United States v. Whitely

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0791n.06

No. 07-3692 FILED
Dec 16, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
KEVIN A. WHITELY, )
)
Defendant-Appellant. )

Before: O’CONNOR*, Associate Justice (Ret.), MOORE and COOK, Circuit Judges.

COOK, Circuit Judge. Defendant Kevin Whitely appeals the district court’s decision

revoking his supervised release and imposing a 36-month prison sentence. We affirm.

I.

In 2001, after a government investigation implicated him in recruiting couriers to smuggle

drugs from Jamaica into the United States, Whitely pleaded guilty to conspiracy to import five

kilograms or more of cocaine. See 21 U.S.C. § 963. The district court sentenced him to 72 months’

imprisonment followed by five years of supervised release. Whitely’s supervised-release term

commenced on December 30, 2005, subject to numerous conditions.

*
The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court
(Ret.), sitting by designation, pursuant to 28 U.S.C. § 294(a).
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United States v. Whitely

In February 2007, the government urged the district court to revoke Whitely’s supervised

release, alleging violations of two conditions. The government contended that Whitely failed to

timely notify his probation officer of residence and employment changes, and failed to report to the

probation office on time or submit the required monthly report, both of which constituted Grade C

violations. After further investigation, the probation office issued a supplemental violation report

(SVR) charging Whitely with several more serious violations, including engaging in conduct that

constituted a crime (a Grade A violation), as well as leaving the judicial district without permission

and associating with a convicted felon. The SVR accused Whitely of traveling to Jamaica and

attempting to coerce a female courier and convicted felon, Ashley Carr, to transport cocaine into the

United States on a commercial flight—practically the same conduct that produced his original federal

conviction.

At first, Whitely denied all of the alleged violations. The district court conducted a hearing,

at which the government introduced certified copies of several documents from the St. James,

Jamaica, Magistrate’s Court. One document charged Whitely and Carr with jointly possessing 1.25

kilograms of cocaine, dealing in cocaine, attempting to export cocaine, and conspiracy. According

to the charging document, Jamaican authorities arrested both Whitely and Carr at the Montego Bay

airport on or about September 26, 2006. Officers first stopped Carr and found three packages of

cocaine on her person. When asked about the drugs, Carr told the police that Kevin Whitely forced

her to carry the drugs in exchange for his providing her a ticket to return to the United States.

According to the charging document, the authorities found Whitely upstairs in the airport’s departure

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lounge awaiting boarding and arrested him. When questioned about the drugs found on Carr, the

Jamaican certified charging document quoted Whitely as saying, “I did not put anything on her . . . if

you are asking if I knew about it that would be another matter.”

At the hearing, the government opened by explaining the events that took place in Jamaica

and introducing the certified documents, which the court accepted into evidence without objection.

Whitely’s probation officer appeared at the hearing and the court asked him to “bring us up to date”

on the underlying and supplemental violations. So confronted with the scenario painted by the

probation officer, Whitely confessed to several of the Grade C violations—he admitted traveling to

Jamaica without authorization and failing to notify the probation office of a change in his

employment. He disputed, however, the existence of any relationship with Ms. Carr, as well as the

government’s related accusations of criminal conduct involving transportation of cocaine. But

prompted by questions from the court, he admitted that he and Carr “went down there on the same

date,” that she named him when arrested because she did not want him to leave her down there, that

Jamaican authorities charged and released him on bond, and that he flew to Toronto before returning

home. The court and the probation officer engaged in several colloquies, with the officer explaining

his interpretation of the facts as set forth in the Jamaican charging and bond documents, and

essentially advocating the government’s position in support of revocation. The government never

called the officer as a witness, and the court never placed him under oath. Whitely’s counsel raised

no objection to this procedure and did not seek to cross-examine. Likewise, the court permitted

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Whitely to respond to the probation officer’s views, which he did, without formally taking the stand

or an oath.

