United States v. Hofierka

United States Court of Appeals,

Eleventh Circuit.

Nos. 95-2151, 95-2258

Non-Argument Calendars.

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael A. HOFIERKA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald Carl ANDREWS, a/k/a "Barracuda", Defendant-Appellant.

May 16, 1996.

Appeals from the United States District Court for the Middle
District of Florida. (Nos. 93-67-CR-J-20, 88-60-Cr-J-20), Harvey E.
Schlesinger, Judge.

Before TJOFLAT, Chief Judge, and HATCHETT and ANDERSON, Circuit
Judges.

PER CURIAM:

This case comes to us on consolidated appeal. Appellants

Michael A. Hofierka and Ronald Carl Andrews separately appeal the

sentences imposed on them for violating the terms of their

supervised release. In both cases, the sentencing judge exceeded

the sentencing range set forth in Chapter 7 of the Sentencing

Guidelines. See U.S.S.G. § 7B1.4(a). On appeal, appellants argue:

1) that the district court was bound by the Chapter 7 sentencing

range and erred in imposing a sentence in excess of this range;

and 2) that the district court erred in failing to provide notice

of its intent to exceed the sentencing range. In addition, Andrews

argues that the district court erred in its reliance on his state
conviction in revoking his supervised release.1 We affirm.

I. BACKGROUND

A. Appellant Hofierka

In 1993, Hofierka pleaded guilty to making a false claim to an

agency of the United States in violation of 18 U.S.C.A. § 287. On

August 19, 1993, the district court sentenced him to nine months of

imprisonment and three years of supervised release. As one of the

terms of Hofierka's supervised release, the court ordered that he

participate in a drug treatment program and refrain from using

illegal drugs. Hofierka's term of supervised release began in May

1994, but by December of that year, revocation proceedings had

begun.

The petition seeking revocation of his supervised release

alleged that Hofierka violated the conditions of his release by

using cocaine and failing to participate in a drug treatment

program. At his revocation hearing, Hofierka admitted that he had

been dismissed from his drug treatment program because of his drug

use. The district court revoked Hofierka's supervised release and

sentenced him to twenty-four months of imprisonment.2 The

twenty-four-month sentence exceeded the applicable Chapter 7

sentencing range of seven to thirteen months. See U.S.S.G. §

1
We reject, without further discussion Andrew's argument
that the district court violated United States v. Jones, 899 F.2d
1097, 1102-03 (11th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct.
275, 112 L.Ed.2d 230 (1990), overruled on other grounds sub nom.
United States v. Morrill, 984 F.2d 1136 (11th Cir.1993).
2
Because the offense for which a term of supervised release
was imposed upon Hofierka was a class D felony, 18 U.S.C.A. §§
287, 3559(a), the maximum term of imprisonment for the revocation
of his supervised release was two years. 18 U.S.C.A. §
3583(e)(3).
7B1.4(a). The court imposed this sentence over Hofierka's

objection that it exceeded the applicable range.

B. Appellant Andrews

In 1988, Andrews pleaded guilty to possession of marijuana, in

violation of 21 U.S.C.A. § 844(a), and possession of cocaine with

intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1). The

district court sentenced Andrews to imprisonment of sixty-three

months and five years of supervised release. As one of the

conditions of his supervised release, Andrews could not commit

another federal, state, or local crime.

In October 1992, Andrews began his term of supervised release.

Within one year, in September 1993, Andrews was arrested in Florida

for violations of state law which included conspiracy to traffic in

cocaine and possession of a firearm by a convicted felon. On

October 19, 1993, Andrews pleaded guilty to these charges;

however, he subsequently moved to set aside his plea. He argued

that he had not been advised that the offense to which he pleaded

guilty carried a fifteen-year mandatory minimum prison sentence and

that the state court had improperly promised that his state

sentence would run concurrently to any federal sentence he received

for violating the terms of his supervised release. The state court

denied Andrew's motion. His conviction was affirmed on appeal.

