United States v. Haren

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 9, 1999
• Docket: 98-50932
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 98-50932 _______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, VERSUS

JOSEPH GLEN HAREN,

Defendant-Appellant. _________________________

Appeal from the United States District Court for the Western District of Texas (SA-98-CR-194-ALL) _________________________

July 8, 1999

Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Joseph Haren appeals the sentence he received for violation

of the terms of his supervised release. He asserts that the

district court erred by (1) failing to provide adequate notice

that his past performance on supervised release was a factor in

his sentencing and (2) increasing his sentence based on

unsupported findings of past non-compliance with his supervised

release. Finding no reversible error, we affirm.

I.

Haren pleaded guilty to conspiracy to possess an

unregistered firearm and was fined $50 and sentenced to twenty-

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. seven months' imprisonment and three years' supervised release.

On April 14, 1998, while on supervised release, he was arrested

and charged with driving while intoxicated (“DWI”). The

government originally moved to modify the terms of his supervised

release to request that he receive treatment for alcoholism and

reside in a halfway house. At the modification hearing, however,

the government announced that instead it would seek revocation of

supervised release on the ground that Haren’s alcohol problem

posed a risk to the community.1 The government then formally

moved for revocation, asserting that Haren’s DWI conduct violated

three conditions of his supervised release: (1) that he not

commit a crime; (2) that he not con-sume alcohol excessively; and

(3) that he not violate the instructions of his probation

officer. The government explained that in light of Haren’s

alcohol problem, he would receive more effective treatment if he

were revoked and sentenced to a federal term in a facility that

offered in-house alcohol treatment. It asked the court to revoke

Haren’s supervised release and imprison him for no more than

twenty-four months.

In a follow-up re-sentencing memorandum, the government

elaborated on its revocation motion and recommended that Haren be

sentenced to no less than eighteen months' imprisonment after

credit for time served. The government recognized that the

1 Haren had two previous DWI convictions from before his period of supervised release.

2 policy statement recommended 5-11 months for cases like Haren’s.2

Because of Haren’s history of misconduct, however, the

government argued that an above-range punishment was needed to

protect the public from Haren’s “high risk of felonious conduct”.

See U.S.S.G. § 7B1.4, comment. n.3.

At the revocation hearing, Haren pleaded true to the

violations alleged. The probation officer confirmed that Haren

had committed a grade C violation and that his criminal history

category was III, leading to a recommended sentencing range of 5-

11 months. The government then reiterated its request that Haren

serve at least 18 months so that he could fully participate in an

alcohol recovery program. Because Haren had already been in

custody for five months, the government asked for 23 months to

ensure a full 18-month term. Haren requested a sentence of five

months' time served and said that the state prosecutor had

offered a suspended, probated sentence on the state DWI charge.3

The court revoked Haren’s supervised release term and

sentenced him to twenty-three months. In a subsequent written

explanation, the court stated that it “has imposed a sentence

near the statutory maximum imprisonment term based upon the

defendant’s extensive history of non-compliance while on

supervised release.”

2 Haren’s violation was classified as a Grade C violation with a criminal history category of III. See U.S.S.G. § 7B1.4(a), p.s. (revocation table). 3 Conditions of the state probation were to include alcohol education classes and twice-weekly Alcoholics Anonymous meetings.

3 II.

We “will uphold a sentence unless it (1) was imposed in

violation of law, (2) resulted from an incorrect application of

the guidelines, (3) was outside the guideline range and is

unreasonable, or (4) was imposed for an offense for which there

is no applicable sentencing guideline and is plainly

unreasonable.” United States v. Mathena, 23 F.3d 87, 89 (5th

Cir. 1994). “Because there is no applicable guideline for

sentencing after revocation of supervised release, we will uphold

Appellant’s sentence unless it is in violation of law or is

plainly unreasonable.”4 We review questions of constitutional

violations and statutory interpretation, however, de novo.5

III.

Haren makes two challenges to his revocation and sentence.

First, he asserts that his rights to due process at his

revocation hearing were violated because he had no notice of the

grounds for the sentence. Second, he avers that the record does

not support the sentence.

A.

Haren first argues that the court did not give him notice

that his DWI charges incurred before supervised release would be

used to impose a sentence higher than the one recommended on the

4 United States v. Giddings, 37 F.3d 1091, 1093 (5th Cir. 1994) (citing United States v. Headrick, 963 F.2d 777, 779 (5th Cir. 1992)). 5 See, e.g., United States v. Webster, 162 F.3d 308, 333 (5th Cir. 1998) (reviewing constitutional claims de novo), petition for cert. filed (Apr. 29, 1999) (No. 98-9212); United States v. Myers, 150 F.3d 459, 461 (5th Cir. 1998) (reviewing FED. R. CRIM. P. 32 claims de novo).

