United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3294/3564
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Randy Lee Vanhorn, *
*
Appellant. *
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Submitted: April 12, 2011
Filed: June 9, 2011
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Before LOKEN, BALDOCK,1 and MURPHY, Circuit Judges.
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BALDOCK, Circuit Judge.
Defendant Randy Lee Vanhorn appeals the district court’s2 revocation of his
supervised release. Through counsel, he argues he did not violate the condition of
supervised release requiring him to stay at a halfway house for six months because his
refusals to go to a halfway house were mere talk and he was never told when to arrive
1
The Honorable Bobby R. Baldock, United States Court of Appeals for the
Tenth Circuit, sitting by designation.
2
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
at any particular halfway house. Pro se, he argues the condition itself was invalid.
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I.
Over a decade ago, a jury convicted Defendant of eleven counts of mail fraud
in violation of 18 U.S.C. § 1341 and three counts of money laundering in violation of
18 U.S.C. § 1956(a)(1)(B)(i) and (c)(4)(B). The district court sentenced Defendant
to seventy-one months of imprisonment and three years of supervised release. After
his release from prison, Defendant violated the terms of his supervised release by
committing a state crime. Thus, the Government moved to revoke his supervised
release.
Pursuant to the Government’s motion, the district court held a revocation
hearing in January 2009. The court concluded Defendant had violated his supervised
release by committing another crime. Both defense counsel and Defendant’s
probation officer recommended placement in a halfway house upon Defendant’s
release from prison. The district court sentenced him to eighteen months of
imprisonment, to be followed by one year of supervised release, with the first six
months of supervised release to be served in an unspecified halfway house.3
Defendant timely appealed the sentence imposed at the revocation hearing. He
was represented by counsel, who filed an Anders brief, and he filed two supplemental
briefs pro se. Nowhere in those briefs did Defendant challenge the imposition of the
halfway house condition of supervised release. We affirmed the district court’s
3
The text of the judgment states: “Defendant shall serve a period of SIX (6)
months of supervised release in a residential reentry center under the guidance and
direction of the U.S. Probation Office.” United States v. Vanhorn, 4:00-cr-00096
(E.D. Ark., filed May 10, 2000), Dkt. No. 190 at 1.
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imposition of eighteen months of imprisonment and one year of supervised release.
United States v. Vanhorn, 326 F. App’x. 984 (8th Cir. 2009) (unpublished).
While in prison, Defendant filed a pro se motion with the district court to
remove the condition of supervised release that he be placed in a halfway house. The
district court denied this motion. Just before he was released, Defendant filed an
appeal with this Court, challenging the district court’s denial of his motion to remove
that condition of supervised release. We summarily affirmed the district court’s order.
In June 2010, Defendant was released from prison but was not placed in a
halfway house. When his probation officer discussed possible placement at the City
of Faith, a halfway house in Little Rock, Arkansas, Defendant said he would not go
if he were told to report to the City of Faith. According to his probation officer, he
continued to maintain he would not go to any halfway house because he did not need
to. Additionally, in August 2010, Defendant wrote an email to the City of Faith
threatening in no uncertain terms to sue the City of Faith if it accepted him. The City
of Faith never accepted Defendant.4
Because the City of Faith did not accept Defendant, his probation officer
discussed possible placement in a Louisiana halfway house. Defendant continued to
refuse to go. Based on Defendant’s continued refusal to go to any halfway house and
his email to the City of Faith threatening legal action, the Government once again
4
Two explanations for this appear in the record. First, Defendant’s probation
officer explained he was ineligible for placement there because of a prior conviction.
Second, an investigator who spoke with the City of Faith facility director, Daryl
Bailey, said Bailey never processed a placement for Defendant because no request for
his placement had ever been made. At oral argument on appeal, the Government
suggested the City of Faith denied Defendant placement because of his email. We
found no evidence in the record indicating that Defendant’s email caused any action
or inaction on the part of the City of Faith.
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began revocation proceedings. At that point, no further effort was made to find a
placement for Defendant in the Louisiana halfway house.
At Defendant’s second revocation hearing, the district court heard testimony
about all these events. An investigator employed by defense counsel also testified
about conversations he had with the City of Faith facility director as well as the
director of the Louisiana halfway house. He explained that while the City of Faith
never received a request to place Defendant, the Louisiana facility had discussed the
possibility of a placement with Defendant himself. Defendant, who is HIV positive,
sought information about receiving healthcare for his condition if he were required to
move to Louisiana. The district court also heard testimony from people involved in
providing Defendant with healthcare in Arkansas. These people indicated they could
no longer provide Defendant the care he needed if he moved to Louisiana and that the
waiting list for such care in Louisiana was lengthy.
