United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 13, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 05-20411
Summary Calendar
____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CLARENCE HUNTER
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. 4:98-CR-394
_________________________________________________________________
Before KING, WIENER, and DEMOSS, Circuit Judges.
PER CURIAM:*
Defendant-appellant Clarence Hunter appeals the twenty-four-
month prison sentence imposed by the district court following
revocation of the supervised release term attached to his
original sentence. For the following reasons, we AFFIRM the
sentence imposed by the district court after Hunter’s revocation
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 10, 1998, defendant-appellant Clarence Hunter
(“Hunter”) pleaded guilty to a one-count indictment, charging him
with possession of cocaine with intent to distribute in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii). The district court
sentenced Hunter to a sixty-three-month term of imprisonment, a
five-year term of supervised release, and a $100 special
assessment. As part of the conditions of his supervised release,
Hunter was required to participate in a program, inpatient or
outpatient, for the treatment of drug and alcohol addictions, as
well as submit to drug testing as directed by his probation
officer.
Hunter’s term of supervised release commenced on April 11,
2003. Hunter’s probation officer, Bryan Demar (“Demar”),
periodically filed reports alleging violations of the conditions
of Hunter’s supervised release, three of which are relevant to
the instant appeal. On April 7, 2004, Demar filed a report
alleging that Hunter had submitted urine specimens that tested
positive for cocaine on March 11 and 24. Demar did not
recommended any adverse action at this time, which allowed Hunter
to remain in an outpatient drug treatment program. The district
court concurred with this recommendation. On June 9, 2004, Demar
filed another report alleging that Hunter had tested positive for
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cocaine on May 14. Once again, Demar did not recommend any
adverse action in light of Hunter’s voluntary admission to a
residential drug treatment facility for a period of not less than
forty-five days, and the district court concurred with this
recommendation. On September 16, 2004, Demar filed yet another
report alleging that Hunter had again tested positive for cocaine
on August 2 and had failed to participate in drug treatment as
directed. Demar did not recommend any adverse action in light of
Hunter’s voluntary admission to a drug treatment facility for a
period of not less than ninety days, and the district court again
concurred with this recommendation.
On April 27, 2005, Demar filed a Petition for Warrant or
Summons for Offender Under Supervision, which cited the earlier
reports and alleged that Hunter had again violated the terms of
his supervised release in the following two ways: (1) submitting
urine specimens that tested positive for cocaine on March 31 and
April 9 and admitting to usage of cocaine before each failed
test; and (2) failing to participate in the Bonita House of Hope
Residential Substance Abuse Program after being terminated for
urinating on the property outside of his assigned cottage in
public view. The district court granted the warrant, and Hunter
was arrested on May 4, 2005.
The district court conducted a revocation hearing on May 13,
2005. Hunter pleaded true to the first allegation, which related
to the failed drug tests, but he qualified his plea by stating
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that the two positive urine samples were the result of a single
instance of cocaine use. The government disagreed and indicated
that it had a witness who was prepared to testify that there were
two distinct instances of drug use. Hunter pleaded not true to
the second allegation because he did not believe that his
termination from the drug facility constituted a violation of his
condition to participate in drug treatment.
During the hearing, Demar testified that Hunter admitted to
separate instances of cocaine use before each failed drug test
mentioned in the first allegation. Demar and Bonita House
Director Tyrone Evans also testified about the public urination
episode that resulted in Hunter’s termination from the drug
facility for being disrespectful and failing to comply with the
rules of the facility. Testifying on his own behalf, Hunter told
the court about his cocaine problem dating back to the 1960s and
admitted to using the drug during his supervised release term,
particularly in March 2005. He maintained, however, that he did
not use cocaine before every failed drug test. He also attempted
to explain the public urination incident as being the result of
an urgent need and a lack of access to available indoor restrooms
at the time.
Upon completion of the witness testimony, the district court
concluded that both allegations were true, specifically finding
that there had been separate instances of drug use underlying
each failed test. The court then permitted counsel for the
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defendant and government to make arguments about the appropriate
sentence to impose. Hunter’s counsel argued that his client was
making an effort to address his drug problem and deserved another
chance before the court revoked his supervised release. He
alternatively requested a sentence at the bottom end of the
Sentencing Guidelines range with no additional supervision. The
government disagreed, citing the multiple occasions in which
Hunter had violated the conditions of his supervised release and
his failure to be forthright about the purportedly separate
instances of cocaine use underlying the first allegation.
Accordingly, the government urged the court to sentence Hunter to
twenty-four months in prison with access to the drug treatment
programs provided by the Bureau of Prisons, followed by no
additional period of supervised release.
After a brief colloquy with Hunter about his repeated
violations of the conditions of his supervised release, the
district court imposed its sentence.