Relying on the documentary evidence and the presentation of the probation officer, the

court found by a preponderance of the evidence that by committing another federal

crime—conspiring with Carr to transport cocaine from Jamaica to the United States—Whitely

violated a mandatory condition of his supervised release. The court grounded this finding on the

contents of the charging document issued by the Jamaican court, noting the consistency of Whitely’s

conduct with the conduct that led to his earlier federal conviction. It found Whitely’s inconsistent

account entirely devoid of credibility. The court also found that Whitely committed several other

violations, including leaving the judicial district without permission and failing to notify the

probation office of a change in his residence or employment (both of which he admitted), associating

with an individual involved in criminal activity, and failing to submit a complete written report

within the first five days of each month. The court expressly declined to rule on the government’s

charge of associating with a known felon. After resolving the alleged violations, the court noted that

it believed the probation officer’s statements and disbelieved Whitely’s protestations. It then

sentenced Whitely to a 36-month term of imprisonment, followed by two years of supervised release.

When presented with the opportunity to do so, Whitely’s counsel stated no objections to the

sentence. Whitely now appeals.

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II.

On appeal, Whitely raises three arguments: he claims that the court (1) abused its discretion

by considering the Jamaican court documents; (2) erred by failing to require that the probation

officer testify under oath; and (3) imposed a procedurally unreasonable sentence. Addressing these

contentions in turn, we reject them all and affirm.

A. Jamaican Court Documents

Whitely challenges the decision to admit certified copies of Jamaican court documents as

evidence against him in the revocation proceedings, claiming that they constitute inadmissible

hearsay and lack sufficient indicia of reliability. We disagree.

District courts may consider hearsay evidence during revocation proceedings as long as they

find sufficient indications of reliability. United States v. Waters, 158 F.3d 933, 940 (6th Cir. 1998).

We review the determination of reliability for abuse of discretion, see Waters at 941, and here find

none, with several factors lending support to the district court’s decision to admit the Jamaican court

records. Most importantly, the facts described in the Jamaican documents bear remarkable similarity

to those that landed Whitely in federal prison in the first place—soliciting financially-strapped

women to body-carry powder cocaine from Jamaica into the United States on commercial flights.

The district court quite correctly found the striking congruence between the allegations in the

documents and Whitely’s prior offense supported a finding of reliability. And Whitely himself

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admitted to being present at the Montego Bay airport in Jamaica on the date listed on the document,

and having traveled to Jamaica on the same date as Ashley Carr (both from Columbus, Ohio). Under

these circumstances, given the relaxed evidentiary standards that apply to supervised-release

revocation proceedings, the district court did not abuse its discretion in finding the Jamaican court

documents sufficiently reliable to merit consideration.

B. Probation Officer’s Statements

Whitely claims that the district court erred by soliciting the probation officer’s statements

without requiring the officer to be under oath and further erred in relying on those unsworn

statements in revoking his supervised release. We review this claim for plain error affecting

substantial rights because he failed to raise this objection in the district court. United States v.

Roberge, 565 F.3d 1005, 1010 (6th Cir. 2009).

Compared to criminal trials, supervised release revocation hearings are subject to few

constitutional or procedural safeguards, as “[p]robation revocation . . . is not a stage of a criminal

prosecution,” Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), and “there is no thought to equate” the

two. Morrissey v. Brewer, 408 U.S. 471, 489 (1972). The flexible evidentiary standard that applies

to revocation proceedings allows consideration of evidence that would be inadmissible in a criminal

prosecution, United States v. Kirby, 418 F.3d 621, 628 (6th Cir. 2005), including letters, affidavits,

and other documents, Morrissey, 408 U.S. at 489, as well as hearsay that bears indicia of reliability,

United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991). But despite these relaxed standards,

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“defendants are entitled to minimal due process requirements, including the right to confront and

cross examine adverse witnesses.” United States v. Torrez, No. 96-1973, 1997 WL 745520, at *2

(6th Cir. Nov. 24, 1997); see also Fed. R. Crim. P. 32.1(b)(2)(C) (providing accused the right to

question adverse witnesses at supervised release revocation hearing). Despite these limited

protections, we can assume, without deciding, that the district court’s consideration of the unsworn

probation officer’s statements violated Whitely’s rights and constituted an obvious error. We

conclude, however, that any error was harmless because it did not affect Whitely’s substantial

rights.1,2

In most cases, an error affecting substantial rights is one that prejudices the affected party;

“‘[i]t must have affected the outcome of the district court proceedings.’” United States v. Johnson,

