United States v. Assmus

365 F. App'x 414
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 16, 2010
DocketNo. 09-1885
StatusPublished

This text of 365 F. App'x 414 (United States v. Assmus) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Assmus, 365 F. App'x 414 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

DIAMOND, District Judge.

William Assmus appeals from the twenty-two-month sentence imposed following revocation of his supervised release, arguing that the District Court failed adequately to consider: (1) his mental health problems; and (2) the time he served in state custody for conduct related to his violation of supervised release. For the reasons that follow, we will affirm.

I.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3583(e). We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review a sentence imposed upon revocation of supervised release “for reasonableness with regard to the factors set forth in 18 U.S.C. § 3553(a).” United States v. Bungar, 478 F.3d 540, 542 (3d Cir.2007) (citing United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Cooper, 437 F.3d 324, 326 (3d Cir.2006)). Although we must “ensure that a substantively reasonable sentence has been imposed in a procedurally fair way,” our review of the District Court’s consider[416]*416ation of the § 3553(a) factors is deferential. United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). See also United States v. Parker, 462 F.3d 273, 276 (3d Cir.2006) (“[T]he trial court is in the best position to determine the appropriate sentence in light of the particular circumstances of the case.”) (quotation marks omitted).

III.

Because we write primarily for the Parties, we will summarize only those facts pertinent to our analysis.

On May 22, 1998, Appellant pled guilty in the United States District Court for the Southern District of Florida to one count of conspiracy to commit access device fraud and one count of bank fraud. 18 U.S.C. § § 1029(b)(2), 1344. (App. at 12.) Appellant was sentenced to seventy-seven months imprisonment, three years of supervised release, $1,022,283 in restitution, and a special assessment of $200. (Id.) On June 30, 2003, Appellant was released from custody and began serving his term of supervised release. (Id. at 15.)

On June 9, 2004, the Southern District of Florida transferred jurisdiction over Appellant’s supervised release to the District of New Jersey. (Id. at 16.) On October 20, 2004, the Government petitioned the District Court for revocation of Appellant’s supervised release, amending the petition on February 22, 2005. (Id. at 7.) Appellant did not contest the amended petition. (Id. at 16.) The Court sentenced Appellant to fourteen months imprisonment and twenty-two months of supervised release. (Id.)

Appellant began serving his second term of supervised release on October 10, 2005. (Id. at 15.) At this time, Appellant was also serving a term of parole imposed by the New Jersey state courts. (Id. at 16.)

On January 21, 2006, Appellant’s Federal Probation Officer and State Parole Officer visited Appellant’s home, where they found a parking ticket and rental ear agreement indicating that Appellant had left the jurisdiction — traveling to New York State — without permission. They also discovered materials suggesting that Appellant might have again committed access device fraud. (Id.) The following day — January 22, 2006 — federal and state authorities were unable to locate Appellant. (Id.) On March 9, 2006, the New Jersey District Court issued a warrant for Appellant’s arrest. (Id. at 8.) On March 21, 2006, New Jersey charged Appellant with obstruction of government operations for having violated his parole. (Id. at 19.)

Appellant remained a fugitive until December 22, 2007, when he was arrested in New York City. (Id. at 16.) On March 19, 2008, Appellant pled guilty in New Jersey state court to hindering apprehension (a lesser included offense of the original charge of obstruction of government operations). He was sentenced to 364 days incarceration. (Id. at 19.)

On February 13, 2009, after Appellant completed his state sentence, the New Jersey District Court conducted a hearing to determine whether to revoke Appellant’s supervised release. (Id. at 26.) Although Appellant protested that his poor mental health made it impossible for him to comply with his supervised release conditions, he once again did not contest that he had violated those conditions — this time by committing the state crime of hindering apprehension. (Id. at 33-34; 67-71.) The District Court revoked Appellant’s supervised release and scheduled sentencing for March 16, 2009. (Id. at 75-77.)

Having committed a class B supervised release violation, Appellant faced a statutory maximum sentence of thirty-six months imprisonment, with an advisory Guidelines range of twenty-one to twenty-seven months. See 18 U.S.C. [417]*417§ 3583(e)(3); U.S.S.G. § 7B1.4(a). Because Appellant had already served fourteen months imprisonment for his first violation of supervised release, his effective statutory maximum was twenty-two months imprisonment, with an effective Guidelines range of twenty-one to twenty-two months. See 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4(b)(3)(A). Appellant requested a sentence of ten months imprisonment, arguing that: (1) he had already spent twelve months in state custody for hindering apprehension; and (2) he was unable to comply with the conditions of supervised release because of his pathological gambling disorder. (App. at 95-96.) The Government argued that Appellant’s repeated violations of supervised release warranted imposition of the twenty-two month maximum sentence. (Id. at 111-13.)

Familiar with Appellant’s mental health history, the Court found Appellant to be “an individual with an absolute inability to take responsibility for his own actions.” (Id. at 118.) The Court was also “well aware that [Appellant had] already served state time.” (Id. at 120.) The Court nevertheless imposed a twenty-two month sentence, noting that a shorter sentence “would not have a deterrent effect on Mr. Assmus.” (Id.)

Appellant now contests the reasonableness of the twenty-two month sentence.

IV.

We review a sentence imposed upon revocation of supervised release “for reasonableness with regard to the factors set forth in 18 U.S.C. § 3553(a).” Bungar, 478 F.3d at 542 (citations omitted). We begin by determining whether the District Court “committed [any] significant procedural error.” Gall v. United States,

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Related

United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Lydia Cooper
437 F.3d 324 (Third Circuit, 2006)
United States v. Ronald Bungar
478 F.3d 540 (Third Circuit, 2007)
United States v. Levinson
543 F.3d 190 (Third Circuit, 2008)
United States v. Tomko
562 F.3d 558 (Third Circuit, 2009)
United States v. Lessner
498 F.3d 185 (Third Circuit, 2007)

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Bluebook (online)
365 F. App'x 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-assmus-ca3-2010.