NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-3740

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UNITED STATES OF AMERICA

v.

BRIAN MIZWA, 

Appellant

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On Appeal from United States District Court 

for the Western District of Pennsylvania

(No. 2-06-cr-00374-001)

District Judge: Honorable Mark R. Hornak

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 13, 2014

Before: FISHER, VAN ANTWERPEN, and TASHIMA,* Circuit Judges.

(Filed: August 5, 2014)

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OPINION OF THE COURT

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TASHIMA, Circuit Judge.

 

* Hon. A. Wallace Tashima, Senior Judge, United States Court of Appeals for the 

Ninth Circuit, sitting by designation.

Brian Mizwa appeals from the District Court=s judgment sentencing him to fifteen 

months= imprisonment for violating four conditions of his supervised release. Mizwa 
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contends that the Government failed to prove the four violations by a preponderance of 

the evidence. Mizwa further contends that the District Court abused its discretion by 

sentencing him to fifteen months= incarceration. We reject both arguments and will 

affirm.

I.

We write principally for the parties, who are familiar with the facts and procedural 

history of this case. We, therefore, set forth only those facts relevant to our analysis.

This appeal arises out of Mizwa=s March 9, 2007, guilty plea under 18 U.S.C. '

2422(b), to Coercion and Enticement of a Minor to Engage in Sexual Activity. Over a 

period of about a month in September 2006, Mizwa sent instant messages and e-mails to 

an undercover FBI agent whom Mizwa believed to be a fourteen-year-old girl. Mizwa 

made various sexual advances in the communications, culminating in a plan to meet her 

in person. FBI agents arrested Mizwa when he arrived at the planned meeting place.

The District Court continued Mizwa=s release on bond after his guilty plea, and 

restricted Mizwa from having any unauthorized contact with minors. Mizwa violated that 

restriction on two occasions. On October 11, 2007, the District Court sentenced Mizwa 

to the statutory maximum of sixty months= imprisonment and five years= supervised 

release. Additionally, the Court imposed a number of special conditions, including that 

Mizwa not associate with minors, except in the presence of an approved adult. We 
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affirmed the imposition of that condition in an earlier appeal. See United States v. Mizwa, 

345 F. App=x 834, 837 (3d Cir. 2009). 

On March 22, 2012, and April 13, 2012, Mizwa=s probation officer, Muhammad 

AbdoolRaman, submitted a Petition and a Supplemental Petition for Warrant or Show 

Cause Hearing, alleging that Mizwa violated conditions of his supervised release by 

failing to notify the Probation Office of a change in residence and by failing to register 

with the Pennsylvania sex offender registration agency. Mizwa admitted those violations 

and, on December 6, 2012, was sentenced to time served and three years= supervised 

release. The district court again imposed the same conditions on Mizwa=s release, 

including, in relevant part, that Mizwa:

[1.] [A]nswer truthfully all inquiries by the probation officer and follow the 

instructions of the probation officer; 

. . . .

[2.] [N]ot associate with children under the age of 18, except in the 

presence of a responsible adult who is aware of the nature of the 

defendant=s background and current offense and who has been approved by 

the probation officer;

. . . . 

[3.] [C]onsent to the probation office conducting periodic unannounced 

examinations of his computer system, and any other digital media or 

devices . . . for the purpose of conducting a more thorough inspection[;]

. . . .
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[4.] [P]rovide the probation office with accurate information about his 

entire computer system . . . and other digital media or devices . . . .

S. App. 14-15.

On July 25, 2013, Probation Officer AbdoolRaman submitted another Petition for 

Warrant or Show Cause Hearing. That Petition alleged that Mizwa violated the abovequoted four conditions of his supervised release by (a) obtaining, and failing to disclose 

that he obtained, a cellular phone with internet access; (b) representing to AbdoolRaman 

during a home inspection on July 25, 2013, that Mizwa Alost his cell phone or may have 

left it in his grandmother=s vehicle,@ although AbdoolRaman recovered the phone upon 

inspection of Mizwa=s home; (c) refusing to sign a Aproperty receipt form@ for the phone; 

(d) failing Ato provide [the] cell phone for the purpose of conducting a more thorough 

inspection@; (e) using an unmonitored computer at a friend=s house; (f) requesting by text 

message that an adult friend Asend [Mizwa] a picture,@ although allegedly without 

knowing that the friend=s minor niece picked up the phone and started to reply; and (g) 

being Ain the presence of minors on July 6, 2013.@ S. App. 16-17. 

The District Court held a supervised release violation hearing on August 21, 2013. 

