United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3094
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kelly James Rayson
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Sioux Falls
____________
Submitted: April 4, 2017
Filed: July 24, 2017
[Unpublished]
____________
Before WOLLMAN and LOKEN, Circuit Judges, and ROSSITER,1 District Judge.
____________
PER CURIAM.
1
The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska, sitting by designation.
Kelly James Rayson appeals from the district court’s2 revocation of his
supervised release and the sentence the court imposed. We affirm.
In July 2009, Rayson pleaded guilty to one count of passing a counterfeit
check, in violation of 18 U.S.C. § 513(a). He was sentenced to 33 months’
imprisonment and 3 years’ supervised release. Rayson violated the conditions of his
supervised release following his release from prison and was sentenced to
imprisonment for 12 months and 1 day, to be followed by 18 months’ supervised
release.
During Rayson’s second term of supervised release, the U.S. Probation Office
(Probation Office) filed a petition to revoke his supervised release, charging that
Rayson had failed to report to his probation officer and had used methamphetamine.
During his revocation hearing before the magistrate judge, Rayson admitted the two
violations. In response to the magistrate judge’s inquiry whether anyone had made
any “side promises” in return for his admission, Rayson stated, “Only that the
probation office would talk to me about [drug-abuse] treatment at a future date.” The
magistrate judge then accepted Rayson’s admission, finding that he was competent
to make the admission and that he had made it knowingly and voluntarily.
In recommending that the petition to revoke Rayson’s supervised release be
granted, the magistrate judge did not mention Rayson’s statement that the Probation
Office had promised to discuss treatment with him, and Rayson raised no objection
to the Report and Recommendation on that ground. The Probation Office prepared
a supplemental presentence report (PSR) that likewise did not mention the alleged
promise to discuss treatment and calculated an advisory sentencing range under the
2
The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota, adopting the Report and Recommendation of the Honorable
Veronica L. Duffy, United States Magistrate Judge for the District of South Dakota.
-2-
United States Sentencing Guidelines Manual of 8 to 14 months’ imprisonment.
Rayson did not make a formal statement to the Probation Office for the PSR, nor did
he object to the PSR.
The district court adopted the Report and Recommendation and the PSR. The
court recognized that Rayson had struggled with drug addiction, but noted that “[f]or
a second revocation of supervised release, it’s routine for this Court to have the
penalty be above that which was imposed for the first revocation,” in order to “induce
compliance with the provisions of supervised release.” The court then sentenced
Rayson to 13 months’ imprisonment, to be followed by 11 months’ supervised
release.
We find no plain error in the district court’s acceptance of Rayson’s admission
that he had violated the conditions of his supervised release. United States v. Taylor,
747 F.3d 516, 519 (8th Cir. 2014) (applying plain error standard where defendant
failed to object before the district court during revocation proceedings). Rayson
argues that he had a “side agreement” with the Probation Office to discuss treatment
options and that the unfulfilled agreement renders his admission unknowing and
involuntary. On appeal, he contends that his statement indicated that the Probation
Office would consider recommending drug treatment or incarceration in a halfway
house, in lieu of imprisonment. But there is no reference to any such agreement that
the Probation Office would do so,3 and the magistrate judge did not err in finding
Rayson’s admission to the violations knowing and voluntary, notwithstanding
Rayson’s statement that the Probation Office had promised to discuss treatment with
3
Rayson points to an exchange during his initial appearance during which his
counsel stated that he wished to discuss with Rayson’s probation officer Rayson’s
release to a halfway house or other facility. This exchange, however, concerned
whether Rayson should be held in custody or released on bond pending his revocation
hearing, not whether Rayson and the Probation Office would discuss treatment
options with regard to sentencing.
-3-
Rayson “at a future date.” Nor did the district court err in adopting that finding,
particularly in light of Rayson’s failure to offer a formal statement for the PSR or
otherwise object to it. In light of this record, we conclude that the district court did
not err in adopting the magistrate judge’s finding that Rayson’s admission was
knowing and voluntary.
Likewise, we reject Rayson’s argument that the district court plainly erred in
failing to consider drug treatment when crafting Rayson’s sentence. Id. As set forth
above, the district court explained that, although it was aware of Rayson’s struggles
with drug addiction, its sentence was intended to induce him to comply with the
conditions of supervised release in the future. The sentence, which was within the
advisory Guidelines range, constituted neither plain error nor an abuse of the district
court’s discretion. Id. at 520 (“We review the substantive reasonableness of a
revocation sentence under a deferential abuse of discretion standard, and we may
apply a presumption of reasonableness to sentences within the guideline range.”).
The judgment is affirmed.
______________________________
-4-