403 F.3d 813, 815 (6th Cir. 2005) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). To

1
Without citing any authority, the government asks us to completely bar Whitely’s challenge
due to his failure to object, thus allowing the government to sustain the revocation of his supervised
release using the probation officer’s unsworn testimony as support. Instead we review for plain error
so that Whitely’s failure to object below raises the bar for reversal, but does not waive the issue
entirely. United States v. Pluta, 176 F.3d 43, 51 (2d Cir. 1999), and United States v. Talk, 13 F.3d
369, 371 (10th Cir. 1993), cert. denied, 513 U.S. 844 (1994).
2
Whitely argues that this finding of error warrants reversal regardless of whether it affected
his substantial rights because it qualifies as “structural,” and thus falls outside the plain error analysis
mandated by Federal Rule of Criminal Procedure 52. We reject this contention, as the “structural
error” cases he cites—Arizona v. Fulminante, 499 U.S. 279 (1991), and Sullivan v. Louisiana, 508
U.S. 275 (1993)—originated outside the federal system, and the Supreme Court has expressly
declined to carve out such an exception. See Johnson v. United States, 520 U.S. 461, 466 (1997)
(indicating that the “seriousness of the error” claimed on appeal does not work to remove the error
completely from the plain-error analysis of Federal Rule of Criminal Procedure 52(b) but goes to
whether “substantial rights” have been affected).
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decide the prejudice issue here we examine whether the record—without the probation officer’s

statements—independently supports the court’s findings and withstands a sufficiency challenge. We

conclude that it does, and therefore find no prejudice to Whitely from this error.

Apart from the probation officer’s unsworn statements, the evidence before the district court

included: (1) the three certified Jamaican court documents indicating that Whitely was arrested in

Jamaica for possession and distribution of cocaine and that he had solicited Carr to help him

transport pounds of the drug back to the United States; (2) the district court’s knowledge of the facts

and circumstances of Whitely’s prior conviction—which closely mirrored the conduct upon which

the government based its revocation request—as the same judge who presided over the underlying

criminal proceedings; and (3) Whitely’s own vacillations and admissions during the supervised-

release revocation hearing regarding his presence in Jamaica, his association with Carr both in

Jamaica and Ohio, and his various admissions and retractions concerning whether he had committed

any of the charged infractions. By weighing only this evidence, and drawing reasonable inferences

therefrom, we conclude that a preponderance of the evidence supports the district court’s

determination that Whitely engaged Carr to smuggle cocaine from Jamaica into the United States.

This conduct violated the condition of Whitely’s supervised release that prohibited him from

committing a federal crime, thereby requiring the district court to revoke his supervised release. See

U.S. Sentencing Guidelines § 7B1.3(a)(1) (requiring revocation for a Grade A infraction).

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As for the other violations found by the district court, Whitely admitted two of them

(traveling outside the judicial district without permission and failing to report a change in

employment), and the third—failing to timely file monthly reports with the probation office—he

does not challenge on appeal. Thus, even without the probation officer’s statements, the record

supports all of the violations the district court found when revoking Whitely’s supervised release.

Because the error caused no prejudice, Whitely cannot show plain error.

C. Whitely’s Sentence

Whitely challenges the procedural reasonableness of the within-Guidelines 36-month

sentence imposed by the district court, claiming that the court failed to consider the § 3553(a) factors

or explain its reasoning, thus mandating reversal.

Ordinarily, we review sentences imposed following revocation of supervised release under

the same deferential abuse of discretion standard that applies to post-conviction sentences. United

States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). Here, however, we review only for plain error

because Whitely failed to object to his sentence after the district court asked for Bostic objections.

See United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). Procedural reasonableness review

requires that we “ensure that the district court committed no significant procedural error, such as . . .

failing to consider the § 3553(a) factors . . . or failing to adequately explain the chosen sentence.”

Gall v. United States, 127 S. Ct. 586, 597 (2007).

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Without question, the district court calculated the Guidelines range correctly, and then

sentenced Whitely at the high end of that range. To uphold a sentence, we require neither ritual

incantation of the factors, United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005), nor explicit

references to the statute, United States v. Smith, 505 F.3d 463, 467–68 (6th Cir. 2007). The record

suffices if “the district court’s explanation of the sentence makes it clear that it considered the

required factors.” United States v. Washington, 147 F.3d 490, 491 (6th Cir. 1998).

