United States v. Leonard Edward Westry, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 19, 2019
• Docket: 18-14331
• Status: Unpublished

Opinion

Case: 18-14331 Date Filed: 06/19/2019 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14331 Non-Argument Calendar ________________________

D.C. Docket No. 1:05-cr-00206-TM-B-3

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LEONARD EDWARD WESTRY, JR.,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(June 19, 2019)

Before MARTIN, NEWSOM and FAY, Circuit Judges.

PER CURIAM: Case: 18-14331 Date Filed: 06/19/2019 Page: 2 of 11

Leonard Edward Westry, Jr., appeals the revocation of his term of

supervised release and resulting 13-month sentence of imprisonment. We affirm.

I. BACKGROUND

In 2006, Westry pled guilty to conspiracy to possess with intent to distribute

morphine, oxycodone, hydrocodone, hydromorphone, methadone, and crack

cocaine, in violation of 21 U.S.C. § 846. The district court imposed a sentence of

180 months of imprisonment to be followed by 10 years of supervised release. The

court imposed the standard conditions of supervised release and added two other

conditions: (1) that Westry not possess a gun or dangerous weapon, and (2) that he

participate in a drug-treatment-and-testing program as directed by the probation

office. The district court subsequently lowered Westry’s sentence to 143 months

and then to 102 months based on two retroactive amendments to the Sentencing

Guidelines, pursuant to 18 U.S.C. § 3582(c)(2).

Westry’s period of supervised release began on March 19, 2013. In July

2014, the probation office petitioned the district court to revoke Westry’s

supervised release, based on various violations of the conditions of his supervised

release. After Westry admitted to the violations, the court sentenced him to 12

months of imprisonment to be followed by 108 months of supervised release. The

court included the same conditions originally imposed to the supervised release,

including that Westry participate in a program of testing and treatment for drug

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and/or alcohol abuse; the court also added that Westry was required to participate

in a mental health evaluation and comply with any recommended treatment.

Westry’s second term of supervised release began on July 22, 2015. In a

January 2017 report, the probation office noted that Westry had tested positive for

marijuana and admitted to using marijuana; as a result, he was placed in more

intensive drug screening. In a subsequent January 2018 report, the probation office

noted that Westry again had admitted to using marijuana, and he was admitted to a

facility to complete a treatment assessment.

On August 9, 2018, the probation office petitioned the district court to

revoke Westry’s supervised release, listing four violations to the conditions of his

release: (1) changing residences without notifying the probation officer at least ten

days before the change; (2) lying to his probation officer about where he was

living; (3) missing 11 group drug-treatment classes between January 15, 2018, and

August 6, 2018; and (4) failing to report to the probation office for drug screening

seven times between March 19, 2018, and August 2, 2018. A warrant was issued

for Westry’s arrest. He was arrested on October 2, 2018; the following day, a

magistrate judge held an initial hearing and Westry waived his right to a

preliminary hearing.

The probation officer filed an amended petition on October 10. The

amended petition added an additional violation of a standard condition, based on

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Westry’s October 2 admissions to his probation officer that he had smoked two

marijuana “blunts” the night before and drank several beers earlier that morning.

On October 11, Westry filed a notice indicating his waiver of his right to a

revocation hearing and admitting “to the violations set forth in the Petition

approved by the Court on __________,” leaving the entry for the date of the

petition blank. The district court held the revocation hearing the same day.

The district court began the hearing by noting that Westry had waived his

right to have a hearing; Westry, through counsel, confirmed that he had. Westry’s

counsel stated that the violations were serious and stemmed from drug use, noting

that Westry had admitted such drug use to the probation officer. He said that he

had not committed any new crimes but “[o]bviously he [had] used drugs.” He

spoke of how Westry had been working in a group home and had left, but that he

would be welcomed back if he got the chance. Accordingly, he requested that the

court order Westry to cooperate with the probation officer and for the probation

office to place him in an intensive drug-treatment program. In a personal

statement to the district court, Westry said that he “wasn’t trying to argue with the

probation officer or whatever they had to say. It’s true.”

