1

06-4276 -cr USA v. Alt

man UNIT ED S TAT ES COU RT OF A PP EALS 1 2 F OR THE S ECOND C IRCU IT 3 4 5 6 August Term, 2006 7 8 (Argued: May

8, 2007 Decided: August 16, 2007) 9 10 Docket No. 06-4276-cr 11 12 13 U NITED S TAT ES OF A MERICA , 14 Appellee , 15 16 –v.– 17 18 D ONNE LL H ARGROVE , ALSO KNO WN AS T HIRST , N AKI M W EST , ALSO KNO WN AS K NOCK , ALSO 19 KNOWN AS K NO CKIE , J ASON C AMPB ELL , B EVERL Y R ICHA RDSON , ALSO KNO WN AS B EVERLY , 20 J AMES E. J OHNSON , ALSO KNO WN AS G OLDI , 21 22 Defendants 23 24 T ERRANCE A LTMAN , 25 26 27 Defendant-Appellant

. 28 29 30 31 Before: 32 F EINBERG , C ALABRESI , and W ESLEY , Circuit Judges. 33 34 Appeal from a judgment of the United States District Court for the Southern District of 35 New York (McMahon, J .), sua sponte

imposing a sentence outside the range recommended by 36 the applicable Sentencing Guidelines policy statement for revocations of supervised release. 37 38 A FFI RMED
. 39 40 412 M ARSHA LL A. M INT Z , Mintz & Oppenheim LL P, New York, NY, for Defen dant1 Appellant

. 2 3 E UGENE I NG OG LIA , A ss is ta nt Un it ed St at es At to rn ey on behalf o f Michae l J. 4 Gar cia , Un it ed S tat es A tt orn ey fo r th e So ut her n Di st ric t o f Ne w Yo rk ( Cel est e L. 5 Koeleveld, Assistant United States Attorney , of counsel, on the brief ), New York, 6 NY, for Appellee

. 7 8 9 10 W ESLEY , Circuit Judge : 11 This case asks us to decide, in effect, whether United States v. Booker , 543 U.S. 220 12 (2005), and our jurisprudence since then has made it necessary

for district courts to give notice 13 before sua sponte imposing a sentence outside the range recommended by

the applicable United 14 States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) policy statements for violation of 15 conditions of supervised release. We hold that such notice and an opportunity to challenge the 16 basis for the sentence outside the applicable advisory range need not be give

n. Accordingly, we 17 affirm the sentence imposed. 18 Background 19 On January 19, 2006, appellant Te rrence Altman pleaded guilty to a one count 20 superseding misdemeanor information, which char ged him with knowingly , intentionally, and 21 unlawfully possessing a controlled substance in violation of 21 U.S.C. §§ 812 and 844. Before 22 Judge Colleen McMahon, Altman waived his presentence investigation report and requested that 23 he be sentenced on that date. The district court sentenc ed Altman to a term of imprisonment of 24 time served and supervised release of one year, a nd ordered him to pay

a $1,000 fine and a 25 special assessment of $25. As a condition of supervised release , Altman agreed not to possess or 26 use any contr

olled substance and to submit to periodic drug tests. 271 The gov ernmen t mov ed to d ismi ss th is th ird sp ecifi catio n on J uly 20, 2 006, a nd Ju dge

McMahon did so.

2 Grade C v

iolations i nvolve “c onduct constituting (A) a fe deral, state, or

local of fense punishable by a ter

m of imprisonment of one yea r or less; or (B) a violation of any other condition of supervision.” U.S.S.G. § 7B1.1(a)(3).