I’ve reviewed the supervised release revocation
worksheets prepared by the probation office. The
statutory term of imprisonment allowable pursuant to 18
United States Code, Section 3583[(e)] is 3 years.
According to the Chapter 7 computations in United States
Sentencing Guidelines Section 7B1.4, the revocation
imprisonment range for a criminal history category of II
and a Grade C violation is 4 to 10 months.
After considering the Chapter 7 policy statements,
it is the judgment of this Court that the defendant
Clarence Hunter’s term of supervised release in Cause No.
4:98-Criminal-394 is revoked. Mr. Clarence Hunter is
sentenced to the custody of the Bureau of Prisons for a
term of imprisonment of 24 months.
The Court recommends no supervised release to
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follow. The special assessment originally imposed has
already been paid. The defendant is hereby committed to
the custody of the United States Bureau of Prisons to be
imprisoned for a total term of 24 months. This
revocation sentence is imposed pursuant to the Chapter 7
policy statements and addresses the sentencing objectives
of punishment, incarceration, and deterrence in
accordance with 18 United States Code, Section 3553(c).
The defendant has been detained without bail since his
arrest and is remanded to the custody of the United
States Marshal.
The defendant is advised that he does have the right
to appeal this judgment pursuant to Rule 32(c)(5).
1 Supp. R. at 50-51. Hunter timely appealed his sentence on May
16, 2005.
II. DISCUSSION
Hunter challenges the district court’s imposition of a
sentence in excess of the advisory range of four to ten months
applicable for his violation of supervised release pursuant to
the policy statement in U.S. SENTENCING GUIDELINES MANUAL § 7B1.4(a)
(2005) (providing a table of advisory imprisonment ranges upon
revocation of supervised release based on the grade of violation
and criminal history category of the defendant at the time of the
original sentence). More specifically, Hunter argues that the
district court did not sufficiently articulate its reasons for
departing from this advisory range with respect to the relevant
sentencing factors under 18 U.S.C. § 3553(a). See 18 U.S.C.
§ 3553(c)(2) (requiring the sentencing court to state “the
specific reason for the imposition of a sentence different from
that described” in the applicable guidelines or policy
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statements). The government responds that the transcript from
the revocation hearing demonstrates that the sentence was
reasonable in light of the § 3553(a) sentencing factors.
As an initial matter, the parties disagree about the
appropriate standard of review to apply to the instant matter.
Because the district court sentenced Hunter after the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005),
Hunter contends that this court should review the sentence for
reasonableness. See United States v. Duhon, 440 U.S. 711, 714
(5th Cir. 2006); United States v. Smith, 440 U.S. 704, 706 (5th
Cir. 2006).1 The government argues, however, that this court
should review only for plain error because Hunter failed to
object to his sentence at the conclusion of the revocation
hearing. See United States v. Gonzales, 250 F.3d 923, 930 (5th
Cir. 2001).2
The court, not the parties, determines the proper standard
of review to guide our analysis. United States v. Vonsteen, 950
F.2d 1086, 1091 (5th Cir.) (en banc), cert. denied, 505 U.S. 1223
1
In reviewing a sentence for reasonableness, we assess
whether the statutory sentencing factors under 18 U.S.C.
§ 3553(a) support the sentence. Duhon, 440 F.3d at 715.
Although a court should articulate fact-specific reasons for its
sentence, we recognize that the court need not make a “checklist
recitation” of the sentencing factors. Smith, 440 F.3d at 707.
2
In reviewing for plain error, we may correct forfeited
errors only if (1) there is an error, (2) that is clear or
obvious, and (3) that affects the defendant’s substantial rights.
Gonzales, 250 F.3d at 930 n.10.
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(1992). In United States v. Hinson, this court affirmed a
revocation sentence, noting that “the concerns that led the
Supreme Court to hold that mandatory sentencing guidelines
violated the Sixth Amendment do not exist with regard to
sentences imposed when supervised release is revoked.” 429 F.3d
114, 117 (5th Cir. 2005). The Hinson court, however, expressly
declined to decide “whether the ‘plainly unreasonable’ standard
in subsection 3742(a) continues to apply to sentences imposed
upon revocation of supervised release or whether Booker’s
‘unreasonableness’ standard governs” because the sentence
“passe[d] muster under either and was not imposed in violation of
law.” Id. at 120. Similarly, we need not decide the precise
issue of whether plain-error review applies based on Hunter’s
alleged failure to preserve his challenge in the district court
because we conclude that his sentence satisfies the more exacting
reasonableness inquiry under Booker. See United States v.
