United States v. Salinas, Juan ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-4008, 02-4102 & 02-4142
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN SALINAS,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 94-CR-042-S-01—John C. Shabaz, Judge.
____________
ARGUED MAY 13, 2003—DECIDED APRIL 26, 2004
Before ROVNER, DIANE P. WOOD, and EVANS, Circuit
Judges.
ROVNER, Circuit Judge. The district court revoked Juan
Salinas’s supervised release and ordered him to serve a
prison term of 24 months after he violated the terms of his
release on multiple occasions. Salinas appeals, contending
that the court’s sentencing decision was tainted by an error
in a violation report and that the 24-month sentence was
plainly unreasonable. We affirm.
I.
Following his 1994 conviction for narcotics conspiracy, see
21 U.S.C. §§ 846 & 841(a)(1), the district court ordered
2 Nos. 02-4008, 02-4102 & 02-4142
Salinas incarcerated for a period of 54 months. Upon his
release from prison in 1998, Salinas began a five-year
period of supervised release in the Southern District of
Texas. Standard conditions of his release required, inter
alia, that Salinas refrain from committing any new local,
state, or federal offenses, follow the instructions of his
supervising probation officer (“Condition #3”), and notify his
probation officer within 72 hours of being arrested or
questioned by a law enforcement officer (“Condition #11”).
R. 187 at 3, 4. Salinas’s violations of these conditions led
the district court first to modify the terms of his supervised
release and ultimately to revoke it.
The district court modified Salinas’s release on three
separate occasions in 2000 and 2001. First, on March 13,
2000, the court ordered that Salinas participate in a
domestic violence counseling program after he was con-
victed of assaulting his wife. Second, on August 31, 2001,
the court ordered Salinas to spend 120 days in home con-
finement with electronic monitoring following his failure to
timely notify his parole officer of his contact with a police
officer and his failure to obtain permission to travel outside
of his supervising district (the Southern District of Texas).
Third, on November 19, 2001, the court ordered Salinas to
spend 120 days in a community corrections center after he
violated the restrictions of his court-ordered home confine-
ment by failing to return to his residence at the hour
required by his curfew.
Unfortunately, these modifications did not succeed in
bringing Salinas into compliance with the terms of his
supervised release. On May 21, 2002, Salinas’s probation
officer instructed him to have no contact with Marisela
Gomez-Barranco (“Barranco”), whom he had dated earlier
that year, after Barranco made a number of complaints to
local police that Salinas was harassing and possibly stalk-
ing her. Condition #3 of Salinas’s release, as we have noted,
required Salinas to follow his probation officer’s instruc-
Nos. 02-4008, 02-4102 & 02-4142 3
tions. Nonetheless, Salinas violated that condition on three
occasions from June 19, 2002 to June 24, 2002 when he had
contact with Barranco—once at a nightclub in McAllen,
Texas and twice at her home in Mission, Texas. Following
the third of these incidents, Salinas was contacted by
Mission Police Officer J. Deleon and issued a criminal
trespass warning. He did not report this contact to his
probation officer within 72 hours as required by Condition
#11 of his release.
In view of Salinas’s ongoing failure to comply with the
terms of his release, the probation office filed a probation
violation report and a supplemental violation report in
support of a request that Salinas be arrested and returned
to court to show cause why his release should not be
revoked. Two aspects of these reports deserve mention.
First, the supplemental report erroneously represented that
the district court “ha[d] modified Salinas’ supervised release
on three occasions as a result of his assaultive behavior.”
R. 270 at 2. In fact, only the first modification had involved
that type of behavior. Second, the reports suggest that two
of the prohibited encounters between Salinas and Barranco
involved violent behavior. The original report indicates that
when Salinas had contact with Barranco on June 19, 2002,
he grabbed and pulled her in an attempt to restrain her,
causing Barranco to sustain bruising on her arm and leg
and swelling around her wrist that were later visible to the
investigating police officer. R. 269, attachment (Petition for
Warrant or Summons for Offender Under Supervision) at 3
(No. 1D). The supplemental report describes another
incident that took place on August 16, 2002 at a restaurant
in McAllen. According to the report, Salinas approached
Barranco and her husband, Juan Ginez (“Ginez”), at the
restaurant and a fight ensued between Salinas and Ginez.
