LEONARD T. STRAND, Magistrate Judge.
This case is before me on a petition (Doc. No. 73) (the Petition) to revoke defendant Ronald Rupp's supervised release. The Honorable Donald E. O'Brien has referred the Petition to me for the issuance of a report and recommended disposition. Doc. No. 78. I held an evidentiary hearing on February 12, 2015. Plaintiff (the Government) was represented by Assistant United States Attorney Jack Lammers. United States Probation Officer Dustin Lutgen was also present. Rupp appeared in person and with his attorney, R. Scott Rhinehart. During the hearing, Rupp admitted (through counsel) the violations described in the Petition as alleged Violation Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 13. He denied alleged Violation Nos. 9, 10, 11(a), 11(b), 11(c) and 12.
The Government called Lutgen as a witness, as well as Sioux City Police Officer William Enockson. Rupp called Brittney Vondrak as a witness and also offered one exhibit, Defense Exhibit A, which was received into evidence with no objection. I advised Rupp of his right to make a statement but he elected not to do so.
On September 8, 2004, Rupp was sentenced to 92 months imprisonment
Judge O'Brien revoked Rupp's first TSR on January 4, 2013, sentenced him to time served and ordered that he be released on supervision for the remainder of his original term, which is scheduled to expire February 24, 2015.
The new alleged violations, which are described in the Petition as Violation Nos. 7 through 13, commenced on September 3, 2014. On that date, Rupp admits that he provided false information to Lutgen about an encounter he had with law enforcement on August 29, 2014. This constitutes alleged Violation No. 7 (false statement to Probation). Because Rupp has admitted the alleged conduct, I find that this violation occurred.
On October 23, 2014, Rupp had a discussion with Lutgen about an acquaintance, Nicole Ramirez. Rupp stated that Ramirez is a drug user and acknowledged that he had been associating with her. This constitutes alleged Violation No. 8 (association with person engaged in criminal activity). Because Rupp has admitted the alleged conduct, I find that this violation occurred. During their discussion, Lutgen directed Rupp to have no further contact with Ramirez.
On October 24, 2014, Rupp reported for random urinalysis but was unable to void a sufficient amount of urine for testing. This constitutes alleged Violation No. 9 (failure to comply with drug testing). Because the Government presented no evidence that this was intentional, or that similar incidents happened on other occasions, I find that the Government did not prove this violation.
On October 27, 2014, Lutgen received separate communications from Rupp and Ramirez to the effect that Ramirez had switched Rupp's e-cigarette with one that had "dope" in it. In effect, if the communications were accurate, Ramirez set Rupp up for a violation by causing him to ingest a controlled substance. Lutgen directed Rupp to report for urinalysis. The result was positive for methamphetamine. This constitutes alleged Violation No. 10 (use of a controlled substance). Based on the evidence presented during the hearing, the Government indicated that it is not asking the court to make a finding that this incident amounted to a violation. As such (and because I agree), I find that the Government did not prove this violation.
On November 21, 2014, Rupp contacted Lutgen and advised him that he had been in a traffic accident and had been cited for failure to stop within an assured clear distance and failure to provide proof of insurance. Lutgen then confirmed that the incident had occurred on November 17, 2014, and that Rupp had been cited consistent with his report. This constitutes alleged Violation No. 11(a) (law violation). Based on Lutgen's testimony that Rupp admitted the relevant events, I find that the Government proved this violation.
On December 7, 2014, Rupp was involved in an incident that forms the basis of the most hotly-contested allegation, which is alleged Violation 11(b) (law violation). The basic facts are not in great dispute, and are established by Enockson's testimony. At approximately 2:50 a.m., Enockson was on patrol in full uniform and driving a marked police vehicle. He observed a white truck stopped on a city street with its brake lights on and the engine running. He stopped to investigate and observed the driver, who turned out to be Rupp, sleeping or otherwise unresponsive in the driver's seat, slumped slightly over to the right. Enockson also noted that the vehicle was in "Drive," but was not moving because the brakes were being applied. Enockson called for backup from his cover officer and intended to wait for that officer to arrive. However, the vehicle began to move forward slowly, apparently due to decreased pressure being applied to the brake pedal. At that point, Enockson felt that he had no choice but to awake the driver. He knocked on the driver's window while shining his flashlight through it. He then saw Rupp awaken and look toward him. Rupp yelled "Oh shit!" and accelerated quickly, squealing the truck's tires on dry pavement.
Enockson radioed that Rupp was fleeing and then got into his squad car to give chase. The cover officer's patrol car arrived at this time, heading directly toward Rupp's direction of travel. It appeared to Enockson that the vehicles were about to collide, but Rupp suddenly swerved to the right, driving through a yard and hitting two mailboxes before swerving back onto the roadway. These actions caused items to fall from the back of Rupp's truck. Rupp continued to drive away with both squad cars in pursuit, with lights and sirens activated. Rupp traveled at a speed Enockson estimated to be roughly 40 mile per hour. He made a right turn at one intersection and a left turn at another, but lost control during the left turn and drove into an adjacent field, hitting some trees. As the cover officer approached the truck on foot, Rupp again attempted to drive away, turning and accelerating in a manner that, according to Enockson, almost caused Rupp's truck to hit the cover officer. During this process, Rupp rolled the truck down a hill, causing it to land with its driver's side down.
