United States v. Iluonokhalumhe ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2879
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UNITED STATES OF AMERICA
v.
MICHAEL ILUONOKHALUMHE,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
No. 1-10-CR-00316-001
District Judge: Hon. Renee M. Bumb
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Submitted Under Third Circuit L.A.R. 34.1(a)
June 11, 2019
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Before: HARDIMAN, PORTER, and COWEN,
Circuit Judges.
(Filed: August 21, 2019)
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OPINION ∗
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∗
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
PORTER, Circuit Judge.
Michael Iluonokhalumhe appeals from the District Court’s order revoking his
supervised release and imposing a 14-month sentence of imprisonment consecutive to
any term of imprisonment he was then serving. Finding no error in the District Court’s
order of revocation and sentence, we will affirm.
I
In 2010, Iluonokhalumhe was convicted of conspiracy to commit bank fraud and
sentenced to 18 months’ imprisonment followed by 60 months of supervised release. In
2012, he violated the terms and conditions of his supervised release and received
additional prison time and supervised release. In 2015, he again violated his supervised
release. He was referred for in-house drug treatment and later that year received a formal
letter of reprimand from the District Court. Then, in 2016, the probation office alleged
that he violated the terms and conditions of his supervised release yet again by
committing new crimes, failing to maintain lawful employment, and failing to repay his
restitution. The new crimes arose in New Jersey, where Iluonokhalumhe was charged
with possessing heroin and crack cocaine, and distributing, dispensing, or possessing with
the intent to distribute controlled substances within 1,000 feet of a school.
In March 2017, Iluonokhalumhe moved to dismiss the violations, claiming that he
had paid his restitution, obtained lawful employment, and was eligible to participate in
New Jersey’s drug-court program. He argued that participation in the drug-court program
would be enough to address his violation for committing new crimes. After he renewed
his motion in December, the District Court denied it. The adjudication of
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Iluonokhalumhe’s New Jersey charges was completed on March 28, 2018, and his
revocation hearing took place the following month, on April 23, 2018. At that hearing,
the Government moved to dismiss the second and third alleged violations after
confirming Iluonokhalumhe’s compliance with those conditions and moved forward with
the charge that he had committed new crimes. Based on Iluonokhalumhe’s certified
judgment of conviction from New Jersey, the District Court found that he had violated
his supervised release and so revoked it.
Sentencing was postponed at Iluonokhalumhe’s request. Although initially
remanded to custody to await sentencing, Iluonokhalumhe was eventually granted bail
and placed on home confinement. He was not successful. He consistently left his home
for short periods without approval from his probation officer and failed to respond to the
officer’s texts to let her know where he was. When granted leave, he often returned home
several hours late. All told, he could not account for his whereabouts for more than 12
hours in a two-week period, so the District Court revoked his bail and advanced his
sentencing hearing to July 19, 2018.
On the eve of sentencing, Iluonokhalumhe filed a motion to dismiss his revocation
proceedings, arguing that “[d]ue to the unreasonable amount of time it has taken to reach
this court date and due to his (second) admission into the Essex County Superior Drug
Court program … this court should dismiss this case and allow him to continue his
participation in the state drug court program.” App. 118. The sentencing hearing began as
scheduled but, because of Iluonokhalumhe’s growing agitation during that hearing and
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the need to receive testimony from the probation officer, had to be continued until August
8, 2018.
At the continued sentencing hearing, the District Court denied Iluonokhalumhe’s
motion to dismiss for delay after finding that any delay had inured to his benefit. For
example, because Iluonokhalumhe had followed the rules (for a time) while awaiting his
revocation and sentencing hearings, the District Court had chosen not to impose an
upward departure, which may have otherwise been warranted. Instead, the Court
sentenced Iluonokhalumhe to 14 months’ imprisonment, consecutive to any federal or
state sentence of imprisonment then being served by him, followed by 24 months of
supervised release. Iluonokhalumhe timely appealed.
II
The District Court had subject matter jurisdiction over the underlying case under
18 U.S.C. § 3231 and jurisdiction over the revocation of supervised release under 18
U.S.C. § 3583(e). We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).
III
Iluonokhalumhe raises three challenges on appeal. First, he asserts that he was
entitled to dismissal of his case under 18 U.S.C. § 3583(i) and Rule 32.1 due to
unreasonable delays in the proceedings. Second, he claims that the consecutive sentence
imposed by the District Court upon his revocation was illegal under U.S.S.G. § 7B1.3(f).
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Third, he claims that the District Court abused its sentencing discretion. We will address
each argument in turn.
A
Iluonokhalumhe first argues that he was entitled to dismissal of this case due to
unreasonable delays in the proceedings. There were two potential delays alleged here:
(1) the delay between the revocation of Iluonokhalumhe’s supervised release and his
sentencing hearing and (2) the delay between the filing of the violation allegations and
the revocation hearing. After reviewing the record, we find no unreasonable delay in this
case.
To determine whether delays in revocation proceedings or sentencing were
unreasonable under § 3583(i), we apply a similar framework to the one adopted by the
Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 530 (1972),
considering (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s
assertion of his right, (4) any prejudice suffered by the defendant, and (5) the reason why
the defendant was in custody. United States v. Poellnitz, 372 F.3d 562, 570 (3d Cir.
