United States v. Khalil Carter , 730 F.3d 187 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 12-3754 & 12-3755
________________
UNITED STATES OF AMERICA
v.
KHALIL CARTER,
AKA Joe Wales,
Appellant
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action
Nos. 2-06-cr-00342-001 / 2-07-cr-00370-001)
District Judge: Honorable Anita B. Brody
________________
Submitted Under Third Circuit LAR 34.1(a)
June 13, 2013
Before: McKEE, Chief Judge,
AMBRO, and GREENBERG, Circuit Judges
(Opinion filed: September 13, 2013)
Thomas A. Dreyer, Esquire
6 Dickinson Drive
Building 100 – Suite 106
Chadds Ford, PA 19317
Counsel for Appellant
Zane David Memeger
United States Attorney
Robert A. Zauzmer
Assistant United States Attorney, Chief of Appeals
Sarah L. Grieb
Assistant United States Attorney
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Appellant Khalil Carter was sentenced to 37 months’
imprisonment for violating his supervised release after he
pled guilty to two separate offenses in state court. In
imposing its sentence, the District Court looked to Carter’s
actual conduct to determine whether he had committed a
2
“crime of violence.” Carter contends that the Court should be
limited to the offenses charged, none of which constitutes a
“crime of violence.” We conclude there was no error. Even
where no crime is actually charged, a district court may
consider a defendant’s actual conduct in concluding that he
has violated the terms of his supervised release through the
commission of a subsequent offense. That particular offense,
moreover, may be a “crime of violence.” Here, however, the
District Court should have set out Carter’s specific crime of
violence. Yet because it provided an alternate basis for
Carter’s sentence, any error was harmless, and we affirm the
sentence imposed.
I. Background
In May 2008, Appellant Khalil Carter pled guilty to
federal charges for conspiracy to use and produce counterfeit
credit cards and armed robbery of a pharmacy. These
convictions resulted in a United States Sentencing Guidelines
(“U.S.S.G.”) range of 121 to 130 months’ imprisonment.
Nonetheless, the District Court exercised its discretion to
sentence Carter to only 45 months’ imprisonment followed by
three years’ supervised release. Carter began supervised
release in November 2009.
The United States Probation Office filed a petition for
revocation of supervised release in November 2011 based on
two incidents. In June 2010, the thirteen-year-old daughter of
Carter’s girlfriend complained that Carter had sexually
assaulted her. Carter pled guilty in state court to
misdemeanors for endangering the welfare of a child and
corruption of a minor. 18 Pa. Cons. Stat. Ann. §§ 4304, 6301.
He was sentenced to five years’ probation. Second, in
October 2011 Carter was arrested for attempting to use stolen
3
credit cards. He pled guilty to access device fraud and was
sentenced to 9 to 23 months’ imprisonment.1 Id. § 4106.
In revoking Carter’s supervised release, the District
Court calculated the applicable range of imprisonment. See
U.S.S.G. § 7B1.4 (2011).2 To do so, it needed to determine
whether Carter had committed a Grade A or Grade B
violation of his release—a significant distinction, as a Grade
B violation would result in a Guidelines range of 6 to 12
months’, while a Grade A violation would raise the range to
27 to 33 months’ imprisonment. Both parties agreed that the
credit card fraud constituted a Grade B violation of Carter’s
supervised release. The Government, however, argued that
the June 2010 sexual assault was a more serious Grade A
violation because it was a “crime of violence” as a “forcible
sex offense,” pointing to evidence of Carter’s actual conduct.
Carter, however, testified that he never touched the girl and
that he never pled to doing so.
After an initial revocation hearing, the Court held a
subsequent hearing in September 2012 to consider the nature
of Carter’s plea and the underlying facts of the case.
Evidence included the victim’s statement, Carter’s guilty plea
transcript, a toxicology report, testimony by the victim’s
1
This second conviction was deemed a violation of Carter’s
probation in a prior case in Delaware County, Pennsylvania,
for which Carter was also sentenced to one to two years’
imprisonment to run consecutively.
2
Unless otherwise noted, all references to the United States
Sentencing Commission Guidelines Manual are to the version
effective November 1, 2011. This was the version in effect
for Carter’s violation hearing at which he was sentenced. See
U.S.S.G. § 1B1.11(a).
