Filed: Dec. 03, 2009
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT Dec. 03, 2009 No. 09-12209 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 02-00011-CR-4-SPM-AK UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSEPH WAYNE OLIVER, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (December 3, 2009) Before EDMONDSON, BIRCH and FAY, Circuit Judges. PER CURIAM:
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT Dec. 03, 2009 No. 09-12209 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 02-00011-CR-4-SPM-AK UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSEPH WAYNE OLIVER, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (December 3, 2009) Before EDMONDSON, BIRCH and FAY, Circuit Judges. PER CURIAM: J..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 03, 2009
No. 09-12209 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00011-CR-4-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH WAYNE OLIVER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 3, 2009)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Joseph Wayne Oliver appeals the district court’s judgment revoking his
supervised release under 18 U.S.C. § 3583(e)(3) and imposing a sentence of eight
months’ imprisonment. Oliver argues that (1) the government failed to show that
he willfully violated the conditions of his supervision, (2) the district court abused
its discretion by failing to set forth sufficient reasons for revoking his supervised
release, and (3) the district court failed to set forth sufficient reasons for sentencing
him to eight months’ imprisonment. For the reasons set forth below, we affirm.
I.
In 2002, Oliver pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and was sentenced to 70 months’
imprisonment and 3 years of supervised release. The terms of Oliver’s supervision
prohibited him from unlawfully using or possessing a controlled substance and
required him to participate in a substance abuse and mental health program, as
directed by the probation officer. On appeal, we affirmed his sentence. Oliver
began serving his term of supervised release in June 2007.
In February 2009, the probation officer, Michael Sobeski, filed a petition
requesting that the district court revoke Oliver’s supervised release. Sobeski
alleged that Oliver had violated the conditions of his supervision by: 1) testing
positive for marijuana on June 12, 2008; 2) failing to attend his scheduled drug
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treatment appointment with Dr. Nancy Wonder on December 11, 2008; and 3)
failing to attend his scheduled mental health treatment appointment with Dr.
Wonder on the same date.
At the revocation hearing, Sobeski testified that during one of his visits to
Oliver’s house, Oliver informed him that “he couldn’t take a test now because he
just took some Marinol tablets from . . . his sister-in-law.” Oliver took the drug
test and tested positive for marijuana. Sobeski explained that Marinol was a type
of synthetic marijuana and that taking another person’s prescription medication
constituted a violation of Oliver’s supervised release. Sobeski stated that he
subsequently referred Oliver to a mental health and drug treatment program. He
stated that Oliver failed to participate in the mental health treatment on “multiple
occasions.” Sobeski called Oliver two days before his December 11, 2008
appointment and reminded him to attend, but Oliver did not attend. Oliver later
informed Sobeski that he could not make the appointment because the road was
impassable due to a storm the night before. However, Sobeski testified that two
electric company employees informed him that the road in question was passable
on the morning of Oliver’s appointment.
Phyllis Young-Oliver (“Phyllis”), the ex-wife of Oliver’s brother, testified
that she was then living with Oliver, who had no means of transportation. She
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testified that she attempted to drive Oliver to his December 11, 2008, appointment,
but, due to a storm the previous night, the only road leading into town was
“washed out” and impassable, and the electricity was out, preventing them from
making any calls. Phyllis, a former nurse, admitted giving Oliver Marinol, but she
explained that she gave it to him to help ease his nausea from a stomach virus.
Oliver testified that he took the Marinol to help ease his stomach pain, but
that he did not know what Marinol was or that it was a controlled substance. With
respect to the December 11, 2008, appointment, Oliver testified that the only road
into town was impassable that morning, and, although he attempted to remove
some of the downed trees with a saw, he stopped when he saw a downed electrical
line on the road.
The court stated that it had considered the parties’ statements, as well as the
witnesses’ testimony and the information contained in the violation report, and it
found that Oliver had violated his supervised release. The court pronounced its
sentence as follows:
I have fully considered the factors set out in 18, United
States Code, section 3553(a), including the applicable
guidelines and the policy statements issued by the
Sentencing Commission.
I recognize that the guidelines are not binding upon me
and I have tailored the sentence to take into account the
facts and circumstances surrounding this particular case.
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Pursuant to the Sentencing Reform Act of 1984 and all
amendments, your term of supervised release is revoked.
You are hereby committed to the custody of Bureau of
Prisons for a term of eight months.
Defense counsel objected on the ground that “the evidence did not support the
Court’s finding that [Oliver] willfully violated his supervised release.”
Oliver appealed and we remanded, instructing the district court to set forth
its reasons for revoking Oliver’s supervised release. See United States v. Oliver,
No. 09-12209 (11th Cir. Sept. 23, 2009).
On remand, the district court noted that it was undisputed that (1) Oliver had
taken Marinol, a prescription medication, which resulted in a positive urine test for
marijuana, and (2) Oliver did not attend a scheduled appointment with Dr. Wonder
on December 11, 2008 and had not participated in regular counseling sessions
before or after that date. The court explained that Oliver’s testimony was not
credible, that Oliver knew that Marinol was a prescription drug, and that taking the
drug would result in a violation of the conditions of his supervised release. It
noted that Oliver told Sobeski that he could not take a drug test because he had
taken the Marinol. With respect to the counseling sessions, the court also found
Oliver’s testimony about the condition of the road “not entirely credible.” It noted
that electric company employees told Sobeski that the road was passable on the
morning of December 11, 2008, and that Oliver’s failure to attend counseling
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sessions before and after December 11, 2008, “demonstrate that he has not made a
good faith effort to participate in a program of mental health and drug treatment.”
