United States v. Don Elbert, II ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3014
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Don L. Elbert, II
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Western Division
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Submitted: September 24, 2018
Filed: January 8, 2019
[Unpublished]
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
Don L. Elbert, II, admitted to violating a special condition of his supervised
release and was sentenced by the district court1 to 10 months of imprisonment and 12
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The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
years of supervised release for this violation. He argues on appeal that his admission
was not knowing and voluntary and that his sentence was unreasonable. Upon review,
we affirm.
In 2007, Elbert was charged with and ultimately pled guilty to sex trafficking
of a child in violation of 18 U.S.C. § 1591. See United States v. Elbert, 561 F.3d 771
(8th Cir. 2009). He was sentenced to 96 months of imprisonment and 15 years of
supervised release.
Elbert began his supervised release in late 2013. Within a short time, he
committed multiple violations of the conditions of his release. As a result, his
supervised release was revoked and in early 2014 he was sentenced to a 36-month
term of imprisonment and 15 years of supervised release. See United States v. Elbert,
617 F. App’x 599 (8th Cir. 2015).
Elbert began his second term of supervised release in late 2016. Within weeks,
he tested positive for using cocaine, a violation of his release conditions. In April
2017, his probation officer issued another violation report, recommending that a
warrant be issued for his arrest and alleging four violations of his supervised release:
committing a crime by working as a prostitute, possessing (adult) pornography, failing
a polygraph question regarding having sexual contact with a minor, and failing to
attend sex offender treatment. The warrant was issued and Elbert was arrested.
At the preliminary revocation hearing, Elbert’s counsel indicated that he and
Elbert had both reviewed the violation report and had met together. Elbert’s counsel
waived the preliminary hearing. At the final revocation hearing, the court asked
Elbert’s counsel whether he had the opportunity to go over the report with Elbert, and
he indicated he had. Elbert’s counsel then said, “Mr. Elbert is – intends to admit to
one of those . . . allegations,” namely the violation of the condition prohibiting
possession of pornography. In response to this admission, the Government declined
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to offer evidence on the other three alleged violations. The court accepted the
admission and found that Elbert had violated the condition. The Government and
Elbert’s counsel both recommended a sentence of 10 months of imprisonment and 12
years of supervised release. The district court then gave Elbert the opportunity to
address the court. Elbert asked about where he would be staying once he was
released, which the court was unable to answer conclusively, although it indicated a
halfway house was likely. Elbert did not dispute the admission his counsel had just
made to the violation or give any indication he was not in agreement with his counsel.
The court then imposed the recommended sentence.
Elbert argues on appeal that the district court erred in accepting his admission
because it failed to ensure that the admission was knowing and voluntary and also that
the district court’s sentence was unreasonable. Because Elbert failed to object at his
revocation hearing, our review is for plain error. See United States v. Taylor, 747 F.3d
516, 519 (8th Cir. 2014). We conclude Elbert’s admission was knowing and
voluntary.
Unlike accepting a guilty plea, which under Federal Rule of Criminal Procedure
11 “requires an affirmative showing that the plea is intelligent and voluntary,”
accepting an admission at a revocation of supervised release does not require an
affirmative showing on the record. Taylor, 747 F.3d at 519; Fed. R. Crim. P. 32.1.
There is no evidence here that Elbert’s admission was not knowing and voluntary.
Elbert and his counsel had reviewed and gone over the violation report and Elbert’s
counsel admitted the violation at the revocation hearing in Elbert’s presence. Elbert
was given the opportunity to speak and did not object to the admission. On these
facts, we cannot conclude that the district court erred by accepting Elbert’s admission.
Elbert also argues his sentence was not substantively reasonable. However,
Elbert has affirmatively waived his challenge to the reasonableness of his sentence.
See United States v. Chavarria–Ortiz, 828 F.3d 668, 671 (8th Cir. 2016) (“Waiver
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precludes appellate review, while forfeiture limits consideration to a rigorous
plain-error standard.”); United States v. Harrison, 393 F.3d 805, 807–08 (8th Cir.
2005) (“A defendant who explicitly and voluntarily exposes himself to a specific
sentence may not challenge that punishment on appeal.” (quoting United States v.
Nguyen, 46 F.3d 781, 783 (8th Cir. 1995))). He explicitly asked for a sentence of 10
months of imprisonment and 12 years of supervised release. Elbert cannot now
complain that the district court gave him precisely what he requested.
For the foregoing reasons, we affirm.
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