[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 23, 2007
No. 06-14483 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00029-CR-D-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ALFRED HENDERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 23, 2007)
Before DUBINA, CARNES and FAY, Circuit Judges.
PER CURIAM:
James Alfred Henderson appeals his 24-month sentence for violation of his
supervised release, imposed pursuant to 18 U.S.C. § 3583(g).1 On appeal, he
argues that the district court erred when imposing his sentence by failing to
consider the factors set forth in 18 U.S.C. § 3553(a) and to state its reasons for the
sentence, as required by 18 U.S.C. § 3553(c)(1). For the reasons set forth more
fully below, we vacate Henderson’s sentence and remand to the district court for
further findings.
In February 2006, Henderson’s probation officer petitioned the district court
to issue a summons for Henderson on the grounds that Henderson had committed
the following three violations of the mandatory conditions of his supervised
release: (1) Henderson was charged with the offense of possession of cocaine;
(2) Henderson was charged with the offense of resisting arrest; and (3) Henderson
illegally possessed a controlled substance. In May 2006, the probation officer filed
an amended petition for issuance of a summons, adding that Henderson had
committed another violation of the mandatory conditions of his supervised release,
namely, that he had sustained an additional charge for the offense of possession of
1
Henderson pleaded guilty in 1996 to conspiracy to possess with the intent to distribute
marijuana, cocaine, and cocaine base, in violation of 21 U.S.C. § 846, and was sentenced to 120
months’ imprisonment followed by 5 years’ of supervised release. As conditions of his
supervised release, Henderson was prohibited from committing another federal, state, or local
crime, and from illegally possessing a controlled substance. Henderson had been released from
custody and was serving his term of supervised release when the facts underlying the instant
appeal arose.
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cocaine.
At his revocation hearing, Henderson denied guilt as to each of the four
violations that the probation officer had alleged. After both parties had presented
evidence, the district court determined that Henderson was guilty of the three
counts as charged in the probation officer’s February 2006 petition, but that
Henderson was not guilty of the fourth charge, as presented in the May 2006
amended petition. The court concluded that Henderson had committed Grade B
violations of his supervised release and that his criminal history category was II, as
it was calculated in his presentence investigation report (“PSI”) that was prepared
for his underlying offense.2 The court then revoked Henderson’s supervised
release pursuant to 18 U.S.C. § 3583(g) based upon its determination that
Henderson had committed the offense of possession of a controlled substance. As
to the term of imprisonment that Henderson should serve upon the revocation of
2
Pursuant to the policy statements in Chapter 7 of the Sentencing Guidelines, “conduct
constituting any other federal, state, or local offense punishable by a term of imprisonment
exceeding one year” is a Grade B violation of supervised release. U.S.S.G. § 7B1.1(a)(2). As
calculated in Henderson’s PSI, which was prepared for his sentencing on his underlying offense,
Henderson’s criminal history category was II. See U.S.S.G. § 7B1.4(a) (indicating that the
applicable criminal history category used in calculating a defendant’s guideline range after
revocation of supervised release “is the category applicable at the time the defendant originally
was sentenced to a term of supervision”). Henderson does not contest the court’s finding that his
violations constitute Grade B violations of his supervision or that his prior criminal history
category was II. According to the 2005 Sentencing Guidelines manual, Grade B violations and a
criminal history category of II would have resulted in a guideline range for Henderson’s term of
imprisonment after revocation of his supervised release of 6 to 12 months’ imprisonment.
U.S.S.G. § 7B1.4(a). However, as discussed below, the district court never explicitly indicated
Henderson’s applicable guideline range, nor do the parties provide it on appeal.
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his supervised release, his counsel requested one of the following sentences: either
(1) a term of home arrest; (2) a term of custody at a halfway house; or (3) a term of
imprisonment of one year and one day. Henderson’s counsel argued that, with the
exception of a few late filings of his monthly reports, Henderson had not violated
the terms of his supervised release until the instant offenses. His counsel further
claimed that Henderson had opened a business and did not have a drug problem.
His counsel maintained that a sentence of two years’ imprisonment was “simply
greater than necessary.”
After revoking Henderson’s supervised release, the court imposed a
24-month term of imprisonment. The court then stated that it had “taken into
consideration the policy statements in chapter seven of the guidelines manual, the
guideline range, and all relevant information in imposing a sentence of 24 months.”
The court made no further comment regarding Henderson’s sentence. The court
then clarified an issue with regard to Henderson’s bond amount and ordered the
court in recess, but failed to inquire whether the parties had any further objections
with regard to Henderson’s sentence.
