United States v. William James Bare ( 2005 )


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                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE ELEVENTH CIRCUIT
                                                                     FILED
                            ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                August 1, 2005
                                  No. 05-10267
                                                              THOMAS K. KAHN
                              Non-Argument Calendar               CLERK
                            ________________________
    
                         D. C. Docket No. 02-00047-CR-03-4
    
    UNITED STATES OF AMERICA,
    
    
                                                                    Plaintiff-Appellee,
    
                                        versus
    
    WILLIAM JAMES BARE,
    
                                                              Defendant-Appellant.
    
    
                            ________________________
    
                     Appeal from the United States District Court
                        for the Northern District of Georgia
                          _________________________
    
                                  (August 1, 2005)
    
    Before BLACK, MARCUS and PRYOR, Circuit Judges.
    
    PER CURIAM:
    
         William James Bare appeals the revocation of his probation and the sentence
    imposed, pursuant to 18 U.S.C. § 3565(a)(2). On appeal, Bare argues that the
    
    district court erred when it revoked his probation because: (1) the revocation
    
    violated Bare’s due process rights, as the court was not aware of a letter from his
    
    counselor to the probation officer regarding his mental health; (2) Bare did not
    
    wilfully fail to pay court-ordered restitution, as he lacked the resources to make the
    
    required payments; and (3) the court failed to consider the factors in 18 U.S.C.
    
    § 3553(a).
    
          Bare raised none of his appellate arguments in the district court.
    
    Accordingly, our review is for plain error only. See United States v. Aguillard,
    
    
    217 F.3d 1319
    , 1320 (11th Cir. 2000). We will correct plain error only where (1)
    
    there is an error; (2) the error is plain or obvious; (3) the error affects the
    
    defendant’s substantial rights in that it was prejudicial and not harmless; and (4)
    
    the error seriously affects the fairness, integrity, or public reputation of a judicial
    
    proceeding. See United States v. Chisholm, 
    73 F.3d 304
    , 307 (11th Cir. 1996).
    
          Upon thorough review of the record, as well as careful consideration of the
    
    parties’ briefs, we affirm.
    
          First, Bare argues that his due process rights were violated because the
    
    district court sentenced him without knowledge of a letter regarding his mental
    
    health. The letter was sent to his probation officer from “Counseling Dynamics,”
    
    
    
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    who had examined Bare during his probation period. The letter indicated that Bare
    
    was “very likely suffering from major depression” and recommended placing Bare
    
    on “appropriate medication” and that Bare undergo a psychiatric evaluation. Bare
    
    filed the letter, as part of a Motion to Supplement the Record, Fed. R. App. P.
    
    10(e), in the district court after his probation was revoked and he had filed his
    
    Notice of Appeal in this Court. The district court granted Bare’s motion.
    
            He now argues the district court’s revocation of probation, without
    
    consideration of the letter, violated his due process rights. More specifically, Bare
    
    contends that his probation officer had a duty under 18 U.S.C. § 3603(2) to inform
    
    the court as to his conduct and condition while he was on probation and that this
    
    duty included informing the court of Bare’s mental health issues. According to
    
    Bare, his probation officer’s failure to bring to letter to the district court’s attention
    
    violated due process. Notably, Bare does not indicate how the letter would affect
    
    his sentence or how his mental health had any bearing on the multiple reasons the
    
    district court gave for revoking his probation.1
    
            The Supreme Court, in Gagnon v. Scarpelli, 
    411 U.S. 778
    , 782, 
    93 S. Ct. 1
                At Bare’s probation revocation hearing, the district court stated: “[i]t’s not just the
    failure of paying restitution that concerns the court; it’s the absolute failure of [Bare] to comply with
    the conditions of his probation for the last six months or so, including the failure to make any effort
    about restitution.” The court further noted that, it “has imposed the sentence that it has in this case
    because it’s appropriate under the facts and under the circumstances of this case.”
    
    
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    1756, 1760, 
    36 L. Ed. 2d 656
     (1973), held that the revocation of probation
    
    implicates certain minimal due process protections under the Fourteenth
    
    Amendment. Id.; see also Morrisey v. Brewer, 
    408 U.S. 471
    , 
    92 S. Ct. 2593
    , 
    33 L. Ed. 2d 484
     (1972) (holding that minimal due process protections are required
    
    during revocation of parole proceedings). The required protections are:
    
          (a) written notice of the claimed violations of (probation or) parole;
          (b) disclosure to the (probationer or) parolee of evidence against him;
          (c) opportunity to be heard in person and to present witnesses and
          documentary evidence; (d) the right to confront and cross-examine
          adverse witnesses . . .; (e) a neutral and detached hearing body such as
          a traditional parole board . . .; and (f) a written statement by the
          factfinders as to the evidence relied on and reasons for revoking
          (probation or) parole.
    
    Gagnon, 411 U.S. at 786, 93 S. Ct. at 1761-62 (quotation omitted). In addition to
    
    minimal due process protections accorded to probationers at probation revocation
    
    hearings, their probation officer has a duty to keep the sentencing court informed
    
    “as to the conduct and condition of [the] probationer . . .” under 18 U.S.C. §
    
    3603(2).
    