After hearing all this evidence, the district court concluded Defendant violated
the condition of supervised release requiring him to go to a halfway house because he
refused to go to the City of Faith, wrote an email threatening legal action, and refused
to go to a Louisiana residential reentry center as well. The court further reasoned:
“I’m not going to credit inferences on behalf of Mr. Vanhorn that he was really not
refusing to go, that he really just wanted to clarify things for his health. No one writes
an e-mail like that unless they are refusing to go.” Tr. of Revocation Hrg. at 49. The
court concluded: “[Defendant] is trying to manipulate the evidence to make it look
as if he did not refuse. We’ve heard that e-mail. He was not going to go to City of
Faith. That is, in essence, what he was doing. And the Court finds that the evidence
overwhelmingly supports that.” Id. at 59. The district court revoked Defendant’s
supervised release and sentenced him to six months of imprisonment. Defendant
appealed.
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II.
“We review a district court’s ‘decision to revoke supervised release for an abuse
of discretion, and we review the factual determinations underlying the court’s decision
to revoke for clear error.’” United States v. Benton, 627 F.3d 1051, 1054 (8th Cir.
2010) (quoting United States v. Smith, 576 F.3d 513, 515 (8th Cir. 2009)). The
Government must prove a violation of supervised release by a preponderance of the
evidence. Id. The district court’s determination that Defendant violated a condition
of his supervised release is a factual one. See United States v. Carothers, 337 F.3d
1017, 1019 (8th Cir. 2003) (quoting United States v. Whalen, 82 F.3d 528, 532 (1st
Cir. 1996) (“[T]he court’s subsidiary factfinding as to whether or not a violation [of
supervised release] occurred is reviewed for clear error.”).
Defendant argues on appeal, as he did below, that his refusals to go to a halfway
house were merely talk. He says his comments do not rise to the level of conduct, and
without any conduct, there could be no violation of a condition of supervised release.
The district court, however, had before it evidence that Defendant vocally and
continually refused to go to any halfway house, be it the City of Faith or a Louisiana
halfway house. In addition, Defendant wrote an email threatening legal action against
the City of Faith if it accepted him for placement. We acknowledge that many of the
cases involving a defendant’s violation of a condition of supervised release requiring
a defendant to spend time at a halfway house involve a defendant absconding from the
halfway house or violating the rules of the halfway house. See, e.g., United States v.
Paul, 409 F. App’x. 48 (8th Cir. 2011) (unpublished) (defendant was placed at
halfway house but after arrival refused to reside there, demanded to be placed in jail,
and threatened to abscond); United States v. White, 2011 WL 679346 (8th Cir. 2011)
(unpublished) (defendant left halfway house without permission); United States v.
Voice, 622 F.3d 870 (8th Cir. 2010) (defendant absconded from halfway house);
United States v. Lewis, 504 F. Supp. 2d 708 (W.D. Mo. 2007) (defendant violated
halfway house rules and was discharged because of his noncompliant behavior).
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Nevertheless, based on Defendant’s adamant refusals to go to any halfway house and
his email threatening to take legal action against the City of Faith, the district court did
not clearly err in finding Defendant’s words and actions revealed that he had no
intention of going to a halfway house. Defendant was not merely complaining about
an inconvenient condition of supervised release; he made it very clear that he would
not comply with that condition.5
Defendant also points to the fact that neither the City of Faith nor the Louisiana
residential reentry facility actually offered him a placement. It remains unclear
whether either facility ever received a request for Defendant’s placement. Regardless,
the district court’s findings were based on Defendant’s absolute refusal to go to any
halfway house. Even if the Government had not yet found a placement for Defendant,
his continued refusal and his email threatening legal action indicated nothing could
induce him to go to a halfway house once a placement was found for him. In the face
of such clear and repeated refusals, Defendant’s probation officer rationally stopped
searching for a suitable placement. The district court did not clearly err in finding
Defendant refused to go to a halfway house even though he never received a
placement or report date.
Defendant raises several issues pro se. We have carefully reviewed the record
and discern no nonfrivolous issues. See United States v. Johnson, 418 F.3d 879, 881
(8th Cir. 2005) (citing Penson v. Ohio, 488 U.S. 75, 80 (1988) (“Once the appellate
court receives this [Anders] brief, it must then itself conduct ‘a full examination of all
the proceeding[s] to decide whether the case is wholly frivolous. Only after this
separate inquiry, and only after the appellate court finds no nonfrivolous issue for
appeal, may the court proceed to consider the appeal on the merits without the
5
Defendant also argues he was merely attempting to secure medical treatment
before going to a halfway house. The district court did not clearly err in concluding
Defendant’s argument on this point was implausible; Defendant’s refusals to go to any
halfway house support the district court’s conclusion.
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assistance of counsel.”)). Thus, we relieve defense counsel of his obligation to
address Defendant’s contention that the district court illegally imposed the condition
of supervised release requiring that he spend six months in a halfway house.
Accordingly, the judgment of the district court is AFFIRMED.
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