NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1217
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UNITED STATES OF AMERICA
v.
TIMOTHY M. RISSMILLER
a/k/a Timmy,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-05-cr-00202-001)
District Judge: Honorable Yvette Kane
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Submitted Under Third Circuit L.A.R. 34.1(a)
September 27, 2013
Before: CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges.
(Filed: March 4, 2014)
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OPINION
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VANASKIE, Circuit Judge.
Appellant Timothy M. Rissmiller appeals his sentence following the revocation of
his supervised release, arguing that the sentence was procedurally unreasonable because
the District Court failed to give proper consideration to the relevant factors set forth in 18
U.S.C. § 3553(a), as required by 18 U.S.C. § 3583(e), and did not explain its variance
above the advisory Guidelines range. Because the District Court committed procedural
error in imposing its sentence, we will vacate the sentence and remand for re-sentencing.
I.
Rissmiller pled guilty to child pornography charges in 2005 and received a
sentence of seventy months’ imprisonment, three years of supervised release, and fines
and assessments. After he was released from prison, his first term of supervised release
was revoked for using a computer with online access without authorization, failing to
answer all inquiries by his probation officer truthfully, and failing to participate in and
comply with all of the requirements of a sex offender treatment plan. The District Court
sentenced him to nine months’ imprisonment for these violations of the conditions of
supervised release, and imposed two years of supervised release.
Relevant to this appeal, in October of 2012, during Rissmiller’s second period of
supervised release, a probation officer found a legally available photography book at
Rissmiller’s residence that contained a picture of a minor girl in her underwear. The
probation officer also discovered books that included erotica and fantasies of deviant
sexual behavior. At the recommendation of the probation officer, Rissmiller disclosed
his possession of those materials, and his use of them for sexual gratification, to his
counselors at the sex offender counseling program in which he was participating.
Because the possession and use of those materials violated the counseling program’s
treatment requirements, the counseling program “unsuccessfully discharged” him from
the program. (App. 13.) After Rissmiller’s discharge from that program, the probation
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office petitioned the District Court to revoke supervised release on the ground that failure
to abide by the treatment provider’s requirements violated the following special condition
of supervision:
The defendant shall participate, at the Defendant’s expense,
in a sex offender treatment program, which may include risk
assessment testing, counseling and therapeutic polygraph
examinations, and shall comply with all requirements of the
treatment provider. The treatment is to be conducted by a
therapist approved by the probation officer.
(App. 16.)
The District Court issued a warrant for Rissmiller’s arrest and scheduled a hearing
on the petition for revocation of supervised release. A “dispositional report” was
prepared by the probation office in advance of the hearing. The report indicated that,
pursuant to U.S.S.G. § 7B1.4(a), the advisory Guidelines range was three to nine months’
imprisonment, based on a Grade C violation and a criminal history category of I.
During the ensuing hearing, Rissmiller did not contest the charge that his failure to
abide by the treatment provider’s requirements and termination from the sex offender
treatment program violated a condition of supervised release. Instead, Rissmiller argued
that his discharge from the treatment program warranted at most a six month stay in a
half-way house. This District Court disagreed, stating:
All right. I appreciate the arguments of counsel. I
would like to find that Mr. Rissmiller is engaged in a
harmless exercise of his right to own his sexual being, but I
don’t believe that’s what has occurred here. He’s already
violated the Court’s orders once and been revoked. And here,
he is again deliberately seeking out materials, whether they
are readily available on the legal market or otherwise
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including a seemingly harmless photo book, that will support
his interest in arousal by things related to children.
I find that the treatment provider was absolutely
correct in rejecting him from the program. He has
demonstrated a calculated effort to walk what I think is a
dangerous line. He’s been very cunning, very calculating in
seeking out those materials that will give him the sexual
satisfaction that he seeks while at the same time he believes
staying within the lines.
He expresses surprise that these materials were outside
the permissible materials in the treatment provider’s
agreement with him, but I don’t think there was any surprise
here at all. I think he knew exactly what he was doing and he
is rightfully in violation not only of the treatment provider’s
agreement with him but of the Court’s orders.
The Court finds that the Defendant, Timothy M.
Rissmiller, has violated the terms and conditions of
supervised release and, therefore, revokes the Defendant’s
term of supervised release.
Pursuant to the Sentencing Reform Act of 1984, and in
view of the considerations expressed in 18 U.S.C. 3553(a), it
is the judgment of the Court that the Defendant, Timothy
Rissmiller, is hereby committed to the custody of the Bureau
of Prisons to be imprisoned for a term of 12 months.
(App. 116-17.)
The District Court did not make any finding as to the applicable advisory
Guideline imprisonment range. Moreover, and perhaps as a result, the record does not
disclose the reason the District Court imposed a sentence that was tantamount to a
variance above the advisory guideline range. 1
1
Both Rissmiller and the Government agree that, under our precedents, the fact
that Rissmiller recently completed the incarceration component of the supervised release
revocation sentence does not moot this appeal because he is now subject to an additional
4
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 18 U.S.C. § 3742(a)(1)-(3) and 28 U.S.C. § 1291.
We review both the procedural and substantive reasonableness of a sentence
following revocation of supervised release for abuse of discretion. United States v. Doe,
617 F.3d 766, 769 (3d Cir. 2010). To satisfy the procedural requirements in imposing a
sentence, “[a] sentencing court must (1) calculate the advisory Guidelines range, (2)
formally rule on any departure motions and state how those rulings affect the advisory
range, and (3) exercise its discretion pursuant to the factors set forth in § 3553(a).”