Meanwhile, on October 29, 1993, proceedings had begun in

federal court to revoke Andrews' supervised release. At his final

revocation hearing, Andrews refused to admit he had committed a

violation of the terms of his supervised release. He argued that

the denial of his motion to withdraw his guilty plea was pending
before a state appellate court. The district court granted the

government's motion for a continuance of the revocation hearing.3
By the time the proceedings resumed, Andrews' conviction had been

affirmed on appeal. He continued to argue, however, that his

guilty plea was invalid for the same reasons he pressed before the

state court.

In support of its contention that Andrews violated the terms

of his supervised release, the government offered only Andrews'

state judgment of conviction. Andrews did not challenge the fact

of his conviction or the admission of the judgment into evidence.
4
Instead, he offered a copy of his plea agreement into evidence.

Andrews argued that the plea agreement on its face proved that his
5
state conviction was based upon an invalid guilty plea. The

district court rejected these contentions and found that Andrews

had violated the terms of his supervised release. Andrews was

3
The court granted the continuance in order to provide the
government the opportunity to gather enough evidence to prove the
supervised release violation without having to rely exclusively
on the state conviction. At the postponed sentencing hearing,
however, the government resorted to exclusive reliance on the
conviction.
4
The plea agreement provided, in relevant part:

I will enter a plea of guilty to the charge of
Conspiracy to Traffick [sic] in Cocaine for a maximum
sentence not to exceed fifteen (15) years in the
custody of the Department of Corrections and a fine not
to exceed $250,000.00. Any sentence I receive in the
State System will run concurrently with any sentence I
might receive from the Federal Court for my Violation
of Probation.
5
Andrews contends that the state failed to inform him of the
mandatory minimum sentence for the crime to which he pleaded
guilty and improperly represented that his federal sentence would
be concurrent to his state sentence.
sentenced to five years of imprisonment.6 Before imposing this

sentence, the court noted that Andrews had committed the violation

within one year of beginning supervised release and that, based on

this history, "that seems to be a course of conduct he periodically

follows." The term of imprisonment imposed on Andrews exceeds the

range of twenty-four to thirty months set forth in Chapter 7 of the

Sentencing Guidelines. See U.S.S.G. § 7B1.4(a).

II. DISCUSSION

A. Sentences under Chapter 7

Hofierka and Andrews argue that the district court improperly

imposed a sentence in excess of the range specified in U.S.S.G. §

7B1.4(a). Chapter 7 of the Sentencing Guidelines contains policy

statements which provide ranges of imprisonment that a court may

follow when revoking probation or supervised release. See U.S.S.G.

Ch. 7, Pt. A, intro. We have unequivocally held that the Chapter

7 policy statements are merely advisory, i.e., they are not

binding. United States v. Thompson, 976 F.2d 1380, 1381 (11th

Cir.1992). Appellants argue that this holding has been undercut by

two recent decisions of the Supreme Court: Stinson v. United

States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), and

Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 117

L.Ed.2d 341 (1992). This argument is frivolous as we have held

that our rule in Thompson is unaffected by either Stinson or

6
Because one of the offenses for which a term of supervised
release was imposed upon Andrews was a class A felony, 21
U.S.C.A. § 841(a)(1); 18 U.S.C.A. § 3559(a), the maximum term of
imprisonment for the revocation of his supervised release was
five years. 18 U.S.C.A. § 3583(e)(3).
Williams.7 United States v. Milano, 32 F.3d 1499, 1502-03 (11th

Cir.1994).

Appellants go further, however, by arguing that the recent

amendment of 18 U.S.C.A. § 3553(a)(4)(B) requires sentencing courts

to follow the Chapter 7 policy statements. The Violent Crime

Control & Law Enforcement Act of 1994, effective September 13,

1994, amended § 3553 to read, in relevant part:

(a) Factors to be considered in imposing a sentence.—The
court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the
particular sentence to be imposed, shall consider—

. . . . .

(4) the kinds of sentence and the sentencing range
established for—

(A) the applicable category of offense committed by
the applicable category of defendant as set forth
in the guidelines that are issued by the Sentencing
Commission pursuant to section 994(a)(1) of title
28, United States Code, and that are in effect on
the date the defendant is sentenced; or

(B) in the case of a violation of probation or
supervised release, the applicable guidelines or
policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of title
28, United States Code;

(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2)
that is in effect on the date the defendant is sentenced;

....

