Filed: Mar. 12, 2018
Latest Update: Mar. 03, 2020
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0125n.06 Case No. 17-3632 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 12, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE SOUTHERN DISTRICT OF ADAM M. GLOWKA, ) OHIO ) Defendant-Appellant. ) ) _/ ) Before: MERRITT and SUTTON, Circuit Judges; and CLELAND, District Judge* MERRITT, Circuit Judge. Defendant Adam Glowka appeals the
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0125n.06 Case No. 17-3632 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 12, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE SOUTHERN DISTRICT OF ADAM M. GLOWKA, ) OHIO ) Defendant-Appellant. ) ) _/ ) Before: MERRITT and SUTTON, Circuit Judges; and CLELAND, District Judge* MERRITT, Circuit Judge. Defendant Adam Glowka appeals the ..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0125n.06
Case No. 17-3632
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 12, 2018
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
ADAM M. GLOWKA, ) OHIO
)
Defendant-Appellant. )
)
____________________________________/ )
Before: MERRITT and SUTTON, Circuit Judges; and CLELAND, District Judge*
MERRITT, Circuit Judge. Defendant Adam Glowka appeals the 11-month sentence of
imprisonment the district imposed following the revocation of Glowka’s reimposed period of
supervised release. Glowka argues that the district court erred when it (1) unreasonably delayed
holding his supervised release revocation hearing, (2) unreasonably delayed filing its judgment
after the hearing, (3) entered erroneous minutes from the hearing, and (4) sentenced him to
imprisonment as opposed to mental health and substance abuse treatment. For the following
reasons, we AFFIRM.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by
designation.
Case No. 17-3632
United States v. Glowka
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Glowka pleaded guilty to unlawfully possessing a machine gun and receiving
and possessing an unregistered firearm. The district court sentenced him to concurrent prison
terms of 48 months, to be followed by three years of supervised release.
After serving the sentence, Glowka was placed on supervised release. When he violated
the conditions of supervised release by failing to report to his probation officer, unlawfully using
a controlled substance, and sustaining a conviction for petty theft, the district court sentenced
him to time served between August 25, 2015, and September 20, 2016, a period of 390 days.
The court placed Glowka back on supervised release for three years less the 390 days of pre-
revocation imprisonment. The court also ordered him to enroll in a mental health and substance
abuse counseling program within 72 hours of release and to report to the probation office
weekly. We affirmed the district court’s decision to revoke Glowka’s supervised release, finding
that Glowka admitted to the alleged violations and that the sentence was both procedurally and
substantively reasonable. United States v. Glowka, No. 16-4702 (6th Cir. Sept. 25, 2017).
Glowka met with his probation officer on September 20, 2016. She instructed him to
report to the probation office on September 28, and every Wednesday thereafter. Glowka failed
to report on September 28 or any other day that week. On October 1, 2016, he was arrested and
charged with theft of a motor vehicle, fleeing and eluding police officers, and receiving stolen
property in two cases filed in the Preble County Court of Common Pleas. The probation office
petitioned the district court for an arrest warrant, which the court issued. The petition set forth
allegations that Glowka violated the terms of his supervised release and directed him to show
cause as to why his reimposed period of supervised release should not be revoked. Violation 1
alleged that Glowka violated the special condition of his supervised release by failing to report to
his probation officer. Violations 2 and 3 each alleged that Glowka violated the mandatory
condition of his supervised release requiring him to not commit another federal, state, or local
crime, and cited his pending cases in Preble County.
Glowka requested through counsel that the district court defer his federal proceedings
concerning the reimposition of his supervised release until after his state charges had been
resolved at his trial set for February 2017. On October 19, 2016, the court granted this request.
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United States v. Glowka
Glowka was released on bond from state custody on January 11, 2017, and the United States
Marshals arrested him two days later and placed him in federal custody in Butler County Jail.
