Filed: Mar. 11, 2009
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 08-50329 Plaintiff-Appellee, D.C. No. v. 2:08-cr-00280- KELLY HAMMONS, SVW-1 Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted December 12, 2008—Pasadena, California Filed March 11, 2009 Before: Harry Pregerson and Dorothy W. Nelson, Circuit Judges, and James K. Sin
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 08-50329 Plaintiff-Appellee, D.C. No. v. 2:08-cr-00280- KELLY HAMMONS, SVW-1 Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding Argued and Submitted December 12, 2008—Pasadena, California Filed March 11, 2009 Before: Harry Pregerson and Dorothy W. Nelson, Circuit Judges, and James K. Sing..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50329
Plaintiff-Appellee, D.C. No.
v. 2:08-cr-00280-
KELLY HAMMONS, SVW-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
December 12, 2008—Pasadena, California
Filed March 11, 2009
Before: Harry Pregerson and Dorothy W. Nelson,
Circuit Judges, and James K. Singleton,*
Senior District Judge.
Opinion by Judge Pregerson
*The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
3217
3220 UNITED STATES v. HAMMONS
COUNSEL
Sean K. Kennedy, and Michael Tanaka, Federal Public
Defender’s Office, Los Angeles, California, for the defendant-
appellant.
Thomas P. O’Brien, Robb Adkins, and Ashleigh E. Aiken,
Central District of California United States Attorney’s Office,
Santa Ana, California, for the plaintiff-appellee.
OPINION
PREGERSON, Circuit Judge:
The district court sentenced Kelly Hammons to ten months
in prison upon revoking his supervised release. On appeal,
Hammons argues: (1) that the district court committed plain
error by failing to state any reasons for its decision to sen-
tence Hammons to ten months in prison; and (2) that the dis-
trict court committed plain error by failing to calculate the
UNITED STATES v. HAMMONS 3221
appropriate guideline range and by relying upon an incor-
rectly calculated Criminal History Category. We have juris-
diction under 28 U.S.C. § 1291. We vacate the ten month
sentence and remand for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1996, Hammons was convicted of conspiracy to possess
with intent to distribute cocaine base (crack), in violation of
21 U.S.C. § 846. The United States District Court for the
Southern District of Alabama sentenced Hammons to 144
months of imprisonment, followed by five years of supervised
release. On January 21, 2006, Hammons was released from
prison and began serving his five year term of supervised
release.
On February 22, 2008, Hammons was convicted in Los
Angeles Superior Court of violating California Vehicle Code
Section 23152(B): Driving Under the Influence of Alcohol.
On March 6, 2008, the Southern District of Alabama trans-
ferred jurisdiction for Hammons’s supervision to the Central
District of California. On April 4, 2008, the United States
Probation Office (“Probation Office”) filed a petition in the
district court alleging that Hammons had violated the condi-
tions of his supervised release by committing a federal, state,
or local crime—i.e., driving under the influence.1
On April 15, 2008, the Probation Office prepared a Viola-
tion Report. In the Violation Report, the Probation Office did
not recommend that the district court impose a term of impris-
1
The Probation Office also alleged that Hammons had violated the con-
ditions of his supervised release by failing to show up for a drug test and
by testing positive for alcohol use. Hammons denied these allegations and
they were ultimately dismissed by the government. The district court
stated that these allegations were not “the subject of the sentence” and are
not at issue in this appeal. The government’s suggestion at oral argument
that these dismissed allegations provide insight into the district court’s
sentencing decision is troubling.
3222 UNITED STATES v. HAMMONS
onment. Rather, the Probation Office recommended that
Hammons be required to participate in a Residential Reentry
Center program for up to 180 days. Additionally, the Proba-
tion Office incorrectly listed Hammons as having a Category
III Criminal History rather than a Category II Criminal His-
tory. Accordingly, the Violation Report incorrectly calculated
the appropriate guideline range for Hammons’s violation as
five to eleven months.2
On May 12, 2008, Hammons appeared before the district
court at a revocation hearing and admitted to violating the
terms of his supervised release by driving under the influence.
Sentencing was continued until July 7, 2008. On July 1, 2008,
the Probation Office filed a Supplemental Report alleging that
Hammons tested positive for alcohol on June 21, 2008.3 In the
Supplemental Report, the Probation Office again recom-
mended that Hammons not be imprisoned but instead be
required to participate in a Residential Reentry Center pro-
gram.