When Barranco attempted to intervene by placing herself
between the two, Salinas allegedly struck her on the right
side of her head with a closed fist. R. 270 at 1. Salinas did
not stipulate to the August 16 incident, and although he did
4 Nos. 02-4008, 02-4102 & 02-4142
stipulate to his contact with Barranco on June 19, he did
not stipulate that Barranco was injured as a result of that
contact.
Salinas was taken into custody and returned to the
Western District of Wisconsin, where he ultimately entered
into a written stipulation with the government acknowledg-
ing that he had had prohibited contact with Barranco on
three occasions and that he had failed to report his contact
with a police officer within 72 hours. R. 282 at 1-2. For its
part, the government agreed that it would recommend to
the court that it revoke Salinas’s supervised release,
sentence him to a prison term within the range recom-
mended by the Sentencing Guidelines, and terminate
further supervision. Id. at 2. The Guidelines designate the
type of release violations to which Salinas had stipulated
Grade C, the least serious of three categories. See U.S.S.G.
§ 7B1.1(a)(3)(B), p.s. That designation, coupled with Sa-
linas’s Category I criminal history, produced a recom-
mended sentencing range of three to nine months in
prison—the shortest recommended prison term included in
the Guidelines’ Revocation Table. Id. § 7B1.4(a), p.s.1
Salinas expressly acknowledged in his stipulation that the
district court would not be bound by the government’s
recommendation to sentence him within this range. R. 282
at 2. The district court was authorized by statute to impose
a sentence of up to 36 months, given that his underlying
conviction was for a Class B felony, see 18 U.S.C. §
1When a defendant has committed Grade C release violations,
the district court may extend the term of his release and/or modify
the conditions of his supervision, or alternatively the court may
revoke his supervised release and sentence him to a period of
incarceration. See U.S.S.G. § 7B1.3(a)(2), p.s. There is no dispute
here that the district court acted within its discretion to revoke
Salinas’s release and order him imprisoned rather than extending
the term of his release and/or again modifying the terms of his
supervision.
Nos. 02-4008, 02-4102 & 02-4142 5
3583(e)(3), and Salinas would later acknowledge this
maximum when he appeared before the court. R. 280 at 3.
At the conclusion of a revocation and sentencing hearing
on October 28, 2002, the district court (Hon. John C.
Shabaz) revoked Salinas’s release and ordered him to serve
a two-year prison term to be followed by one year of su-
pervised release. R. 280 at 11, 13. The court explained that
its sentence “takes into account the defendant’s repeated
violations of not allowing—not following the instructions of
the supervising probation officer and not reporting contacts
with law enforcement within 72 hours,” as well as his
“continual history of committing violent acts against
women.” Id. at 11. As special conditions of the release that
would follow his incarceration, Salinas was to undergo a
mental health assessment and counseling “to address his
propensity to stalk and assault women” and to spend 90 to
120 days in a community corrections center during which
time he was to participate in a mental health program. Id.
at 12-13. On the day following the hearing, the court issued
a written order memorializing its revocation and sentencing
decision and reiterating its reasons for sentencing Salinas
as it had. R. 265. That order was docketed on October 30,
2002.
II.
We begin with a few words about our jurisdiction. Salinas
has filed three notices of appeal, which this court consoli-
dated at his request. He filed the first of these (No. 02-4008)
on November 8, 2002, within ten days of the date that the
written order revoking his supervised release and imposing
a sentence was docketed. R. 267. That timely appeal
supplies us with jurisdiction to review the revocation and
sentencing order. On November 5, 2002, Salinas filed a
motion in the district court seeking to correct or reduce his
6 Nos. 02-4008, 02-4102 & 02-4142
sentence pursuant to then-Rule 35(c) of the Federal Rules
of Criminal Procedure. That provision, now found in Rule
35(a), allows a district court seven days in which to correct
a sentence that was imposed as a result of “arithmetical,
technical or other clear error.” See Fed. R. Civ P. 35(a). The
district court functionally denied Salinas’s motion by not
acting on it within seven days of the date that its revocation
and sentencing order was entered on the docket, i.e., by
November 7, 2002. See United States v. Wisch, 275 F.3d
620, 626 (7th Cir. 2001). On November 22, 2002, Salinas
filed a second notice of appeal (No. 02-4102) challenging the
functional denial of his Rule 35 motion. R. 275. However,
that appeal, as Salinas now concedes, was untimely. Salinas
Reply Br. at 1. We therefore dismiss that appeal. On
November 26, 2002, the district court issued an order noting
that the time during which it could correct Salinas’s
sentence had expired and denying the motion for lack of
jurisdiction, and that order was entered on the docket the
following day. R. 277. Salinas filed his third notice of appeal
(No. 02-4142) on December 2, 2002, seeking review of that
order. R. 278. That appeal was timely filed. However,
Salinas concedes that the district court lacked the power to
correct his sentence as of November 26 and that it correctly
denied his motion for lack of jurisdiction at that point.