(b) Application of guidelines in imposing a sentence.—The
court shall impose a sentence of the kind, and within the
range, referred to in subsection (a)(4) unless the court finds
that there exists an aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into

7
We are disturbed by the fact that appellants have raised
this issue in light of our unmistakable holding in Milano.
Appellants fail to distinguish or even mention this case.
 consideration by the Sentencing Commission in formulating the
guidelines and that should result in a sentence different from
that described.

(new text underlined). Appellants argue that subsection (b)

requires the sentencing court to impose a sentence within the range

specified for a violation of probation or supervised release.

The Sixth Circuit in United States v. West, 59 F.3d 32 (6th

Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 486, 133 L.Ed.2d 413

(1995), recently rejected this argument. The court held that the

amendment to § 3553 does not render the sentencing range in Chapter

7 mandatory. First, it found that, under the plain meaning of

subsection (b), a sentencing court is only required to impose a

sentence within the applicable guideline range. Id. at 35. The

court held that because Chapter 7 is merely a policy statement and

not a guideline, sentencing courts are not bound by it. Id.8 We

readily follow the court in West and adopt its reasoning. See also

United States v. Escamilla, 70 F.3d 835 (5th Cir.1995).

The plain language of § 3553 indicates that the sentencing

court, in imposing a sentence upon revocation of a defendant's

supervised release, must at least consider the sentencing range

prescribed by the Sentencing Commission's policy statements. The

heading and text of subsection (b) make clear that its mandatory

language refers only to those situations in which sentences are

imposed pursuant to guidelines. Because the Chapter 7 sentencing

range is a mere policy statement and not a guideline (in the sense

8
Further, the court properly noted that if the Sentencing
Commission decides to issue true "guidelines" rather than policy
statements, courts will be bound to impose sentences within the
specified range. Id.
of binding courts), the language in subsection (b) does not apply

to sentencing under Chapter 7.

Indeed, the interpretation pressed by appellants would not

make practical sense. The Sentencing Commission specifically

stated in Chapter 7 that it issued advisory policy statements

rather than guidelines for sentences imposed upon the revocation of

supervised release in order to provide district courts with greater

flexibility. Milano, 32 F.3d at 1503 (citing U.S.S.G. Ch. 7, Pt.

A(3)(a)). It is against this backdrop that Congress amended §

3553. Congress understood that courts have consistently

distinguished guidelines from mere policy statements and nothing in

the statute persuades us that it intended to change the meaning of

these words. Accordingly, consistent with Milano, Thomas, and the

reasoning set forth above, "we hold that, while the district court

in this case was required to consider the Chapter 7 policy

statements in determining [appellants'] sentence, the Court was not

bound to apply the sentence set forth in section 7B1.4." Milano,

32 F.3d at 1503.

Hofierka and Andrews alternatively argue that, even if the

Chapter 7 sentencing range is not binding, the district court

failed to consider this range before imposing the sentences. In

Milano, we held that sentencing courts must consider the policy

statements in Chapter 7 before imposing a sentence, although they

are not bound to follow these statements. 32 F.3d at 1503. We

review the district court's decision to exceed the Chapter 7

sentencing range for an abuse of discretion. See United States v.

Thompson, 976 F.2d 1380, 1381 (11th Cir.1992).
 As to both appellants, the record amply reveals that the

district court adequately considered the Chapter 7 sentencing

range. In both cases, the district court explicitly mentioned the

Chapter 7 range and chose to exceed it.

B. Notice of Intent to Exceed the Chapter 7 Sentencing Range

Appellants argue that the district court failed to provide

any notice of its intent to exceed the Chapter 7 sentencing range.

It is clear that a district court must give a defendant reasonable

notice before sua sponte departing upward from a guideline

sentencing range "on a ground not identified as a ground for upward

departure either in the presentence report or in a prehearing

submission by the Government." Burns v. United States, 501 U.S.

129, 137-38, 111 S.Ct. 2182, 2187-88, 115 L.Ed.2d 123 (1991);

United States v. Valentine, 21 F.3d 395, 397 (11th Cir.1994). The

purpose behind this rule is to promote "focused, adversarial

resolution of the legal and factual issues relevant to fixing

Guidelines sentences." Burns, 501 U.S. at 137, 111 S.Ct. at 2187.

