In re: Sealed Case

Filing

OPINION [1592438] filed (Pages: 8) for the Court by Judge Ginsburg. [14-3058]

USCA Case #14-3058

Document #1592438

Filed: 01/08/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted November 6, 2015

Decided January 8, 2016

No. 14-3058
IN RE: SEALED CASE

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00053-1)

Before: SRINIVASAN, Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
The appellant in this case pleaded guilty to a federal
crime. Following his guilty plea, he was sentenced and then
resentenced on three subsequent occasions. In this appeal, he
challenges on both procedural and substantive grounds the
last-imposed sentence, pursuant to which the appellant is
subject to a term of supervised release ending in January
2016. After rejecting the Government’s argument that the
case is moot, we affirm the judgment of the district court.
I.

Background

In 2007 the appellant pleaded guilty to one count of
conspiracy to participate in a racketeer influenced corrupt

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organization, in violation of 18 U.S.C. §§ 1962(d), 1963, and
was subsequently sentenced to 108 months of incarceration,
to be followed by 60 months of supervised release.
After filing an appeal in which he challenged his initial
plea agreement on various grounds including ineffective
assistance of counsel, the appellant entered into a new
sentencing agreement with the Government, pursuant to
which the district court sentenced him to a period of
incarceration comprising time served plus 30 days, to be
followed by 60 months of supervised release, six of which, at
the appellant’s request, were to be spent in a halfway house.
While in residence at the halfway house, the appellant
repeatedly violated the terms of his supervised release by,
among other things, indulging in alcohol and failing to
participate in anger-management counseling.
In consequence of his violations, the district court
vacated its earlier sentencing decision and imposed a third
sentence, this time comprising 20 months of imprisonment to
be followed by one year of supervised release. On appeal,
this court vacated that sentence, explaining that “it was plain
error for the district court to impose a sentence [for violation
of the terms of supervised release] in excess of the Guideline
range without providing a written statement of reasons.” The
district court then re-imposed the sentence of 20 months
incarceration to be followed by one year of supervised
release, this time supported by a memorandum opinion in
which it set forth its reasons for the sentence imposed.
Specifically, the district court rehearsed the appellant’s
various violations of the terms of his supervised release and
noted that “the sentence ... was intended to resolve multiple
violations in one fell swoop and to reduce the term of
supervision thereafter significantly ... for the purpose of
ensuring that [the appellant] obtains anger management

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counseling upon his re-introduction to the community and to
release him from oversight relatively quickly.”
II.

Analysis

We address first the Government’s assertion that the
appellant’s case is moot. We then turn to the substance of the
appellant’s challenge to his current sentence.
A. Mootness
The appellant has completed his term of incarceration.
His term of supervised release is scheduled to end in January
2016, but a district court “may modify, reduce, or enlarge the
conditions of supervised release[] at any time prior to the
expiration or termination of the term of supervised release.”
18 U.S.C. § 3583(e)(2). Although the appellant is still serving
his term of supervised release, the Government argues this
case is already moot: “Because appellant’s sole substantive
challenge is to the length of his incarceration, and because
appellant is no longer in prison, this Court can offer appellant
no effectual relief.”
We reject the Government’s argument and instead follow
the approach set out in our decision in United States v. Epps,
707 F.3d 337 (D.C. Cir. 2013). There we held this court had
jurisdiction to adjudicate a sentencing challenge brought by
an appellant who had completed his prison sentence but not
his period of supervised release. Id. at 342. The essence of
Epps’s argument, which we accepted, was that “reduction of
[his] term of imprisonment would ... enhance his prospect for
securing a similar reduction in his term of supervised release.”
Id. at 343.

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Notwithstanding Epps, the Government asserts the
potential relief available to the appellant in this case — “a
reduction of the yet-to-be-served ... portion of his 12-month
supervised release term” — is “unlikely in the extreme,
particularly in light of the district court’s rationale for its
sentence, and the fact that the district court has already
reduced appellant’s supervised-release term by 80%.” The
Government further asserts the possibility of such a reduction
is “simply too speculative to give rise to a case or
controversy.”
In Epps, however, we pointed out that “because of the
relationship between a prison sentence and supervised release
... there seems to be a very substantial likelihood that a ruling
that Epps’ incarceration should have been shorter would
influence the district court’s readiness to reduce his term of
supervised release.” Id. at 345. The relationship between a
prison sentence and supervised release is not exactly the same
here because appellant challenges a sentence imposed upon
revocation of supervised release rather than his original
sentence imposed for the underlying crime. We nonetheless
find that the possibility of a reduction of supervised release is
not unduly speculative in these circumstances so as to render
the case moot.
B. Appellant’s sentencing challenge
The imposition of a sentence may be challenged for
procedural error as well as for substantive unreasonableness.
Gall v. United States, 552 U.S. 38, 51 (2007). The appellant
challenges his sentence in both respects.

