# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-2927

___________________________ United States of America
lllllllllllllllllllll Plaintiff - Appellee

v. Sherman Hopkins, Jr.
lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

____________ Submitted: February 10, 2014 Filed: May 28, 2014 [Unpublished]

____________ Before SMITH, BEAM, and BENTON, Circuit Judges.

____________ PER CURIAM.Sherman Hopkins Jr. appeals his 12-month sentence that the district court 1 imposed after it revoked Hopkins's second term of supervised release. He argues that the district court abused its discretion in revoking his supervised release and that the 12-month revocation sentence is unreasonable. We affirm.

I. Background Hopkins was charged with nine counts of perjury, in violation of 18 U.S.C. § 1623. He pleaded guilty to one of the perjury counts and was sentenced to 46 months' imprisonment followed by three years of supervised release. His first term of supervised release began in September 2010. On July 3, 2012, the district court revoked his supervised release after he admitted violating multiple conditions of release, including failure to co mply with drug testing, failure to notify of residence or employment change, associati on with a felon, failu re to notify of law enforcement contact, use of alcohol, failure to answer truthfully inquiries or follow instructions, failure to comply with remo te alcohol testing, and failure to support dependents. The court sent enced Hopkins to 12 months' imprisonment followed by two years of supervised release. The standard conditions of supervision included a prohibition on associating with felons. One special condition of supervision was that Hopkins "reside in a Residen tial Reentry Center for a peri od of 180 days" and that he "abide by all rules and regulations of the facility." Hopkins served the 12-month sentence. On July 2, 2013, Hopkins arrived at the Gerald Hinzman Center (GHC) for 180- day placement and began his s econd term of supervised release. On July 3, 2013, a GHC staff member observed Hopkins at a grocery store "in the company of fellow federal offender Matt Pratt." Hopkins had not received an approved pass to this

1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa.

-2-location nor had he received permission to associate with Pratt. He was cited for outof-place assignment. On August 7, 2013, a GHC staff member observed Hopkins at the mall when he was supposed to be at his place of employment; Hopkins had not received approval to stop at the mall. He was c ited for out-of-place assignment. On August 16, 2013, Hopkins received instru ctions "to turn in his paycheck to GHC staff for monthly subsistence payment and he refused to do so ." He was cited for disobeying a lawful order or directive and the unauthorized possession of money. That same day, in a separate incident, GHC staff strip searched Hopkins. During the search, Hopkins used obscenities and called the male staff members "faggots." During subsequent room searches, GHC staff discovered a contraband cell phone and cell phone charger in Hopkins's room. Hopkins s houted loudly, acted disrespectfully, and used obscene language, while officers conducte d room and strip searches of other residents. He was c ited for verbal abuse, unauthori zed possession or exchange, and obstructive or disruptive conduct. On August 19, 2013, Hopkins received a citation for unauthorized possession of money for failing to turn in at least two paychecks for subsistence payment.
Based on these citations, the GHC staff asked for Hopkins's dismissal from the center. Hopkins's probation officer then f iled a petition to revoke Hopkins's supervised release because he refused to comply withthe residential reentry center's rules and associated with a felon. During the supervised-release revocation hearing, Hopkins admitted each of the violations. The court determined, and Hopki ns did not contest, that each of the violations was a Grade C violation under U.S .S.G. § 7B1.1. At the time of his original sentencing, Hopkins's criminal history category was VI. Based on this criminal history
-3-category, Hopkins's recommended Guid elines range was 8 to 14 months' imprisonment. The maximum statutory term was one year. The court noted that "[t]his is not mandatory revocation" and that it ha d "the power to sendhim back to prison, to continue his supervision, to modify hi s supervision," or "to terminate it since the . . . start date was back in 2010." The government asked the court to "revokethe defendant's supervised release and send him back to prison for one year and one day"; additionally, it asked "the Court not to reimpose supervision after hi s term of incarceration" based on Hopkins's "complete inability to work with probati on." Hopkins was "in agreement with the sentence that's recommended by the Government." 2 After "carefully consider[ing] all of the statutory factors that apply under 18 [U.S.C. §] 3553(a)," looking at the Guid elines, "consider[ing] the nature and circumstances of the violation and the history and characteristics of Mr. Hopkins," and "consider[ing] all the other statutory factor s that apply," the court sentenced Hopkins to "12 months" with "no supervised rel ease to follow." Thereafter, the following exchange occurred: DEFENDANT HOPKINS, JR.: Was it—did we agree—I mean was it a year and a day that you're sentencing me to or— THE COURT: No. I sentenced you to 12 months, which was my understanding what you agreed to.

