United States v. Patton , 118 F. App'x 427 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-6142
v. (W.D. Oklahoma)
SUSIE JANE PATTON, (D.C. No. CR-03-168-M)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges. **
Susie Jane Patton appeals the district court’s order revoking her probation
on a prior conviction and sentencing her to thirty-six months’ incarceration,
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
**
After examining the briefs and appellate record, this panel has
determined unanimously to decide this case on the briefs without oral argument.
See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1(G).
followed by twenty-four months’ supervised release. We affirm the district
court’s decision.
I. BACKGROUND
In October 2003, Ms. Patton pleaded guilty to one count of falsely
representing and using another person’s social security number as her own, a
violation of 42 U.S.C. § 408(a)(7)(B) and 18 U.S.C. § 2(b). The district court
sentenced Ms. Patton to five years’ probation. One of the conditions of probation
was that Ms. Patton not commit another federal, state, or local crime.
In April 2004, the United States Probation Office filed a Petition for
Warrant or Summons for Offender Under Supervision. The Petition alleged that,
on March 6-7, 2004, Ms. Patton had violated a condition of probation by
committing the state crime of possessing a credit card belonging to another
person, after former conviction of a felony. According to the Petition, Ms. Patton
had been charged with that offense in Cleveland County, Oklahoma District
Court. The government also alleged that Ms. Patton had failed to notify her
federal probation officer of her arrest on the credit card charge.
The district court conducted an evidentiary hearing on the Petition. United
States Probation Officer Michelle Mathews testified that Ms. Patton was aware of
the conditions of probation and that the state court charge had been filed against
-2-
Ms. Patton in Cleveland County, Oklahoma District Court on March 10, 2004.
The probation officer explained that the credit card allegedly possessed by Ms.
Patton belonged to Maxine Moore, who is the mother of Robert Moore, Ms.
Patton’s former boyfriend.
At the hearing, the government also introduced a copy of Ms. Moore’s
credit card statement for transactions between February 12 and March 2, 2004.
The statement includes charges to a drug store on February 13, 2004, a $1,176.23
charge to an electronics store on February 18, 2004, and a charge to a meat
market on February 25, 2004. Additionally, the government introduced a
surveillance photograph taken at the drug store on February 13, 2004. The
photograph shows Ms. Patton standing near the counter.
Ms. Moore also testified at the evidentiary hearing. She stated that, on
March 6, 2004, she noticed that her credit card was missing from the night stand
in her bedroom. Upon calling the credit card company, she discovered
approximately $2,000 in unauthorized charges. Although Mr. Moore lived at his
mother’s house at that time, Ms. Moore testified that he had never used her credit
card. According to Ms. Moore, Ms. Patton often visited her house and thus could
have obtained the credit card.
Ms. Moore further testified that Ms. Patton had admitted to making some of
the unauthorized charges. In particular, Ms. Moore reported that she had
-3-
received a phone message from Ms. Patton in which Ms. Patton stated that she
would return a sound system to an electronics store. Ms. Patton also told Ms.
Moore that she had gone to a meat market and purchased three roasts, one for Ms.
Moore, one for Ms. Patton’s mother, and one for herself.
Finally, Mr. Moore testified at the evidentiary hearing. He denied making
any of the charges on Ms. Moore’s credit card in February and March 2004. He
stated that he had received an e-mail message from Ms. Patton in which she said
that she had tried to contact Ms. Moore by phone to apologize. Ms. Patton’s e-
mail message also referred to the purchase from the electronics store, stating that
“I have also been told to return the speakers & amp so that there is a large credit
on the account.” Rec. doc. 25, ex. 4.
According to Mr. Moore, when his mother discovered that her credit card
was missing, he confronted Ms. Patton. She apologized to him and said that she
would put a check in the mail to pay for the charges.
The district court found that Ms. Patton had violated the conditions of her
probation by (1) possessing Ms. Moore’s credit card and using it to make
purchases without authorization, and (2) failing to notify her federal probation
officer within seventy-two hours of her contact with state law enforcement.
The court noted that Ms. Patton had committed the credit card offense
shortly after receiving probation on the initial charge:
-4-
[T]he conduct of the Defendant in this particular instance
[is] fairly outrageous. The reason for that is that literally,
within hours of this Defendant standing before this Court
and representing that the Court would not see her again,
the Court, after hearing the statements made at that
sentencing hearing, gave this defendant a five-year
probationary period.
Within hours of that, literally, the Defendant . . .
was out . . . using the credit card of Ms. Maxine Moore,
which she had no authority to use.
....
The Court finds that there is more than enough for
this court to find by a preponderance of the evidence that
this Defendant’s supervised release should be revoked.
Rec. vol. IV, at 11-12.
II. DISCUSSION
On appeal, Ms. Patton argues that the evidence is insufficient to support the
revocation of her probation. She also argues that the sentence of thirty-six
months’ incarceration is excessive.
We review a decision to revoke probation for fundamental unfairness or for
an abuse of discretion. United States v. Reber, 876 F.2d 81, 83 (10th Cir. 1989).
