).

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