With proper notice, defendants are able to marshal evidence with

which to contest facts supporting a proposed upward departure.

Valentine, 21 F.3d at 398. We have not decided whether a

sentencing court must give notice before exceeding a Chapter 7

recommended sentencing range.

Because we hold that the Chapter 7 sentencing range is not

binding on district courts and that it is within their discretion

to exceed this range, it follows that exceeding this range does not

constitute a "departure." See United States v. Mathena, 23 F.3d

87, 93 n. 13 (5th Cir.1994) ("A sentence which diverges from
advisory policy statements is not a departure such that a court has

to provide notice or make specific findings normally associated

with departures under § 3553(b)."); United States v. Davis, 53

F.3d 638, 642 n. 15 (4th Cir.1995) ("It is well established that

"[a] sentence which diverges from advisory policy statements is not

a departure.' ") (quoting Mathena, supra); United States v.

Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, 502 U.S. 992,

112 S.Ct. 611, 116 L.Ed.2d 634 (1991) ("When working with policy

statements (as opposed to guidelines), the district court is not

required ... to impose a sentence outside of the prescribed range

... by finding an aggravating factor that warrants an upward

departure...."). Consequently, we hold that the sentencing court

is not required to give notice of its intent to exceed the Chapter

7 sentencing range.

This conclusion follows directly from the nature of sentencing

under Chapter 7. By statute, Congress has authorized maximum terms

of supervised release which vary depending on the nature of the

original felony. 18 U.S.C.A. § 3583(b). For example, the maximum

term of supervised release for a Class A or B felony is five years

and for a Class C or D felony is three years.9 Upon revocation of

a term of supervised release, the court may require a defendant to

serve in prison all or part of the term of supervised release

authorized by statute without credit for time served on

post-release supervision. 18 U.S.C.A. § 3583(e)(3). The court may

not, however, impose a sentence upon revocation of greater than

9
The class of felony is determined by reference to 18
U.S.C.A. § 3559.
five years in prison where the original crime was a class A felony,

three years where it was a class B felony, two years where it was

a class C or D felony, or one year in any other case. Id. In

Chapter 7 of the Sentencing Guidelines, the Sentencing Commission

has promulgated policy statements which are intended to aid the

court in imposing a sentence upon revocation of probation or

supervised release. As discussed, these policy statements are not

binding on district courts. Thus, any recommendation of sentences

before the district court or argument against a particular sentence

should be grounded in the common understanding that the district

court may impose any sentence within the statutory maximum. A

sentence in excess of the Chapter 7 range is not a departure, and

is permitted so long as it is within the range imposed by Congress.

No notice is necessary because the applicable range is dictated by

statute, not by Chapter 7.

The facts of the present cases illustrate our point. Before

sentencing Hofierka, the district court made clear that the maximum

allowable sentence was two years. With this in mind, the parties

discussed at length Hofierka's troublesome drug addiction and

attempted to arrive at a sentence which would address his

particular needs. Hofierka suggested a sentence within the Chapter

7 range, which was considered, but the court chose to impose the

maximum sentence.

Similarly, at his final revocation sentencing proceeding, the

court informed Andrews that although Chapter 7 recommended a range

of twenty-four to thirty months, the maximum sentence was up to

five years. The judge permitted both parties to present evidence
and argument on the appropriate sentence. Based on Andrews

apparent pattern of committing drug offenses a short time after his

release from prison, the court elected to impose the maximum

sentence.

C. Collateral Review of Andrews' Underlying Conviction

Finally, Andrews contends that the district court erred in

relying on his state conviction as grounds to revoke his supervised

release. He challenges his state conviction, arguing that the

state's misrepresentations rendered his guilty plea

unconstitutional. Andrews entered into a written plea agreement

with the Florida state attorney in which, he contends, he agreed to

plead guilty to a charge of cocaine trafficking in exchange for a

sentence not to exceed fifteen years and to run concurrently with

the sentence he anticipated upon revocation of his supervised

release. Relying on Finch v. Vaughn, 67 F.3d 909, 916 (11th

Cir.1995), he urges us to declare his guilty plea unconstitutional

because it was not knowing, intelligent, and voluntary.10 He

concludes that the district court improperly relied on this

unconstitutional conviction as the sole evidence of a violation of

the terms of his supervised release.