3 For purposes of clarity, we speak of “sentencing g uidelines” as distinguished from policy statements which, along with sentencing guidelines, are a pa rt of the Guidelines. 3 On March 28, 2006, Altman reported to the United States Probation Office for the 1 Southern District of New York (“Probation Office”) and provided a urine sample – a required 2 condition of his supervised release. On May 3, 2006, the Probation Office sent a Request for 3 Court Action to Judge McMahon noting that the urinalysis had tested positive for cocaine, the 4 use of which Altman apparently denied, and that Altman had refused to submit to a subsequent 5 urinalysis in April 2006. Specifically , the report stated three violations of Altman’s supervised 6 release: (1) Altman had used cocaine a t some point on or prior to March 28; (2) Altman had 7 possessed cocaine at some point on or prior to March 28; and (3) A ltman had refused to provide 8 a urine s ample in A pril. 1 The rep ort noted

that the the first two violations were “ Grade C” 9 violations

. 2 The report further specified that ac cording to U.S.S.G. § 7B1.4, which is a non10 binding policy statement as opposed to a previously manda tory sentencing

guideline, 3 the 11 possible r

ange o f imprison

ment for A

ltman for violating the condi tions of his

supervis ed rele ase 12 was thre e to nine months, with a statutor y ma ximum of one y

ear. F ollowing

a heari ng on July 13 20, 2006, Altman was found guilty of violations (1) and (2). Judge McMahon then adjourned the 14 matter for sentencing pending the preparation of a presentence inve stigation report but continued 15 Altman’s supervised release with the added condition that he be teste d for drug use every other 16 week. 174

Before Altman could be sentenced, he returned to the Probation Office for another dr ug 1 test on August 4, 2006. In a sec ond Request for Court Action, the Probation Office informed the 2 court that Altman had tested positive for cocaine/benzoy lecgonine. The report alleged two 3 violations: (1) use of a controlled substance; (2) possession of a controlled substance

. Again, the 4 report noted a revocation range of three to nine months of imprisonment, with a statutory 5 maximum of one year. Altman was ther eafter arrested. 6 On September 6, 2006, Altman appeared before the district court in order to address the 7 second violation of his super vised re lease. After some discussion, Altman o ffere d to plead guilty 8 to the first specif

ication, use of a c ontrolled substanc e, which

the government

agree d to acce

pt in 9 satisfaction of the violation petition. The district court explained: 10 Let me tell y ou what can happen to y

ou as a result of these violations. I ca n, if you are 11 found guilty of the se violations, either or both of them, sentence y ou to not more than [a] 12 one yea

r period of incarceration. Be cause they are Grade C violations there is a guideline 13 range of three to nine months which I ’m not bound by. I cannot go bey

ond one yea

r by 14 statute because y our original conviction was for a Class A misdemeanor. 15 16 For sentencing purposes, the district court ag reed to consolidate both the first and second 17 violations of supervised release. Judge McMahon clarifie d that regardless of the number of 18 violations, Altman faced a maximum one yea r in prison. After a detailed allocution, Altman 19 pleaded guilty

to use of a controlled substance; he also waived the prepa ration of a presentence 20 inves tigat ion re port. The cou rt sen tenced Altm an to o ne year of i ncarcer ation . In so do ing, 21 Judge McMahon stated: 22 You got a very good de al, Mr. Al

tman . . . on

the original cas e. You we re cut a 23 tremendous break. I was very ha pp[y] about that. I liked y our family and thoug

ht 24 everything was going to work out. And every thing has not worked out. You’ve been 25 here twice on use violations. And the first time y ou absolutely denied using and I 265

disbelieved you, espe cially in view of the testimony of the chemist. And this time you 1 admit using. But you’ re stressed, and probation officers didn’t trea t you nicely

, and the 2 dog ate y

our homework. So you used. And I do not see any sig

n, Mr. Altman, that you 3 would succeed in a residential treatment prog ram. 4 5 I agre e with the government that the appropriate thing to do is to give you a se

ntence of 6 incarceration. We’re now dealing with two separate occasions, a conviction on three 7 violations. And I’m going to sente nce you . . . for

a term of one y

ear . . . . 8 It is this sentence that Altman now appeals to us, primarily on the grounds that the district court 9 did not gi

ve him notic e that it in

tended to impose a s entence

bey ond the thr

ee to nine month 10
range. 11
Discussion 12 Altman contends on a ppeal tha t the distr ict cour t erred when it fa

iled to provide him 13 notice of its intention to impose sua sponte a sentence outside the range r ecommended by