4
mother, and an oral statement by Carter. The Court credited
the mother’s testimony, which indicated that Carter had taken
the girl out to dinner, provided her with alcohol, made
inappropriate comments, and touched her genitals while she
pretended to be asleep.
On that evidence, the District Court concluded that
Carter’s conduct amounted to a forcible sexual offense,
classifying it as a “crime of violence” under the Guidelines
and a Grade A violation of supervised release. It further
explained that it was “outrageous” that Carter gave the
underage victim alcohol, and was similarly disappointed that
Carter had committed credit card fraud while on supervised
release for that same offense. App. at 104. Observing that
Carter had abused the “break” he had been given on his initial
sentence, the Court sentenced him to 37 months’
imprisonment—four months above the Guidelines range for a
Grade A offense—to run consecutively to any state sentence,
and explained that it would have imposed the same sentence
regardless whether the sexual assault was a Grade A or B
violation.
In this appeal, Carter contests the determination that
his assault offense was a Grade A violation because he was
not charged with or convicted of such an offense.3 He argues
that this determination caused an incorrect Guidelines range
and therefore a procedurally unreasonable sentence.
3
The District Court had jurisdiction pursuant to 18 U.S.C.
§§ 3231 and 3583(e). We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
5
II. Discussion
A. Standard of Review
In scrutinizing a sentence imposed, “we review a
district court’s legal conclusions regarding the Guidelines de
novo, its application of the Guidelines to the facts for abuse of
discretion, and its factual findings for clear error.” United
States v. Blackmon, 557 F.3d 113, 118 (3d Cir. 2009)
(internal citations omitted). Procedural errors are reviewed
for abuse of discretion with varying degrees of deference
depending on the nature of the particular error asserted.
United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). As
such, “if the asserted procedural error is purely factual, our
review is highly deferential and we will conclude there has
been an abuse of discretion only if the district court’s findings
are clearly erroneous.” Id. On the other hand, we give no
deference to purely legal errors, such as “when a party claims
that the district court misinterpreted the Guidelines.” Id.Facts relevant to the application of the Guidelines are
established by a preponderance of evidence. See United
States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc);
see also 18 U.S.C. § 3583(e)(3) (revocation appropriate if the
court “finds by a preponderance of the evidence that the
defendant violated a condition of supervised release”).
B. Carter’s Sentence
Supervised release requires “that the defendant not
commit another Federal, State, or local crime during the term
of supervision.” 18 U.S.C. § 3583(d). In revoking a term of
supervised release, a district court considers the grade of
violation—A, B, or C, with A being the most serious. See
U.S.S.G. §§ 7b1.1–1.4. The grade of violation directly
affects the Guidelines range for the resulting sentence.
6
1. Categorizing Violations of Supervised
Release
Grade A violations involve “conduct constituting . . . a
federal, state, or local offense punishable by a term of
imprisonment exceeding one year that . . . is a crime of
violence.” U.S.S.G. § 7B1.1(a)(1). A “crime of violence” is
defined in § 4B1.2 and the corresponding commentary.
§ 7B1.1 cmt. n.2. Under § 4B1.2, a crime of violence is “any
offense under federal or state law . . . that . . . has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” The commentary
explains that a “‘[c]rime of violence’ includes . . . forcible sex
offenses.” § 4B1.2 cmt. n.1. Because both parties agree that
the credit card fraud was a Grade B violation, Carter’s
Guidelines range ultimately depends on whether the sexual
assault should be characterized as a more serious Grade A
violation, meaning here whether it was a “crime of violence.”
See § 7B1.1(b) (in the context of multiple violations, “the
grade of the violation is determined by the violation having
the most serious grade”).
Carter argues that none of the state law charges could
support a finding of a forcible sex offense. Specifically, he
explains that those charges either: (1) did not have any
forcible sexual offense as an element; or (2) where forcible
compulsion was one potential element among others, he was
necessarily charged with the provision corresponding to a
lack of consent rather than a use of force. See, e.g., 18 Pa.