2 A sentence of one year and one day would have made Hopkins "eligible for 'good conduct time' under 18 U.S.C. § 3624(b), wh ich provides that prisoners serving more than one year may receive credit fo r up to 54 days per year for 'exemplary compliance with institutional disciplinary regulations.'" United States v. Cox , 449 F. App'x 547, 549 n.2 (8th Cir. 2012) (unpublished per curiam). -4-DEFENDANT HOPKINS, JR.: I agreedto a year and a day with the— THE COURT: Okay. DEFENDANT HOPKINS, JR.: —what they told me. THE COURT: Well, I'm not going to give you a year and a day because the last time I revoked you— DEFENDANT HOPKINS, JR.: You gave me a year. THE COURT: —it was a year and it would make no sense whatsoever incrementally to lessen your punishment when your behavior has continued and has not improved, so I am sentencing you to 12 months; not 12 months and one day. I considered that and— DEFENDANT HOPKINS, JR.: I'll take the 14 months. THE COURT: Pardon? It's 12 months, so you will serve 12 months.

II. Discussion Hopkins argues that the district court abused its discretion in revoking his supervised release and imposed an unreas onable revocation sentence. Specifically, Hopkins argues that the district court abused its discretion in failing to consider relevant factors that should have received si gnificant weight. He also claims that the district court abused its discretion becau se it committed a clear error of judgment in weighing the factors. He c oncludes that, under the circumstances of the case, the district court imposed an unreasonable revocation sentence.

A. Revocation A district court's revocation of a defendant's supervisedrelease is reviewed for an abuse of discretion, and its factfindi ng regarding whether a violation occurred is
-5-reviewed for clear error. United States v. Gomez , __F. App'x__, 2014 WL 104087, at *2 (8th Cir. Jan. 13, 2014). When analyzing the district court's factual findings for clear error, we will "reverse only if we have a definite and firm conviction that the district court was mistaken." Id . (quotation and citations omitted). "The government must prove by a preponderance of the eviden ce that the defendant violated a condition of supervised release." Id (citing 18 U.S.C. § 3583(e)(3)). In the present case, the district court did not commit clear error or otherwise abuse its discretion in re voking Hopkins's supervised release because Hopkins admitted each of the violations and did not contest that each was a Grade C violation under U.S.S.G. § 7B1.1.

B. Reasonableness Revocation sentences are reviewed fo r substantive reasonableness under the same deferential abuse-of-dis cretion standard used at initial sentencing proceedings. United States v. Growden , 663 F.3d 982, 984 (8th Cir. 2011) (per curiam) (citation omitted).

We review a district court's se ntence for reasonableness, which is akin to the standard of abuse of discretion. See United States v. Cadenas , 445 F.3d 1091, 1094 (8th Cir. 2006) (sentence reviewed using reasonableness standard); United States v. Hadash , 408 F.3d 1080, 1083 (8th Cir. 2005) (equating reasonablen ess with abuse of discretion). When reviewing a sentence, we first look to the applicable Guidelines range because a sentence within the Guid elines range is presumptively reasonable. See United States v. Watson , 480 F.3d 1175, 1176–77 (8th Cir. 2007), petition for cert. filed, (U.S. July 31, 2007) (No. 07–5683). "[A] court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines." United States v. Peck , 496 F.3d 885, 891 (8th Cir. 2007) (quoting Rita v. United States , 551 U.S. 338, 127 S. Ct. 2456, 2462, 168 L. Ed. 2d 203 (2007)). Because the district court properly calculated the advisory Guidelines range for [Hopkins], and because it sentenced
-6-[Hopkins] within that range, [Hopki ns's] sentence is presumptively reasonable. Id. However, this presumption may be rebutted by the factors listed in section 3553(a). Cadenas , 445 F.3d at 1094.
United States v. Miles , 499 F.3d 906, 908–09 (8th Cir. 2007). At sentencing, Hopkins agreed with the government's sentencing recommendation of 12 months and one day. Nevertheless, counsel "want[ed] the Court to know" certain facts: (1) Hopkins "bumped into" the convicted felon at the grocery store on July 3, 2013, and did not make any plans to be with that individual; (2) he went to the mall on August 7, 2013, 3 to use the restroom; (3) he failed to comply with directive to turn in his paycheck on August 16, 2013, because he discovered that money was missing from his room; (4) that same day, he had the cell phone so that he could talk to his children; (5) he failed to comply with the directive to turn in his paycheck on August 19, 2013, 4because he did not have a ny money; (6) he got a job and was planning to meet his obligations and support his family ; and (7) he has not used illegal drugs during supervision or committed new crimes. Upon review, we conclude th at "[t]he record shows that the court adequately considered the sentencing factors" and "heard sentencing arguments from [Hopkins]" about the "facts" underlying the revocation violations. See United States v. Maldonado , 546 F. App'x 609, 609 (8th Cir. 2013). Hopkins has not rebutted the presumption of reasonableness.

3 Hopkins's counsel erroneously stated at the revocation hearing that Hopkins went to the mall on August 16, 2013. The "P etition to Revoke Supervision" lists the date as August 7, 2013.

4 Hopkins's counsel erroneously stated at the revocation hearing that Hopkins failed to comply with the directive to tu rn in his paycheck on July 19, 2013. The "Petition to Revoke Supervision" lis ts the date as August 19, 2013.

-7-III. Conclusion Accordingly, we affirm the judgment of the district court.

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