United States v. Stanford , 327 F. App'x 87 ( 2009 )


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  •                                                                                  FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                        May 13, 2009
    TENTH CIRCUIT                          Elisabeth A. Shumaker
    __________________________                      Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                           No. 08-3312
    (D. Kan.)
    KANEAIS STANFORD,                                 (D.Ct. No. 6:03-CR-10064-JTM-1)
    Defendant - Appellant.
    ____________________________
    ORDER AND JUDGMENT *
    Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1. The case is therefore
    ordered submitted without oral argument.
    Kaneais Stanford was sentenced to two years imprisonment after violating
    two conditions of his supervised release; his second revocation. He contends the
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    court erred in consulting the Wichita Police Department’s gang affiliation list in
    determining he associated with gang members and in considering that association
    in imposing sentence. We affirm.
    I. BACKGROUND
    Some time ago Stanford pled guilty to being a felon in possession of a
    firearm and was sentenced to 37 months imprisonment followed by 24 months
    supervised release. After serving his term of incarceration he started supervised
    release. One of the standard conditions of his supervision prohibited him from
    “purchas[ing], possess[ing], us[ing], distribut[ing], or administer[ing] any
    controlled substances . . . except as prescribed by a physician.” (R. Supp. Vol. I
    at 11.) A special condition of his supervision prohibited him from “be[ing] a
    member of any street gang, participat[ing] in any gang-related activities, or
    associat[ing] with any gang member during the term of supervision.” (Id. at 12.)
    Stanford had previously violated a different condition of his supervision
    (curfew) and, as a consequence, the terms of his release were modified to require
    him to “reside at a residential re-entry center program . . . for up to 120 days, at
    the direction of the U.S. Probation Officer.” (Id. at 15.) On February 29, 2008,
    Stanford was placed in a halfway house.
    On April 3, 2008, the United States Probation Office prepared an Amended
    Violation Report alleging Stanford violated the conditions of his supervised
    release by: (1) failing to reside at the halfway house (he left the halfway house on
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    March 27, 2008, without permission and without signing out, and his location was
    unknown as of April 3, 2008); and (2) drug use, as evidenced by a March 19,
    2008 urinalysis which tested positive for Phencyclidine (PCP). The maximum
    term of imprisonment permitted upon revocation of his supervised release was 24
    months. Considering his criminal history category of IV and a violation grade C,
    the recommended term was 6 to 12 months. See USSG §7B1.4(a). When
    Stanford was arrested on September 16, 2008, he was with two individuals listed
    on the Wichita Police Department’s gang affiliation list.
    On October 27, 2008, Stanford appeared at a violation hearing and admitted
    the charged acts. Upon that admission the judge found a violation and stated he
    was inclined to impose a sentence of 24 months imprisonment. The judge
    acknowledged the guidelines policy statement recommended imprisonment of 6 to
    12 months but determined a longer sentence was warranted:
    I am finding that a sentence outside that policy range is warranted,
    based upon your history of noncompliance, your failure to make
    yourself available for supervision, and your recent criminal conduct,
    and having read the report and the circumstances of your having been
    arrested and using, apparently, the identification of someone else.
    Being in the presence of known gang members, that’s also a source
    of concern to me.
    (R. Vol. II at 6-7.) Defense counsel did not object to the proposed sentence.
    Stanford said: “You said something about me being around gang members before
    I got arrested. I wasn’t around any gang members. I don’t be involved with gang
    members.” (Id. at 10.) The judge asked Stanford whether he was with Dewaun
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    Stanford and Leroy Dye when he was stopped by the police on September 16,
    2008. Stanford responded “Yes, sir” and the judge explained both of those
    individuals are known by the Wichita Police Department to be gang members.
    The court sentenced Stanford to 24 months imprisonment.
    II. DISCUSSION
    Stanford claims the judge erred in considering the Wichita Police
    Department’s gang affiliation list in arriving at his sentence. He claims he
    received “no notice that the Court was going to consider alleged gang
    membership” and argues “[t]his Court should require some predicate proof of
    gang membership before the evidence can be used against a defendant.”
    (Appellant’s Br. at 4.)
    “Under 
    18 U.S.C. § 3583
    (e)(3), when a person violates a condition of his or
    her supervised release, the district court may revoke the term of supervised
    release and impose prison time.” United States v. Kelley, 
    359 F.3d 1302
    , 1304
    (10th Cir. 2004). Before imposing such prison time, a district court is required to
    consider the factors provided in 
    18 U.S.C. § 3553
    (a) 1 and the policy statements in
    1
    The § 3553(a) factors a court is required to consider include:
    1) the nature and circumstances of the offense, 2) the history and
    characteristics of the defendant, 3) the need for the sentence to afford
    adequate deterrence to criminal conduct, 4) the need to protect the public
    from further crimes of the defendant, 5) the need to provide the defendant
    with needed training, medical care, or correctional treatment, and 6) the
    sentencing range established under the sentencing guidelines or the policy
    statements applicable to a violation of supervised release.
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    Chapter 7 of the guidelines, which “are advisory rather than mandatory in nature.”
    Id. at 1305 (quotations omitted). “Because there is no applicable sentencing
    guideline for the sentence to be imposed after a violation of supervised release,
    our standard of review is plainly unreasonable.” Id. at 1304 (quotations omitted).
    “[A] sentence in excess of that recommended by the Chapter 7 policy statements
    will be upheld if it can be determined from the record to have been reasoned and
    reasonable.” United States v. Cordova, 
    461 F.3d 1184
    , 1188 (10th Cir. 2006)
    (quotations omitted).
    In determining whether a post-revocation sentence is both “reasoned and
    reasonable,” we generally “review the district court’s findings of fact for clear
    error and its legal interpretations of the Sentencing Guidelines de novo.” Kelley,
    