the 14 applicable Guidelines policy statement for revocations of supervised release, a question we 15 originally c onsidered a decade ago before the changes broug ht upon the federal sentencing 16

sc he me by United States v. Booker , 543 U.S. 220 (2005), and its progeny

. United States v. 17 Pelensky , 129 F.3d 63 (2d Cir. 1997), presented a set of facts similar to those bef ore us now. 18 Pelensky was sentenc ed to imprisonment followed by supervised r elease. Id. at 65. Dur

ing his 19 term of supervised release, Pelensky , inter alia , tested p ositive for drug use, contr ary to the ter ms 20 of his release. Id. Pelensky came be fore the district court for a hearing on the government’s 21 petition for revocation of his supervised release, at whic h point his counsel requested that the 22 proceeding be adjourned without sentencing in order to allow him to enter a drug treatment 23
program. Id. at 65, 66. The Guidelines’ Chapter Seven policy statements recommended a 24 sentencing range of f ive to eleven months. Id. at 66. 256

The district court decided to adjourn sentencing so that Pelensky could enter the treatment 1
program. Id. However, the court warned Pelensky that if he failed to complete the program, he 2 faced “

being se ntenced to 11 months , and per

haps longer, depe

nding up on what is p ermissibl e 3 under the statute.” Id. (emphasis in original omitted). Pelensky , despite the warning, did not 4 complete the treatment program. Id. When Pelensky came be fore the

district c ourt for

his 5 sentencing hearing, the judge noted the suggested range of five to eleven months but decided, 6 instead, to impose the statutory maximum of thirty -six months. Id. Pelensky raised se veral 7 arguments before us, but the one germane to Altman’s appeal argue d that the district court was 8 requi red to give hi m not ice bef ore im posi ng sua sponte

a sentence higher than that suggested by 9 the Guidelines’ Chapter Seven policy statements. Id. at 69. 10 We affirmed the district court. We began by noting that “[t]here is no sentencing 11 guideline governing violations of supervise d release.” Id. Further, “[a]lthoug h a distric t court, in 12 sentencing a defendant for a violation of supervised release, is directed to consider the 13 non-binding policy state ments found in Chapter Seven of the Guidelines Manual, the court 14 ultimately has broad discre tion to revoke its previous sentence and impose a term of 15 imprisonment up to the statutory maximum.” Id. (internal quotation marks omitted). As an 16 initial matter, we found that Pelensky did have some notice that the district court might depart 17 from the policy statements a nd its grounds for doing so because the district cour t warned him that 18 if he failed to complete the treatment he could fac e up to eleven months or longer. Id. However, 19 we held that “[i]n any event, . . . the c ourt was not required to give notice to Pelensky before 20 imposing a sentence above the range suggested by [the Guidelines’] Chapter Seven’s non- 214 Though i t may be arg ued that t his was dic

ta, it was not. The d

etermina tive factor in Pelensky was that “[t]he district court was not required to provide notice to Pelensky of its intent to sentence him to a term in excess of the range re commended by the non- binding policy statements contained in Chapter Seven of the Sentencing Guidelines.” United States v. Pelensky , 129 F.3d 63, 71 (2d Cir. 1997). Thus, that Pelensky r eceived some notice was irrelevant to the result.

7 binding policy statements.” 4 Id. at 70. We distinguished Burns v. United States , 501 U.S. 129 1 (1991), in which the United States Supreme Court enforced the notice re quirements for a 2 sentencing departure for the the n-mandatory se

ntencing guidelines. We indicated that the “notice 3 require

ment does

not apply to deviat ions from t

he non-b inding po licy

statemen ts found in 4 Chapter Seven of the Guidelines.” Pelensky , 129 F.3d at 70

. We explaine d that “[b]e cause these 5 policy statements are merely advisory

, the sentencing court is not ‘departing’ from any binding 6 guideline when it imposes a sentence in excess of the range recommended by the Chapter Seven 7 policy statements.” Id. at 70-71. “When imposing a sentence for violation of supervised r elease, 8 the court is bound only by the statutory maximum imposed by Congress, and is therefore under 9 no obligation to provide notice to defendants of its intent to exceed the non-binding sentenc ing 10 ranges recommended in Chapter Seve n of the Guidelines.” Id. at 71. The question r

emains, 11 however, whether our holding in Pelensky with resp ect to not ice stands post-