Salinas Reply Br. at 1; see United States v. Goode, 342 F.3d
741, 743 (7th Cir. 2003). Accordingly we dismiss that appeal
as well and turn to the merits of his appeal of the district
court’s revocation and sentencing order.
A.
We consider first whether, as Salinas contends, the error
in the supplemental violation report regarding the rationale
for the prior modifications of his release warrants a remand
to the district court for reconsideration. Salinas complains
that Judge Shabaz improperly relied on the report’s asser-
Nos. 02-4008, 02-4102 & 02-4142 7
tion that the court “ha[d] modified Salinas’ supervised
release on three occasions as a result of his assaultive
behavior.” R. 270 at 2. As indicated above, only the first
modification actually involved “assaultive behavior.” When
errors of this nature are alleged to have affected the defen-
dant’s sentence, we review the lower court record to deter-
mine whether the district court actually relied on the
inaccurate information in sentencing the defendant. See
United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589,
591-92 (1972); Lechner v. Frank, 341 F.3d 635, 639 (7th Cir.
2003). “A sentencing court demonstrates actual reliance on
misinformation when the court gives ‘explicit attention’ to
it, ‘found[s]’ its sentence ‘at least in part’ on it, or gives
‘specific consideration’ to the information before imposing
sentence.” Id., quoting Tucker, 404 U.S. at 444, 447, 92 S.
Ct. at 590, 592.
After reviewing the record, we are confident that the
inaccuracy in the supplemental violation report played no
role whatsoever in the district court’s sentencing decision.
Neither in its oral remarks at the revocation and sentencing
hearing nor in its written order did the court give any
indication that it was laboring under any misapprehension
of the reasons for the modifications it had made to the
terms of Salinas’s release. To the contrary, the court ac-
curately summarized its reasons for each of the prior
modifications to the terms of Salinas’s release both in its
oral remarks and in its written order. R. 280 at 5-6; R. 265
at 2.
True, the court did remark that its sentence took into
account that Salinas has a “continual history of committing
violent acts against women.” R. 280 at 11; see also R. 265 at
5. Salinas seizes upon that remark as a signal that the
court may have been misled by the violation report’s
erroneous assertion regarding his “assaultive behavior.” But
we do not read the remark in that way. Wholly apart from
the report’s mistake about the prior modifications to the
8 Nos. 02-4008, 02-4102 & 02-4142
terms of Salinas’s release, there was evidence before the
court suggesting that Salinas, in fact, did have a history of
engaging in violence against women. It is undisputed that
Salinas had been convicted of assaulting his wife; that
conviction was the basis for the first modification to the
terms of his supervised release. Furthermore, as we have
discussed, the original and supplemental violation reports
disclose that on more than one occasion, Salinas’s forbidden
contact with Barranco had involved violent behavior.
Therefore, the district court had a factual basis for conclud-
ing that Salinas had committed violent acts against women
independent of the error in the supplemental report.
Salinas suggests that it was inappropriate for the court to
consider the instances of his allegedly violent contact with
Barranco because these were mere allegations that he had
not conceded as fact. The stipulation that Salinas signed did
not acknowledge that Barranco had sustained injuries or
that he was responsible for such injuries; and his counsel
observed at the revocation and sentencing proceeding that
“it has not been shown that [Salinas] acted violently
towards the . . . person who made the complaint and . . .
there were no arrests or prosecutions for any of these
substantive offenses referred to in the report.” R. 280 at 9.
But the lack of a stipulation as to what occurred on these
occasions did not preclude the district judge from taking
into consideration what the violation reports told him about
the incidents. See United States v. Marvin, 135 F.3d 1129,
1137-38 (7th Cir. 1998) (citing U.S.S.G. § 6B1.4(d), p.s. &
comment.). A district court may rely on factual information
supplied by a presentence report so long as it bears suffi-
cient indicia of reliability to support its probable accuracy.
