United States v. Roark

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 5, 1997
• Docket: 96-6330
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit

MAR 5 1997 UNITED STATES COURT OF APPEALS

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 96-6330 v. W.D. Oklahoma LAWSON DEAN ROARK, (D.C. No. CR-94-169-T)

Defendant - Appellant.

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.

Appellant Lawson Dean Roark pleaded guilty to one count of assisting another in

receiving unauthorized satellite cable programming for direct commercial advantage to

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. his business and the private financial gain of another in violation of 47 U.S.C.

§ 605(e)(2).1 On March 29, 1995, the district court sentenced Roark to probation for two

years, 208 hours of community service as directed by the probation office, and a $1,000

fine. R. Vol. I at Tab 17 (Judgment). The court imposed several standard conditions of

supervision upon Mr. Roark, including monthly reports to the probation officer and

following the probation officer’s instructions. Id.

On August 22, 1996, Mr. Roark’s probation officer, Byron Boese, petitioned the

court to revoke Mr. Roark’s probation due to six alleged violations. After a hearing and

testimony from Mr. Boese and Mr. Roark, the district court determined that Mr. Roark

violated the terms of his probation because he: (1) missed scheduled appointments with

the probation officer; (2) failed to follow the probation officer’s instructions when he did

not contact the probation officer on several occasions; (3) failed to make regular monthly

fine payments; (4) failed to follow the probation officer’s instructions to document his

inability to make regular monthly payments; (5) failed to perform scheduled community

service work, leaving approximately 96 hours of the required community service

outstanding; and (6) failed to follow the probation officer’s instructions when he was

unable to perform scheduled community service work. R. Vol. I at tab 24 (Order on

1 47 U.S.C. § 605(e)(2) provides: “Any person who violates subsection (a) of this section willfully and for purposes of direct or indirect commercial advantage or private financial gain shall be fined not more than $50,000 or imprisoned for not more than 2 years, or both, for the first such conviction and shall be fined not more than $100,000 or imprisoned for not more than 5 years, or both, for any subsequent conviction.”

-2- Revocation). The court then sentenced Mr. Roark to five months imprisonment

beginning September 16, 1996, directed him to pay $205.89, the outstanding balance of

his original $1,000 fine, placed him on one-year supervised release, and required him to

perform 96 hours of community service. Id.

Mr. Roark appeals the district court’s order revoking his probation, arguing that

the evidence was insufficient and urging this court to “remand this matter with

instructions to continue Mr. Roark under the previously imposed term of probation.”

Appellant’s Br. at 1, 8.

As a practical matter, Mr. Roark’s appeal is moot as to the sentence of

imprisonment since inquiry of counsel reveals that he completed his term of

imprisonment approximately two weeks ago, and under the new sentence, he must simply

pay the balance of the fine required by the original sentence, which he would be required

to do even if this court reinstated the original sentence. Also, he must complete the same

amount of remaining community service required under the original sentence.

However, the one-year supervised release imposed by the court at Roark’s second

sentencing is still in force, as well as the potential for collateral consequences from the

revocation. See United States v. Schmidt, 99 F.3d 315, 317 (9th Cir. 1996). Accordingly,

we turn to the merits of the appeal.

Probation may be revoked if the district court is reasonably satisfied that a

violation of probation conditions has occurred, and we review probation revocation

-3- decisions for fundamental unfairness or for an abuse of discretion. See United States v.

Reber, 876 F.2d 81, 83 (10th Cir. 1989); United States v. Levine, 983 F.2d 785, 787 (7th

Cir. 1993). Roark urges that the evidence was insufficient to justify revoking his

probation, and that we must review de novo the district court’s order, citing inapposite

authorities requiring de novo review for sufficiency of the evidence in appeals from

criminal trial convictions. Appellant’s Br. at 5 (citing, inter alia, United States v. Grimes,

967 F.2d 1468, 1472 (10th Cir. 1992)). We are unpersuaded. The applicable standard of

review is established by Reber. In any event, more than sufficient evidence supported the

district court’s decision to revoke probation, including Roark’s own admissions that he

violated the terms of his probation. The district court resentenced Roark within the

applicable guideline range. See R. Vol. III at 10 (PSR).

The district court did not abuse its discretion and there was no fundamental

unfairness in revoking Roark’s probation and resentencing him. The judgment of the

district court is therefore AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

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