United States Court of Appeals
For the First Circuit
Nos. 09-2623
09-2624
UNITED STATES OF AMERICA,
Appellee,
v.
JESSIE BUTLER-ACEVEDO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Anita Hill Adames, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee.
August 31, 2011
TORRUELLA, Circuit Judge. Jessie Butler-Acevedo
("Butler") appeals from two concurrent five-year sentences
following the revocation of supervised release, pursuant to 18
U.S.C. § 3583(e). Butler argues that the district court committed
procedural error in imposing the statutory maximum sentences
available. For the reasons stated below, we affirm.
I. Background
Butler pleaded guilty in 2000 to two drug-related
conspiracies. At the sentencing following the guilty plea, the
district court imposed two concurrent ten-year sentences with
subsequent five-year terms of supervised release, also to be served
concurrently. In 2008, Butler was released from custody and began
his supervised release.
The supervised release was not successful. Approximately
fourteen months after Butler's release, the U.S. Probation Office
("USPO") filed a motion notifying the court of four violations; a
later filing supplemented the initial motion, reporting six
additional violations. At his revocation hearing, Butler admitted
to these ten violations,1 which ranged in severity from failing to
obtain lawful employment to associating with individuals engaged in
1
Butler did not admit to assisting his brother with drug-related
activities, and the government agreed that the second USPO filing,
which reported that he had done so, was incorrect. Butler still
admitted, however, to violating the condition that required him to
refrain from visiting places where controlled substances were sold.
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the trafficking of narcotics.2 Although the recommended sentence
under the U.S. Sentencing Guidelines Manual ("U.S.S.G.") was three
to nine months of incarceration,3 the court ultimately sentenced
Butler to sixty months in each case, which was the statutory
maximum sentence available because the underlying offenses were
Class A felonies. See 18 U.S.C. § 3583(e)(3). Butler now appeals
these sentences.
II. Discussion
Butler argues that his sentencing was procedurally flawed
because the district court failed to consider the factors set out
in 18 U.S.C. § 3553(a) that it was required to consider under 18
U.S.C. § 3583(e). He also contends that the sentence should be
vacated because the district court was not clear about what
sentence it was imposing. We address each argument in turn after
providing the relevant legal background.
2
Butler accepted that he violated the conditions of his
supervised release by doing the following: (1) failing to report
for urinalysis to the USPO and to submit monthly supervision
reports, (2) failing to refrain from controlled substances and to
submit to drug tests, (3) failing to truthfully answer all USPO
inquiries, (4) failing to notify the USPO of a change in residence,
(5) leaving the judicial district of Puerto Rico without USPO
permission, (6) failing to make child support payments, (7) failing
to report legal employment, (8) visiting a place where controlled
substances were sold, (9) associating with individuals engaged in
criminal activity, and (10) failing to notify the USPO within 72
hours of being questioned by law enforcement.
3
Butler had a Criminal History Category of I and committed Grade
C violations of his supervised release. See U.S.S.G. § 7B1.4(a).
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A. Standard of Review
"We review revocation sentences for abuse of discretion."
United States v. McInnis, 429 F.3d 1, 4 (1st Cir. 2005). In doing
so, we examine "both the procedural and the substantive propriety
of a challenged sentence." United States v. Santiago-Rivera, 594
F.3d 82, 84 (1st Cir. 2010).
B. Legal Framework for Revocation
A court may revoke a defendant's supervised release and
impose a term of incarceration. See 18 U.S.C. § 3583(e). Before
revocation, the court must weigh a number of factors borrowed from
traditional sentencing considerations. See id. These factors
include, among others, the history and characteristics of the
defendant, the need to provide effective correctional treatment,
and the need to avoid sentencing disparities among similarly
situated defendants. See id. § 3553(a)(1), (a)(2)(D), (a)(6).
The Sentencing Guidelines provide for advisory ranges of
incarceration following revocation. These ranges are based on the
severity of the violation of the terms of supervised release and
the defendant's criminal history. See U.S.S.G. § 7B1.4(a). The
statutory maximum sentence available varies depending on the
underlying crime, ranging from five years for a Class A felony to
one year for any crime that is not at least a Class D felony. 18
U.S.C. § 3583(e)(3). Regardless of its decision, the district
court must leave a sufficient record for an appellate court to
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review. See United States v. Franquiz-Ortiz, 607 F.3d 280, 282
(1st Cir. 2010) ("[W]e need a record that provides a basis for
evaluating the district court's exercise of its broad authority.").
C. Consideration of the 18 U.S.C. § 3553(a) Factors
Butler argues that the district court gave no
consideration to the required section 3553(a) factors. The
government responds that the district court sentenced the defendant
after contemplating these factors, and we agree.
Specifically, Butler contends that the district court did
not sufficiently consider his "history and characteristics," as
required by 18 U.S.C. § 3553(a)(1). In explaining why it was
departing from the Guidelines range and imposing a sixty-month
sentence in Butler's first case, the district court made the
following statement:
Having considered the lack of Mr.
Butler's disposition to comply with even the
minimum simplicity of submitting monthly
supervision reports -- according to the
probation officer, the last time she saw him
was on December 27, 2008. She did not see him
again until August 17, 2009, when he gave the
urine sample and it was positive to the use of
marijuana.
He has failed to contact his probation
officer reporting any change of address.