    359 F.3d at 1304
    . However, since Stanford did not challenge the district court’s
    reliance on the gang affiliation list at sentencing, our review is for plain error.
    See United States v. Romero, 
    491 F.3d 1173
    , 1178 (10th Cir. 2007); see also
    Cordova, 
    461 F.3d at 1186
     (applying plain error review to a sentencing argument
    challenging the revocation of a term of supervised release). “We find plain error
    only when there is (1) error, (2) that is plain, (3) which affects substantial rights,
    and (4) which seriously affects the fairness, integrity, or public reputation of
    judicial proceedings.” Romero, 
    491 F.3d at 1178
    .
    We perceive no error here. While Stanford was not specifically alleged to
    Kelley, 
    359 F.3d at 1304
    .
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    have violated the terms of his supervised release by affiliating with gang
    members, he admitted to being with individuals who were listed as known gang
    members—Dewaun Stanford and Leroy Dye—at the time of his arrest. If
    Stanford or his counsel had challenged Dewaun Stanford’s and Leroy Dye’s gang
    membership at sentencing, the judge would have been required to resolve the
    factual dispute. See Fed. R. Crim. P. 32(i)(3)(B) (“At sentencing, the court [ ]
    must—for any disputed portion of the presentence report or other controverted
    matter—rule on the dispute or determine that a ruling is unnecessary either
    because the matter will not affect sentencing, or because the court will not
    consider the matter in sentencing . . . . ”). However, the court is not required to
    resolve a factual dispute of which it is unaware. See United States v. Wolfe, 
    435 F.3d 1289
    , 1299 (10th Cir. 2006) (“[R]equiring a defendant to challenge any
    factual inaccuracies in the PSR before or during sentencing permits the district
    court to address those objections at a time and place when the district court is
    able to resolve those challenges.”).
    Even if we concluded Stanford’s statement at sentencing that he was not
    with gang members at the time of his arrest was sufficient to trigger the court’s
    factfinding obligation, we would not remand for resentencing because Stanford
    has not shown the court’s consideration of the gang affiliation list affected his
    substantial rights. “In order to demonstrate that an error affected his substantial
    rights, a defendant must show a reasonable probability that the defects in his
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    sentencing altered the result of the proceedings.” United States v. Serrata, 
    425 F.3d 886
    , 917 (10th Cir. 2005) (quotations omitted). Stanford has not made this
    showing. He does not challenge Dewaun Stanford’s and Leroy Dye’s gang
    membership on appeal. Moreover, it is clear from the record the judge would
    have imposed the same sentence even if he had not considered the fact Stanford
    was in the presence of known gang members at the time of his arrest. The judge
    explained to Stanford:
    I have sympathy for people who have drug problems, but I am also
    looking for people who, when they screw up . . . how you react to
    that . . . . And you ran away again. And you were gone for months .
    . . . [I]f you had turned yourself in any time between the end of
    March and having to be picked up . . . in September,
    maybe—maybe— . . . I might have been a little more willing to take
    another shot. But I thought I made it perfectly clear to you at the
    least hearing . . . . If you mess up again, you’re going back. That
    was your last chance, and you had it. And nobody blew it, except
    you.
    (R. Vol. II at 11-12.) Though the judge made passing reference to the gang
    affiliation list, it was clearly not the sole—or even primary—basis for the
    sentence. The record reveals the court was mindful of the relevant sentencing
    consideration, properly treated the Chapter 7 policy statements in an advisory
    rather than mandatory fashion, and imposed a reasoned and reasonable sentence.
    AFFIRMED.
    Entered by the Court:
    Terrence L. O’Brien
    United States Circuit Judge
    -7-
    

Document Info

Docket Number: 19-6133

Citation Numbers: 327 F. App'x 87

Filed Date: 5/13/2009

Precedential Status: Non-Precedential

Modified Date: 1/12/2023