Rupp was apprehended at this point. When questioned, he first stated that he had no recollection as to how he ended up being asleep in his vehicle on the city street. Later, he stated that he had dropped his girlfriend's friend off in that part of town, but did not remember the address. At the law enforcement center, Rupp was booked and evaluated for possible intoxication, but was not found to be under the influence of alcohol or drugs. When booked, a burnt roach was found in one of his pockets. The remnants did not test positive for marijuana and Rupp was not charged with possession of illegal drugs.
Rupp presented evidence during the hearing that he suffers from a sleeping disorder — possibly narcolepsy. His witness, Vondrak, testified that he often falls asleep unexpectedly, sometimes while driving, and that he is prone to reacting dramatically if awakened. He also presented a note (Exhibit A) from a physician dated February 4, 2015, which states that Rupp should undergo a sleep study for narcolepsy or another sleep disorder. Rupp argued, through counsel, that he did not attempt to flee during the December 7 incident but, instead, had a sudden and dramatic reaction to being awakened by Enockson. Based on the evidence presented, I reject this explanation. Rupp's verbal reaction to seeing a uniformed police officer ("Oh shit!"), followed by a series of elusive actions (including swerving around one patrol car, making multiple turns and attempting to drive away again after hitting trees), hardly indicates an involuntary, reflexive reaction. I find that Rupp intended to flee and stopped only because he rolled his vehicle during evasive maneuvers. Thus, and although he has not been convicted on the charge of serious eluding, I find the Government has proved by a preponderance of the evidence that Rupp committed the violation described in the Petition as alleged Violation No. 11(b) (law violation).
On January 6, 2015, the Sioux City Police Department investigated a complaint about two people in a Dollar Store parking lot. Upon arrival, they discovered Rupp in a vehicle with Ramirez, despite Lutgen's prior direction that Rupp have no contact with Ramirez. This constitutes alleged Violation No. 13 (failure to follow Probation's instructions). Because Rupp has admitted the alleged conduct, I find that this violation occurred.
On January 21, 2015, Rupp was involved in another traffic incident. A Sioux City Police Officer found him sleeping in his vehicle at a railroad crossing at approximately 2:00 a.m. When awakened, he drove his vehicle off the road and was cited for failure to maintain control. Rupp contacted Lutgen the following day to advise him of the incident. This constitutes alleged Violation No. 11(c) (law violation). Based on Lutgen's testimony that Rupp admitted the relevant events, I find that the Government proved this violation.
To summarize, Rupp admitted alleged Violation Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 13 and I find that the Government proved Violation Nos. 11(a), 11(b) and 11(c) by a preponderance of the evidence. I further find that the Government did not prove alleged Violation Nos. 9, 10 and 12.
"A district court may revoke supervised release if it `finds by a preponderance of the evidence that the defendant violated a condition of supervised release.'" United States v. Holt, 664 F.3d 1147, 1149 (8th Cir. 2011) (quoting 18 U.S.C. § 3583(e)(3)). The court's finding that a defendant has violated the conditions of supervised release is reviewed for clear error, while an order of revocation based on such a finding is reviewed for abuse of discretion. United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).
As discussed above, I find by a preponderance of the evidence that Rupp violated numerous terms and conditions of his supervised release, as alleged in the Petition. Having so found, 18 U.S.C. § 3583(e) requires that I consider certain factors set forth in 18 U.S.C. § 3553(a) in making a determination as to whether Rupp's term of supervised release should be terminated, extended, modified, or revoked. Although I am not required to cite each relevant factor in § 3553(a), see United States v. Franklin, 397 F.3d 604, 607 (8th Cir. 2005), those factors are set forth below for the convenience of the district court in reviewing this Report and Recommendation:
18 U.S.C. § 3553(a) (as referenced in 18 U.S.C. § 3583(e)). After considering these factors, I may recommend the termination, extension, revocation or modification of the term of supervised release as set forth in § 3583(e).
Probation recommends that Rupp's supervised release be revoked and that he be sentenced to fourteen months imprisonment with a one-year term of TSR to follow. During the hearing, the Government joined this recommendation while Rupp, through counsel, argued that no consequence is necessary except, perhaps, a few weekends in jail.