4 revocation table. He asserts that neither the government’s

revocation motion nor its sentencing memorandum asserted that his

past performance on conditional release warranted a sentence

above the recommended range. Moreover, his DWI charges were not

raised at the revocation hearing. According to Haren, he did not

learn that his pre-supervised release history had been a factor

in his sentence until the court issued its post-sentencing

written order. Haren claims that the failure to provide him with

the opportunity to address an issue determinative of his sentence

violated his right to due process.6 Haren is correct that

persons on supervised release have procedural due process rights

in the context of revocation hearings. See United States v.

Ayers, 946 F.2d 1127, 1129 (5th Cir. 1991). Though the Supreme

Court has emphasized that more flexibility is permitted in

revocation hearings, due process still requires that a defendant

facing revocation be given (1) written notice of the alleged

violation; (2) disclosure of the evidence against him; (3) an

opportunity to appear and present evidence; (4) an opportunity to

question adverse witnesses; and (5) notice of the right to be

represented by counsel. See Morrissey v. Brewer, 408 U.S. 471,

488-89 (1972); FED. R. CRIM. P. 32.1(a)(2).

Haren concedes that he received due process in the form of a

written notice of revocation proceedings and a full-scale

6 Haren did not object to the district court’s reliance on his non- compliance during his supervised release. We will not review for plain error, however, because the court did not reveal the basis for its decision until after the revocation hearing. Therefore, Haren could not have objected at the revocation hearing to preserve the issue for appeal.

5 revocation hearing accompanied by legal counsel. He maintains,

however, that the court deprived him of any effective ability to

comment on the factors used to impose sentence because it failed

to give him notice that his prior DWI charges would be a factor

in his sentencing. This lack of notice, Haren claims, violates

due process. “'Th[e] right to be heard has little reality or

worth unless one is informed' that a decision is contemplated.”

Burns v. United States, 501 U.S. 129, 136 (1991) (quoting Mullane

v. Central Hanover Bank, 339 U.S. 306, 314 (1950)).

In Burns, the Court held that rule 32 requires a court to

give defendants notice before departing upward on a ground not

identified in the pre-sentencing materials. Though he raises his

due process claim in the context of a revocation hearing rather

than a sentencing hearing, Haren claims that the reasoning in

Burns applies equally to his case: A court may not sua sponte

increase a sentence without giving notice of the grounds for such

an increase. To do otherwise, the Court explained, would raise

due process concerns. See id. at 138.

Burns is not directly applicable, however, because the court

in that case departed upward from the range set by the Sentencing

Guidelines. See id. at 135. Here, the court imposed a sentence

within the statutory maximum but in excess of the sentence

recommended by the policy statements accompanying Chapter 7 of

the guidelines. See U.S.S.G. § 7B1.4(a), p.s. (revocation

table). We have consistently held that unlike the ranges

prescribed by the Guidelines, these policy statements are

6 advisory only and do not bind sentencing courts at a revocation 7 hearing.

Therefore, Burns is inapposite. While rule 32 and due

process concerns require that a defendant receive the opportunity

to comment on the factors used to depart from pre-sentencing

recommendations based on the guidelines, the same stringent

standards do not apply to departures from non-binding, advisory

policy statements. “[T]he sentencing court is not required to

give notice of its intent to exceed the Chapter 7 sentencing

range.” United States v. Hofierka, 83 F.3d 357, 362 (11th Cir.

1996). “Thus, any recommendation of sentences before the

district court or argument against a particular sentence should

be grounded in the common understanding that the district court

may impose any sentence within the statutory maximum.” Id.

Because a court is not required to give notice of its intent

to depart from policy statements, there is no basis to require it

to give notice of why it is departing from them. Haren received

sufficient notice that he could have been required to serve up to

the statutory maximum allowed by the statute8 when the government

filed its original revocation motion.9 This notice of the

7 See Mathena, 23 F.3d at 93. Accord United States v. Blackston, 940 F.2d 877, 894 (3d Cir. 1991) (“When working with policy statements (as opposed to guidelines), the district court is not required, in considering revocation for supervised release, to justify its decision to impose a sentence outside the prescribed range. . . .”). 8 18 U.S.C. § 3583(e)(3). 9 “THE COURT: [D]o you understand that if you plead true, the Court may impose supervised release term that’ll beSSthat is that’ll be mandatory grounds for revocation and the maximum punishment will be imposed upon revocation, do you understand this? DEFENDANT HAREN: Yes, I do, Your

7 possibility of a two-year term satisfies the due process concerns

that Haren could raise under Burns. Therefore, Haren has no due

process right to notice of all possible factors used to depart

from a Chapter 7 policy statement.10

B.

