United States v. Russell C. Bennett ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4427
RUSSELL COLEMAN BENNETT, a/k/a
Rusty Russell Mott,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CR-98-8)
Submitted: January 29, 1999
Decided: February 17, 1999
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Margaret McLeod Cain, Charlottesville, Virginia, for Appellant. Rob-
ert P. Crouch, Jr., United States Attorney, Jean B. Hudson, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Russell Coleman Bennett appeals his twenty-four-month sentence
imposed for violations of his supervised release. On appeal, Bennett
argues that the government presented insufficient evidence to support
the district court's determination that he committed the supervised
release violations and that the district court erred in departing upward
from the guideline sentencing range. Because we find that the evi-
dence was sufficient to support the supervised release violations and
the sentence was appropriate, we affirm.
Following Bennett's convictions for conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846 (1994),
and using a firearm in connection with a drug trafficking offense, in
violation of 18 U.S.C.A. § 924(c) (West Supp. 1998), the United
States District Court for the Eastern District of Pennsylvania departed
downward for Bennett's substantial assistance to the government and
imposed a sentence of twelve months in prison to be followed by a
five-year term of supervised release. Bennett's pre-departure sentenc-
ing range was 117 to 135 months (57 to 71 months for the drug con-
viction plus a consecutive 60-month term for using or carrying a
firearm in connection with a drug trafficking offense).
Bennett's supervised release began on July 8, 1994, in the Eastern
District of Pennsylvania. Bennett incurred numerous supervised
release violations, including several home confinement violations,
violations for failure to keep and maintain appointments with the
mental health treatment facility, failure to obtain employment as
directed, and several urine tests that were positive for cocaine or mari-
juana. On October 7, 1996, the district court in Philadelphia found
Bennett in violation of the terms of his supervised release. However,
the court allowed him to remain on supervision on the condition that
he be placed in the Comprehensive Sanction Center for six months.
In early 1998, Bennett requested to relocate to the Western District
of Virginia to live with his mother. The Probation Office in Virginia
conducted an investigation, determined that the transfer was appropri-
ate, and accepted Bennett's supervision. The Probation Office dis-
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cussed with Bennett his conditions of supervision, travel restrictions,
the Western District of Virginia's firearms policy, and Bennett's con-
tinued participation in psychiatric counseling. On February 12, 1998,
a Transfer of Jurisdiction Order was signed by Judge Michael, accept-
ing jurisdiction in the Western District of Virginia.
On March 11, 1998, the probation officer conducted a home visit
to Bennett's residence. There, the probation officer learned from Ben-
nett's mother that Bennett had left the district and traveled to Phila-
delphia, Pennsylvania. The probation officer contacted Bennett in
Philadelphia on March 13, 1998, and directed him to report to the pro-
bation office on March 16, 1998, at 9:00 a.m. After Bennett failed to
appear as directed, the probation officer called Bennett's residence
and learned from his mother that Bennett had not returned from Phila-
delphia. The probation officer left a message for Bennett to contact
the probation office immediately upon his return. As of March 20,
1998, Bennett had not contacted the probation office.
The probation officer then filed a motion to revoke Bennett's
supervised release, alleging that Bennett violated four of the standard
conditions of supervision. Specifically, the alleged conditions violated
were the requirements that Bennett not leave the judicial district with-
out permission of the court or probation office, that he report to the
probation office as directed, that he follow instructions of the proba-
tion officer, and that he work regularly at a lawful occupation, unless
excused by the probation officer. The probation officer noted that
these violations constitute Grade C violations, with a statutory maxi-
mum sentence upon revocation of three years imprisonment as to each
count and a guideline imprisonment range of 4 to 10 months. The pro-
bation officer also noted that the guidelines provide that where the
original sentence was the result of a downward departure, such as a
reward for substantial assistance, an upward departure may be war-
ranted.
Bennett admitted that he was instructed to report to the probation
office in Virginia on March 16, 1998, and that he did not report as
directed. However, he testified that he had car trouble and was unable
to return from Philadelphia in time for that appointment. Concerning
his travel outside the district without permission, Bennett testified
concerning his previous travel between Pennsylvania and Virginia
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and that each time, he had written permission from his probation offi-
cer in Pennsylvania. For his March 11, 1998 trip, because his last per-
mission to travel form permitted him to remain in Virginia
indefinitely, Bennett asserted that he thought he could return to Penn-
sylvania without seeking permission from the Virginia probation offi-
cer. Bennett also testified that because he was not informed that
jurisdiction had been transferred to Virginia, he did not know that he
was expected to report to the Virginia probation office.