United States v. Clark, 726 F.3d 496, 500 (3d Cir. 2013). In the revocation context, 18
U.S.C. § 3583(e) enumerates the relevant § 3553(a) factors that the district court must
consider. While a district court “need not discuss and make findings as to each of the §
3553(a) factors,” the district court must provide some statement that enables us to
“understand the rationale by which [the] district court reache[d] a final sentence.” Clark,
726 F.3d at 502 (alterations in original) (internal quotation marks omitted).
Rissmiller argues that the sentence the District Court imposed was procedurally
unreasonable because it failed to give proper consideration to the relevant § 3553(a)
factors and to explain its variance from the advisory Guidelines range. Our review of the
record compels us to conclude that the District Court committed procedural error in
imposing its sentence.
period of supervised release. See, e.g., United States v. Carelock, 459 F.3d 437, 438 n.1
(3d Cir. 2006).
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First, contrary to the three-step procedural requirement for imposing a sentence
referenced above, see Clark, 726 F.3d at 500, the District Court did not state what it
found to be the applicable Guidelines range. 2 While the probation office’s dispositional
report included the relevant Guideline information, the District Court never referenced or
adopted those calculations. Failure to calculate the Guidelines range thus constituted
error.
Second, the District Court did not explain why it varied above the advisory
guideline range and could have been more thorough in its discussion of the 3553(a)
factors. Before finding that Rissmiller violated a special condition of his supervised
release, the District Court observed that he had previously violated conditions during his
2
Rissmiller did not object during sentencing to the District Court’s failure to place
a Guidelines calculation on the record. Therefore, we apply plain error review. Fed. R.
Crim. P. 52(b). Thus, we will vacate the sentence only if we conclude that: (1) there was
an error; (2) the error was “plain,” that is, clear or obvious; (3) the error affects
substantial rights, which “in most cases” means that the error was prejudicial; and (4) the
error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Olano, 507 U.S. 725, 732-36 (1993). As explained in the text, the
District Court’s failure to place a Guidelines calculation on the record was an error, and
the error is, in retrospect, obvious. As to elements 3 and 4, it appears that failure to
calculate a Guidelines range is prejudicial and can be said to affect the fairness of the
sentencing proceeding. “[D]ifferent procedures may lead to different sentences, and thus
an error of procedure is seldom harmless. It is difficult to conclude that a District Court
would have reached the same result in a given case merely because it could have
reasonably imposed the same sentence on a defendant.” United States v. Vazquez-
Lebron, 582 F.3d 443, 447 (3d Cir. 2009). We have thus stated, though in dictum, that
under plain error review, a “District Court’s failure to calculate a final guidelines range –
leaving us unable to review the procedural and substantive bases of the sentence – is an
error that is plain, that affects the substantial rights of the parties, and that could seriously
affect the fairness, integrity or public reputation of judicial proceedings.” United States
v. Fumo, 655 F.3d 288, 309 (3d Cir. 2011). For these reasons, neither Rissmiller’s failure
to directly raise this argument on appeal, nor his failure to object during sentencing,
prevent us from granting relief in the present appeal.
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first period of supervised release, which resulted in revocation, and, based on his conduct
in the present proceeding, opined that he was “deliberately seeking out materials . . . that
w[ould] support his interest in arousal by things related to children.” (App. 116.) The
District Court also expressed its belief that Rissmiller “knew exactly what he was doing”
by obtaining materials that were legally available, yet violated the requirements of the
treatment program. The District Court also appeared to recognize the need for specific
deterrence given Rissmiller’s knowing and purposeful possession of suspect materials
and the need to provide him custodial treatment given his failure to comply with the
outpatient treatment requirements, which are all relevant considerations under Sections
3553(a) and 3583(e).
Those statements touch upon only the first § 3553(a) factor regarding “the nature
and circumstances of the offense and the history and characteristics of the defendant.”
See 18 U.S.C. § 3553(a)(1). In Clark, we recently vacated a sentence following
revocation of supervised release where the district court “focused its § 3553(a) discussion
on § 3553(a)(1),” but thereafter “merely enumerated the remaining § 3553(a) factors.”
Clark, 726 F.3d at 502-03. Similarly, assuming the District Court’s discussion in this
matter related to § 3553(a)(1), the absence of any further substantive discussion of the
relevant remaining § 3553(a) factors leaves us unable to “determine, from the record
before us, that the court ‘reasonably applied those factors to the circumstance of the
case.’” Id. at 503 (quoting United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007)).
For the same reasons, we are unable to review the reasonableness of a sentence that
varies above the advisory guideline range. The lack of elaboration in this case is
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particularly problematic given that the District Court did not state the applicable
Guidelines range on the record but, nevertheless, imposed a sentence above the probation
officer’s recommended Guidelines range.
Because of these procedural errors, we must conclude that the District Court
imposed a procedurally unreasonable sentence, and therefore abused its discretion. As in
Grier, “[w]e do not suggest that the original sentence reflects anything less than the
sound judgment of the District Judge, or that the final sentence should necessarily differ
from the one previously imposed.” Grier, 475 F.3d at 572. But, we will require upon
remand that the District Court expand upon its decision so as to explain the reasons for its
variance and reflect meaningful consideration of the relevant § 3553(a) factors.
III.
For the foregoing reasons, we will vacate the sentence of the District Court and
remand for further proceedings consistent with this opinion.
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