          In this case, there is no evidence in the record indicating that Bare did not
    
    receive the minimal due process violations enumerated in Gagnon. Bare admitted
    
    receiving notice of the probation officer’s claimed violations of probation.
    
    Moreover, he received oral disclosure of the violations at the revocation hearing
    
    and had the opportunity to speak on his own behalf regarding the alleged
    
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    violations. He was also given the opportunity to produce witnesses at the hearing,
    
    including the counselor that wrote the letter at issue here.     Even if Bare was
    
    unaware of the counselor’s letter at the time of the revocation hearing, he was
    
    given ample opportunity to make the court aware of his mental condition through
    
    his own testimony or that of his counselor.
    
          Moreover, despite Bare’s argument that his probation officer had a duty to
    
    disclose the letter to the court, Bare’s due process rights were not violated. Even
    
    assuming that Bare’s rights were violated by his probation officer’s failure to
    
    forward the letter to the court, Bare cannot establish an effect on his substantial
    
    rights, as required under the third prong of plain error review: (1) the letter does
    
    not indicate that Bare’s failure to comply with the terms of his probation was due
    
    to mental health disease or defect; (2) the fact that the letter was written four
    
    months prior to Bare’s violations of the terms of his probation undercuts his
    
    argument that notice of the letter would have affected the court’s decision to
    
    revoke his probation; and (3) Bare does not indicate to us what arguments he
    
    would have made to the sentencing court based on the letter. See Fed. R. Crim. P.
    
    52(a) (“Any error, defect, irregularity, or variance that does not affect substantial
    
    rights must be disregarded”). Accordingly, we find no plain error on this basis.
    
          We likewise are not persuaded by Bare’s argument that the district court
    
    
    
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    plainly erred by revoking his probation because his failure to pay was not wilful,
    
    but rather, was based on a lack of resources.       A district court may revoke a
    
    defendant’s term of probation and return the defendant to prison when the
    
    defendant violates a condition of that probation. 18 U.S.C. § 3565(a)(2). “In a
    
    probation revocation proceeding, all that is required is that the evidence reasonably
    
    satisfy the judge that the conduct of the probationer has not been as good as
    
    required by the conditions of probation; evidence that would establish guilt beyond
    
    a reasonable doubt is not required.” United States v. O’Quinn, 
    689 F.2d 1359
    ,
    
    1361 (11th Cir. 1982).
    
          In revocation proceedings for failure to pay restitution, “[i]f the probationer
    
    has willfully refused to pay . . . restitution when he has the means to pay, the
    
    [government] is perfectly justified in using imprisonment as a sanction to enforce
    
    collection.” Bearden v. Georgia, 
    461 U.S. 660
    , 668, 
    103 S. Ct. 2064
    , 2070, 76 L.
    
    Ed. 2d 221 (1983). In United States v. Satterfield, 
    743 F.2d 827
    , 842 (11th Cir.
    
    1984), we held that, under Bearden, a district court must consider two threshold
    
    criteria in revocation hearings: (1) whether the defendant has made sufficient
    
    efforts to pay, and (2) if so, and the defendant still cannot comply with the terms of
    
    his probation, whether imprisonment or an alternative is an appropriate
    
    punishment. Id. Here, Bare admitted not making his restitution payments, and
    
    
    
                                              6
    presented no evidence of any efforts to pay restitution or of his financial inability
    
    to do so. He also failed to object to the district court’s findings, including that he
    
    had wilfully failed to make his restitution payments. Thus, the district court did
    
    not plainly err.
    
           Finally, Bare argues that the district court failed to consider the factors from
    
    18 U.S.C. § 3553(a) when it imposed his sentence. Upon a defendant’s violation
    
    of the term of probation, the district court may, “after considering the factors set
    
    forth in § 3553(a) to the extent that they are applicable,” revoke the defendant’s
    
    probation and impose a new sentence. See 18 U.S.C. § 3565(a). Under § 3553(a),
    
    the district court, when imposing a sentence, is required to take into consideration
    
    certain factors, including the nature and circumstances of the offense, the history
    
    and characteristics of the defendant, the need for the sentence imposed, the kinds
    
    of sentences available, and the sentencing ranges available as established by the
    
    Sentencing Guidelines. See 18 U.S.C. § 3553(a). While § 3553(a) requires “a
    
    sentencing court . . . [to] tailor its comments to show that the sentence imposed is
    
    appropriate, given the factors to be considered as set forth in § 3553(a),” we have
    
    recognized that a district court does not have to “incant the specific language used
    
    in the guidelines.” United States v. Eggersdorf, 
    126 F.3d 1318
    , 1322 (11th Cir.
    
    1997). Based on our review of the transcript of the probation revocation hearing,
    
    
    
                                               7
    we are satisfied that the district court’s comments on the record, and its imposition
    
    of a sentence within the recommended United States Sentencing Guidelines range,
    
    sufficiently indicate the court’s consideration of the factors set forth in § 3553(a).
    
    Therefore, Bare is unable to show how the district court’s alleged failure to
    
    announce more specifically its consideration of the § 3553(a) factors affected his
    
    substantial rights, as required under plain error review.
    
          AFFIRMED.
    
    
    
    
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