In 2017, the district court held multiple telephone conferences with Glowka’s attorney,
the government’s attorney, and a representative from the probation department to remain
informed about the progress of Glowka’s state proceedings. On February 21, Glowka’s federal-
court attorney, James Fleisher, informed the court that the state trial had been continued until
April of that year. Fleisher did not oppose the court’s recommendation that they wait to dispose
of the supervised-release violation until after the Preble County action was resolved. However,
on February 23 and April 6, Glowka filed pro se motions requesting a hearing in regards to his
alleged violations of supervised release.
On April 27, Fleisher informed the court that the state trial had again been continued.
The district-court judge and Fleisher discussed the issue with Glowka taking the witness stand in
a supervised-release hearing in federal court and possibly implicating himself in his state
proceedings. Fleisher told the judge that despite this concern, Glowka wanted a hearing and
expressed a willingness to stipulate to the admissibility of certain documents from his state
proceedings. However, before moving forward, Fleisher wanted to discuss the issue with
Glowka’s state-court attorney, Brian Muenchenbach. On May 4, Fleisher told the court that he
had not been able to reach Muenchenbach, but that once he was able to contact Muenchenbach
and consult with Glowka, he would either file a request for a hearing or withdraw Glowka’s pro
se request. The judge approved this plan and said, “[i]f he wants a hearing, by golly, we’ll get
everybody on the phone and we’ll give him one.”
On May 10, Fleisher filed a motion for a hearing and explained that Muenchenbach
advised him that there was not a state trial date yet. The judge entered a notation order
sustaining the motion the next day. The judge confirmed the hearing in a May 15 conference
call. Two days later, the judge scheduled the show-cause hearing as to why Glowka’s supervised
release should not be revoked to take place on June 6. On June 5, the judge held another
conference call. Fleisher stated that Glowka wanted to deny the supervised-release violations
related to the state offenses, but to stipulate to the police reports and offer no additional evidence.
Fleisher confirmed that Glowka understood that this would allow the judge to find him in
violation of his supervised release.
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Case No. 17-3632
United States v. Glowka
On June 6, the district court held a hearing on the petitions alleging that Glowka violated
three conditions of his federal supervised release. Glowka admitted to violation 1, failing to
report to his probation officer, and was found in violation of his reimposed period of supervised
release. As to violations 2 and 3 alleging that Glowka committed crimes while out on release,
Glowka denied them, but stipulated that if called to testify, the Preble County Sheriff Officer
who wrote the police report would testify consistently with the contents of the report. Neither
Glowka nor the government offered any additional evidence. The court found Glowka in
violation of his reimposed period of supervised release as to these allegations as well.
At the hearing, the district court stated that Glowka had “a world of potential” because he
was highly intelligent, but that he made poor decisions. The court acknowledged that Glowka
had a substance abuse problem and likely had mental health issues too. However, it was still
unable to account for the self-destructive decisions that Glowka made. The court determined
that the advisory guideline range for sentencing was 7 to 13 months based on Glowka’s criminal
history of V, and because the relevant violations were a Grade C. It stated that it had considered
all of the § 3553(a) factors, and specifically mentioned the nature of the violations, Glowka’s
criminal history, the need for rehabilitation and deterrence, the public’s interest in safety and fair
punishment, and the need to avoid unreasonable differences in sentences. The court decided to
revoke Glowka’s reimposed period of supervised release and remanded him to custody for a
period of two years minus 390 days, a period of approximately 11 months, on each of the two
counts of conviction, violations 2 and 3, to run concurrently with each other but consecutively to
any state sentences. The court imposed no further period of supervised release. When the court
asked defense counsel and the government if there were any procedural or substantive objections
to the sentence, both counsel replied that they had no objections. \
The court filed a “court only” order on June 9, but sent copies of it to the counsel of
record, the probation officer, and the United States Marshal. The order summarized the hearing
finding Glowka in violation of his supervised release and outlined his sentence. It ordered that
the Marshals Service keep Glowka within a county jail facility in the Southern District of Ohio
so that he would be able to answer any pending indictments in the Preble County Court of
Common Pleas without undo delay. On June 12, the minutes from the hearing were entered on
the docket, and erroneously stated that the hearing was held on June 12 instead of June 6.