We hold that, under the circumstances of this case, the

judgment of conviction was sufficient notwithstanding Andrews'

claim that it was based on an unconstitutional guilty plea. A

10
Andrews avers that, contrary to his plea agreement, the
mandatory minimum sentence for the crime to which he pleaded
guilty was fifteen years and that the state misled him in this
regard. Further, he argues that the state improperly represented
that his federal sentence would be concurrent to his state
sentence.
court may revoke a defendant's term of supervised release and

impose a prison sentence when it finds by a preponderance of the

evidence that the defendant violated a condition of his or her

supervised release. 18 U.S.C.A. § 3583(e)(3). A certified copy of

a conviction is proper evidence that a defendant violated a state

or federal law and, thereby, violated a condition of his or her

supervised release.

As to Andrews' argument that the conviction was

unconstitutional, a supervised release revocation proceeding is not

the proper forum in which to attack the conviction giving rise to

the revocation. See United States v. Francischine, 512 F.2d 827,

828-29 (5th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46

L.Ed.2d 261 (1975) ("[T]he underlying validity of a conviction

cannot be asserted as a defense in a probation revocation

proceeding [and] the conviction's validity may be collaterally

attacked only in a separate proceeding under 28 U.S.C.A. §

2255....").11 See also United States v. Fleming, 9 F.3d 1253, 1254

(7th Cir.1993) ("The conviction itself, whether or not an appeal is

taken, provides adequate proof of the violation of state law to

justify revoking probation."); United States v. Torrez Flores, 624

F.2d 776, 780 (7th Cir.1980) ("However meritorious defendant's ...

claim may be, an appeal from a probation revocation is not the

proper avenue for a collateral attack on the underlying

conviction."); United States v. Gentile, 610 F.2d 541, 542 (8th

Cir.1979) ("Federal courts have consistently ruled that a criminal

11
This case was decided prior to the close of business on
September 30, 1981, and is binding precedent under Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).
conviction provides sufficient grounds for revocation of probation

even though an appeal from the conviction is still pending.");

United States v. Simmons, 812 F.2d 561, 563 (9th Cir.1987)

("Irrespective of the merits of [defendant's] claim, an appeal from

a probation revocation is not the proper avenue for a collateral

attack on the underlying conviction.... [A] court should consider

the petition for probation revocation as if the underlying

conviction was unquestioned.").

The rule from Francischine unquestionably applies in this

context. The Constitution does not require otherwise. Cf. Custis

v. United States, --- U.S. ----, ----, 114 S.Ct. 1732, 1738, 128

L.Ed.2d 517 (1994) (suggesting that the Constitution may only

require such collateral review for failure to appoint counsel to

represent an indigent defendant); United States v. Roman, 989 F.2d

1117, 1120 (11th Cir.1993) (en banc) (suggesting that the

Constitution may only require such collateral review of uncounseled

convictions). As the Supreme Court recently suggested in a

different but analogous context, refusal to permit such collateral

attack of convictions furthers the goal of finality of judgments.

See Custis, --- U.S. at ----, 114 S.Ct. at 1738-39. The sentence

in this case will be presumed valid until it is vacated on direct

review or in an appropriate collateral proceeding. Cf. United

States v. Almand, 992 F.2d 316, 317 (11th Cir.1993) ("A sentence is

presumed valid until vacated under § 2255."). If Andrews'

conviction is reversed, he may seek appropriate modification of his

supervised release revocation sentence at that time. Cf. Custis,

--- U.S. at ----, 114 S.Ct. at 1739 ("If [defendant] is successful
in attacking these state sentences, he may then apply for reopening

of any federal sentence enhanced by the state sentence."). Of

course, we express no opinion on what might constitute such an

appropriate modification.

III. CONCLUSION

Accordingly, for the foregoing reasons, we affirm the district

court's judgments and sentences with respect to both Hofierka and

Andrews.

AFFIRMED.12

12
Appellants' requests for oral argument are DENIED.