The district court stated that Westry had admitted to the violations of failing

to notify his probation officer of a change of address, failing to truthfully answer

questions from the probation officer, failing to participate in a drug-treatment

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program, and failing to submit to periodic urine tests. Based on these violations,

the district court calculated a guideline range of 13 months. The probation officer

then asked whether the district court had received the amended petition that

contained an additional allegation of drug use. The court and Westry indicated that

they had not received it, and government counsel produced the amended petition.

Westry, through counsel, stated that he was aware of the allegation in the amended

petition because it had come up in the initial hearing. He argued that the admission

of drug use “in some ways mitigates not being truthful to the probation officer.”

The district court noted that Westry had admitted to the violations and stated

that “when [Westry] violate[d] the condition about drug usage, continued drug use,

[he] create[d] a couple . . . concerns” for the court. One concern was the condition

to not further violate the law, which Westry should have understood would be

enforced. It also stated its concern that the drug trade is not safe for anyone, and

using drugs presents risks to the public and the user. It noted that Westry had had

other problems while on supervision and that his probation officers were

unimpressed by his efforts. The court expressed concern for Westry’s well-being

and future; he had previously had his supervised release revoked for violating the

law, and yet he had “continued to do the same thing.”

“[B]ased on [Westry’s] admissions, that [he had] violated the conditions of

[his] . . . supervised release,” and in consideration of the factors set forth in 18

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U.S.C. § 3553(a), the district court imposed a 13-month sentence of imprisonment

to be followed by 35 months of supervised release. The court then asked Westry

whether he had any objections; through counsel, he stated that he did not have any

“legal objections” to the sentence but argued that a 13-month sentence was longer

than necessary. The district court further explained that the 13-month sentence

would give Westry time to realize his mistakes and that Westry had been given

many opportunities during supervised release and had not responded positively to

them. The final judgment reflected that Westry was adjudicated guilty of five

violations, including the drug-use violation as alleged in the amended petition.

II. DISCUSSION

A. Revocation of Supervised Release

On appeal, Westry argues that the revocation was improper because he never

admitted to the allegation of drug use contained in the amended petition, and the

district court never held a hearing on that allegation, as required by Federal Rule of

Criminal Procedure 32.1(b)(2). A district court’s revocation of supervised release

is generally reviewed under an abuse of discretion standard. United States v.

Frazier, 26 F.3d 110, 112 (11th Cir. 1994). However, we review for plain error

challenges to the revocation of supervised release that were not raised in the

district court. United States v. Reese, 775 F.3d 1327, 1328-29 (11th Cir. 2015).

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“We will reverse a judgment for plain error only if three elements are met:

(1) the district court committed a legal error; (2) that error was plain; and (3) it

affected the appellant’s substantial rights.” Id. at 1329. “Even when those three

elements are met, whether to correct the error remains in our discretion, which we

will exercise in favor of correction only if the error seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” Id. (quotation marks

omitted). Where the explicit language of a statute or rule does not directly resolve

an issue, there can be no plain error without binding precedent resolving the issue.

United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). A plain

error affects substantial rights if it affected the outcome of the disposition. United

States v. Madden, 733 F.3d 1314, 1323 (11th Cir. 2013).

A district court may revoke a term of supervised release if it “finds by a

preponderance of the evidence that the defendant violated a condition of

supervised release.” 18 U.S.C. § 3583(e)(3). If a defendant on supervised release

“refuses to comply with drug testing imposed as a condition of supervised

release . . . the court shall revoke the term of supervised release and require the

defendant to serve a term of imprisonment.” Id. § 3583(g)(3). We have upheld the

revocation of a defendant’s supervised release where the government did not prove

two violations of the conditions of supervised release but the defendant admitted to

a violation of a different condition. United States v. Vandergrift, 754 F.3d 1303,

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1307 (11th Cir. 2014); see also United States v. Brown, 656 F.2d 1204, 1207 (5th

Cir. Unit A Sept. 1981) (explaining that, where there is an adequate basis to revoke

supervised release, it is unnecessary to decide whether there was possible harm in

consideration of other possibly unsubstantiated grounds for revocation).