The government produced evidence that Bennett met with a proba-
tion officer from Virginia in January 1998, and was informed that the
Virginia office had accepted supervision of him. Also, Bennett filed
a monthly report with the Virginia office for February 1998.
The district court found incredible Bennett's asserted confusion as
to who was supervising him in March 1998. The court also found by
a preponderance of the evidence that Bennett left the judicial district
without permission from the probation office and failed to report to
the probation office as directed, both in violation of the conditions of
his supervised release. The court revoked Bennett's supervised
release and, considering his prior conduct while under supervision
and the substantial downward departure he received at his original
sentencing, sentenced him to a twenty-four-month term of imprison-
ment.
On appeal, Bennett asserts that the district court erred in finding
that he had violated the terms of his supervised release for noncrimi-
nal conduct. However, conduct need not be criminal to violate a con-
dition of supervised release. See United States v. McCormick, 54 F.3d
214 (5th Cir. 1995) (failure to maintain employment); United States
v. Webb, 30 F.3d 687 (6th Cir. 1994) (failure to comply with reporting
and monitoring provisions). The district court, in its discretion, may
revoke supervised release upon finding a noncriminal violation of
supervised release. See 18 U.S.C.A. § 3583(e)(3) (West Supp. 1998);
U.S. Sentencing Guidelines Manual § 7B1.3(a)(2) (1997).
In this case, the district court found that Bennett violated two con-
ditions of his supervised release by leaving the district without per-
mission and by failing to report to the probation office as directed.
Although Bennett does not contest the facts that he left the judicial
4
district and that he did not report to the probation office on March
16th as directed, he asserts that he did not know that he was subject
to supervision and jurisdiction in Virginia or that he was required to
obtain permission prior to traveling back to Pennsylvania. In light of
the conversations Bennett admits having with persons from the Vir-
ginia Probation Office and the fact that Bennett mailed to the Virginia
Probation Office his monthly report of his activities during February
1998, the district court appropriately found Bennett's assertions
incredible. There was sufficient evidence to support the district
court's finding that Bennett committed the violations. Also Bennett's
challenges to the district court's credibility determination are not
reviewable on appeal. See United States v. Saunders, 886 F.2d 56, 60
(4th Cir. 1989). We find no abuse of discretion in the district court's
determination to revoke Bennett's supervised release upon its finding
of violations of the terms of his supervised release.
Bennett also contends that the district court's decision to depart
upward from the guideline range was unreasonable. Upon revocation
of Bennett's supervised release, the district court appropriately
referred to the revocation table in the guidelines. Because the conduct
constituting the violations was noncriminal activity in violation of
terms or conditions of supervision, the violations are Grade C viola-
tions. See USSG § 7B1.1(a)(3). Upon finding a Grade C violation, the
court is authorized to revoke supervised release, extend the terms of
supervision, and/or modify the conditions of supervision. See USSG
§ 7B1.3(a)(2). Section 7B1.4(a) provides that for a Grade C violation,
the imprisonment range for a person with a criminal history category
II is 4 to 10 months. This policy statement suggesting a guideline
range is a non-binding, advisory guide. See 18 U.S.C.A.
§ 3553(a)(4)(B) (West Supp. 1998); United States v. Davis, 53 F.3d
638, 642 (4th Cir. 1995). A sentence above the recommended range
for a violation of supervised release may be warranted "[w]here the
original sentence was the result of a downward departure (e.g., as a
reward for substantial assistance)." USSG § 7B1.4, comment. (n.4).
Bennett's original sentencing range was 117 to 135 months. He
received a significant departure for substantial assistance resulting in
a twelve-month sentence. In light of Bennett's numerous supervised
release violations while in Pennsylvania and his violations almost
immediately after his transfer to Virginia, the district court's decision
to impose a sentence above the suggested range in§ 7B1.4(a) was
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reasonable. Also, we note that Bennett's sentence was well within the
statutory maximum sentence upon revocation of three years as to each
count. See 18 U.S.C.A. § 3583(e)(3). Because Bennett's sentence
does not exceed the maximum statutory limit established for violation
of the terms of release in Class B offenses under 18 U.S.C.A.
§ 3583(e)(3), this court reviews Bennett's sentence only to determine
if it is plainly unreasonable. See 18 U.S.C.§ 3742(a)(4) (1994). Given
the facts of this case and the nature of Bennett's conduct, we cannot
say that the twenty-four-month sentence imposed by the district court
was plainly unreasonable.
Accordingly, we affirm the district court's order revoking Ben-
nett's supervised release and imposing a twenty-four-month sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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