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Case No. 17-3632
United States v. Glowka
On June 13, Glowka appealed the judgment. We docketed his appeal on June 14. On
June 30, Glowka filed a pro se motion requesting that the court file its judgment and
commitment entry formalizing his sentence imposed on June 6 and pointing out that the docket
mistakenly stated that it took place on June 12. On July 3, Glowka filed another pro se motion to
correct the court’s docket entry. A transcript of the June 6 proceedings was filed on August 3.
The district court issued an order on August 8 that contained materially the same information as
its June 9 order, but was not marked “court only” and was worded differently. It sent copies to
the counsel of record.
On August 23, an operations support specialist from the United States Marshal Service
responded to a letter from Glowka. The specialist confirmed that Glowka was in primary federal
custody and that the Preble County authorities only had him out on writ to resolve their state
cases. She also verified that because Glowka was a federal inmate, his federal sentence
commenced on the day of his sentencing because the state had not yet sentenced him. In
November, the state court imposed a sentence of 21 months of imprisonment for the state law
violations.
II. ANALYSIS
We review sentences imposed following revocation of supervised release under the same
deferential abuse-of-discretion standard that applies to post-conviction sentences. United States
v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). “The [district] court abuses its discretion if it
imposes a sentence that is procedurally or substantively unreasonable.” United States v. Massey,
663 F.3d 852, 856 (6th Cir. 2011). We first ensure that the district court committed no
procedural error such as “failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” United States v.
Johnson,
640 F.3d 195, 201–02 (6th Cir. 2011) (quoting Gall v. United States,
552 U.S. 38, 51
(2007)). If the decision is procedurally sound, we review for substantive reasonableness and
consider the sentence imposed in light of “the totality of the circumstances.”
Gall, 552 U.S. at
51. For sentences within the guidelines range, we apply a rebuttable presumption of
reasonableness. United States v. Vonner,
516 F.3d 382, 389 (6th Cir. 2008) (en banc).
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Case No. 17-3632
United States v. Glowka
On appeal, Glowka asserts that the district court violated his due process rights by
imposing a procedurally and substantively unreasonable sentence on him for his violations of his
reimposed term of supervised release. Specifically, he argues that the court erred when it
(1) unreasonably delayed holding his supervised release revocation hearing, (2) unreasonably
delayed filing its judgment after the hearing, (3) submitted erroneous minutes from the hearing,
and (4) sentenced him to imprisonment as opposed to mental health and substance abuse
treatment. Glowka supports his arguments only with his own assertions and references to the pro
se motions he filed in the past. We address each argument in turn.
First, Glowka argues that the district court erred when it unreasonably delayed holding
his revocation hearing. Under Moody v. Daggett, 429 U.S. 78, 87 (1976), the “loss of liberty”
for Glowka’s supervised-release violation did not occur until he was taken into federal custody
on January 13, 2017. Only then did he have the right to an appearance before the district court
“without unnecessary delay,” 18 U.S.C. § 3606, followed by a hearing to determine whether he
“ha[d] in fact breached the conditions” of his supervised release. Morrissey v. Brewer,
408 U.S.
471, 483–84 (1972). His supervised release revocation hearing was not held until June 6, 2017.