At the hearing, Mizwa stipulated to the above evidence, and declined to adduce any 

evidence or argument Arelative . . . to the fact or nonexistence of the alleged violation[s].@

App. 17. Based on Mizwa=s stipulations, the District Court found Aby at least a 
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preponderance of the evidence@ that Mizwa violated the four conditions of supervised 

release alleged in the Petition for Warrant or Show Cause Hearing. App. 18-20. The 

Court then turned to sentencing, accepting testimony from AbdoolRaman about his 

supervision of Mizwa and the circumstances of the July 25, 2013, home inspection. After 

direct and cross-examination of AbdoolRaman, and argument, the District Court 

sentenced Mizwa to fifteen months= imprisonment and seven years= supervised release. 

The court entered judgment on August 21, 2013, and Mizwa timely appealed. 

II.

The District Court had jurisdiction under 18 U.S.C. ' 3231. We have jurisdiction 

under 28 U.S.C. ' 1291 and 18 U.S.C. ' 3742(a).

We review for plain error unpreserved objections to a District Court=s findings 

supporting a decision to revoke supervised release. United States v. Dillon, 725 F.3d 362, 

365 (3d Cir. 2013); United States v. Adams, 252 F.3d 276, 278-79 (3d Cir. 2001); see also

Fed. R. Crim. P. 52(b).

We review for abuse of discretion the procedural and substantive reasonableness

of a district court=s sentence for violations of supervised release. United States v. Young, 

634 F.3d 233, 237 (3d Cir. 2011).
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III.

A.

We first consider Mizwa=s contention that the Government failed to prove by a 

preponderance of the evidence that Mizwa violated his supervised release. We review 

for plain error because Mizwa did not raise this contention before the District Court.1 

 

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Indeed, Mizwa=s counsel stated explicitly at the sentencing hearing that he did not 

intend to challenge the District Court=s finding that Mizwa violated the terms of his 

supervised release. Rather, Mizwa intended to argue only that the violations were Ade 

minimis.@ App. 50.

We hold that the District Court did not err B much less plainly err B in finding that 

Mizwa violated the four conditions of his supervised release. A district court may find 

that a defendant has violated conditions of supervised release by a preponderance of the 

evidence. 18 U.S.C. ' 3583(e)(3); United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 

2008). The stipulated evidence in this case established that Mizwa possessed a cell phone 

with internet access, failed to disclose that he possessed the phone, used an unmonitored 

computer at a friend=s house, acted evasively in response to inquiries about the phone 

during a home inspection, apparently unknowingly texted with a minor, and associated 

with minors without the required approval. This evidence was more than enough to 
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Areasonably satisf[y]@ the District Court that Mizwa failed to answer all of 

AbdoolRaman=s inquiries truthfully, consent to examinations of his electronic devices, 

provide the probation office with accurate information about his electronic devices, or 

refrain from associating with minors. United States v. Poellnitz, 372 F.3d 562, 566 (3d 

Cir. 2004) (A[T]o revoke probation it is not necessary that the probationer be adjudged 

guilty of a crime, but only that the court be reasonably satisfied that he has violated one of 

the conditions.@ (quoting United States v. Manuszak, 532 F.2d 311, 317 (3d Cir. 1976)). 

A preponderance of the evidence, therefore, supports the District Court=s findings. 

None of Mizwa=s arguments to the contrary is availing. First, Mizwa attempts to 

minimize any noncompliance with AbdoolRaman=s inspection by explaining that he did 

not block the inspection Aonce [the phone] was located@ and might have been too ill at the 

time to comply more fully. Second, Mizwa speculates that he possessed a smartphone 

with internet access only because technology advanced significantly during Mizwa=s

incarceration and Mizwa might not have understood the phone=s capabilities. Third, 

Mizwa notes that he admitted during a polygraph examination to owning a smart phone 

and to using the internet at his friend=s house. And, lastly, he explains that he associated 

with minors on July 6, 2013, only with the consent of the minors= mother. These 

arguments do not, however, advance Mizwa=s contention because none changes the fact 

that violations occurred. In other words, Mizwa still possessed a smart phone without 
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approval, used the internet at a friend=s house, failed (except on one occasion) to disclose 

that he used the internet or possessed the phone, acted evasively during AbdoolRaman=s 

home inspection (even if he ultimately Aconsented@ to AbdoolRaman=s inspection of the 

phone Aonce [the phone] was located@), and associated with minors without 

AbdoolRaman=s approval (even if he had the minors= mother=s approval). Even if 

Mizwa=s arguments show that the violations are Ade minimis,@ App. 50, they do not show 

that the violations did not occur.

Accordingly, we hold that a preponderance of the evidence supports the district 

court=s finding that Mizwa violated the four conditions of his supervised release. 

B.