A. Jones violation
According to United States v. Jones, 899 F.2d 1097 (11th Cir. 1990),
overruled in part on other grounds, United States v. Morrill, 984 F.2d 1136 (11th
4
Cir. 1993), a district court, after imposing a sentence, must give an additional
opportunity to parties to object to the court’s ultimate findings of fact, conclusions
of law, and the manner in which the sentence is pronounced. Jones, 899 F.2d at
1102. We have clarified that the Jones rule applies to supervised release
revocation proceedings. United States v. Campbell, 473 F.3d 1345, 1347 (11th
Cir. 2007). “Under this rule, when a district court fails to elicit objections after
imposing a sentence, we normally vacate the sentence and remand to the district
court to give the parties an opportunity to present their objections. A remand is
unnecessary, however, when the record on appeal is sufficient to enable review.”
Id. at 1347 (citation omitted).
Henderson does not argue on appeal that the district court failed to elicit
objections as required by Jones, nor does the government raise the issue. The
government does argue, however, that Henderson failed to object and raise his
arguments before the district court, and, thus, this Court should employ plain error
review. Given the government’s assertion that Henderson did not preserve his
arguments, we must first determine whether the district court properly allowed
Henderson the opportunity to present his objections to his sentence.
At Henderson’s revocation hearing, the district court imposed Henderson’s
24-month imprisonment term, questioned the parties with regard to Henderson’s
5
applicable bond amount, and then indicated that the court was in recess until
further order. At no time did the court elicit any objections to the sentence as
imposed. Henderson did not raise the sentencing issues that he now raises on
appeal. Therefore, the district court violated Jones by failing to elicit objections
from Henderson after imposing his sentence for the revocation of his supervised
release. The question of whether the record on appeal is sufficient to enable
review of either of the two issues presented in Henderson’s brief, thereby making
remand because of the technical Jones violation unnecessary, is discussed more
fully below.
B. Consideration of § 3553(a) factors
Henderson argues that the district court violated § 3553(a) by failing to
consider its various factors in imposing his 24-month sentence. Henderson
contends that he made arguments at the revocation hearing regarding many of the
§ 3553(a) factors, but that the court erroneously failed to discuss or respond to
those arguments. He also argues that his sentence was greater than necessary to
meet the purposes of § 3553(a)(2). In so arguing, Henderson appears to concede
that his sentence was within the applicable guideline range, but he does not make
this entirely clear nor does he indicate his actual guideline range. He nonetheless
argues that the only factor that the court considered was his guideline range and
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that the court’s singularly focused analysis was erroneous. He further maintains
that, in light of his history and the circumstances of his violation, his sentence was
greater than necessary to achieve the goals of sentencing.
We review the sentence imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006). The government argues here that plain error review should apply because
Henderson failed to object to his sentence before the district court. However, as
explained above, the district court violated Jones by failing to elicit objections after
it imposed Henderson’s sentence. Therefore, we review Henderson’s sentence for
reasonableness, as if his arguments were preserved below. See Campbell, 473 F.3d
at 1348 (concluding that an appellant had not waived his sentencing argument
where the district court failed to comply with the Jones rule).
Pursuant to 18 U.S.C. § 3583(g), the revocation of a defendant’s supervised
release is mandatory if the defendant unlawfully possessed a controlled substance
while serving his term of supervised release. 18 U.S.C. § 3583(g)(1). Here, the
court found that Henderson had possessed a controlled substance, and, thus,
revoked his supervised release explicitly pursuant to § 3583(g). If a district court
finds that the defendant unlawfully possessed a controlled substance, the court
must revoke his term of supervised release and impose a term of imprisonment
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“not to exceed the maximum term of imprisonment authorized under”
§ 3583(e)(3). 18 U.S.C. § 3583(g). According to subsection (e)(3), “if the offense
that resulted in the term of supervised release is a class A felony,” the court cannot
sentence the defendant to serve more than five years’ imprisonment upon the
revocation of his supervised release. 18 U.S.C. § 3583(e)(3). In Henderson’s case,
his underlying offense of conspiracy to possess with the intent to distribute
marijuana, cocaine, and cocaine base, in violation of 21 U.S.C. § 841(b)(1)(A),
was a class A felony because it carried a maximum imprisonment term of life. 18
U.S.C. § 3559(a)(1). Therefore, the maximum term of imprisonment for
Henderson’s revocation of his supervised release was five years.
With regard to Henderson’s applicable guideline range upon the revocation
of his supervised release, the policy statements in Chapter Seven of the Sentencing
Guidelines indicate that a defendant with a Grade B violation of his supervised
release, and an underlying criminal history category of II, has a resulting guideline
range of 6 to 12 months’ imprisonment. See U.S.S.G. § 7B1.4(a). As explained
above, the district court found, and Henderson did not dispute, that he had
committed Grade B violations of his supervised release and that he had an
underlying criminal history category of II.3 However, in sentencing Henderson,
3
At his revocation hearing, Henderson denied the probation officer’s charge that he
violated the conditions of his supervised release by possessing cocaine. Henderson does not
8
the district court did not explicitly state Henderson’s guideline range, nor did the
parties indicate the applicable range. Even though review of § 7B1.4(a) appears to
indicate that Henderson’s guideline range was 6 to 12 months, Henderson
seemingly concedes on appeal that his ultimate sentence of 24 months’
imprisonment was within his guideline range. Thus, to the extent that the district
court erred in calculating Henderson’s guideline range, he has abandoned that issue
on appeal. See Cunningham, 161 F.3d at 1344.