Cons. Stat. Ann. § 3125(a)(1), (2) (containing separate
provisions for aggravated indecent assault made either
“without the complainant’s consent” or “by forcible
compulsion”). Carter’s position is that the charges against
him are evidence that he did not commit a forcible sexual
offense,” but his argument seems to assume that a district
7
court may only consider crimes actually charged when
determining the grade of a violation.
We clarify that, because a district court may consider a
defendant’s actual conduct in the revocation context, it is not
limited to the actual charges or convictions in determining the
grade of the violation. As noted above, § 7B1.1 defines a
“crime of violence” by reference to § 4B1.2. This internal
reference may cause confusion, as § 4B1.2 defines a “crime
of violence” for determining whether a defendant is a career
offender, and that context generally requires application of
the formal categorical approach to determine whether a
particular offense is such a crime. United States v. Siegel,
477 F.3d 87, 90 (3d Cir. 2007). To determine if a defined
offense has occurred under the categorical approach, courts
may consider only the statutory language of the offense
committed and the fact of conviction, but not the particular
facts underlying the conviction. 4 Taylor v. United States, 495
U.S. 575, 600 (1990); see also Garcia v. Att’y Gen., 462 F.3d
287, 291 (3d Cir. 2006) (“[W]e must look only to the
statutory definitions of the prior offenses, and may not
consider other evidence concerning the defendant’s prior
4
Similarly, a court may use what is termed a modified
categorical approach solely “when a divisible statute, listing
potential offense elements in the alternative, renders opaque
which element played a part in the defendant’s conviction.”
Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276,
2283 (2013). This “permits sentencing courts to consult a
limited class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis
of the defendant’s prior conviction.” Id. at 2281. The
modified categorical approach nonetheless “retains the
categorical approach’s central feature: a focus on the
elements, rather than the facts, of a crime.” Id. at 2285.
8
crimes, including . . . the particular facts underlying [a]
conviction.” (citation and internal quotation marks omitted)).
In the revocation context, however, the categorical
approach does not apply, and district courts may consider a
defendant’s actual conduct in determining whether they have
broken the law and thus the terms of their supervised release.
The Guidelines provide that a violation of supervised release
“does not depend upon the conduct that is the subject of
criminal charges or of which the defendant is convicted in a
criminal proceeding.” U.S.S.G. § 7B1.1 cmt. n.1. Instead,
“the grade of the violation is to be based on the defendant’s
actual conduct,” and “may be charged whether or not the
defendant has been the subject of a separate federal, state or
local prosecution for such conduct.” Id. (emphases added).
We have previously explained that “there is no
requirement of conviction or even indictment” to find that a
defendant has violated supervised release by committing a
crime. United States v. Poellnitz, 372 F.3d 562, 566 (3d Cir.
2004). This approach comports with other courts of appeals
that have considered the issue. See United States v. Jones,
696 F.3d 932, 937 (9th Cir. 2012) (“[U]ncharged conduct . . .
can form the basis of a supervised release violation even
when the defendant has not been charged or convicted.”);
United States v. McNeil, 415 F.3d 273, 278 (2d Cir. 2005)
(“[T]he grade classification rests on the ‘actual conduct’
underlying the charged violation supporting the revocation of
release regardless of whether or how the defendant may be
charged in a criminal prosecution for the same underlying
conduct.”); United States v. Trotter, 270 F.3d 1150, 1155 (7th
Cir. 2001) (“Revocation of supervised release . . . proceeds on
real-offense rather than charge-offense principles.”); United
States v. Schwab, 85 F.3d 326, 327 (8th Cir. 1996) (per
curiam) (same).
9
Thus, a district court may inquire as to the particulars
of a defendant’s actions in determining whether he has
violated his release by committing “another Federal, State, or
local crime during the term of supervision.” 18 U.S.C.
§ 3583(d). Because revocation of release can proceed even
without charges being filed, the categorical approach is
necessarily not applicable in the revocation context. Hence
we conclude that the District Court was entitled to rely on the
facts presented at the revocation hearing in analyzing the
nature of Carter’s violation, and was not limited by the
charges filed or offenses of conviction.
2. The District Court’s Findings
In this case, the District Court held that Carter had
committed “a forcible sexual offense under the [G]uidelines”
and thus a “crime of violence” under § 7B1.1(a)(1).
