USA v. Davonya Grant

Filing

FILED OPINION (RONALD M. GOULD, N. RANDY SMITH and MIRANDA DU) AFFIRMED. Judge: NRS Authoring, FILED AND ENTERED JUDGMENT. [8743642]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-50209

v.

D.C. No.
2:05-cr-00130GHK-1

DAVONYA KUSAN GRANT,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted
June 7, 2013—Pasadena, California
Filed August 15, 2013
Before: Ronald M. Gould, and N. Randy Smith, Circuit
Judges, and Miranda Du, District Judge.*
Opinion by Judge N.R. Smith

*

The Honorable Miranda Du, District Judge for the United States
District Court for the District of Nevada, sitting by designation.

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UNITED STATES V. GRANT
SUMMARY**

Criminal Law
The panel affirmed a judgment revoking probation and
the sentence imposed upon revocation.
The panel held that the district court had jurisdiction to
revoke the defendant’s probation beyond the original
expiration date because the defendant’s failure to inform her
probation officer that she had moved her residence, as
required by the terms of probation, rendered her a fugitive,
tolling her probation term. The panel rejected the defendant’s
argument that a letter she sent to the district court, which
contained a different address and phone number than the one
in probation’s records, precludes her from being a fugitive.
The panel concluded that the sentence was procedurally
and substantively reasonable.

COUNSEL
Kathryn A. Young, Deputy Federal Public Defender, Office
of the Federal Public Defender, Los Angeles, California, for
Defendant-Appellant.
Thomas D. Coker, Assistant United States Attorney, Office
of the United States Attorney, Los Angeles, California, for
Plaintiff-Appellee.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. GRANT

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OPINION
N.R. SMITH, Circuit Judge:
A defendant assumes fugitive status when he “fail[s] to
comply with the terms of his supervised release,” which
includes moving residences without telling his probation
officer. See United States v. Murguia-Oliveros, 421 F.3d
951, 953 (9th Cir. 2005). Fugitive status tolls the length of
time a defendant is ordered to serve probation (the “Probation
Term”). See United States v. Watson, 633 F.3d 929, 931 (9th
Cir. 2011). As such, a defendant’s Probation Term is
extended for the period of his fugitive status. See id.
Because Appellant Davonya Kusan Grant’s fugitive status
tolled her Probation Term, the district court’s revocation
hearing occurred before the term expired. Thus, the district
court had jurisdiction to revoke Grant’s probation. Further,
the district court did not abuse its discretion when it
sentenced Grant.
BACKGROUND
Grant pleaded guilty to knowingly filing false federal
income tax returns. Grant asked for leniency in sentencing,
arguing that her mother and children relied on her as the
family’s sole caregiver. On February 6, 2006, the district
court sentenced Grant to five years of probation and ordered
Grant to pay restitution. The district court also ordered Grant
to “comply with the rules and regulations of the U.S.
Probation Office.”
The parties do not dispute that Grant complied (more or
less) with the terms and conditions of her probation until
early 2010. But after the probation office did not receive

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UNITED STATES V. GRANT

Grant’s required written reports, Grant’s probation officer
made several attempts to contact her at home in June and July
2010. At one point, the probation officer left a business card
with instructions to report to probation. Eventually, a
neighbor told the probation officer that Grant had moved
several months earlier. This news prompted the probation
officer to file a violation report in July 2010, alleging several
probation violations.
Probation sought and obtained a bench warrant for
Grant’s arrest on July 26, 2010 (the “Warrant”). The warrant
petition contained three allegations: Allegation 1 stated that
Grant failed to pay restitution; Allegation 2 claimed that
Grant failed to file a written report for May and June 2010;
Allegation 3 stated that Grant failed to report to probation
within 72 hours of any move and had “absconded from
supervision.”
U.S. Marshals executed the Warrant and arrested Grant on
April 4, 2012. After her arrest, the government learned that
Grant had committed an additional probation violation in
May 2010 stemming from Grant’s plea of nolo contendere to
state law felonies (for unauthorized use of credit cards).
Grant had also failed to report her felony plea to probation as
required. After sentencing for the state law crimes, Grant
then failed to serve her sentence. The government moved to
amend the warrant petition to include this newly discovered
violation as Allegation 4. The district court granted the
motion to amend.
At Grant’s revocation hearing on April 30, 2012 (the
“Revocation Hearing”), Grant disputed Allegations 2 and 3
and moved for discovery. The requested documents included
probation records and a copy of a letter that Grant sent the