The five-month delay that arose was due to concerns that Glowka would implicate himself in his
state cases by proceeding with his federal hearing. Glowka initially requested that his federal
hearing be deferred until his state proceedings had concluded at his trial in February. However,
in February, the court discovered that the trial had been continued for April. Fleisher did not
oppose the district court’s recommendation to continue waiting for the state proceedings to
conclude before conducting the federal hearing. Despite this, in February and April, Glowka
filed motions requesting a hearing. In April, Fleisher told the court that Glowka wanted a
hearing but that he wished to first contact Glowka’s state-court attorney, Muenchenbach, to
determine how to best proceed to protect Glowka’s interests. On May 10, Fleisher filed a motion
for a revocation hearing and the hearing was held on June 6.
Although Glowka was arrested in January and his revocation hearing was not held until
June, the delay was not unreasonable given the concerns about Glowka’s potential to implicate
himself in his state proceedings and the continuance of his state trial. After Fleisher consulted
with Muenchenbach and determined a course of action, the district court resolved the revocation
proceedings within one month. See Morrissey, 408 U.S. at 488 (“A lapse of two months”
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Case No. 17-3632
United States v. Glowka
between the defendant’s arrest and his revocation hearing does “not appear . . . unreasonable.”).
Further, Glowka fails to explain why any delay rose to the level of violating his constitutional
rights to due process. He does not allege that the delay hampered his ability to defend against
the allegations of a supervised-release violation. Glowka admitted to violating the terms of his
release by not reporting to his parole officer. He also stipulated that the police officer who wrote
the report would testify consistently with the report in regards to his state charges, despite
knowing that this would cause the district judge to find him guilty of those violations. No
prejudice resulted. See United States v. Throneburg, 87 F.3d 851, 853 (6th Cir. 1996) (“We
agree with that court’s holding that the defendant’s due process concerns about delay come into
play only when the delay has prejudiced the defendant’s ability to contest the validity of the
revocation. Here, defendant suffered no prejudice.”).
Second, Glowka contends that the district court erred when it failed to file its written
decision and entry until August 8, 2017, approximately two months after his revocation hearing
and sentencing. Glowka asserts that this failure to timely issue a formal sentencing order
delayed the Bureau of Prisons’ designation of a federal institution and its ability to start the clock
running on his federal sentence. Because of this, he claims he will have to fight an
“administrative battle” over how his state and federal time is to be properly calculated.
To meet the minimum standards of due process, a court revoking supervised release must
provide “a written statement by the factfinder[] as to the evidence relied on and reasons for
revoking” it. Morrissey, 408 U.S. at 489. Here, the district court filed a written revocation
judgment on June 9, 2017, and another on August 8, 2017. Each judgment recited Glowka’s
alleged violations, the evidence establishing those violations, and the imposed sentence. It is not
clear why there are two judgments that are materially the same, and the parties do not address the
June 9 order in their briefs. While the June 9 order was labeled “court only” on the docket, both
of the orders were to be distributed to counsel. Nevertheless, it is clear that we treated the June 9
order as the final appealable order because Glowka successfully appealed on June 13 and we
docketed the appeal the next day. In all, Glowka has not shown prejudice from the delay
because he filed a timely notice of appeal to assure his appellate rights and we have considered
all of the contentions he raised on appeal. See United States v. Crider, 468 F. App’x 457, 464
(6th Cir. 2012) (holding that the district court did not deprive defendant of due process by
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Case No. 17-3632
United States v. Glowka
entering the judgment and commitment order approximately 8 months after the resentencing
hearing).
Even if the August 8 order was the only judgment in the record, our analysis would not
differ. While we encourage district courts to enter judgment and commitment orders promptly
after sentencing, the alleged two-month delay in this case does not spur us to engage in further
review under the Due Process Clause. Cf. United States v. Smith, 94 F.3d 204, 207, 209 (6th Cir.
1996) (“[T]he Due Process Clause embraces some minimum expectation of a reasonably timely
appeal,” but, “unless there is a period of delay that appears, on its face, to be unreasonable under
the circumstances,” there is no need for further inquiry.). Further, we have previously held that
the transcript of a revocation proceeding, such as the one in this case that was filed on August 3,
2017, constitutes the functional equivalent of a written statement and satisfies due process.