“Probation may be revoked if the . . . court is reasonably satisfied that a violation
of probation conditions has occurred.” Id. The court may base its decision upon
a preponderance of the evidence. See United States v. Bujak, 347 F.3d 607, 609
-5-
(6th Cir. 2003) (holding that “the preponderance of the evidence standard . . .
applies to determinations of whether a probationer has violated a condition of
probation”). As for the sentence imposed following revocation of probation, we
will not reverse if it can be determined from the record that the sentence is
“reasoned and reasonable.” United States v. Brooks, 976 F.2d 1358, 1361 (10th
Cir. 1992).
A. Sufficiency of the Evidence
In challenging the sufficiency of the evidence, Ms. Patton asserts that it
was Mr. Moore who used Ms. Moore’s credit card. She further contends that the
Moores fabricated their testimony against her.
We are not persuaded by Ms. Patton’s arguments, which are not supported
by evidence in the record. The Moores’ testimony and the government’s
documentary evidence, particularly the credit card statement and the surveillance
photograph of Ms. Patton at the drug store on the date of some of the
unauthorized charges, provide ample evidence to support the district court’s
finding that she committed the credit card offense and thereby violated the terms
of her probation.
-6-
B. Length of Sentence
Ms. Patton also challenges the length of her sentence. She contends that
the district court did not adequately consider the factors set forth in 18 U.S.C. §
3553, including (1) the nature and circumstances of the offense; (2) the need for
the sentence to reflect the seriousness of the offense, to promote respect for the
law; and to provide just punishment; (3) the adequacy of deterrence to criminal
conduct; (4) protection of the public from future crimes; (5) the need for effective
vocational training and medical care; (6) the kinds of sentences available; (7) the
applicable guidelines or policy statements set forth by the Sentencing
Commission; (8) the need to avoid unwarranted sentencing disparities; and (9) the
need to provide restitution to victims of the offense.
Ms. Patton further observes that under chapter seven of the Guidelines, the
range of punishment upon revocation of probation is four to ten months. She
contends that the district court did not provide an adequate explanation for
exceeding this range.
Again, we are not persuaded by Ms. Patton’s arguments. As the
government observes, the Sentencing Commission’s policy statements regarding
revocation of probation “are advisory rather than mandatory.” United States v.
Lee, 957 F.2d 770, 773 (10th Cir. 1992); see also United States v. Kelley, 359
F.3d 1302, 1307 (10th Cir. 2004) (noting that this circuit has “approved sentences
-7-
above the Chapter 7 range without any indication that the district court considered
the sentencing range that originally applied to the underlying offense”). Thus,
“[a] sentence in excess of the Chapter 7 range is not a ‘departure’ from a binding
guideline.” United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996). It is the
statutory maximum, rather than a Guideline range, that limits the length of the
sentence. Id.Additionally, “[w]hen imposing a sentence, a district court need only
consider [the factors set forth in] 18 U.S.C. § 3553(a) en masse and state its
reasons for imposing a given sentence.” Id. at 886. “[A]bsent a contrary
indication in the record, this court will assume that a district court weighed each
of the sentencing factors set forth in § 3553(a) in exercising its discretion . . .
even where the district court does not explicitly so state at the sentencing hearing
or in its order.” United States v. Rose, 185 F.3d 1108, 1111 (10th Cir. 1999).
Here, the three-year term of imprisonment imposed by the district court
falls within the statutory maximum for the underlying social security offense. See
42 U.S.C. § 408(a)(7)(B) (providing for a maximum term of imprisonment of five
years). Although the government argued that the court should impose the
maximum sentence allowed by the statute, the district court did not follow that
recommendation. The court did find that Ms. Patton’s conduct was “fairly
outrageous,” explaining that Ms. Patton had violated the terms of probation
“within hours” of the initial sentencing hearing. Rec. vol. IV, at 11-12.
-8-
We owe considerable deference to the district court’s findings supporting
the revocation of probation. See Kelley, 359 F.3d 1302, 1305-06 & n.5 (10th Cir.
2004) (concluding that, because the district court properly considered the factors
it was bound to review, “we have no difficulty in determining that [a sentence
exceeding the Guideline range] was reasoned and reasonable” and noting that the
circuit has affirmed other sentences for violations of supervised release that
exceeded the range set forth in the Guidelines’ policy statements). Accordingly,
in light of the evidence indicating Ms. Patton’s extensive use of Ms. Moore’s
credit card and the fact that Ms. Patton engaged in this conduct so soon after her
initial sentencing, we conclude that the sentence imposed by the district court was
“reasoned and reasonable.” Brooks, 976 F.2d at 1361.
III. CONCLUSION
We therefore AFFIRM the district court’s decision revoking Ms. Patton’s
probation and imposing a sentence of thirty-six months’ incarceration followed by
twenty-four months’ supervised release.
Entered for the Court,
Robert H. Henry
Circuit Judge
-9-