Booker . We hold, 12 for reasons explai ned below , that it doe s. 13 In 2005, the United States Supreme Court decided Booker and “significantly

altered the 14 federal sentencing reg ime, essentially by

making the federal sentencing guidelines advisory 15 instead of mandatory .” United States v. Carlton , 442 F.3d 802, 808 (2d Cir. 2006). 16 Subseque

ntly , this Court

determined that a

defenda nt must rec eive noti ce and a n opportun

ity t o 17 comment on matters relating to a sentence whe n the judge sua sponte imposes a non-Guidelines 188

sentence. See Unite

d States v . Anati , 457 F.3d 233, 236 (2d Cir. 2006). 1 Appellant argues, inter alia , that a “harmonization of sentencing based on g uidelines 2 and policy statements” has occurred within our jurisprudence since Booker and in conjunction 3 with Anati

. See Appellant Reply Br . 6-8. Booker has changed certain aspe cts of sentencing, and, 4 in some ways, the once -binding sentencing guidelines now may seem more like the policy 5 statements applicable to the revocation of Altman’s supervised re lease. As mentioned, the 6 Guidelines are now advisory . The pre-Booker test for r eviewing sentenc es for su

pervise d release 7 violations

now close ly r

esemble s the standard we use post- Booker to review all sentences. 8 Compare Pelensky , 129 F.3d at 69 (“I n the abse nce of a n applica ble guid eline, we will uphold 9 the distri ct court ’s sente nce if ( 1) the district cou

rt consid ered the applica ble policy st

atements ; 10 (2) the sentence is within the statutory maximum; and (3) the sentence is reasonable.” (internal 11 quotation marks omitted)), with United States v. Rattoballi , 452 F.3d 127, 131-32 (2d Cir. 2006) 12 (stating that we review sentencing decisions for reasonableness, two components of which ar e 13 “(1) procedural reasonable ness, whereby

we consider such factors as whether the district court 14 properly (a

) identified the Guidelines range supported by the facts found by

the court, (b) treated 15 the Guidelines as advisory , and (c) considered the Guidelines toge ther with the other factors 16 outlined in 18 U.S.C. § 3553(a); and (2) substantive reasonableness . . . .” (footnote omitted)). 17 Further, appellant correctly notes that the standard of review that we use to evalua te a sentence 18 pursuant to a policy statement has changed from “plainly unreasonable” to simply one of 19 “reasonableness,” the latter being the same standard of review for all sentenc es. See United 20
States v. Lewis , 424 F.3d 239, 243 (2d Cir. 2005). However, none of this compels us to conclude 21 that the differences between policy statements and the once-binding sentencing guidelines are 229

now illusory. 1 Though we need not opine on the extent of the differenc es between policy statements and 2 the prev

iously mandator

y se ntencing guideli nes, we n ote that o ur jurispr udence , even po st3 Booker , continues to recognize differences be tween initial sentencing and revocation of 4 supervised release, more broadly , and, in at least one instance, differences be tween policy 5 statements and sentencing guidelines, more spe cifically. With respect to the f ormer, we have 6 observed that “[t]his Court considered the supervised release scheme generally in the wake of 7 Booker

. . . a nd co nc lu de [d ] t ha t s up er vi se d r el ea se re ma in [e d] un af fe ct ed by Booker. ” United 8
States v. McNeil, 415 F .3d 27 3, 276 (2d Ci r. 200 5) (ci ting United States v. Fleming , 397 F.3d 95, 9 97-99 (2d Cir. 2005)). We have drawn a sharp divide between initial sentencing and the 10 revocation of supervised release with re spect to the protections and safeguards a vailable to the 11
in di vi dua l. InCarlton , we rejected constitutional challenges to the proc edure for the revocation 12 of supervised release pursuant to 18 U.S.C. § 3583(e)(3). We commente d that the reason the 13 defendant’s punishment under § 3583(e)(3) was “ qualitatively differe nt from a bank robbery 14 conviction obtained in the normal course of a criminal trial [] is that a sentence of supervised 15 release by