Next, we consider Mizwa=s contention that the District Court abused its discretion 

by sentencing him to fifteen months= incarceration. Specifically, Mizwa contends that the 

sentence is substantively unreasonable. ASubstantive reasonableness inquires into 

whether the final sentence, wherever it may lie within the permissible statutory range, was 

premised upon appropriate and judicious consideration of the relevant factors. . . . [W]e 

will affirm the sentencing court unless no reasonable sentencing court would have 

imposed the same sentence on that particular defendant for the reasons the district court 

provided.@ United States v. Doe, 617 F.3d 766, 770 (3d Cir. 2010) (internal quotation 

marks omitted). 
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We reject Mizwa=s argument that the District Court=s sentence was substantively 

unreasonable. Although the Sentencing Guidelines recommend a three- to nine-month 

sentence, given Mizwa=s conduct and criminal history, U.S.S.G. ' 7B1.4(a), the District 

Court was authorized by statute to impose a sentence of up to three years, 18 U.S.C. '

3583(e)(3). Thus, the Court=s sentence A[lies] within the permissible statutory range.@ 

Doe, 617 F.3d at 770.

Furthermore, the sentence Awas premised upon appropriate and judicious 

consideration of the relevant factors.@ Id. First, the District Court noted that Mizwa 

previously violated his supervised release. Cf. U.S.S.G. ' 7B1.3 cmt. n.1 (explaining that 

revocation of supervised release Agenerally is the appropriate disposition in the case of a 

Grade C violation by a defendant who@ previously violated supervised release). Second, 

the District Court noted that Mizwa=s current violations B associating with minors, 

obtaining a cell phone, and failing to provide accurate information about his cell phone 

and internet usage B were Adirectly related to the underlying offense for which a term of 

imprisonment and a term of supervised release was initially imposed@ B namely, Mizwa=s 

online coercion and enticement of a minor to engage in sexual activity. Cf. U.S.S.G. '

7B1.4 cmt. n.3 (explaining that an upward departure from the recommended sentencing 

range Amay be warranted@ A[i]n the case of a Grade C violation that is associated with a 

high risk of new felonious conduct@). Indeed, the District Court found it Aparticularly 
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concerning@ that Mizwa obtained and used a phone, within seven months of his previous 

revocation hearing, to Aengage in the very types of [electronic] communications that were 

at the core of [his] underlying offense.@ Lastly, the District Court noted that Mizwa 

generally concealed his use and possession of the phone, even though Mizwa admitted to 

possessing the phone (again, on one occasion) in the polygraph examination. Mizwa=s 

Aevasiveness@ further undercut the Court=s ability to Atrust Mr. Mizwa to abide by the 

terms of his supervised release.@

These considerations justify the District Court=s imposition of a fifteen-month 

sentence. The District Court did not err in concluding that Mizwa=s conduct constitutes a 

Afundamental breach of trust.@ Cf. United States v. Bungar, 478 F.3d 540, 544 (3d Cir. 

2007) (ASentence is imposed for violations of supervised release primarily to sanction the 

defendant=s breach of trust . . . .@); United States v. Blackston, 940 F.2d 877, 894 (3d Cir. 

1991) (holding that violations Aoccurring immediately on the heels of [a defendant=s] 

release from prison and relating directly to the conduct for which he originally was 

convicted[] surely bespeak a breach of trust@). The District Court=s reasons for a fifteenmonth sentence are Alogical and consistent with the factors set forth in [18 U.S.C. '

3553(a)].@ Bungar, 478 F.3d at 543 (quoting United States v. Cooper, 437 F.3d 324, 330 

(3d Cir. 2006). And, although Mizwa cites allegedly mitigating factors B such as the fact 

that Mizwa=s adult friend consented to Mizwa=s contact with her minor children B the 
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District Court=s consideration of those factors and its Afailure to give [those] mitigating 

factors the weight [that Mizwa] contends they deserve@ does not undermine the 

reasonableness of its sentence.2 Bungar, 478 F.3d at 546. We cannot say that A>no 

reasonable sentencing court would have imposed the same sentence . . . for the reasons 

the district court provided.=@ Doe, 617 F.3d at 770 (quoting United States v. Tomko, 562 

F.3d 558, 568 (3d Cir. 2009)). We, therefore, reject Mizwa=s challenge.

IV.

 

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Indeed, the District Court rightly noted that Mizwa=s failure to obtain approval to 

associate with the minor children, despite Mizwa=s friend=s consent, Adeprived the

probation office and [the] Court . . . of the ability to engage in@ their supervisory roles. 

The key is not that Mizwa obtained his friend=s consent; it is that Mizwa failed to obtain 

the probation office=s consent, taking the responsibility for his supervision upon himself 

and his friend, without the authority to do so.

For the reasons set forth above, we will affirm the judgment of the District Court 

revoking Mizwa=s supervised release and sentencing him to fifteen months=

imprisonment.