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district court in May 2010 (the “May 2010 Letter”), which
Grant believed probation possessed. In the May 2010 Letter,
Grant stated that she had complied with the terms and
conditions of her probation and requested early termination
of her probation. Grant claimed the May 2010 Letter’s
header and signature block contained Grant’s new address
and phone number. Grant argued that the May 2010 Letter
showed she was not a fugitive.
Before the district court could rule on Grant’s discovery
motion, the government dropped Allegations 2 and 3, and
Grant admitted Allegations 1 and 4. Grant’s agreement with
the government mooted her discovery request, and Grant took
no further steps to obtain the requested documents. Grant
asked for leniency in sentencing, as she had previously, due
to her role as her family’s caregiver. After discussing Grant’s
case and circumstances on the record, the district court
revoked Grant’s probation. The district court sentenced her
to a term of 18 months incarceration and 3 years of
supervised release thereafter. Grant’s timely appeal followed.
STANDARD OF REVIEW
We review “de novo whether the district court had
jurisdiction to revoke a term of supervised release.” United
States v. Ignacio Juarez, 601 F.3d 885, 888 (9th Cir. 2010).
Whether a defendant’s fugitive status tolls his Probation
Term “is an issue of law . . . .” Id. “We review a district
judge’s sentence for abuse of discretion.” United States v.
Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010).

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UNITED STATES V. GRANT
DISCUSSION
A. Jurisdiction

Grant argues that the district court lacked jurisdiction to
revoke her probation. We disagree, because Grant’s fugitive
status tolled her Probation Term from July 2010 until she was
found and arrested by federal authorities in April 2012. The
time added to her Probation Term extended it well beyond its
original expiration date. As a result, the Revocation Hearing
occurred during Grant’s Probation Term.1
A defendant’s Probation Term is tolled when the
defendant is in “fugitive status.” See Watson, 633 F.3d at
931. “A defendant is in fugitive status when he fails to
comply with the terms of his [probation].” Id. We have
previously held that a defendant does not comply with the
terms of his supervised release when he moves from the area
“he was authorized by the terms of his release to be” without
telling his probation officer. Murguia-Oliveros, 421 F.3d at
953–54; United States v. Crane, 979 F.2d 687, 691 (9th Cir.
1992). For example, in Murguia-Oliveros, we held that a
defendant absconded from supervision when he moved and
failed to contact his probation officer. 421 F.3d at 953–54.
The defendant also failed to report to probation after being
ordered to do so. Id. We concluded that the defendant’s
fugitive status tolled his Probation Term, because “[a] person

1

Accordingly, we do not reach Grant’s other arguments that: (1) with
respect to Allegation 1, the delay between the end of her probation and the
Revocation Hearing in April 2012 was not “reasonably necessary” as
required by 18 U.S.C. § 3565(c); and (2) with respect to Allegation 4, the
district court failed to grant the request to add the allegation until April
2012, outside her (untolled) Probation Term.

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on supervised release should not receive credit against his
period of supervised release for time [when], by virtue of his
own wrongful act, he was not in fact observing the terms of
his supervised release.” Id. at 954.
A defendant’s failure to properly report to a supervising
officer may also demonstrate the defendant’s fugitive status.
United States v. Delamora, 451 F.3d 977, 980 (9th Cir. 2006).
Cf. Murguia Oliveros, 421 F.3d at 953 (rejecting argument
that a defendant “could not become a fugitive merely by
failing to comply with the terms of his supervised release”).
For example, in Delamora, the government alleged that
Delamora had violated the conditions of his supervised
release. 451 F.3d at 979. Delamora failed to report to the
supervising officer and failed to file monthly reports. Id. at
979. The INS (which had a warrant for Delamora) also could
not find him. Id. at 979. We concluded that “Delamora
became a fugitive when he stopped reporting to his probation
officer and absconded from supervision.” Id. at 980.
In this case, it is undisputed that Grant failed “to comply
with the terms of [her probation].” Watson, 633 F.3d at 931.
Grant admitted that she violated her probation by failing to
pay restitution and by committing a felony. Grant also
admitted that she failed to timely report her nolo contendere
plea to the felony as her probation terms required. The record
provides no explanation for Grant’s failure to properly appear
and serve her sentence on the state felony conviction. On
appeal, Grant also fails to provide an explanation, further
demonstrating that she was a fugitive. In addition, Grant does
not argue on appeal, and the record does not show, that she
informed her probation officer of her move within 72 hours,
as her probation terms required. Similarly, Grant does not
argue that she fully complied with her monthly reporting

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UNITED STATES V. GRANT

requirement. Indeed, the record suggests that Grant filed an
incomplete report in May 2010 and failed to submit any
report thereafter.2 Thus, based on the undisputed facts, Grant
assumed fugitive status in July 2010 (at the latest) by moving,
failing to inform her probation officer, and otherwise failing
to comply with the terms of her probation.
To avoid this result, Grant points to one potential factual
issue. Grant argues that the May 2010 Letter she sent to the
district court, which contained a different address and phone
number than the one in probation’s records, gave probation
notice that she had moved. According to Grant, the
government could not prove Allegation 3—that she had
absconded—because they never attempted to execute the
Warrant at the new address. Thus, she argues, the May 2010
Letter precludes the government’s argument that she was a
fugitive.
Grant cannot rely on the May 2010 Letter, because Grant
does not argue that she sent it to probation. Further, the letter
was a plea to the court to terminate her probation early, and
made no indication that she had changed her address. As
such, the May 2010 Letter did not give probation the notice
required by Grant’s probation terms and conditions.3