2004).
The District Court revoked Iluonokhalumhe’s supervised release on April 23,
2018. His sentencing hearing began on July 19 and concluded on August 8. As a
threshold matter, we find that this brief passage of time is insufficient to trigger the
Wingo analysis. See Doggett v. United States, 505 U.S. 647, 651–52 (1992). Short delays
like this between adjudication and sentencing are common and not unreasonable. Even
were we to apply the Wingo analysis, Iluonokhalumhe’s claim would still fail. First, the
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delay was attributable to him. Though the Government was prepared to move directly to
sentencing, Iluonokhalumhe requested and was granted a 90-day continuance. Then, in
the middle of sentencing, the hearing was continued again to allow Iluonokhalumhe to
challenge some of the Government’s evidence and give him a chance to settle down.
Second, though Iluonokhalumhe asserted his right to a speedy sentencing, he did not do
so until July 18, 2018, on the eve of sentencing. And that sentencing hearing had already
been advanced by almost a month from its original date. Third, Iluonokhalumhe failed to
show that he suffered any prejudice from this delay.
Iluonokhalumhe also claims that he preserved a challenge to the delays preceding
his revocation hearing. On March 3, 2016, the District Court issued an arrest warrant for
Iluonokhalumhe based on allegations that he had violated his supervised release by,
among other things, committing new crimes in New Jersey. Iluonokhalumhe’s revocation
hearing took place on April 23, 2018, more than two years later. That was a delay, but not
an unreasonable one.
First, the delay was reasonable because the court and parties were awaiting the
resolution of criminal charges in New Jersey. Those charges were resolved on March 28,
2018, when a state court entered a judgment of conviction against Iluonokhalumhe. The
revocation hearing was then held within four weeks. When the adjudication of state
charges may be relevant to the revocation proceedings, it is reasonable for a district court
to postpone the revocation hearing until after the adjudication of those charges. Poellnitz,
372 F.3d at 571. Here, the probation office alleged that Iluonokhalumhe violated the
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conditions of his supervised release by committing new crimes in New Jersey; resolution
of the state charges was thus highly relevant to the revocation proceedings.
Second, Iluonokhalumhe never asserted his right to a speedy revocation hearing.
Although he moved to dismiss the violation allegations in February 2017, and later
renewed that motion in December 2017, neither of those motions mentioned delay as a
basis for dismissal. Rather, Iluonokhalumhe claimed he was now complying with two of
the violated conditions and that the third (his new crimes) would be sufficiently
addressed at the state level. In fact, the first time Iluonokhalumhe mentioned delay as a
basis for dismissal appears to have been his July 18 motion referenced above.
Third, though he asserted prejudice, Iluonokhalumhe failed to present evidence
showing that he was prejudiced by the delay. Indeed, the delay benefited Iluonokhalumhe
by allowing him to demonstrate good behavior that ultimately spared him from an
upward departure.
In sum, the delay between the notice of violation and the revocation hearing was
reasonable.
B
After revoking Iluonokhalumhe’s supervised release, the District Court sentenced
him to 14 months’ imprisonment for his violations. At sentencing, the District Court
pronounced that “[t]he term of imprisonment imposed by this judgment will run
consecutive to imprisonment under any previous state or federal sentence.” App. 251.
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Iluonokhalumhe argues that the District Court violated the Sentencing Guidelines by
imposing this consecutive sentence. We disagree.
We exercise plenary review over interpretations of the Sentencing Guidelines.
United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007). By its plain language, the
Guideline that Iluonokhalumhe cites directs the opposite of what he claims. It provides:
Any term of imprisonment imposed upon the revocation of probation or
supervised release shall be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving, whether or not the
sentence of imprisonment being served resulted from the conduct that is the
basis of the revocation of probation or supervised release.
U.S.S.G. § 7B1.3(f) (emphasis added). The District Court did not err by doing exactly
what the Guidelines instructed it to do. 1
Iluonokhalumhe notes that he was not serving a sentence of imprisonment at the
state or federal level when the District Court pronounced his sentence. But that simply
shows that, even assuming error, he suffered no prejudice. When a sentence is imposed
consecutive to a sentence of zero, the consecutive sentence simply begins to run
immediately. Iluonokhalumhe has not shown that the District Court erred by imposing a
consecutive sentence consistent with the Guidelines.
C
Finally, Iluonokhalumhe argues that the District Court abused its discretion by
sentencing him to prison for 14 months. Provided it is procedurally sound, a sentence is
substantively reasonable “unless no reasonable sentencing court would have imposed the
1
Moreover, the Sentencing Guidelines are merely advisory, not mandatory.
United States v. Booker, 543 U.S. 220 (2005).
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same sentence on that particular defendant for the reasons the district court provided.”
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Iluonokhalumhe has
not identified any procedural infirmity on appeal, nor do we perceive any in the record.
Based on Iluonokhalumhe’s criminal record, violations of his supervised release, and
many violations of the conditions of his bail pending sentencing, we cannot say that the
District Court’s 14-month sentence was unreasonable. Iluonokhalumhe, therefore, has
failed to show an abuse of the District Court’s sentencing discretion.
IV
Finding no error by the District Court, we will affirm its order of revocation and
sentence.
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