Federal Rule of Criminal Procedure 32.1 provides: “Unless waived by the

[defendant], the court must hold the revocation hearing within a reasonable time in

the district having jurisdiction.” Fed. R. Crim. P. 32.1(b)(2). The defendant is

entitled to written notice of the alleged violation, disclosure of the evidence, an

opportunity to present evidence and question adverse witnesses, notice of his right

to counsel, and an opportunity to make a statement in mitigation. Id.

Here, the district court had sufficient grounds to revoke Westry’s supervised

release and did not plainly err by doing so.1 Westry admitted to at least four of the

alleged violations of the conditions of his supervised release, and his admission of

failing to comply with the drug-testing condition alone was enough to require the

district court to revoke his term of supervised release. 18 U.S.C. § 3583(g)(3).

Thus, even if Westry did not admit to the new allegation in the amended petition or

waive his right to a hearing on that allegation, there was no plain error by the

1 Because Westry failed to raise his current arguments before the district court, plain-error review applies. Reese, 775 F.3d at 1329. 8 Case: 18-14331 Date Filed: 06/19/2019 Page: 9 of 11

district court in revoking his supervised release. See Vandergrift, 754 F.3d at

1307.

B. Sentence

Westry also argues that his sentence was procedurally unreasonable because

the district court did not adequately explain the sentence and relied on the

unproven drug-use allegation in crafting the sentence.2 Usually, we review a

sentence imposed on revocation of supervised release for reasonableness. United

States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006). However, where a

defendant does not object to the procedural reasonableness during the district court

proceedings, we review for plain error. Vandergrift, 754 F.3d at 1307.

We are precluded “from reviewing an issue raised on appeal if it has been

waived through the doctrine of invited error.” United States v. Brannan, 562 F.3d

1300, 1306 (11th Cir. 2009) (emphasis omitted). “The doctrine of invited error is

implicated when a party induces or invites the district court into making an

error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998). We have

applied the doctrine of invited error where the party affirmatively requested or

2 While Westry mentions substantive reasonableness in the statement of the issue, he fails to provide facts, law, or arguments as to substantive reasonableness. Accordingly, he has abandoned any argument as to the substantive reasonableness of his sentence. See United States v. King, 751 F.3d 1268, 1277 (11th Cir. 2014) (recognizing that issues not raised in an appellant’s initial brief are deemed abandoned, and we will not address them); United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a claim or issue on appeal must plainly and prominently so indicate. Otherwise, the issue . . . will be considered abandoned.”). 9 Case: 18-14331 Date Filed: 06/19/2019 Page: 10 of 11

specifically agreed with the challenged action of the district court. See United

States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir. 2005). The doctrine stands for

the general proposition that a defendant should not benefit from taking a course of

action in the district court and then complain when that strategy fails. United

States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003).

A district court may commit procedural error by, among other things,

“selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007). In sentencing a defendant, the district court “should set forth

enough to satisfy the appellate court that [it] has considered the parties’ arguments

and has a reasoned basis for exercising [its] own legal decisionmaking authority.”

Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007).

First, the record belies Westry’s claim that the district court did not

adequately explain the sentence. The court discussed its concerns about Westry’s

law breaking, his failure to take seriously the conditions of supervised release, the

opportunities that he had squandered during supervised release, and how

imprisonment grants time for reflection and growth.

Further, Westry invited any error the district court may have committed in

considering the drug-use allegation by admitting to drug use and arguing that his

admission of drug use to the probation officer should be seen as mitigating his

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earlier untruthful statements to his probation officer. Because he invited any error

as to this issue, we will not consider it.

AFFIRMED.