Haren asserts an alternative ground for vacating his

sentence: The district court’s finding that Haren had previously

violated the terms of his supervised release has no support in

the record. The record does not contain any evidence that Haren

violated his supervised release condition in any way before the

DWI arrest that sparked his revocation proceeding. Because there

is no support in the record for the finding, Haren argues, the

sentence is “plainly unreasonable.” See Mathena, 23 F.3d at 89.

We agree that the court erred in basing its sentence on

Haren’s “extensive history of non-compliance while on supervised

release.” The government’s pre-sentencing memorandum based its

recommendations on Haren’s behavior before his most recent

supervised release term, and there is nothing in the record

Honor.” 10 The government points out that even if Haren had a due process right to be notified of the factors used to depart from the policy statements, he received adequate notice that the prior DWI's would be considered in sentencing. Specifically, the re-sentencing memorandum, filed two months before the revocation hearing, recommended 18 months' incarceration in addition to time served. At the revocation hearing, the government stated its concerns about the prior DWI's. (“MR. MATHEWS: The issue, we feel is . . . Mr. Haren’s repeated use of alcohol over the years and repeated violations of driving while intoxicated.”). Haren had ample time to respond to the government’s concerns and recommendations before the final ruling. Because Haren has no due process right to know the factors for a chapter 7 policy statement departure, we do not reach the question whether any such rights were violated.

8 indicating Haren had previously violated his current release

term.

This error, however, does not necessarily require us to find

that the sentence was “plainly unreasonable.” We have upheld

rulings if the record provides a valid reason to do so.11

In its re-sentencing memorandum, the government asserted

that Haren’s persistent DWI misconduct before his current

supervised release term created a “high risk of new felonious

conduct” and that a twenty-three-month sentence was needed so

that Haren could undergo the rigorous substance abuse program

provided by the Bureau of Prisons. Even though it did not rely

on the government’s reasoning, the court accepted the

government’s sentencing recommendation. The resulting twenty-

three-month term was within the statutory maximum.12 Considering

that the government offered good reasons for seeking the sentence

and that the court did not exceed its statutory authority, we

cannot say the sentence was plainly unreasonable. See Mathena,

23 F.3d at 94.

AFFIRMED.

11 See, e.g., United States v. Diaz, 39 F.3d 568, 571-72 (5th Cir. 1994) (holding that decision not to grant reduction for acceptance of responsibility would be upheld even though based in part on irrelevant grounds, because decision was independently supported by other factors); United States v. Tello, 9 F.3d 1119, 1128 (5th Cir. 1993) (“We may always affirm a district court’s ruling, made for an invalid reason, if we are shown or can find a valid reason to support the ruling.”). 12 See 18 U.S.C. § 3583(e)(3) (“[A] defendant whose term is revoked under this paragraph may not be required to serve more than . . . 2 years in prison if such offense is a Class C or D felony . . . .”).

9 KING, Chief Judge, specially concurring:

This is a case in which the district court simply misspoke

when it added the words “while on supervised release” to its

explanation of the reasons for revoking the defendant’s

supervised release. A fair reading of the record makes it

perfectly clear that the defendant had plenty of notice of the

reasons why the government sought revocation rather than

modification and why his sentence on revocation should be no less

than 18 months federal imprisonment after credit for time served.

At the revocation hearing on September 3, the defendant pleaded

true to the violations alleged. The government focused on the

defendant’s repeated alcohol-related violations and asked again

that the defendant be imprisoned for at least 18 months to allow

him to participate in a Bureau of Prisons alcohol treatment

program. The court did exactly that, and its written revocation

order contained a recommendation that the defendant participate

in an alcohol treatment program while incarcerated. The order

further stated that “[t]he Court has imposed a sentence near the

statutory maximum imprisonment term based upon the defendant’s

extensive history of non-compliance while on supervised release.”

The defendant’s extensive history of noncompliance with state

criminal laws about driving under the influence was clear. The

fact that only one of his DWI’s occurred while he was on

supervised release was absolutely clear to the court and to all

the participants. The court simply misspoke in its order.

Rather than seeking clarification or modification if, indeed,

10 there was any need for that, the defendant’s counsel filed a

notice of appeal. I respect the defendant’s counsel and I have

some sympathy for the situation he may have found himself in.

But a simple misstatement in an otherwise flawless proceeding has

generated what seems to me to be a needless appeal, which, in

turn, may have lent support to the defendant’s denial of his

alcohol problem. The defendant’s denial of his alcohol problem

was the central issue that the proceeding sought to address.

I concur in the judgment.