F I L E D
United States Court of Appeals
Tenth Circuit
MAR 9 1998
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 97-6296
v. W.D. Oklahoma
DARRIS DEWAYNE BARNES, (D.C. No. (CR-93-47-L))
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, MCKAY, and LUCERO, 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.
Darris Dewayne Barnes appeals from the sentence which the district court
imposed when it revoked his supervised release. Barnes contends that 1) the
*
This order and judgment is not binding precedent, except under the doctrines of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.
evidence was insufficient to support the court’s finding that he violated his
supervised release; and 2) the district court erred by imposing a sentence of
imprisonment higher than the recommended range set forth in USSG § 7B1.4. We
affirm.
BACKGROUND
In 1993, Barnes pleaded guilty to possessing a firearm after having
previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and
he was sentenced to 46 months’ imprisonment and a three-year term of supervised
release. Barnes completed his prison term and began his term of supervised
release on July 19, 1996. The conditions of his supervised release included a
prohibition on the use of illegal drugs. On three occasions Barnes tested positive
for illegal drugs. As a result, on February 28, 1997, the district court modified
the conditions of Barnes’ supervised release to require Barnes to reside at the
Oklahoma Halfway House for 120 days. R. Vol. I, tab 38.
On July 5, 1997, Barnes left the halfway house on a weekend pass which
was good from Saturday, July 5 at 9:00 a.m. through Sunday, July 6 at 9:00 p.m.,
and which listed the times, addresses, and phone numbers for the places he
expected to be for each hour he was away from the halfway house. Among other
things, the pass was conditioned upon his agreement to not drink any alcoholic
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beverages. R. Vol. I, tab 47 at Ex. 2. It also provided that failure to adhere to the
listed itinerary could result in a charge of escape. Id.
On Sunday morning, July 6, around 3:00 a.m., police responded to a
domestic dispute call at the residence of a Ms. Covington, where Barnes was
staying. When they arrived, Barnes let them in, and stated that he had been
drinking and that he and his wife, Ms. Covington, had been arguing. The officers
then interviewed Ms. Covington and Barnes separately.
Ms. Covington told the police that Barnes’ name was “William,” that he did
not live there, that they were not married, that he was out on a pass, and that he
had “jumped on me.” She was otherwise uncooperative, refusing to give her
name or to state whether she wanted to press charges. Meanwhile, Barnes gave
the second officer an incorrect date of birth, told him that he lived there, and gave
his name as Dewayne Barnes, but indicated that he had no identification. Id. at
Ex. 1; R. Vol. III at 51. Finally, Covington revealed that Barnes’ name was
“Dorris,” and the police ran a check which showed three outstanding city
warrants. R. Vol. I, tab 47 at Ex. 1.
According to the police report, Barnes became increasingly nervous during
the interview. Finally, he broke for the front door and ran away, with the police
chasing after him, although they were unable to catch him. At the time he ran
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from police, he had not been handcuffed or arrested. Later that morning, the
police contacted Barnes’ probation officer to advise him of the incident.
Eventually, around 7:00 a.m. that Sunday, one of Covington’s neighbors
contacted the halfway house and related the morning’s events. After receiving the
neighbor’s phone call, personnel at the halfway house attempted several times to
contact Barnes at the number listed on his pass, but they were unsuccessful. They
then verified that there was a pending police case for the morning’s incident and
that police were actively seeking him. R. Vol. III at 33, 38-39. Pursuant to
policy, and consistent with the warnings stated on the pass, the halfway house
personnel terminated Barnes from their program, packed up his personal
belongings, and advised the bureau of prisons. Id. at 37-39.
Around 1:10 p.m. the same Sunday, Barnes appeared at the halfway house
and discovered that his belongings had been packed. The resident advisor told
him that he had been terminated because personnel had been unable to reach him
at the place listed on his pass, and he was advised to contact his probation officer.
Id. at 43. Barnes failed to contact his probation officer as instructed, and he
remained at large for almost two weeks, his whereabouts unknown.
On July 10, 1997, the United States Probation Office filed a petition which
sought revocation of Barnes’ supervised release because of alleged violations of
its conditions. The petition set out three separate categories of Barnes’ violations
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as follows: 1) failing the drug tests administered prior to the modification; 2)
assaulting his girlfriend and eluding the police while lawfully detained, in
violation of state law; and 3) absconding from the halfway house.