E.g., United States v. Berkey, 161 F.3d 1099, 1101-02 (7th
Cir. 1998); see also Fed. R. Crim. P. 32(i)(3)(A) (district
court may accept any undisputed portion of presentence
report as a finding of fact). When the court relies on such
information in sentencing a defendant, the defendant bears
Nos. 02-4008, 02-4102 & 02-4142 9
the burden of showing that the presentence report is
inaccurate or unreliable. United States v. Taylor, 72 F.3d
533, 547 (7th Cir. 1995); United States v. Mustread, 42 F.3d
1097, 1101-02 (7th Cir. 1994). A defendant does not satisfy
this burden simply by denying the truth of what the
presentence report represents as fact. Id. at 1102; see also
United States v. Purchess, 107 F.3d 1261, 1268 (7th Cir.
1997). Rather, “he must produce some evidence that ‘calls
the reliability or correctness of the alleged facts into ques-
tion.’ ” Mustread, 42 F.3d at 1102 (quoting United States v.
Isirov, 986 F.2d 183, 186 (7th Cir. 1993)). Salinas did not do
this; he did no more than note that the averments of the
violation reports with respect to his violent behavior had
not been verified. Indeed, even after the court remarked at
the hearing that Salinas had twice caused Barranco to
sustain injuries (R. 280 at 10-11) and that he had “a
continual history of committing violent acts against women”
(id. at 11), the defense voiced no objection to the court’s
evident reliance on the information contained in the
violation reports. See id. at 13 (before concluding hearing,
court inquired whether there was any reason why revoca-
tion and sentence should not be imposed; and neither party
raised an objection). In the absence of a timely objection
below, our review of the facts found by the district court is
confined to one for plain error. Berkey, 161 F.3d at 1101.
Salinas has not demonstrated that the court committed any
error, plain or otherwise, in relying on the averments of the
violation reports regarding his contacts with Barranco.
For these reasons, there is no need to remand this case to
the district court for reconsideration. Although the sup-
plemental violation report erroneously ascribed all of the
modifications to the conditions of Salinas’s release to his
abusive behavior, the district court did not rely on that
error. When the court commented on Salinas’s history of
violent behavior toward women and to the injuries that
Barranco had suffered, it was relying not on the erroneous
10 Nos. 02-4008, 02-4102 & 02-4142
reference to the reasons for the modifications but on other
information in the violation reports regarding Salinas’s
prohibited contacts with Barranco. As Salinas did not
present the court with any evidence indicating that the
reports’ averments about those incidents were inaccurate or
unreliable, the court was entitled to rely on that informa-
tion.
B.
Salinas next challenges the district court’s decision to
sentence him to imprisonment for 24 months, a term well
above the range recommended by the Sentencing Guidelines
for the category of release violations that he had committed.
This court reviews a sentence imposed following revocation
of a defendant’s supervised release to ascertain whether it
was “plainly unreasonable.” United States v. McClanahan,
136 F.3d 1146, 1149 (7th Cir. 1998); United States v.
Marvin, supra, 135 F.3d at 1136. The “plainly unreason-
able” standard “entails a deferential appellate posture
concerning issues of fact and the exercise of discretion.” Id.Rather than establishing guidelines governing the revo-
cation of supervised release, the Sentencing Commission
has opted to promulgate a series of policy statements,
including a Revocation Table of recommended sentencing
ranges tied to the severity of a defendant’s violations and
his criminal history category—section 7B1.4(a), p.s. See
U.S.S.G. Ch. 7, Pt. A, §§ 3, 4. Although these policy state-
ments are non-binding, they are to be given “great weight”
by the sentencing judge. McClanahan, 136 F.3d at 1149;
United States v. Wright, 92 F.3d 502, 504 (7th Cir. 1996);
United States v. Hill, 48 F.3d 228, 231 (7th Cir. 1995).
Thus, the district court must at least consider the sentenc-
ing range recommended under section 7B1.4(a). United
States v. Doss, 79 F.3d 76, 78 (7th Cir. 1996); Hill, 48 F.3d
at 231. Nonetheless, the recommended range informs rather
Nos. 02-4008, 02-4102 & 02-4142 11
than cabins the exercise of the judge’s discretion.
McClanahan, 136 F.3d at 1149.