At the revocation hearing, the court gave only a very brief discussion of its
decision-making process regarding imposition of the 24-month sentence, and failed
to elicit objections after it imposed the sentence, as required in Jones. Therefore,
the record is insufficient to enable review of Henderson’s arguments regarding the
§ 3553(a) factors. As such, we vacate Henderson’s sentence, under Jones, and
remand to the district court for the court to elicit objections and to address
Henderson’s § 3553(a) concerns.
C. 18 U.S.C. § 3553(c)(1)
Henderson also argues that the district court’s broad and vague statement
regarding its imposition of the 24-month sentence was insufficient to comply with
raise the argument on appeal that the district court erred by finding that he violated the
conditions of his supervised release. Therefore, he has abandoned it. See United States v.
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (holding that the defendant abandoned an
issue on appeal by failing to offer any argument on the issue).
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§ 3553(c)(1). He maintains that it is impossible to discern what reasons the court
had for imposing the sentence and that the court’s failure to respond to his
counsel’s arguments for a lower sentence further complicated the analysis of why
the court imposed the sentence of 24 months’ imprisonment. Henderson further
argues that the court’s broad statement did not provide any means for this Court to
conduct a meaningful appellate review of the court’s sentencing decision.
We review de novo whether a district court complied with § 3553(c)(1).
United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006). Pursuant to
§ 3553(c)(1), the sentencing court shall state the reason for imposing a particular
sentence within the guideline range, if the sentence “is of the kind, and within the
[recommended guideline] range . . . and that range exceeds 24 months . . . .” 18
U.S.C. § 3553(c)(1).
Here, the district court found that Henderson had committed a Grade B
violation of his supervised release and that his underlying criminal history category
was II. The court thus revoked his sentence pursuant to the mandatory revocation
provision of § 3583(g). Thereafter, the court imposed a 24-month term of
imprisonment and stated it had “taken into consideration the policy statements in
chapter seven of the guidelines manual, the guideline range, and all relevant
information in imposing a sentence of 24 months.” The problem in this case arises
10
due to the court’s failure to explicitly specify Henderson’s exact guideline range
and whether the 24-month sentence was within or outside of that range. Based
upon an independent review of the chapter seven policy statements, it is clear that,
if a defendant committed a Grade B violation of his supervised release and had an
underlying criminal history category of II, then his resulting guideline range would
be 6 to 12 months’ imprisonment. See U.S.S.G. § 7B1.4(a). As such, it appears
that Henderson’s 24-month sentence exceeded his guideline range. The
consequence of such a sentence is that, rather than having to comply with
§ 3553(c)(1), which specifically relates to sentences within the guideline range, the
court would have been required to comply with § 3553(c)(2). See 18 U.S.C.
§ 3553(c)(2) (requiring that, if a sentence is outside of the guideline range, the
sentencing court must state “the specific reason for the imposition of a sentence
[outside of the guideline range], which reasons must also be stated with specificity
in the written order of judgment and commitment”).
If, in fact, Henderson was sentenced outside of his guideline range, then
§ 3553(c)(1) would not have applied to his sentence, and, therefore, his arguments
on appeal, which rely exclusively on § 3553(c)(1), would be misplaced. However,
given that (1) the court never indicated what Henderson’s guideline range was;
(2) Henderson seemingly proceeds on appeal as if he was sentenced within his
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guideline range; (3) the government fails to indicate what it believed the guideline
range to be or whether Henderson’s sentence fell within that range; and (4) the top-
end of the guideline range applicable to Henderson’s circumstances of having a
Grade B violation and a criminal history category of II is 12 months below his
actual sentence, we cannot determine which subsection, either § 3553(c)(1) or
(c)(2), applies here. Because the district court failed to elicit objections to the
sentence after it was imposed, in violation of Jones, the parties had no opportunity
to inform the court of the potential error and allow the court to clarify the guideline
range upon which it relied. It is essential that this Court know the applicable
guideline range because it is the range that determines whether § 3553(c)(1)
applies to Henderson’s case, as he argues on appeal. Accordingly, we vacate and
remand based upon the Jones violation, to afford the district court the opportunity
to clarify the applicable guideline range and to allow the parties on remand to raise
their objections to the sentence as imposed.
In light of the foregoing, Henderson’s 24-month sentence is
VACATED AND REMANDED.
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United States v. James Alfred Henderson
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2007-05-23
Citations: 233 F. App'x 924
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