Barnes was finally arrested on July 23, 1997. A hearing was held on
August 1, 1997, during which the government withdrew the assault allegation and
also agreed that the three positive drug tests should not be used as a basis for
revocation. Following the hearing, the court found by a preponderance of the
evidence that Barnes 1) eluded the police, in violation of Oklahoma state law,
while he was being lawfully detained at his girlfriend’s house; and 2) left the
halfway house in violation of the special condition of his term of supervised
release. R. Vol. I, tab 48 at 6.
The applicable sentencing range for revocation of Barnes’ supervised
release is seven to thirteen months’ imprisonment. USSG § 7B1.4(a), p.s. Based
upon all the evidence presented at trial, including Barnes’ continued attempt to
elude police after the July 6 incident, the fact that he had given false information
to police, the fact that he had previously been given favorable treatment in the
assignment to the halfway house, and Barnes’ criminal history, the court
determined to depart upward and sentenced Barnes to eighteen months’
imprisonment.
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DISCUSSION
A. Sufficiency of the Evidence.
As his first claim of error, Barnes contends that the evidence was
insufficient to support the district court’s finding that he violated the conditions
of his supervised release.
The district court must find by a preponderance of the evidence that a
defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3). We
review the district court’s factual findings related to sentencing for clear error, 18
U.S.C. § 3742(e); United States v. Pappert, 112 F.3d 1073, 1078 (10th Cir.
1997), and we review its decision to revoke a term of supervised release for abuse
of discretion. United States v. McAfee, 998 F.2d 835, 837 (10th Cir. 1993).
Oklahoma law provides that “[i]t is unlawful for any person, after being
lawfully arrested or detained by a peace officer, to escape or attempt to escape
from such peace officer.” Okla. Stat. Ann., tit. 21, § 444.A. Barnes contends that
he did not violate the statute, because he was not being lawfully detained at the
time he fled. We disagree.
It is well settled that “if there are articulable facts supporting a reasonable
suspicion that a person has committed a criminal offense, that person may be
stopped in order to identify him, to question him briefly, or to detain him briefly
while attempting to obtain additional information.” Hayes v. Florida, 470 U.S.
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811, 816 (1985). Furthermore, “‘[a] brief stop of a suspicious individual, in order
to determine his identity or to maintain the status quo momentarily while
obtaining more information, may be most reasonable in light of the facts known to
the officer at the time.’” Id. (quoting Adams v. Williams, 407 U.S. 143, 146
(1972)); see United States v. Gonzalez-Acosta, 989 F.2d 384, 387 (10th Cir.
1993).
In this case, the evidence shows that the officers had been called out to
investigate a domestic dispute, and that at the time Barnes fled, the officers were
attempting to discern whether a crime had been committed and to sort out the
conflicting stories and identities of the parties. Accordingly, a preponderance of
the evidence 1 supports the conclusion that the Barnes was being lawfully
detained, and, hence, his escape violated Oklahoma state law.
Barnes next contends that there was no evidence to support the conclusion
that he absconded from the halfway house, and he points to the fact that he
returned to the halfway house before the expiration time stated on his pass.
Barnes’ argument ignores the fact that he was in violation of several other terms
of the pass, and that he failed to follow the instructions he received upon being
Barnes also argues that there was no showing that the police report was reliable
1
evidence. In any event, the relevant particulars were corroborated by Barnes’ own
testimony, as well as the testimony of the other witnesses. See R. Vol. III at 48-53, 31-
32, 35, 39-41.
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terminated from the halfway house program, i.e., that he contact his probation
officer.
Accordingly, we find that the evidence was sufficient to support the district
court’s conclusion that Barnes supervised release should be revoked based on the
violations alleged in the government’s petition.
B. Sentencing.
As his second claim of error, Barnes contends that the district court should
not have imposed a sentence of imprisonment higher than the recommended range
specified in USSG § 7B1.4(a).
“If the district court imposes a sentence in excess of that recommended in
Chapter 7, ‘we will not reverse if it can be determined from the record to have
been reasoned and reasonable.’” United States v. Hurst, 78 F.3d 482, 483 (10th
Cir. 1996) (quoting United States v. Lee, 957 F.2d 770, 774 (10th Cir. 1992)).
Although he concedes that the Chapter 7 ranges are advisory, Barnes
contends that they “should not be abandoned except for extraordinarily
compelling reasons, in atypical revocation cases.” Appellant’s Br. at 12. We
have previously rejected the identical argument. See United States v. Burdex,
100 F.3d 882, 884 (10th Cir. 1996), cert. denied, 117 S. Ct. 1283 (1997).
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Accordingly, concluding that the district court’s sentence was reasoned and
reasonable, we find no error.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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