In fashioning an appropriate sentence for release viola-
tions, the district court must also consider the sentencing
factors listed in 18 U.S.C. § 3553(a), which include the
nature and circumstances of the offense; the defendant’s
history; the need to deter future crime, protect the public,
reflect the seriousness of the offense, and provide the
defendant with necessary services like education and
medical treatment; the Sentencing Commission’s recom-
mendations regarding sentence and policy; any pertinent
policy statements; and sentence consistency for similar
violations. 18 U.S.C. § 3583. The court need not make
findings as to each of these factors; it need only make
comments reflecting that the appropriate factors were
considered. United States v. Hale, 107 F.3d 526, 530 (7th
Cir. 1997).
A review of the record satisfies us that the district judge
considered the factors set forth in section 3553(a) in de-
ciding to revoke Salinas’s supervised release and order him
incarcerated for a term of 24 months. The remarks that
Judge Shabaz made at sentencing indicate that he consid-
ered, inter alia, the nature and gravity of the release
violations and the conduct underlying those violations,
Salinas’s overall history, the need to prevent him from
committing additional crimes and to protect the public, and
his need for services (specifically, a mental health as-
sessment and counseling) aimed at stopping the behavior
that underlay his release violations. R. 280. The judge also
expressly recognized that the sentencing range recom-
mended by the Guidelines was three to nine months and
that the statutory maximum sentence was 36 months. Id.
at 3, 8. The judge therefore complied with the statutory
mandate. See Hale, 107 F.3d at 530 (remarks addressing
some but not all of the factors identified in section 3553(a)
sufficient).
12 Nos. 02-4008, 02-4102 & 02-4142
In view of the statutory factors and the other circum-
stances of the case, the district judge reasonably concluded
that a sentence in excess of the recommended range was
called for. As Salinas reminds us, “[t]he violation of a con-
dition of supervised release is not a crime as such, but it is
a ‘breach of trust’ . . . .” Hill, 48 F.3d at 232, quoting United
States Sentencing Comm’n, Guidelines Manual at 326-27
(Nov. 1, 1994); see also Marvin, 135 F.3d at 1137. Salinas
contends that the district court inappropriately assessed his
breach of trust in deciding to impose a prison term so much
longer than the recommended range of three to nine
months. He emphasizes that he was neither arrested nor
prosecuted for any of the conduct that led the court to
revoke his supervised release (although actually, as we
have noted, the first modification to the terms of his release
was based on his assault conviction); he also points out that
although his violations were designated Grade C, the least
serious designation under the Guidelines policy statements,
see U.S.S.G. § 7B1.1(a), the 24-month sentence that he
received was consistent with that recommended for an
individual who has committed Grade B violations and who
has a much more substantial criminal history category of V
or VI, see id. § 7B1.4(a). Yet, over the course of his super-
vised release, Salinas had not only violated the conditions
of that release on multiple occasions, but had continued to
do so notwithstanding the increasingly onerous modifica-
tions (counseling, home confinement, and finally a 90 to
120-period in jail) that the court had imposed in an effort to
modify his behavior. Moreover, the Grade C designation of
his release violations arguably did not reveal the complete
story of the conduct underlying those violations. Salinas’s
continued contacts with Barranco, in violation of his
probation officer’s directive, involved aggressive, violent
behavior that resulted in injuries to her. In short, Salinas’s
conduct displayed not only a pattern of defying the orders
of the court and his probation officer, but engaging in
behavior that injured or posed the risk of injury to others.
Nos. 02-4008, 02-4102 & 02-4142 13
Thus, although the sentence that the district court chose
to impose was significantly longer than the recommended
sentence, it was not plainly unreasonable. In arriving at the
sentence, the district judge considered the factors set forth
in section 3553(a) and he acknowledged and considered the
sentencing range proposed by the Guidelines policy state-
ments. The district judge also amply explained his reasons
for concluding that a sentence of only three to nine months
was not sufficient to address the concerns raised by con-
duct.
III.
We DISMISS Appeal No. 02-4102 as untimely and Appeal
No. 02-4142 for conceded lack of merit. With respect to
Appeal No. 02-4008, having concluded that the error in the
supplemental violation report had no impact on the district
court’s sentencing rationale and that the court’s decision to
sentence Salinas to a term of 24 months was not plainly
unreasonable, we AFFIRM the sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-26-04