Since Whitely offered no objection or argument disfavoring the sentence imposed—geared

to § 3553(a) or otherwise—his sentence called for little explanation. The court’s statements at the

conclusion of the hearing evince sufficient consideration of the required factors to withstand plain

error review. The transcript reflects the court’s consideration of the striking similarity between the

conduct underlying Whitely’s supervised release violations and his prior conviction, his lack of

candor with his probation officer, and his evasiveness and lack of credibility in conversations with

the court. These facts, on which the court expressly relied when revoking Whitely’s supervised

release and imposing his sentence, relate to several 3553(a) factors, including the nature and

circumstances of the offense, the need to deter criminal conduct, and the protection of the public.

Facing no contrary arguments from the defendant, the court’s discussion of these facts suffices.

Rita clarified that the district court in its discretion decides how much explanation to provide,

and that “when a judge decides simply to apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 356 (2007). But even

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if we accept Whitely’s contention that the district court failed to adequately explain its reasoning,

that failure did not affect his substantial rights. On appeal, Whitely gives no indication of what he

would have argued that might have persuaded the judge to sentence him to less than 36 months.

Thus, he advances no grounds to support a conclusion that the court’s alleged explanatory failure

prejudiced him.

Moreover, even if Whitely could show that the alleged error affected his substantial rights,

we nevertheless decline to afford him relief because this case does not present the requisite

“exceptional circumstances.” See Vonner, 516 F.3d at 386. Where the appellant shows a plain error

affecting substantial rights, we may then exercise our discretion to notice the error, but only if we

find that it seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Johnson v. United States, 520 U.S. 461, 467 (1997). Judged by this standard, Whitely’s claim fails

to merit the exercise of our discretion. After voicing no objections, offering no arguments, and not

even submitting his view of an appropriate sentence, he received a presumptively reasonable within-

Guidelines sentence premised upon a correctly-calculated range. See Vonner, 516 F.3d at 389–90.

His appellate arguments leave that presumption unrebutted. Accordingly, we cannot say that the

alleged error seriously affected the fairness of the proceedings.

III.

We affirm.

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KAREN NELSON MOORE, Circuit Judge, dissenting in part. Because I believe that

Whitely’s sentence was procedurally unreasonable, I dissent with respect to the majority’s resolution

of Whitely’s sentencing challenge. Although this court generally “review[s] supervised release

revocation sentences . . . under a deferential abuse of discretion standard for reasonableness,” United

States v. Bolds, 511 F.3d 568, 575 (6th Cir. 2007) (quotation omitted), because Whitely did not

object to his sentence after the district court requested any objections not previously raised, review

is for plain error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). To

obtain plain-error relief, Whitely must show an “obvious or clear” error that affected his substantial

rights and “the fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotation

omitted).

A sentence is procedurally unreasonable when, inter alia, a district court “fail[s] to calculate

(or improperly calculat[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to

consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to

adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). As the

majority highlights, a district court is not required to state every factor listed in § 3553(a) or even

reference the statute when sentencing a defendant, but a district court must “‘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.’” United States v. Thomas, 498 F.3d 336, 341

(6th Cir. 2007) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). Thus, “regardless of

whether the sentence falls within the Guideline range, we review the sentencing transcript to ensure

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. . . that the sentencing judge adequately considered the relevant § 3553(a) factors and clearly stated

[its] reasons for imposing the chosen sentence.” United States v. Liou, 491 F.3d 334, 339 (6th Cir.

2007). In the instant case, I believe that the district court plainly erred by failing to consider the

§ 3553(a) factors and by failing to state clearly its reasons for Whitely’s sentence. And for those

reasons, I would vacate Whitely’s sentence and remand for resentencing.

As an initial matter, the district court “never mentioned anything resembling the § 3553(a)

factors” during Whitely’s sentencing. Thomas, 498 F.3d at 340. The totality of the district court’s

explanation for Whitely’s sentence was as follows:

I don’t find [Whitely] to be credible because of the inconsistent statements that he
made before this Court in this Court; therefore, I am going to impose a sentence of
36 months imprisonment, which will be followed by a two-year term of supervised
release.