Finally, the court stated that the eight-month sentence was sufficient, but not
greater than necessary to meet the purposes of 18 U.S.C. § 3553(a), specifically,
“the need to promote respect for the law, provide just punishment, and afford
adequate deterrence to others.”
II.
Government’s Proof of Supervised Release Violation
We “review the district court’s conclusion that [an] appellant violated the
terms of his supervised release for abuse of discretion.” United States v.
Copeland, 20 F.3d 412, 413 (11th Cir. 1994). We are bound by the district court’s
findings of fact unless they are clearly erroneous. United States v. Almand,
992
F.2d 316, 318 (11th Cir. 1993). “The credibility of a witness is in the province of
the factfinder and [we] will not ordinarily review the factfinder’s determination of
credibility.”
Copeland, 20 F.3d at 413.
A district court may “revoke a term of supervised release . . . if the
court . . . finds by a preponderance of the evidence that the defendant violated a
condition of supervised release. . . . .” 18 U.S.C. § 3583(e)(3).
The district court on remand determined that Oliver willfully violated his
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supervised release. It stated that Oliver “willfully used Marinol, a controlled
substance,” made virtually no effort to participate in mental health and drug
treatment,” and “has shown that he simply is not willing to comply with conditions
of supervised release.” This determination was supported by a preponderance of
the evidence.
Initially, we accept the district court’s determination that Oliver’s testimony
was not credible. See Copeland, 20 F.3d at 413 (holding that we “will not
ordinarily review the factfinder’s determination of credibility”). At the revocation
hearing, Sobeski testified that Oliver told him that he could not take the drug test
because he had taken Marinol. This indicates that Oliver knew that Marinol was a
controlled substance, and that the drug test would show that he had violated the
terms of his supervised release. Sobeski testified that Oliver told him that the
Marinol belonged to his sister-in-law and also testified that taking another person’s
prescription medication constituted a supervised release violation. Finally, Sobeski
testified that Oliver failed to attend mental health treatment appointments on
“multiple occasions” and that electric company employees informed him that the
road Oliver took to the meeting was clear on the morning of December 11, 2008.
Accordingly, a preponderance of the evidence supports the district court’s
determination that Oliver willfully violated the terms of his supervised release.
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District Court’s Statement of Reasons for Revoking Supervised Release
In Copeland, we clarified that due process requires the district court to state
“the reasons for the revocation of supervised release and the evidence the decision
maker relied upon.” Copeland, 20 F.3d at 414. In that case, we concluded that the
district court provided sufficient reasons because it “set forth the specific witness
testimony it relied upon in reaching its conclusions, its reasons for crediting [a]
witness, and its justification for revoking appellant’s supervised release.”
Id. at
415. “[G]eneral conclusory reasons . . . do not meet [the] due process requirement
that the revoking judge state the factual findings and the reasons relied upon for
revocation.” United States v. Lacey,
648 F.2d 441, 445 (5th Cir. Unit A June
1981).
The district court here adequately explained its reasons for revoking Oliver’s
supervised release. It noted that the parties did not dispute that Oliver took
Marinol on or around June 12, 2008, and that the Marinol resulted in a positive
urine test for marijuana. It also noted that it had considered Sobeski’s testimony
that he received information from the electric company that contradicted Oliver’s
testimony regarding the blocked road. Finally, the district court stated that it
discredited Oliver’s testimony that he did not know that taking the Marinol would
constitute a violation of the terms of his supervised release. It explained that
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Oliver’s testimony was not credible because he knew that Marinol was a
prescription drug and his testimony regarding the condition of the road was
contradicted by representations electric company employees made to Sobeski.
Because the district court “set forth the specific witness testimony it relied upon in
reaching its conclusions, its reasons for crediting . . . witness[es], and its
justification for revoking supervised release,” it did not abuse its discretion in
revoking Oliver’s supervised release. See Copeland, 20 F.3d at 415.
District Court’s Statement of Reasons for Imposing Eight-Month Sentence
We review a sentence imposed upon revocation of supervised release for
reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.
2006). “Under 18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of
supervised release, revoke the term of supervised release and impose a term of
imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”
Id. at 1107; See 18 U.S.C. § 3583(e)(3). The district court is not required to “state
on the record that it has explicitly considered each of the § 3553(a) factors or to
discuss each of the § 3553(a) factors.” United States v. Scott,
426 F.3d 1324, 1329
(11th Cir. 2005).
At Oliver’s revocation hearing, the district court specifically stated that it
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had “fully considered the factors set out in 18, United States Code, section
3553(a).” The court specifically explained that the eight-month sentence was
“needed to promote respect for the law, provide just punishment, and afford
adequate deterrence to others.” Although the district court did not specifically
discuss Oliver’s rehabilitative needs, it is not required to explicitly state each
§ 3553(a) factors that it considers, or to methodically discuss each factor. See
Scott, 426 F.3d at 1329. Thus, the district court adequately considered the
§ 3553(a) sentencing factors and explained its reasons for imposing the
eight-month sentence. Accordingly, we affirm the revocation of Oliver’s
supervised release, as well as his eight-month sentence.
AFFIRMED.
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