United States v. Crews

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 1, 2022
• Docket: 21-1440
• Status: Unpublished

Opinion

Appellate Case: 21-1440 Document: 010110718244 Date Filed: 08/01/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 1, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-1440 (D.C. No. 1:07-CR-00280-RBJ-1) MAITISE CREWS, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, KELLY, and HOLMES, Circuit Judges. _________________________________

Maitise Crews appeals from the 21-month sentence the district court imposed

after revoking his second term of supervised release. Exercising jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

BACKGROUND

In 2007, Mr. Crews pleaded guilty to being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 63 months

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-1440 Document: 010110718244 Date Filed: 08/01/2022 Page: 2

of imprisonment, to be served concurrently with a much longer state term, and three

years of supervised release.

In September 2019, Mr. Crews began serving his federal supervised-release

term. Nearly a year later, in August 2020, his probation officer petitioned to revoke

his supervised release because he had tested positive for drugs a number of times and

had failed to comply with drug treatment and monitoring. Mr. Crews admitted to the

violations. The Guidelines range was 21-24 months’ imprisonment, but neither party

requested a Guidelines sentence. The prosecutor considered 12 months and 1 day to

be a sufficient sentence, while Mr. Crews requested time served pending the

revocation hearing (approximately 60 days). Both sides agreed that imprisonment

should be followed by two more years of supervision.

Defense counsel stated that Mr. Crews was making improvements, but he had

been incarcerated for a long time, in harsh conditions, and he was having trouble

managing his obligations out of prison. She asked the court “to give Mr. Crews a

second chance, a second chance to learn how to take advantage of all the positives

that exist for him right now,” stating that he “is deserving of some leniency maybe

cloaked in some empathy at this point in time.” R. Vol. 3 at 18. Mr. Crews told the

court that he was “willing to take any kind of rehabilitation that’s offered” and that

being detained pending the revocation hearing had “opened [his] eyes to not being

able to play around with [his] freedom.” Id. at 24. He stated, “I just want some help,

some rehabilitation, and I will try and I will do my best.” Id.

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The district court varied downward and imposed a sentence of 6 months of

imprisonment and two years of supervised release. But the decision “came with a

warning to Mr. Crews,” with the district court telling him:

[I]t is time for you, sir, to grow up. It is time for you to stop relying on defense lawyers . . . trying to tell judges like me how difficult it is for you to do such simple things as comply with supervised release, and if you are revoked again, the Court will have no interest in continuing supervised release or in varying below the guidelines in terms of incarceration. This is your chance, sir.

R. Vol. 3 at 29.

Mr. Crews completed the 6-month sentence and began serving his second term

of supervised release on January 12, 2021. His probation officer reviewed the

conditions of supervised release with him on January 13. The next day, however,

Mr. Crews failed to provide a urine sample for drug testing. Further, he was living at

his wife’s house, and she alleged that he assaulted her by grabbing her neck and

holding it with both hands.

The probation office placed Mr. Crews in a motel, but that arrangement lasted

only two days because he had a verbal disagreement with another resident. He then

moved to his mother’s house. But his wife called police at least three times over the

next two weeks, reporting that he not only made harassing phone calls to her, but also

forcibly entered her house and stole her marijuana, repeatedly knocked on her door

and refused to leave, and threw rocks through her windows. During this time, he also

failed two drug tests. Finally, on January 29, he engaged in a three-hour standoff

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with police before being arrested. Mr. Crews pleaded guilty to one count of criminal

mischief, and the state dismissed charges of burglary, assault, harassment, and theft.

Mr. Crews’ probation officer filed a petition to revoke his second supervised

release with four counts supporting revocation. Count 1 alleged he violated the law,

Counts 2 and 3 alleged he failed drug tests, and Count 4 alleged he failed to comply

with substance abuse testing as directed.

Mr. Crews’ second revocation hearing did not take place until December 14,

2021. He was in state custody for most of 2021, but he was transferred to federal

custody on November 9. On November 15, a magistrate judge ordered him released

on bond with the condition that he reside in a Residential Reentry Center (RRC). On

November 18, two hours after the probation officer met with Mr. Crews and his case

manager at the RRC, Mr. Crews attempted to assault and/or threaten an RRC staff

member. The RRC rejected him from the program, and a second magistrate judge

revoked Mr. Crews’ release on bond. He remained in federal custody until the

second revocation hearing.

At the second revocation hearing, Mr. Crews admitted to all four counts. As

before, the Guidelines range was 21-24 months. This time, both the probation officer

and the prosecutor requested that the court impose a 21-month sentence. Mr. Crews

requested a sentence of time served (315 days) with no further supervision. His

counsel argued that he was in a better position to be successful in the community and

that he faced accountability because of state supervision requirements. She stated, “I

understand the Court wants to impose a harsher sentence. Our request of time

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served, which is between 10 and 11 months, is a harsher sentence, and . . . I think that

the question is maybe a bit more complicated than just looking at the guideline

ranges in these circumstances.” R. Vol. 3 at 36. In addition, Mr. Crews personally

addressed the court, emphasizing his family circumstances and his desire to do better

for himself and his family. “I can’t do this anymore, Your Honor. I’ve learned my

lesson. It’s time for me to stop being my own worst enemy and start being my own

best friend by cherishing my freedom and my time.” Id. at 41.

The district court imposed a 21-month sentence with no further supervision. It

rejected defense counsel’s suggestion that it wanted to impose a “harsh sentence.”