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1. Procedural error
If a procedural objection was timely made before the
district court, then the resulting sentence is subject to review
for abuse of discretion. United States v. Wilson, 605 F.3d
985, 1033-34 (D.C. Cir. 2010). If such an objection was not
timely made before the district court, then our review is only
for plain error. Id at 1034.
The appellant asserts that abuse-of-discretion review is
appropriate in this case. The Government counters that any
procedural error should be subject to plain error review
because the appellant “found no fault” with the district court
proceedings while they were ongoing. It is not necessary to
resolve which standard is appropriate in this case, however, as
the appellant has failed to identify any procedural error that
would constitute an abuse of discretion, much less a plain
error.
It is a procedural error for a district court to premise a
sentence upon a clearly erroneous fact. Gall, 552 U.S. at 51.
In this case, the appellant argues his sentencing was
procedurally deficient because “the reasons given to support
the above range re-sentence were not supported by the facts.”
Specifically, the appellant argues he was required to spend a
portion of his supervised release in a halfway house only if
“he had no suitable location to reside at when released”; “the
commitment order incorrectly reflected the sentence
concerning the halfway house requirement”; and “the events
that flowed from this halfway house dispute became the
eventual basis” for his sentence.
During his second sentencing hearing, the district court
said that:

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The condition of supervised release is that you spend
six months in a halfway house or transitional housing
at the discretion of the probation office if it is
available and needed.
As the Government acknowledges, the words “and needed”
were omitted from the district court’s later-written judgment.
Nonetheless, the district court in its written statement of
reasons accompanying the appellant’s last sentencing hearing
explained why, in its view, the appellant needed the halfway
house, notwithstanding the availability of alternative
accommodations:
The Court ... had ordered six months in a halfway
house or transitional housing because of a lack of a
place to go upon [the appellant’s] release from the
Bureau of Prisons, but also because the Court knew
[the appellant] and knew his speed with which he gets
very angry. And between the time he got out of jail
and the time the halfway house became available, his
compliance with the terms of his release were such
that it made the Court very concerned.
Any error or omission in the district court’s earlier written
judgment is therefore beside the point; far from proceeding
upon the basis of “clearly erroneous” facts, the district court
acknowledged the appellant’s contention that he should have
been excused from the halfway house requirement and
explained why, in keeping with the court’s intended sentence,
he would not be excused from it.
2. Substantive reasonableness
The substantive reasonableness of a sentence is reviewed
for abuse of discretion. Gall, 552 U.S. at 51. Whether an

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above-Guidelines sentence constitutes an abuse of discretion
must be determined with “due deference to the district court’s
decision that the [18 U.S.C. § 3553(a)] factors, on [the]
whole, justify the extent of the variance.” Id. Those factors
include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant; [and] (2)
the need for the sentence imposed (A) to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with
needed educational or vocational training, medical
care, or other correctional treatment in the most
effective manner....”
18 U.S.C. § 3553(a).
This court must decide whether to defer to the district
court’s decision bearing in mind that
the § 3553(a) factors that district courts must consider
at sentencing are vague, open-ended, and conflicting;
different district courts may have distinct sentencing
philosophies and may emphasize and weigh the
individual § 3553(a) factors differently; and every
sentencing decision involves its own set of facts and
circumstances regarding the offense and the offender
.... It will be the unusual case when an appeals court
can plausibly say that a sentence is so unreasonably
high or low as to constitute an abuse of discretion by
the district court.

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United States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir.
2008).
The transcript of the district court’s fourth and final
sentencing hearing and the court’s written justification for the
above-Guidelines term of imprisonment indicate that the
district court took into account the appellant’s specific
violations of the terms of his release, his challenge to the
requirement that he report to a halfway house, his professed
contrition, and factors indicating his contrition was
insufficient to ensure “a lesser sentence would fulfill the goals
of sentencing and supervision.”
Notwithstanding the
additional hardship imposed by a longer time in prison, the
district court’s simultaneous reduction in appellant’s term of
supervised release indicates the court was indeed seeking to
balance the sentencing factors outlined in 18 U.S.C.
§ 3553(a), particularly as regards “the nature and
circumstances of the offense and the history and
characteristics of the defendant” and “the need for the
sentence imposed ... to protect the public from further crimes
of the defendant[] and ... to provide the defendant with ...
other correctional treatment”
in the form of angermanagement counseling. There is nothing in the record,
therefore, that indicates the district court abused its discretion
in the sentence here under review.
III.

Conclusion

For the foregoing reasons, the judgment of the district
court is
Affirmed.

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