Coupled not only with his
unavailability but also having absconded,
aggravated by his drug use and intensified by
his refusal to accept drug treatment, the
Court finds that a term of imprisonment at the
upper end of the recommended policy statement
is in order.
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In imposing the concurrent five-year sentence in Butler's second
criminal case, the court said that it had "considered the nature of
the offender's original offenses, . . . as well as the responsible
conduct and total absence of interest to exert any effort towards
compliance, which is what has again brought [Butler] before this
Court." Given this record, we cannot say that the district court
failed to consider Butler's history and characteristics, even
though it did not explicitly refer to these factors. Cf. United
States v. Manzanares, Nos. 10-50124, 10-50126, 2011 WL 3279836, at
*1 (5th Cir. Aug. 2, 2011) (noting, in reviewing for plain error,
that "[a]lthough the district court did not expressly state that it
had considered the 18 U.S.C. § 3553(a) factors, the court's
comments implicitly indicate[d] that it considered," among other
things, "the history and characteristics of the defendant" (quoting
18 U.S.C. § 3553(a)(1)) (internal quotation mark omitted)). That
the district court handed down a harsher sentence than Butler
desired does not reveal an inattentiveness to his history and
characteristics, but rather that it weighed them differently than
Butler did.
In addition, Butler suggests that the district court
failed to consider the 18 U.S.C. § 3553(a)(2)(D) factors, arguing
that the court did not allow him to benefit from educational or
vocational training or from substance abuse treatment programs when
it refused to sentence him to a Guidelines term of imprisonment
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followed by supervised release. Section 3553(a)(2)(D) is a
consideration among many, and does not require the court to grant
certain requests; the fact that the district court chose not to
sentence Butler according to his counsel's recommendation does not
establish that it failed to consider the relevant factors.
Lastly, Butler claims that the court failed to consider
potential sentencing disparities, as required by section
3553(a)(6). Although the court may not have specifically
referenced this factor directly, "it is not required to address
[each] factor[], one by one, in some sort of rote incantation when
explicating its sentencing decision." United States v. Dixon, 449
F.3d 194, 205 (1st Cir. 2006) (reviewing a post-conviction
sentence). The court subsumed sentencing disparity concerns within
its overall decision. The fact that the court sentenced Butler to
a sixty-month term does not, by itself, demonstrate that it failed
to consider the relevant factors.4
4
Butler also claims that the district court did not provide a
sufficient explanation for the sentence's severity. Although he
does not explicitly say so, he appears to be mounting a substantive
challenge to his sentence, in addition to the procedural one,
citing Franquiz-Ortiz, 607 F.3d 280, which notes that "[t]he lack
of an explicit or implicit explanation is of particular concern
when the substantive reasonableness of the sentence is not
immediately apparent." Id. at 282.
The district court did, however, provide a sufficient
explanation for the sentence. The record makes clear the district
court's rationale. It particularly relied on Butler's "total
absence of interest to exert any effort towards compliance." The
court was free to base its decision on Butler's gross breach of
trust and the clear failure of the supervised release program. See
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D. District Court's Misstatement Regarding the Sentence
Butler finally argues that the district court's record
was contradictory and that we should remand so that it may clarify
its decision. Butler suggests that the record was unclear as to
whether he was being sentenced to sixty months of supervised
release or sixty months of incarceration. We disagree.
The district court first sentenced Butler to a five-year
term of imprisonment based on the violations in criminal case
number 99-232. It then said the following:
Upon release from confinement, you
shall be placed on supervised release under
the following conditions.
You shall not commit another federal,
state, or local crime and not possess
firearms, controlled substances, comply with
the standard[] conditions of supervised
release.
U.S.S.G. Ch. 7 Pt. A (3)(b) (noting that "at revocation the court
should sanction primarily the defendant's breach of trust, while
taking into account, to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator").
In explaining its reasoning, the court also noted that it was
concerned that the defendant had "absconded," and that this was
"aggravated by his drug use and intensified by his refusal to
accept drug treatment." Even if a violation is only of the Grade
C variety, as Butler's were, if it is "associated with a high risk
of new felonious conduct" -- as spending time with drug traffickers
might be if one was previously indicted on drug conspiracy charges
-- "an upward departure may be warranted." U.S.S.G. § 7B1.4 cmt.
n.3. Given that courts "have broad discretion to impose sentences
within the statutory limits limned in 18 U.S.C. § 3583(e)(3),"
United States v. Hernández-Ferrer, 599 F.3d 63, 66 (1st Cir. 2010),
we cannot say that the court here abused its discretion in imposing
a five-year sentence.
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You shall enter into an inpatient or
outpatient substance abuse treatment program
for evaluation and[]/or treatment.
You shall submit to urinalysis.
After the five-year period, then there
will be no more supervision.
The district court then moved on to criminal case number 99-269 and
imposed a term of five years, "to be served concurrently with the
sentence in the other case," noting that "[n]o additional term of
supervision [would] be imposed." The written judgment
memorializing these sentences provided that Butler was committed to
"FIVE (5) YEARS to be served concurrently with the term imposed in
Cr. 99-269-01(PG)" and left the space for supervised release blank.
Though the district court stated that it was placing
Butler on supervised release in case number 99-232, it did so only
after unequivocally sentencing him to five years of incarceration.
Further, the district court's written order did not provide for any
supervised release. We thus find that the record was not
ambiguous, and that there is no need to remand the case for
clarification.
III. Conclusion
For the reasons above, we affirm the revocation
sentences.
Affirmed.
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