Rupp's original offenses were conspiracy to distribute 50 grams or more of methamphetamine mixture and distribution of 50 grams of methamphetamine mixture. He had a Criminal History Category of VI at the time of sentencing in 2004. His criminal record prior to 2004 included convictions for assault, burglary, theft, simple eluding, and possession of a controlled substance. See Doc. No. 76-1 at 8-16. Rupp has a history of substance abuse and has repeatedly violated the conditions of TSR by using controlled substances, failing to comply with substance abuse testing requirements and possessing controlled substances. He also has a history of providing false information to Probation. His first TSR was revoked and his second TSR has already been modified three times due to various violations. See Doc. No. 73 at 1-3. Given Rupp's history and characteristics, and particularly his repeated decisions to violate the conditions of his TSR, I find that revocation and a term of incarceration is necessary.
Any revocation or modification of supervised release must "afford adequate deterrence to criminal conduct." 18 U.S.C. § 3553(a)(2)(B). Rupp's first TSR was revoked due to numerous violations, including use and possession of controlled substances, false statements to Probation, failure to comply with drug testing and engaging in criminal activity. At that time, he received a relatively lenient revocation sentence of time served. As discussed in detail above, that revocation and sentence did not deter Rupp from engaging in criminal conduct. He used a controlled substance (Violation No. 1) and committed three law violations (Violation Nos. 11(a), 11(b) and 11(c)), including one involving a motor vehicle chase that caused property damage and created a risk of personal injury to law enforcement and/or the public. I find that incarceration is necessary to deter further criminal conduct by Rupp.
Any revocation or modification of supervised release must protect the public from further crimes. 18 U.S.C. § 3553(a)(2)(C). As discussed above, Rupp committed further crimes while on supervised release, including failure to stop, failure to maintain control, failure to prove security against liability, eluding and possession of a controlled substance. I find that incarceration is necessary to protect the public from further crimes by Rupp.
Probation does not recommend educational or vocational training or medical care at this time. There is no basis in the record to suggest that such a need exists.
I am required to consider pertinent policy statements issued by the United States Sentencing Commission in effect at the time of Rupp's sentencing. 18 U.S.C. § 3553(a)(5). The policy statement entitled Classification of Violations, U.S.S.G. § 7B1.1, sets forth three grades of supervised release violations. Rupp's violations are Grade C violations, which consist of "conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision." The policy statement entitled Revocation of Probation or Supervised Release, U.S.S.G. § 7B1.3(a)(2), states: "Upon a finding of a Grade C violation, the court may (A) revoke probation or supervised release; or (B) extend the term of probation or supervised release and/or modify the conditions of supervision." Finally, the policy statement entitled Term of Imprisonment, U.S.S.G. § 7B1.4(a), states that the recommended range of imprisonment for a Grade C violation at Criminal History Category VI is eight to fourteen months.
The maximum statutory term of imprisonment is three years and the maximum statutory term of supervised release is life. 18 U.S.C. §§ 3583(e)(3), 3583(h); 21 U.S.C. § 841(b)(1)(B)(viii).
The final consideration is whether my recommended disposition will result in "unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[.]" 18 U.S.C. § 3553(a)(6). The parties offered no evidence on this issue and I have no information to suggest that this is the case.
The Eighth Circuit has
United States v. White Face, 383 F.3d 733, 738 (8th Cir. 2004) (citation omitted) (quoting United States v. Oliver, 931 F.2d 463, 465 (8th Cir. 1991)). Failure to provide written reasons for sentencing outside the applicable policy statement range for revocation sentences is not reversible error, although written statements of reasons are helpful for the parties, reviewing courts, and the Sentencing Commission. Id. at 739; accord United States v. Jones, 973 F.2d 605, 607-08 (8th Cir. 1992) ("Because the Chapter 7 policy statements are not binding, the court is not required to make the explicit, detailed findings required when it departs upward from a binding guideline."). "The district court is free to depart from Chapter 7's suggested sentences when, in its considered discretion, such a departure is warranted." United States v. Carr, 66 F.3d 981, 983 (8th Cir. 1995) (per curiam); accord United States v. Jasper, 338 F.3d 865, 867 (8th Cir. 2003).
I have given careful consideration to the factors set forth in 18 U.S.C. § 3553(a), and hereby recommend that Rupp's TSR be revoked and that he be sentenced to six months of incarceration. I find it to be appropriate because (a) this is Rupp's second revocation, (b) the prior revocation sentence of time served was ineffective and (c) Rupp has committed a large number of violations. I further recommend that a new, one-year term of supervised release be imposed upon Rupp's release.
I find that the disposition recommended herein will further the goals of deterrence and incapacitation, reflects the seriousness of Rupp's conduct and provides just punishment for such conduct. I further find that this recommendation is "sufficient, but not greater than necessary, to comply with" the sentence's purposes as set forth in § 3553(a)(2) and will not result in any sentencing disparities. See 18 U.S.C. § 3553(a).
Based on the foregoing, I RESPECTFULLY RECOMMEND that the Government's petition (Doc. No. 73) to revoke Rupp's supervised release be
As explained above (note 2, supra), Rupp is not in custody but remains subject to the existing conditions of his TSR while these proceedings are pending.
Objections to this Report and Recommendation must be filed