2

While Grant denied to the district court that she failed to submit a
proper monthly report for May and June 2010, she offers no argument to
rebut her probation officer’s assertions that she filed an incomplete report
in May 2010 and failed to file any subsequent report.
3

United States Probation Office General Order 318 sets forth the 72hour deadline to inform probation of a change in residence.

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Grant does not argue that she complied with her residence
and reporting requirements, only that probation could have
contacted her if it had the May 2010 Letter. Grant cites no
authority requiring probation to continuously attempt to reach
her. It was Grant’s duty, not probation’s, to affirmatively
comply with Grant’s probation conditions. Grant cannot
place her own failure to comply at probation’s (or the district
court’s) feet. Cf. Watson, 633 F.3d at 930 (refusing to impute
constructive knowledge of defendant’s whereabouts to
probation based on defendant’s arrest by state police).
Accordingly, Grant was a fugitive, her fugitive status tolled
her Probation Term, and the district court had jurisdiction to
revoke her probation.
B. Sentencing
Grant challenges her sentence, arguing that the district
court committed procedural error and that her sentence was
substantively unreasonable. For the reasons set forth below,
we reject Grant’s arguments.
1. Procedural Reasonableness
Grant failed to object to the district judge’s sentencing
procedure below; therefore, we review the district court’s
decision for plain error. Blinkinsop, 606 F.3d at 1114. Under
the sentencing statute, the district court was required to “state
in open court the reasons for its imposition of the particular
sentence.” 18 U.S.C. § 3553(c). “Nonetheless, when a judge
decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.”
Rita v. United States, 551 U.S. 338, 356 (2007).

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Here, the district court listened to Grant’s arguments,
stated that it had reviewed the criteria set forth in § 3553(a),
noted that the Guidelines are advisory, and imposed a
sentence within the Guidelines range. See Blinkinsop,
606 F.3d at 1114–15. Its failure to do more does not
constitute plain error. See id.
2. Substantive Reasonablness
The “[s]ubstantive reasonableness of a sentence, reviewed
for abuse of discretion, is applicable in all sentencing
decisions and is not affected by failure to object.” Blinkinsop,
606 F.3d. at 1116. While “we do not automatically presume
reasonableness for a within-Guidelines sentence, in the
overwhelming majority of cases, a Guidelines sentence will
fall comfortably within the broad range of sentences that
would be reasonable in the particular circumstances.” United
States v. Treadwell, 593 F.3d 990, 1015 (9th Cir. 2010)
(internal quotation marks omitted). To determine if Grant’s
sentence was reasonable, we must consider the “‘totality of
the circumstances’ and recognize that ‘[t]he sentencing judge
is in a superior position to find facts and judge their import
under § 3553(a) in the individual case.’” Blinkinsop,
606 F.3d at 1116 (alteration in original) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). Thus, the district
court abuses its discretion only if its decision was “(1)
illogical, (2) implausible, or (3) without support in inferences
that may be drawn from the facts in the record.” United
States v. Maier, 646 F.3d 1148, 1156 (9th Cir. 2011).
In this case, Grant’s sentence, at the low end of the
Guidelines range, was reasonable. As the district court noted,
Grant indisputably committed a serious breach of trust by
committing a felony and failing to notify the court or her

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probation officer about the act while asking to terminate her
probation early. Further, the nature of the state felony
demonstrates a return to criminal behavior similar to the
underlying offense, sparking a need for continuing deterrence
and to protect the public. See Treadwell, 593 F.3d at 1015
(upholding sentence and noting the “need to deter recidivism
and protect the public”); United States v. Overton, 573 F.3d
679, 700–01 (9th Cir. 2009) (citing defendant’s “undeterred
recidivism” to support the reasonableness of his sentence).
Finally, Grant offered very little by way of mitigation during
her sentencing, simply invoking, as she had previously, her
need to provide for her family. The record plainly shows that
the district court made several references to Grant’s family
obligations and specifically reasoned that it could not allow
Grant’s family to become her “license to flout the law [and]
flout the regulations.”
Thus, Grant’s sentence was
substantively reasonable.
CONCLUSION
The record demonstrates Grant’s fugitive status. As such,
the Revocation Hearing fell within Grant’s Probation Term,
and the district court had jurisdiction to revoke Grant’s
probation. Further, the district court did not abuse its
discretion in sentencing Grant.
AFFIRMED.