However, it did not name the specific forcible sex offense that
it believed Carter had committed. Although the Court was
entitled to find such a violation by a preponderance of
evidence in considering his actual conduct, it should have
indicated the particular “crime of violence” for which Carter
was responsible. In classifying violations of supervised
release, § 7B1.1(a) requires that the defendant commit a
federal, state, or local offense. Furthermore, in determining
whether an offense is a “crime of violence,” § 4B1.2 requires
that it contain an element of force. It is therefore not enough
to say that a defendant’s actions were simply violent or
forcible without pointing to a crime containing those same
elements.
This omission leaves us unable to review the Court’s
exercise of discretion. See Primas v. Dist. of Columbia, 719
F.3d 693, 699 (D.C. Cir. 2013) (“[T]he district court’s failure
to explain itself leaves us ‘unable to review the . . . exercise
of its discretion.’” (quoting E.E.O.C. v. Nat’l Children’s Ctr.,
10
Inc., 98 F.3d 1406, 1410 (D.C. Cir. 1996)); United States v.
Loy, 191 F.3d 360, 371 (3d Cir. 1999) (remanding where the
district court failed to explain why it imposed special
conditions of supervised release, as required by 18 U.S.C.
§ 3553(c), and explaining that such reasoning “ensures that
appellate review does not ‘flounder in the zone of
speculation’” (quoting United States v. Edgin, 92 F.3d 1044,
1049 (10th Cir. 1996)). We decline to speculate which
federal or state offense the Court believed had been
committed, and for this reason we cannot determine whether
it was appropriately a “crime of violence.” 5
An error requires correction if it is not harmless. We
are satisfied, however, that the error here was harmless
because the District Court explained that it would have
ordered the same sentence even without finding a “crime of
5
As such, we express no opinion on whether Carter’s actions
constituted a forcible sex offense qualifying as a crime of
violence. We have previously held—in regard to § 2L1.2 of
the Guidelines—“that the Sentencing Commission did not
mean to limit ‘forcible sexual offenses’ to those involving the
application of direct physical force, as opposed to some other
type of compulsion.” United States v. Remoi, 404 F.3d 789,
794 (3d Cir. 2005). Though we need not decide the issue, we
are skeptical that Remoi applies in the § 4B1.2(a)(1) context,
which, unlike § 2L1.2, specifically requires “as an element
the use, attempted use, or threatened use of physical force.”
Compare § 4B1.2(a)(1), with § 2L1.2(b)(1)(A). Moreover, in
United States v. Siegel, 477 F.3d 87 (3d Cir. 2007), we
explained that sexual offenses involving “insignificant or
minor touching” should not be automatically “shoehorned”
into “crimes of violence” under § 4B1.2. Id. at 92.
11
violence.” See, e.g., United States v. Jackson, 549 F.3d 1115(7th Cir. 2008) (holding that any error in the sentence
imposed following revocation of release was harmless
“[b]ecause the district court made clear that it would have
imposed the same prison term upon him regardless of whether
his [crime] was classified as a crime of violence or not”).
In evaluating harmlessness, we “decide whether the
district court would have imposed the same sentence had it
not relied upon the invalid factor.” Williams v. United States,
503 U.S. 193, 203 (1992); see also United States v. Langford,
516 F.3d 205, 215 (3d Cir. 2008) (explaining that harmless
error can occur where it is “clear that the error did not affect
the district court’s selection of the sentence imposed”). We
remain mindful that “when the starting point for the . . .
analysis is incorrect, the end point, i.e., the resulting sentence,
can rarely be shown to be unaffected.” Langford, 516 F.3d at
217. Specifically, an error is not harmless where a district
court simply states that it would have imposed the same
sentence without pointing to the alternative Guidelines range
and explaining its decision to arrive at the specific sentence.
United States v. Wright, 642 F.3d 148, 154 n.6 (3d Cir. 2011).
It appears that the Court in our case was aware that
Carter’s Guidelines range for a Grade B violation was 6 to 12
months’ imprisonment, while the range for a Grade A
violation was 27 to 33 months. App. at 50. Here, the Court
exercised its discretion and imposed a sentence of 37 months’
imprisonment as an “appropriate sentence . . . [,] whether it
was an A violation or a B violation.” Id. at 104. In departing
upward from both ranges, the District Court stressed that
Carter had committed the same sort of credit card fraud for
which he was serving supervised release, had given his
underage victim alcohol, and had abused the leniency shown
by the Court at his initial sentencing. Id. We cannot
conclude this was an abuse of discretion.
12
III. Conclusion
The categorical approach does not apply when
imposing a sentence in revoking a term of supervised release
under U.S.S.G. § 7B1.3. A district court may consider a
defendant’s actual conduct when determining—by a
preponderance of evidence—whether that defendant violated
the terms of his release by breaking the law. In doing so, the
court must point to a provision of law that has been broken.
Though it did not do so explicitly here, we are still able to
affirm the sentence imposed based on the District Court’s
alternative sentence calculation and explanation of the
reasons it found 37 months’ imprisonment an appropriate
sentence for Carter’s supervised release violations.
13
United States v. Khalil Carter, Nos. 12-3754/5
McKEE, Chief Judge, concurring.
I join the Majority Opinion in its entirety. For the
reasons my colleagues explain, I agree that courts may
consider a defendant’s actual conduct in order to properly
classify a violation of supervised release as the District Court
did here.1 However, I write separately to emphasize that the
inquiry underlying a sentence for violating the terms of
supervised release is quite different from that required to
determine the appropriate sentence for the commission of a
crime. When the basis of a supervised release violation is the
commission of a new crime, the supervising court should not
impose a sentence to punish the defendant for that new
offense. Punishment is best left to the judge who is assigned
to handle the new criminal case. The judge whose supervised
release is violated should instead “sanction the violator for
failing to abide by the conditions of the court-ordered
supervision,” U.S.S.G. ch. 7, pt. A3(b), and impose a
sentence that will “facilitate the integration of offenders back
into the community.” United States v. Murray, 692 F.3d 273,
280 (3d Cir. 2012) (quoting United States v. Albertson, 645
F.3d 191, 197 (3d Cir. 2011)).
I.
As noted by my colleagues, our “review of sentencing
decisions is limited to determining whether they are
1
I refer to supervised release because Carter was sentenced
for violating supervised release. I note, however, that courts
generally treat “violations of the conditions of probation and
supervised release as functionally equivalent” because both
are violations of court-ordered supervision. U.S.S.G. ch. 7,
pt. B, introductory cmt.; see, e.g., United States v. Frazier, 26
F.3d 110, 113 (11th Cir. 1994) (“[W]e believe that Congress
considered probation revocation and supervised release
revocation to be so analogous as to be interchangeable.”).
Therefore, although I refer to “supervised release,” my
comments also apply to sentences imposed for violations of
probation.
‘reasonable’” under the familiar “abuse of discretion”
standard of review. Gall v. United States, 552 U.S. 38, 46
(2007); Maj. Op. at 5. Our inquiry entails examining whether
a district court correctly followed the prescribed procedure
for imposing a sentence. The court must determine the
advisory sentencing range in the U.S. Sentencing
Commission Guidelines Manual. It must then rule on
motions for departure and, if a motion is granted, explain how
it affects the advisory sentencing range. Lastly, the court
must afford the parties an opportunity to argue for whatever
sentence they deem appropriate, and decide upon an
appropriate sentence after considering the applicable
sentencing factors in 18 U.S.C. § 3553(a). See United States
v. Lofink, 564 F.3d 232, 237-38 (3d Cir. 2009); United States
v. Bungar, 478 F.3d 540, 543-44 (3d Cir. 2007).
As my colleagues explain, the District Court erred at
the first step in deciding upon an appropriate sentence for
Carter’s violation of supervised release. It failed to identify
the specific sex offense Carter committed. That
determination was key to selecting the appropriate advisory
sentencing range. See Maj. Op. at 9-10.
II.
To determine whether a sentence is reasonable, we
examine “whether the record as a whole reflects rational and
meaningful consideration of the factors enumerated in 18
U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571
(3d Cir. 2007) (en banc) (citation omitted). A district court
need not “discuss and make findings as to each of the §
3553(a) factors,” but it “must be clear that the district court
understood and reasonably discharged its obligation to take
all of the relevant factors into account in imposing a final
sentence.” United States v. Kulick, 629 F.3d 165, 176 (3d
Cir. 2010); Grier, 475 F.3d at 571 (citation omitted).
18 U.S.C. § 3583(e) specifically applies to a
sentencing for a violation of supervised release. That
provision is entitled: “Modification of Conditions or
Revocation.” It states, in relevant part, that a court should
refer to the following subsections of 18 U.S.C. § 3553(a)
when modifying or revoking a term of supervised release:
2
(1) the nature and circumstances of the offense
and the history and characteristic of the
defendant;
(2) the need for the imposed sentence--
...
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from further
crimes of the defendant;
(D) to provide the defendant with the
needed educational or vocational
training, medical care, or other
correctional treatment in the most
effective manner;
(4) the kinds of sentence and the sentencing
range established for . . . the applicable category
offense committed by the applicable category of
defendant as set forth in the guidelines . . .
(5) any pertinent policy statement . . . issued by
the Sentencing Commission …;
(6) the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct; and
(7) the need to provide restitution to any victims
of the offense.
(emphasis added).
Notably, § 3583(e) omits consideration of §
3553(a)(2)(A), which directs courts to the punitive purposes
of sentencing. See 18 U.S.C. § 3553(a)(2)(A) (providing that
a court shall consider the need for the sentence imposed “to
reflect the seriousness of the offense, to promote respect for
3
the law, and to provide just punishment for the offense.”);
Bungar, 478 F.3d at 543 n.2.
The punitive purposes of sentencing are omitted from
consideration under § 3583(e) because they are inconsistent
with the primary purpose of supervised release —“to
facilitate the integration of offenders back into the
community.” Murray, 692 F.3d at 280 (quoting Albertson,
645 F.3d at 197). 2 The Supreme Court has made it clear that
“Congress intended supervised release to assist individuals in
their transition to community life. Supervised release fulfills
rehabilitative ends, distinct from those served by
incarceration.” United States v. Johnson, 529 U.S. 53, 59
(2000) (citations omitted); see also S. REP. NO. 98-225, at
124 (1983) (“[t]he primary goal of such a term is to ease the
defendant’s transition into the community after the service of
a long prison term for a particularly serious offense, or to
provide rehabilitation to a defendant who has spent a fairly
short period in prison for punishment or other purposes but
still needs supervision and training programs after release.”).3
This focus on the need to assist in the offender’s
rehabilitation will frequently counsel against responding to a
violation of supervised release by imposing a custodial
sentence at all because incarceration does not advance the
primary focus of successful reintegration into society. See
Tapia v. United States, 131 S. Ct. 2382, 2390 (2011) (“Do not
think about prison as a way to rehabilitate an offender.”); and
28 U.S.C. § 994(k) (“The Commission shall insure that the
2
But see United States v. Young, 634 F.3d 233, 241 (3d Cir.
2011) (“[C]onsideration of, and explicit reference to, the §
3553(a)(2)(A) factors in imposing a sentence for the violation
of supervised release is not a procedural error that renders the
sentence per se unreasonable. Of course, there may be a case
where a court places undue weight on the seriousness of the
violation or the need for the sentence to promote respect for
the law and provide just punishment.”).
3
The reason that courts need to be concerned with an
offender’s successful reentry into society is clear; it is beyond
dispute that the vast majority of all offenders sentenced to
prison will one day be released back into the community.
4
guidelines reflect the inappropriateness of imposing a
sentence to a term of imprisonment for the purpose of
rehabilitating the defendant or providing the defendant with
needed educational or vocational training, medical care, or
other correctional treatment.”).
Rather than attempting to punish for the new criminal
conduct, “the sentence imposed upon revocation [is] intended
to sanction the violator for failing to abide by the conditions
of the court-ordered supervision,” which is referred to as a
“breach of trust.” U.S.S.G. ch. 7, pt. A3(b). As the
Sentencing Commission explains, and as I noted at the outset,
“the court with jurisdiction over the criminal conduct leading
to revocation is the more appropriate body to impose
punishment for that new criminal conduct, and that, as a
breach of trust inherent in the conditions of supervision, the
sanction for the violation of trust should be in addition, or
consecutive, to any sentence imposed for the new conduct.”
Id.; see also Bungar, 478 F.3d at 544 (A “[s]entence is
imposed for [a] violation[] of supervised release primarily to
sanction the defendant’s breach of trust . . .”).4
The record here could be interpreted in a manner that
would raise a concern that the District Court may not have
“reasonably discharged its obligation to take all of the
relevant factors into account in imposing [its] final sentence.”
Grier, 475 F.3d at 571 (citation omitted) (emphasis added).
The transcripts from Carter’s two violation hearings do not
indicate that the Court considered § 3553(a)(2)(D), which
would have focused the Court’s attention on the need to
provide Carter with “educational or vocational training,
medical care, or other correctional treatment in the most
effective manner.” Cf. United States v. Olhovsky, 562 F.3d
530, 549 (3d Cir. 2009) (“[I]t is exceedingly difficult to
review this sentencing transcript without becoming convinced
4
Nevertheless, as I note below, see infra at III, the
overarching principle of parsimony applies to revocation
proceedings as well as to the initial sentencing, see 18 U.S.C.
§ 3553(a), and fidelity to that principle may preclude the
imposition of additional incarceration absent concerns of
public safety.
5
that the district court was so appalled by the offense that it
lost sight of the offender.”). Rather, imprisonment appears to
have been the primary focus. See, e.g., App. at 104.5
Nevertheless, a reviewing court can affirm a sentence
even if the sentencing court did not elaborate all of the factors
considered, so long as the record is sufficient to conclude that
the sentencing court considered the appropriate factors, and
the resulting sentence is reasonable. See Kulick, 629 F.3d at
176. Here, it is clear that the Court was very concerned with
the need to protect the public from Carter’s predatory
behavior, and that concern was more than justified by
Carter’s conduct while on supervised release.6 Given Carter’s
conduct, and the danger he posed to the most defenseless
members of the community, the custodial sentence imposed
5
Specifically, the transcripts from Carter’s violation hearings
indicate that he Court accounted for §§ 3553(a)(1), (4), (5)
and (6) by hearing in-depth arguments, and examining
evidence, from both parties on whether Carter’s conduct
constituted a “forcible sex offense” and, was thus a “crime of
violence,” giving rise to a Grade A supervised release
violation under Policy Statement § 7B1.1 of the Guidelines.
See, e.g., App. at 38-50; 104-05. That inquiry presumably
included some consideration of § 3553(a)(2)(B) and (C)—the
need for deterrence and to protect the public—because the
Court departed upward from the advisory range of 27 to 33-
months to impose a 37-month sentence. See App. at 104.
Section 3553(a)(7) was apparently accounted for because the
Court required that previously ordered, yet unpaid, restitution
be satisfied. See App. at 105.
6
In United States v. Bungar, a similar concern supported a
sentence of five years imprisonment based on new offenses
committed by a defendant on supervised release. 478 F.3d at
546 (“the Court sentenced Bungar above the suggested range
based on its concerns that his return to illegal conduct, his
extensive history of violent criminal offenses, and the recent
evidence of domestic violence, showed not only that he
continued to pose a threat to the community, but constituted a
significant breach of the considerable trust that the Court
reposed in him by granting a generous downward departure
[in his initial sentencing] in 1997”).
6
was reasonable and there is no need for a remand to cure the
procedural imperfections.
III.
Although I agree that remand is not warranted, it is
nevertheless important to emphasize that § 3553(a) provides
that “a court must impose a sentence that is ‘sufficient but not
greater than necessary, to comply with purposes of
sentencing.’ This requirement is often referred to as ‘the
parsimony provision,’ and the Supreme Court has referred to
it as the ‘overarching instruction’ of 18 U.S.C. § 3553(a).”
Olhovsky, 562 F.3d at 547-48 (citing Kimbrough v. United
States, 552 U.S. 85, 101 (2007)).
Considerations of parsimony appear to be particularly
appropriate when a court is focused on assisting with
reintegration into society rather than punishing criminal
behavior. However, given the nature of Carter’s violation, I
believe the record is sufficient to establish that the Court
acted reasonably in imposing a custodial sentence that clearly
appears to have been driven by the Court’s concern for the
danger Carter posed to the community rather than the
objective of rehabilitation that would have otherwise
restrained the Court’s discretion in such a proceeding. See 18
U.S.C. § 3553(a)(2)(C).
7