Id. at 44. In doing so, the court explained: “One of the most unpleasant things about

being a judge is sentencing people. . . . And in the case of Mr. Crews, who’s been in

prison or jail for so much time, really the part of his life when he was young with the

whole world in front of him, that makes me sad for him, sad for his family, sad for

his community.” Id. It continued:

I look, however, at the history here, here, and as I said before, as soon as he got out—I mean, he literally began his second term of supervised release on January 12th, and he got into this scrape with his wife, drunk apparently, breaking into her home, assaulting her three days later. The probation office tried to find him a place, a motel where he could stay. That didn’t seem to work out too well. They got him at one point into an RRC, residential reentry center, and he got into it and threatened somebody on the staff and another person over there bragging that he was an OG Crip, and don’t mess with me type stuff. You know, it’s a guy with lots of ability, lots of talent. Look what his brothers are doing. He said one of them is a sheriff deputy. One of them is an ER surgeon or ER doctor. And for Mr. Crews to be stuck in this vortex of incarceration that started way back with Judge Nottingham in 2007, four years before I ever came to this court, it’s a shame.

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But what I said last time I meant when I said I’m going to give you a break today, sir, but if you violate again I’m not going to vary, I’m not going to give you another break, I’m going to give you what the guideline says you deserve, and I meant that. So my sentence will be 21 months, the bottom of the guideline. No more supervised release. That’s not working for him.

Id. at 44-45.

Mr. Crews now appeals.

DISCUSSION

Mr. Crews raises one issue: whether the district court impermissibly decided

his sentence in advance when it warned him at the first revocation hearing that it

would not vary in the future and then imposed a Guidelines sentence at the second

revocation hearing. He acknowledges that he failed to object at the revocation

hearing, and therefore our review is for plain error. See United States v. Moore,

30 F.4th 1021, 1024 (10th Cir. 2022). “Under plain-error review, a defendant must

show: (1) error, (2) that is plain, (3) which affects the party’s substantial rights, and

(4) which seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 1025 (internal quotation marks omitted). “An error is plain if it

is clear or obvious under current, well-settled law. In general, for an error to be

contrary to well-settled law, either the Supreme Court or this court must have

addressed the issue.” United States v. Wells, 38 F.4th 1246, 2022 WL 2444429, at *4

(10th Cir. 2022) (internal quotation marks omitted).

Relying on Moore, Mr. Crews argues that the district court plainly erred by

employing a “sentence-in-advance system,” Moore, 30 F.4th at 1025. In Moore, the

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district court had offered the defendant a choice between a low-end Guidelines

sentence of 51 months’ imprisonment, or a sentence of 48 months’ probation, subject

to a sentence of at least 84 months’ imprisonment if he violated probation. See id.

at 1023. When the defendant violated probation, the district court imposed the

84-month sentence based solely on what it said at the earlier hearing, without

discussion of the Guidelines range or the facts that led to the probation violation.

See id. at 1024.

In Moore, we held that “the district court plainly erred by imposing its

sentence-in-advance system.” Id. at 1025. “The Supreme Court and this circuit have

established a required order of operations in federal sentencings. A district court is

supposed to start with the facts, calculate the advisory guideline range, and then

decide whether a variance is warranted to ensure a just sentence.” Id. (internal

quotation marks omitted). “Thus, the plain error here lies in preordaining a minimum

future sentence and bypassing the required analysis that is available only after

probation has been revoked.” Id. We therefore concluded in Moore that “[t]he

problem is obvious—the district court couldn’t have known whether Mr. Moore’s

future conduct would justify the at-least-33-month-consecutive increase to its offered

51-month sentence.” Id.

But the circumstances here differ from Moore in important respects. When the

defendant violated probation in Moore, the district court skipped directly to imposing

the previously promised 84-month sentence in lieu of performing the proper analysis.

Id. at 1024, 1027. Here, however, the probation officer prepared a supervised release

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violation report discussing the facts and the law, which the district court reviewed.

The report included the relevant Guidelines range, which was not disputed. Then

Mr. Crews was able to set forth his sentencing position, including letters of support,

which the district court also reviewed. His counsel argued at the second revocation

hearing, and he had the opportunity to address the court. And importantly, the

district court’s discussion at the second revocation hearing indicates that it

considered relevant factors, specifically including the nature and circumstances of the

second supervised release violation and Mr. Crews’ history and characteristics,

see 18 U.S.C. § 3583(e) (identifying sections of 18 U.S.C. § 3553(a) to be considered

in revoking supervised release). Thus, unlike Moore, the district court here followed

the correct procedural steps. See Gall v. United States, 552 U.S. 38, 49-50 (2007)

(stating that the district court should calculate the Guidelines range, give the parties

an opportunity to argue, and then consider the § 3553(a) factors). Rather than

skipping directly to the sentence previously discussed, the district court applied its

previous warning in light of the facts underlying the second revocation hearing.

Further, in Moore, the 84-month sentence greatly exceeded the Guidelines

range of 5 to 11 months, and it was not clear how the district court determined that

84 months would be an appropriate sentence. See 30 F.4th at 1027. The omission of

an explanation was itself a procedural violation. See Gall, 552 U.S. at 50 (“After

settling on the appropriate sentence, [the district court] must adequately explain the

chosen sentence to allow for meaningful appellate review and to promote the

perception of fair sentencing.”). Here, however, the district court imposed a

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within-Guidelines sentence, which on appeal we may presume to be reasonable,

see Rita v. United States, 551 U.S. 338, 347 (2007), and it gave its reasons for doing

so. And, as stated, its reasons largely focused on Mr. Crews’ conduct during the

second supervised release period.

For these reasons, Mr. Crews has not established that the district court committed

an error that is clear or obvious. He thus does not satisfy plain-error review.

CONCLUSION

We grant Mr. Crews’ motion to expedite the appeal and affirm the district

court’s judgment.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge