United States v. Olivia Wendell Hall

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 11, 2007
No. 06-15894 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-00101-CR-WD0-5

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OLIVIA WENDELL HALL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
_________________________

(April 11, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

Olivia Wendell Hall appeals her thirteen-month sentence imposed on
revocation of her supervised release, pursuant to 18 U.S.C. § 3583(g). We

AFFIRM.

I. BACKGROUND

Following her guilty plea to bank fraud in violation of 18 U.S.C. § 1344 in

the Western District of New York, Hall was sentenced in 2004 to thirty-one

months of imprisonment, followed by a five-year term of supervised release, and

restitution in the amount of $134,255.51. The conditions of Hall’s supervised

release included (1) the mandatory condition that she not commit another crime;

(2) the mandatory condition that she refrain from the unlawful use of a controlled

substance; (3) the mandatory condition that she submit to periodic drug testing; (4)

the standard condition that she work regularly at a lawful occupation, unless

excused by the probation officer; and (5) the special condition that she participate

in a substance abuse program. Hall’s term of supervised release began on October

26, 2005. In August 2006, Hall was transferred to the Middle District of Georgia.

On September 26, 2006, the United States Probation Office petitioned the

district court for a warrant to arrest Hall because she had violated the terms of her

supervised release. Specifically, the revocation petition charged that Hall had

violated the terms of her supervised release by (1) failing to work regularly at a

lawful occupation, because she was terminated from two places of employment

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and had not obtained acceptable employment after her termination (violation

one); (2) allegedly violating a federal, state, or local law on August 11, 2006, for

the crime of obstruction of a law enforcement officer (violation

two); (3) possessing or using a controlled substance, as evidenced by her

submission of urine samples which tested positive for the presence of cocaine on

May 26, 2006, June 9, 2006, and July 11, 2006 (violation three); and (4) failing to

participate in an approved substance abuse treatment program, since she was

discharged from the River Edge Behavioral Health Center because of

noncompliance (violation four). During the revocation hearing, Hall admitted

having a substance abuse problem, which prompted the district judge to ask

whether she was admitting that she had violated the terms of her supervised

release, to which Hall replied, “Yes, I do.” R3 at 5.

The probation officer prepared a Revocation Report stating that U.S.S.G. §§

7B1.1-7B1.5 provided non-binding sentencing alternatives for Hall. Pursuant to

U.S.S.G. § 7B1.1(a)(3)(A) and (B), the probation officer found that Hall had

committed a Grade C violation. The judge found that Hall had violated her

supervised release; under U.S.S.G. § 7B1.3(a)(2), he could revoke her supervised

release, extend the term of her supervised release, or modify the conditions of

supervision. The probation officer also noted that, pursuant to 18 U.S.C. §

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3583(g)(1), if the judge found that Hall had violated a condition of her supervised

release by being in possession of a controlled substance, it had to terminate her

supervised release and require her to serve a term of imprisonment not to exceed

the statutory maximum term of imprisonment under 18 U.S.C. § 3583(e)(3), which

was three years. Under 18 U.S.C. § 3583(d), the judge had to consider whether

the availability of appropriate substance abuse treatment programs, or Hall’s

current or past participation in such programs, warranted an exception from the

mandatory revocation provision of § 3583(g)(1). Additionally, under U.S.S.G. §

7B1.4, the probation officer found that, because Hall had committed a Grade C

violation and her criminal history category at the time of the original offense was

V, her recommended range of imprisonment was seven to thirteen months. Hall’s

counsel did not object to these calculations.

The judge further ordered Hall to pay immediately the unpaid balance of

$134,255.51 of the original restitution that was imposed in her underlying

conviction. Additionally, the judge found that no exception to the mandatory

revocation provision of § 3583(g) was warranted, because of Hall’s ongoing

cocaine use despite her participation in a substance abuse treatment program

during her term of supervised release. Although the district judge gave Hall’s

counsel an opportunity to object to any of his findings, defense counsel had no

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objections. This appeal followed.

II. DISCUSSION

On appeal, Hall first argues the district judge abused his discretion in

revoking her supervised release because the record of the revocation proceeding

was insufficient to establish any of the individual violations asserted in the

revocation petition. Specifically, she claims that it cannot be determined from the

record exactly what condition of supervised release she admitted violating. Hall

maintains that, at the revocation hearing, she denied that she was guilty of

obstructing a law enforcement officer and denied the charge that she failed to work

or participate in a substance abuse program because she was precluded from doing

so, since her wrongful detention began on July 29, 2006. Hall contends that,

although she acknowledged having a drug problem and requested treatment for it,

she did not admit to the alleged use of cocaine on any of the dates charged in the

petition or any other specific time. Additionally, Hall asserts that there was no

other record evidence supporting findings by a preponderance of the evidence that

she violated any one of the individual violations set out in the petition.

Second, Hall argues that the district judge abused his discretion when, after

determining that she had violated the conditions of her supervised release, he found

that no exception to the mandatory revocation provisions of § 3583(g) was

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warranted in her case. Third, Hall argues that the district judge erred in sentencing

her because he did not consider or explicitly mention the statutory factors set forth

in 18 U.S.C. § 3553(a) and that he failed to specify her advisory Sentencing

Guidelines range during the revocation hearing. She further argues that it is

unclear whether the district judge considered the sentencing range or the policy

statements of Chapter 7 of the Sentencing Guidelines. Consequently, she contends

that there is no way to determine whether her sentence is reasonable. We address

each argument seriatim.

A. Revocation of Supervised Release

Because Hall has raised the district judge’s decision to revoke her supervised

release and impose sentence for the first time on appeal, it is reviewed for plain

error. United States v. Gresham, 325 F.3d 1262, 1265 (11 th Cir. 2003). Under

plain-error review, we correct an error when it (1) occurred, (2) the error was plain,

(3) the error affects substantial rights, United States v. Olano, 507 U.S. 725, 732-

36, 113 S.Ct. 1770, 1777-79 (1993), and (4) “‘the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings,’” id. at 736, 113

S.Ct. at 1779 (citation omitted).

If a district judge “finds by a preponderance of the evidence that the

defendant violated a condition of supervised release,” he or she may revoke a term

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of supervised release, after considering the factors set forth in 18 U.S.C. §

3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7), and impose a sentence of imprisonment

for the violation. 18 U.S.C. § 3583(e)(3). The term imposed cannot exceed the

statutory maximum, which is determined by the grade of the violation. Id.

Revocation of supervised release is mandatory if the defendant possesses a

controlled substance in violation of the conditions of supervised release. 18 U.S.C.

§ 3583(g)(1). Chapter 7 of the Sentencing Guidelines governs violations of

supervised release and contains policy statements, one of which provides

recommended ranges of imprisonment applicable upon revocation. U.S.S.G. §

7B1.4. Specifically, the recommended sentencing range for a Grade C violation

with a criminal history category of V is seven to thirteen months. Id. We have

consistently held that the policy statements of Chapter 7 are merely advisory and

not binding. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000) (per

curiam).

There was no error, plain or otherwise, in the district judge’s revocation of

Hall’s supervised release by relying upon her admission to her supervised release

violations. The plain language of § 3583 entitled the judge to revoke Hall’s

supervised release if she violated a condition of her release. Further, the judge was

required to revoke Hall’s supervised release upon a finding that she possessed a

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controlled substance. Contrary to Hall’s assertion that there was no record

evidence supporting findings by a preponderance of the evidence that she violated

any one of the individual violations set out in the petition, she admitted to violating

the conditions of her supervised release. Hall acknowledged that she had a drug

problem since she was sixteen years old, and, when the judge advised Hall that she

admitted to violating the terms of her supervised release, which included cocaine

use, she responded affirmatively. Thus, while it appears that Hall initially

attempted to deny the charges that she failed to work regularly at a lawful

occupation and that she committed the crime of obstructing a law enforcement

officer, the record reflects that Hall admitted to violating the conditions of her

supervised release, and, specifically, the use of cocaine. Accordingly, because

Hall’s admission supported the judge’s finding that she had violated the conditions

of her supervised release by a preponderance of the evidence, there was no error by

the district judge in revoking Hall’s supervised release.1

B. Exception to Mandatory Revocation

Hall also argues that the district judge abused his discretion when, after

determining that she had violated the conditions of her supervised release, he found

1
To the extent that Hall argues that the district judge violated Federal Rule of Criminal
Procedure 11, her argument is misplaced because Rule 11 does not apply to revocation hearings.
United States v. Johns, 625 F.2d 1175, 1176 (5th Cir. Unit B 1980) (holding that Rule 11
proceedings are inapplicable to probation-revocation proceedings).

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that no exception to the mandatory revocation provisions of 18 U.S.C. § 3583(g)

was warranted in her case. She contends that the record warranted an exception to

mandatory revocation because no challenge was made to Hall’s statements at the

revocation hearing that she was precluded from participating in a substance abuse

program because of her detention beginning on July 29, 2006 and that she

attempted but was unable to participate in a 600-hour drug program during her

previous incarceration. Hall began serving her supervised release term on October

25, 2005, but she was not referred to the substance abuse treatment program at the

River Edge Behavioral Health Center until May 2006, and two of the drug tests

referenced in the petition predate her first admission into that treatment program.

Nothing in the PSI prepared for the original sentencing indicates that a substance

abuse treatment program was available to Hall or that she failed to participate in

such a program.

Under § 3583(d), the sentencing judge

shall consider whether the availability of appropriate substance
abuse treatment programs, or an individual’s current or past
participation in such programs, warrants an exception in
accordance with United States Sentencing Commission
guidelines from the rule of section 3583(g) when considering
any action against a defendant who fails a drug test.

18 U.S.C. § 3583(d). Because Hall’s counsel did not make this objection in district

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court, we review her revocation of supervised release for plain error. Gresham,

325 F.3d at 1265.

The district judge did not plainly err in finding that Hall’s circumstances did

not warrant an exception to the mandatory revocation provision of § 3583(g).

First, because Hall admitted that she continued to use illegal drugs, the judge was

required to revoke Hall’s supervised release. The judge briefly stated that no

exception was warranted in Hall’s case, based on her ongoing use of cocaine

despite her participation in a substance abuse treatment program during her term of

supervised release. Before making this determination, the judge heard Hall’s

statements that she currently had a drug problem which began when she was

sixteen years old, she used cocaine in violation of the terms of her supervised

release, and she was terminated from her substance abuse treatment program on

September 6, 2006, albeit because of her incarceration beginning on July 29, 2006.

Although the judge stated that he could make only a recommendation to the

Bureau of Prisons regarding Hall’s request to be enrolled in its 600-hour drug

program, there is no indication that the judge did not recognize he had discretion to

order enrollment in a substance abuse program in lieu of revocation.

Consequently, the record reflects that the district judge considered Hall’s drug

treatment, as directed by § 3583(d), made a specific ruling that her circumstances

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did not warrant an exception to the mandatory revocation provision, and stated his

reasons for making that ruling. Accordingly, there was no plain error in the district

judge’s decision that there was no exception warranted to Hall’s revocation of

supervised release.

III. Reasonableness of Sentence

Hall contends that the district judge erred in sentencing her to thirteen

months of imprisonment imposed on revocation of her supervised release because

he did not consider nor explicitly mention the statutory factors set forth in 18

U.S.C. § 3553(a) or otherwise provide a reason for the sentence imposed. We

review a sentence imposed upon the revocation of supervised release for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.

2006) (per curiam). When a defendant fails to raise an issue in district court, we

review for plain error. Aguillard, 217 F.3d at 1320.

Although Hall’s counsel failed to object to the reasonableness of her

sentence at the revocation sentencing hearing, her sentence was reasonable,

because the district judge had reasonable cause to revoke her supervised release,

based on her admission of violating the terms of her supervised release.

Additionally, in a case in which the district judge exceeded the Chapter 7

recommended range in imposing sentence, we recognized that “‘[ i]f supervised

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release is subsequently revoked under 18 U.S.C. § 3583(e), the statute also requires

that the §3553(a) factors be considered. However, when revocation of supervised

release is mandatory under 18 U.S.C. § 3583(g), the statute does not require

consideration of the § 3553(a) factors.’” United States v. Brown, 224 F.3d 1237,

1241 (11th Cir. 2000) (citation omitted).

Since Hall was subject to mandatory revocation because she admitted to

cocaine use in violation of her supervised release, the district judge was not

required to consider the § 3553(a) factors in imposing a mandatory revocation of

supervised release and term of imprisonment under 18 U.S.C. § 3583(g).

Therefore, even if the district judge did not consider the § 3553(a) factors in

sentencing Hall, he did not commit error. Additionally, Hall’s actual sentence of

thirteen months falls within the Sentencing Guidelines range. Hall’s supervised

release violation was a Grade C violation and her criminal history category at the

time of the original offense was V.

Hall’s sentence was within the district judge’s statutory power, because he

did not exceed the statutory maximum of three years of imprisonment. Although

the district judge did not mention Hall’s advisory Guidelines range or explicitly

mention the § 3553(a) factors, the record indicates that the judge considered the §

3553(a) factor of defendant’s history evidenced by his specific ruling that an

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exception to the mandatory revocation provision of § 3583(g) was not warranted

based upon her “ongoing use of cocaine.” R3 at 6. Since the district judge did not

exceed the recommended range, there was no need for him to indicate his

consideration of the Chapter 7 policy statements. The record does not indicate that

the district judge considered the ranges in U.S.S.G. § 7B1.4, but because he was

not required to do so, there was no error. Accordingly, the judge imposed a

reasonable sentence, when he sentenced Hall to thirteen years of imprisonment for

violating the terms of her supervised release.

III. CONCLUSION

Hall has appealed her thirteen-month sentence imposed for several violations

of the terms of her supervised release. As we have explained, the district judge did

not plainly err by finding that Hall violated her supervised release by using a

controlled substance, because she admitted that she had done so. Neither did he err

in determining that an exception to the mandatory revocation provisions of 18

U.S.C. §3583(g) was not warranted in Hall’s case because of her ongoing cocaine

use despite her participation in a substance abuse treatment program during her

term of supervised release. Because the district judge was not required to consider

the 18 U.S.C. § 3553(a) factors when mandatorily revoking a term of supervised

release and imposing imprisonment under § 3583(g), he did not err in his

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imposition of Hall’s sentence. Accordingly, Hall’s sentence, imposed on

revocation of her supervised release, is AFFIRMED.

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