Hr’g Tr. of 4/27/07, at 32. In essence, the record indicates that the district court based the length of

Whitely’s sentence on its conclusion that Whitely was a liar and that he had committed the

supervised-release infraction. Contrary to the majority’s contention, I do not believe that the district

court’s discussion of Whitely’s conduct in the context of determining whether to revoke his

supervised release reflects consideration of the § 3553(a) factors sufficient to render the sentence

procedurally reasonable and to withstand plain-error review. See Liou, 491 F.3d at 339 n.4 (noting

the need to vacate a sentence when “the context and the record do not make clear the court’s

reasoning” (quotation omitted)). Based on the revocation portion of the transcript, I am willing to

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assume that, for sentencing purposes, the district court was aware of the nature and circumstances

of Whitely’s offense, which is a § 3553(a) factor. Once the district court made the decision to revoke

Whitely’s supervised release, however, there was no discussion implicating the remainder of the

factors or any mention of what constituted an appropriate sanction for the supervised-release

infractions. This circuit has found a sentence procedurally unreasonable when a district court did

more. See United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005) (finding a sentence

procedurally unreasonable where “the district court provided a list of various characteristics of the

defendant that it considered during sentencing” but the reasoning “did not include any reference to

the applicable Guidelines provisions or further explication of the reasons for the particular sentence

imposed”).

Whitely offered no arguments as to why he merited a lower sentence in either a sentencing

memorandum or in response to the district court’s request for objections to his sentence, as the

majority notes. But this does not automatically make any sentence within the Guidelines range

procedurally reasonable. “The amount of reasoning required varies according to context,” Liou, 491

F.3d at 338, but in addition to finding procedural error when a district court has failed to address a

defendant’s arguments, we have emphasized that procedural error also exists when a “district judge

. . . simply select[ed] what the judge deem[ed] an appropriate sentence without [the] required

consideration” of § 3553(a). United States v. Jones, 489 F.3d 243, 250–51 (6th Cir. 2007). Thus,

although the district court was not required to anticipate and address arguments that Whitely never

even made, it was required to set forth the reasons for Whitely’s sentence in order to allow this court

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to determine whether the district court considered the relevant statutory factors and ultimately relied

on appropriate considerations in selecting the sentence.3

Because the district court apparently failed to consider the § 3553(a) factors and provided

absolutely no justification for its sentence at the high end of the Guidelines range, I believe that the

district court committed an obvious error. I also believe that the error affected Whitely’s substantial

rights such that Whitely meets the plain-error standard of review. The majority concludes that, even

assuming sentencing error, it did not affect Whitely’s substantial rights because “Whitely gives no

indication of what he would have argued that might have persuaded the judge to sentence him to less

than 36 months.” Maj. Op. at 10. In accord with the forgiving reading of the hearing transcript that

allows the majority to conclude that the district court considered the nature and circumstances of

Whitely’s offense, however, Whitely’s discussion of how he was “doing well” on his supervised

release prior to being arrested in Jamaica, Hr’g Tr. of 4/27/07, at 24, is an argument for reduced

3
Whitely concedes that he was sentenced within the Guidelines range. Although the range
was not explicitly mentioned during the revocation hearing, because the SVR was filed before the
district court, this court is permitted to presume that the district court was aware of the range. See
United States v. Polihonki, 543 F.3d 318, 324 (6th Cir. 2008). Presumptions can be rebutted,
however. See Liou, 491 F.3d at 338–39. Along these lines, it is of note that during the probation
officer’s colloquy with the district court, the probation officer recommended “a sentence clearly
above the guideline range.” Hr’g Tr. of 4/27/07, at 27 (emphasis added). In response, the district
court stated, “I take it you [the probation officer] stick with your recommendation of 36 months.”
Id. Thirty-six months was at the high end of the 30 to 37 month range, but based on the probation
officer’s recommendation for an above-Guidelines-range sentence, the record does not make clear
whether the district court knew the appropriate range despite being provided with the SVR. This
confusion provides additional support for remanding this case to the district court for resentencing.
Not only are the justifications for Whitely’s sentence inadequate, but also it is not clear based on the
exchange between the district court and the probation officer that it is appropriate to presume the
district court’s knowledge of the Guidelines range from the SVR.
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sentencing that the district court failed to address and that could have persuaded the judge to opt for

a lower sentence.

This is not a case where the district court’s explanation and reference to the § 3553(a) factors

was less than “ideal.” Vonner, 516 F.3d at 386. This is a case where there was no explanation, id.,

and I believe that a sentence without any explanation affects the fairness and integrity of the district-

court proceedings. For the foregoing reasons, I would conclude that Whitely’s sentence was plainly

procedurally unreasonable and would vacate his sentence and remand for resentencing. I respectfully

dissent.

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