United States v. David Henry Wysocki, II

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12759 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 14, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cr-00089-EAK-EAJ-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,

versus

DAVID HENRY WYSOCKI, II,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(February 14, 2012)

Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:
David Henry Wysocki, II, pled guilty to assaulting his wife onboard an

aircraft in violation of 49 U.S.C. § 46506 and 18 U.S.C. 113(a)(4), a misdemeanor

and petty offense, and the district court, on October 18, 2010, sentenced him to jail

for a period of six months and a 12-months’ term of supervised release. Wysocki

appealed his conviction and sentence but dismissed the appeal before it could be

heard.

Two days after beginning his term of supervised release, Wysocki was

arrested for battering his wife and stepson. This led to his arrest for violating the

terms of his supervised release. Prior to the hearing on whether his supervised

release should be revoked, Wysocki moved the district court to set aside the order

of supervised release and dismiss the violation. The term of the release was

unlawful because the plain meaning of the sentencing statute prohibits the

imposition of supervised release for the conviction of a petty offense.

The Government responded with the argument that Wysocki invited the

error by asking the court to place him on supervised release following his release

from jail. Aside from that, the Government said, he could attack the term of

supervised only in a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255.

The court denied Wysocki’s motion to set aside the supervised release and

reaffirmed his sentence. Absent a successful § 2255 proceeding, the court held,

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the sentence would stand.

The court then held an evidentiary hearing on Wysocki’s violation of the

conditions of his supervised release, found the violation as alleged, and sentenced

Wysocki to 90 days in custody to be followed by six months in the residential re-

entry program and three months of supervised release. Wysocki now appeals the

court’s judgment.

A district court’s revocation of supervised release is generally reviewed

only for abuse of discretion. United States v. Velasquez Velasquez, 524 F.3d

1248, 1252 (11th Cir. 2008). Issues of law are reviewed de novo. United States v.

Mitsven, 423 F.3d 1264, 1265 (11th Cir. 2006). Further, we review de novo

whether the district court properly exercised jurisdiction over a claim. United

States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002). However, we will not

review on appeal any issue not raised in the parties’ initial briefs, finding such

issues to be abandoned. United States v. Day, 405 F.3d 1293, 1294 n.1 (11th Cir.

2005)

Finally, we will not review an issue raised on appeal “if it has been waived

through the doctrine of invited error.” United States v. Brannan, 562 F.3d 1300,

1306 (11th Cir. 2009) (emphasis in original). The doctrine of invited error applies

when a party induces or invites the district court into making an error. United

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States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). Applying this doctrine, we

declined to review the district court’s imposition of a supervised release term

where the defendant, prior to sentencing, repeatedly acknowledged that he was

subject to a term of supervised release and requested that he be sentenced, in lieu

of jail time, to time served and a term of supervised release. Id.

A district court, under 18 U.S.C. § 3582(c), has jurisdiction to modify an

imposed term of imprisonment only under specific circumstances. Diaz-Clark,

292 F.3d at 1315-16. For example, a federal prisoner in custody and seeking relief

from his conviction or confinement may file, pursuant to 28 U.S.C. § 2255, a

motion to vacate or modify in the district court. Sawyer v. Holder, 326 F.3d 1363,

1365 (11th Cir. 2003). A defendant serving a term of supervised release is “in

custody” for purposes of Section 2255. United States v. Brown, 117 F.3d 471, 475

(11th Cir. 1997). Therefore, a defendant, facing re-incarceration upon the

revocation of supervised release, may not sidestep § 2255 and challenge the

validity of his original sentence during the revocation proceedings. United States

v. Almand, 992 F.2d 316, 317 (11th Cir. 1993); see also United States v. White,

416 F.3d 1313, 1316 (11th Cir. 2005) (holding that a prisoner may not challenge,

“for the first time on appeal from the revocation of supervised release,” his

underlying sentence and instead must bring a Section 2255 motion to vacate).

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The assault onboard an aircraft was a Class B misdemeanor, as it carried a

statutory maximum sentence of six months. 49 U.S.C. § 46506 (here

incorporating 18 U.S.C. § 113(a)(4)); 18 U.S.C. § 3581(b)(7). Furthermore, a

Class B misdemeanor is considered a petty offense. 18 U.S.C. § 19.

Pursuant to18 U.S.C. § 3583(a), a sentencing court must impose a term of

supervised release if the defendant has been convicted “for the first time of a

domestic violence crime,” including a misdemeanor offense. 18 U.S.C. § 3583(a).

A “domestic violence crime” includes any violent crime for which the defendant

may be prosecuted federally that is committed against the spouse or other relative

of the perpetrator. 18 U.S.C. § 3561(b). Section 3583 goes on, however, to

prohibit courts, “[e]xcept as otherwise provided,” from imposing a term of

supervised release for a conviction of a petty offense. 18 U.S.C. § 3583(b)(3).

Here, Wysocki does not attack the district court’s denial of his motion to

vacate and dismiss, nor does he explicitly argue on appeal that the court had

jurisdiction to correct or modify his original sentence. He has thus abandoned this

issue.

Even assuming that Wysocki did not abandon this issue, the district court

did not err in refusing to consider Wysocki’s challenge to his underlying sentence.

Since Wysocki was challenging the facial validity of his underlying term of

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supervised release, the district court did not have subject matter jurisdiction to

consider the merits of his arguments, and Wysocki must instead file a § 2255

motion to vacate or correct his sentence.

AFFIRMED.