its terms involves a surrender of certain constitutional rights [including ce rtain] due 16 process rights . . . . The full panoply of procedural safegua

rds does not attach to the revocation 17 proceedings . . . .” Carlton , 442 F.3d at 809. 18 We have also continued to distinguish between policy statements and sentencing 19 guidelines. In Lewis , we no ted in the co ntex t of re vocat ion o f supe rvise d relea se tha t alt hough 20 the judge had to state the reasons for a pa rticular sentence, “a court’s statement of its reasons for 21 going b eyond non -bind ing policy sta tements in imposing a sentence after revoking a defendant’s 225 Because we conclude that Altman was not entitled to notice, we need not resolve the

standard of review applicable to this case. 10 supervised release term need not be as spe cific as has been required when c ourts departed from 1 guidelines that were, before Booker , considered to be mandatory .” 424 F.3d at 245. See also 2 United Sta tes v. Go ffi , 446 F.3d

319, 322 (2d Cir. 200 6) (notin g that a sentenc ing cou

rt must 3 consider “non-binding policy statements applicable to probation violations [] in determining an 4 appropriate sentence. Nowhere , however, does it require a court to sentence within the 5 Guidelines range for the underly ing conviction in determining punishment for separate a nd 6 distinct malfeasance by the defendant – violation of probation”). 7 This case, we believe, presents a situation in which a distinction continues to be 8 warranted. As we noted in Pelensky , the policy statements rela ted to violations of supervised 9 release were advisory in 1997, and remain so today. A s the status of those policy statements has 10 not changed, we do not belie ve that Anati require s us to conc lude that a district court must 11 provi de not ice bef ore im posi ng sua sponte a sentence outside the recommended range in the 12 context of revocation of supervised release. Anati sought to give vitality to the notice and 13 comment requirements of Federal Rule of Criminal Procedur e 32(i)(1)(C) in light of the district 14

court ’s con tinu ed obl igati on to consi der th e appro priat e Guid eline s range i n dete rmini ng a 15 procedurally

and substantively reasonable sentence. Anati , 457 F.3d at 236. The notice 16

re qu ir em en t c on ti nu es to ma ke se ns e i n t he in it ia l s en te nc in g c on te xt , b ut do es no t, th er eb y, 17 extend automatically to the context of revoca tion of supervised release. 18 Altman was not entitled to notice in this instance. 5 He was in itially sentenc ed in 19 accord

ance wi th the law . He was a

lso punishe d for viol ating the terms a nd conditi ons of his 206 Though notice is not mandatory, it is prudent to give such notice, especially in situations in which the court is relying on information that is either new or not obvious when determining the sentence. 11 original sentence. I

n this context, the district court judge was advised of a recommended 1 sentencing range by the applicable policy

statements but was not in any way bound by that 2 suggestion. The length of the ne w sentence was solely

a function of the district court judge’s 3 discretion given the facts found or admitted following the appropriate procedures for esta blishing 4 Altman’s violation of the terms of his supervised release. 5
Anati does not alter Pelensky ’s holding that a defendant is not entitled to notice when a 6 district c ourt impose s sua sponte a sentence for revocation of super vised release that is outside 7 the range recom

mended by

the appli cable G

uideline s policy

statemen ts. 6 We also not

e that post8 Booker , the Ninth and Tenth Circuits appear to have reache d the same conclusion, though rely ing 9 mainly on past decisions in their respe ctive jurisprudence. See Unite d States v . Leonard , 483 10 F.3d 635,638-39 (9th Cir. 2007 ); United States v. Shields , 221 Fed . App’x 787,788-89 (1 0th 11 Cir. 2007) (unpublished). Altman was not entitled to notice in this situation. 12
13
Conclusion 14 For the reasons stated above, the sentenc e imposed by the district court is her eby 15
A FFI RMED
. 16