Hidalgo-Peralta, 166 F. App’x 762, 763 (5th Cir. 2006) (citing
Hinson and declining to decide whether the proper standard of
review was plain error or reasonableness because the sentence
imposed after revocation was “proper under either standard”).3
3
In any event, it appears that Hunter preserved his
challenge to the sentence by requesting that the district court
not revoke his supervised release or, in the alternative, impose
a sentence at the low end of the Guidelines range of four to ten
months. See Hidalgo-Peralta, 166 F. App’x at 763 (noting,
without deciding the issue, that the defendant “appear[ed] at
sentencing to have preserved this issue by requesting a
concurrent sentence”).
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Upon our review of the record, we are abundantly satisfied
that the district court took into account the relevant sentencing
factors under 18 U.S.C. § 3553(a) and the advisory imprisonment
range under the policy statement in § 7B1.4 of the Sentencing
Guidelines before imposing a term of twenty-four months in prison
without any additional supervised release. First, as the
district court correctly noted, the statutory maximum sentence
upon revocation of a term of supervised release is three years in
prison if the underlying offense is a class B felony.4 See 18
U.S.C. § 3583(e)(3). Hunter’s sentence therefore fell below the
applicable statutory maximum. We have routinely upheld
revocation sentences in excess of the advisory range but within
the applicable statutory maximum with respect to the underlying
offense. See, e.g., United States v. Jones, No. 05-30665, 2006
WL 1519458, at *1 (5th Cir. May 25, 2006); United States v.
Boykin, No. 05-50704, 2006 WL 616031, at *1 (5th Cir. Mar. 13,
2006); United States v. Green, 162 F. App’x 283, 284 (5th Cir.
2006) (“The policy statements applicable to probation revocations
are advisory only and do not contravene the rule in Booker or the
Sixth Amendment.”).
Moreover, after listening to witness testimony and reaching
a decision about the allegations, the district judge engaged in a
4
Indeed, Hunter does not dispute that the applicable
statutory maximum term of imprisonment qualified his underlying
drug offense as a Class B felony. Compare 21 U.S.C.
§ 841(b)(1)(B)(ii) with 18 U.S.C. § 3559(a)(2).
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colloquy with Hunter about his repeated failures to abide by the
conditions of his supervised release--specifically focusing on
Hunter’s apparent unwillingness to seriously commit to his
rehabilitation5--before announcing the sentence. See 18 U.S.C.
§ 3553(a)(1) (instructing the court to take into account “the
nature and circumstances of the offense and the history and
characteristics of the defendant” in determining the appropriate
sentence); cf. United States v. Magwood, 445 F.3d 826, 830 (5th
Cir. 2006) (affirming a two-year sentence imposed after a
revocation hearing, despite an advisory range of four to ten
months under § 7B1.4 of the Sentencing Guidelines, where the
district court took the defendant’s “several opportunities to
reform” his drug problem into consideration). Furthermore, as
5
More specifically, the district court said the following
to Hunter during the revocation hearing.
When Mr. Demar tells you, If you don’t get with the
program, you’re going back to jail, . . . . you view that
as him being overbearing and mean to you and so it’s his
fault, not your fault.
So I don’t really think that you will ever -- and no
matter how many classes you go to, no matter how well you
participate -- I’m sure you do. I’m sure you do
participate but there are two things going on. Number
one, it’s somebody else’s fault, and, number two, I’m
smarter than the rest of these people. And you are. You
probably are smarter, but the point is, you’re never
going to get anything out of the program unless you get
rid of those attitudes. . . . So I don’t think it will do
you any good for me to send you to any program, because
you just don’t really -- deep down inside, you don’t
really want to quit cocaine because you enjoy it and you
admitted you enjoy it.
1 Supp. R. at 44-45.
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the government correctly pointed out during the hearing, Hunter
would have access to any drug treatment programs offered by the
Bureau of Prisons during his period of incarceration.6 See
United States v. Pena, 125 F.3d 285, 288 (5th Cir. 1997) (noting
that the district court’s consideration of drug rehabilitation
while serving a revocation sentence in prison is appropriate
under 18 U.S.C. § 3553(a)(2)(D)). Therefore, based on our review
of the sentencing transcript, we conclude that the district court
adequately considered the relevant sentencing factors under
§ 3553(a) and reached a sentence that was reasonable in light of
the circumstances.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by
the district court after Hunter’s revocation hearing.
6
We also note that Hunter’s reliance on the Second
Circuit’s decision in United States v. Lewis, 424 F.3d 239 (2d
Cir. 2005), is misplaced. In Lewis, the government made no
sentencing recommendation that might have illuminated some of the
district court’s reasons for exceeding the advisory sentencing
range under the non-binding policy statements in the Sentencing
Guidelines. Id. at 242. After closely reviewing the record, the
court concluded that the district court had failed to state its
specific reasons for the sentence and remanded for resentencing.
Id. at 249. In contrast, the district court in the instant case
demonstrated due consideration of the relevant sentencing factors
under § 3553(a) before adopting the government’s sentencing
recommendation of twenty-four months in prison without additional
supervised release.
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