United States v. Gilbert,
990 F.2d 916, 917 (6th Cir. 1993).
In no way did this delay cause Glowka to be imprisoned longer than his 11-month
sentence contemplated. The Bureau of Prisons determines credit for time served and where an
inmate will be incarcerated. United States v. Gibbs, 626 F.3d 344, 349 (6th Cir. 2010). The
“term of imprisonment commences on the date the defendant is received in custody awaiting
transportation to, or arrives voluntarily to commence service of sentence at, the official detention
facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). Glowka received a letter in
August 2017 confirming that he was serving his federal sentence, and he was not sentenced in
state court until November 2017. Therefore, it is unclear how an “administrative battle” would
result.
Third, Glowka argues that the district court erred when it entered erroneous minutes
stating that the revocation hearing took place on June 12, 2017, instead of on June 6, 2017, and
when it failed to specify which of his supervised release violations constituted the basis for his
sentence. At the hearing on June 6, the court explicitly considered the § 3553(a) factors and
decided to revoke the supervised release and remand Glowka to custody for a period of two years
minus 390 days, or approximately 11 months, on each of the two counts of conviction, counts 2
and 3. The relevant minute entry that Glowka refers to was entered on June 12 and erroneously
states that the hearing was held on June 12. The entry recites the imposed 11-month concurrent
sentences for counts 2 and 3. The district court’s orders on June 9 and August 8 reiterate this.
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Case No. 17-3632
United States v. Glowka
Clearly, the court specified that counts 2 and 3 constituted the basis for Glowka’s sentence,
although Glowka also admitted to count 1. Further, the minute entry misstating that the hearing
was held on June 12 was a clerical error. Rule 36 of the Federal Rules of the Criminal Procedure
permits a district court to “at any time correct a clerical error in a judgment, order, or other part
of the record, or correct an error in the record arising from oversight or omission.” However,
this Rule does not allow the court “to effectuate its unexpressed intentions at the time of
sentencing.” United States v. Robinson, 368 F.3d 653, 656–57 (6th Cir. 2004) (quoting United
States v. Werber,
51 F.3d 342, 343 (2d Cir. 1995)). Here, it is apparent that the hearing occurred
on June 6 and the June 12 reference was a harmless clerical error.
Finally, Glowka argues that the district court improperly sentenced him to imprisonment
notwithstanding his requests for both substance abuse and mental health treatment. He claims
that just because his prior treatment was not effective, that is nonetheless not a justification for
resorting to a “default of imprisonment” to punish him for his supervised release violations.
Glowka asserts that, in fact, “a sentence of imprisonment would appear to be the most
unreasonable option of all.”
The district court did not err by failing to explicitly discuss at the hearing its discretion to
consider substance abuse and mental health treatment in lieu of incarceration, pursuant to
18 U.S.C. § 3583(d). See United States v. Metcalf, 292 F. App’x 447, 450 (6th Cir. 2008).
At the hearing, the court acknowledged that Glowka had substance abuse and mental health
issues, and in fact had recommended treatment for him after Glowka violated his first term of
supervised release. However, even taking into account these issues, the court stated that it was
still “unable to account for the self-destructive decisions” that Glowka made. It went on to state
that these were “[m]istakes, frankly, that defy any logical explanation without attributing some
of it to mental health issues.” The record is sufficient to permit the conclusion that the court
considered and rejected substance abuse and mental health treatment as an alternative to
incarceration. “[W]e do not require magic words in the record of the sentencing hearing
indicating that substance abuse treatment was considered in order to uphold the district court’s
prison sentence.” United States v. Crace, 207 F.3d 833, 836 (6th Cir. 2000).
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United States v. Glowka
III. CONCLUSION
In sum, we conclude that Glowka’s arguments are without merit and his sentence is
procedurally and substantively reasonable. Accordingly, we AFFIRM.
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