On July 7, 2008, Hammons appeared before the district
court for sentencing. During the continued revocation hearing,
Hammons’s counsel detailed for the court Hammons’s efforts
at rehabilitation, including Alcoholic Anonymous classes, a
drug treatment and rehabilitation program, a work-placement
program, and volunteer work.
Next, the district court provided Hammons an opportunity
to be heard. In particular, the district court asked three pointed
questions regarding drinking and driving:
2
Hammons’s correct Criminal History Category was II and the correct
guideline range for Hammons was four to ten months of imprisonment.
U.S.S.G. § 7B1.4. The correct Criminal History Category was, however,
included in the original Presentence Investigation Report (“PSR”) filed
with the district court.
3
This allegation was also dismissed by the government and was not con-
sidered by the district court.
UNITED STATES v. HAMMONS 3223
THE COURT: Do you wish to be heard Mr.
Hammons?
THE DEFENDANT: Yes, Your Honor. I would
like to ask the court for
mercy and a little lenience.
I’m trying to move my life
forward in a different direc-
tion so that I can better
myself and better my family.
THE COURT: How did you go about that
exactly? Do you think driv-
ing under the influence [of]
alcohol is helping you move
your life forward?
THE DEFENDANT: No, Your Honor. I never said
driving under the influence
was helping me. Actually I
learned a lot for the class.
I’m actually not drinking
now —
THE COURT: Have you learned that you
shouldn’t be driving under
the influence of alcohol?
THE DEFENDANT: Well, Your Honor, I’ve
learned what alcohol does to
the body, and what the
human being —
THE COURT: You know all of that. You’ve
been drinking a long time,
haven’t you?
THE DEFENDANT: Well, you know, Your
Honor, I’ve seen some hor-
3224 UNITED STATES v. HAMMONS
rific things going to these
classes, and it woke me up in
a lot of ways.
THE COURT: Any legal cause why sen-
tence should not be imposed?
The district court then found that Hammons violated the
terms of his supervised release and sentenced him to ten
months imprisonment. The district court did not give any rea-
sons for imposing a ten month sentence, nor did the district
court calculate the guideline range. Moreover, the district
court did not address any of the relevant sentencing factors set
forth in 18 U.S.C. § 3583 and 18 U.S.C. § 3553. Finally,
though not required to do so, the district court did not address
the Probation Office’s recommendation that Hammons not be
imprisoned and instead be required to “reside at and partici-
pate in a Residential Reentry Center (RRC) program.”
Hammons did not object to the sentence imposed. Ham-
mons also failed to object to the incorrect Criminal History
Category III stated in the Probation Office’s Violation Report.
II. STANDARD OF REVIEW
We review de novo whether the district court provided an
adequate statement of reasons for the sentence it imposed.
United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006)
(citing United States v. Duran,
37 F.3d 557, 560 (9th Cir.
1994)). In the context of sentencing upon revocation of super-
vised release, we review the sentence imposed under the
Booker reasonableness standard. United States v. Simtob,
485
F.3d 1058, 1061 (9th Cir. 2007);
Miqbel, 444 F.3d at 1176
n.5.
When a defendant does not raise an objection to his sen-
tence before the district court, we apply plain error review.
United States v. Waknine,
543 F.3d 546, 551 (9th Cir. 2008).
UNITED STATES v. HAMMONS 3225
“Plain error is ‘(1) error, (2) that is plain, and (3) that affects
substantial rights.’ ” United States v. Ameline, 409 F.3d 1073,
1078 (9th Cir. 2005) (en banc) (quoting United States v. Cot-
ton,
535 U.S. 625, 631 (2002)). If these three conditions are
met, the court may then exercise its discretion to grant relief
if the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”
Id.
III. DISCUSSION
A. The District Court’s Failure to Give Any Reasons for the
Sentence Imposed Constituted Plain Error
1. Applicable Sentencing Factors
[1] Revocation of supervised release is governed by 18
U.S.C. § 3583. Under § 3583, the court may “revoke a term
of supervised release, and require the defendant to serve in
prison all or part of the term of supervised release authorized
by statute.” 18 U.S.C. § 3583(e)(3). In particular, § 3583(e)
requires that the court consider the sentencing factors set forth
in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
(a)(6), and (a)(7).
[2] 18 U.S.C. § 3553 states that “[t]he court shall impose a
sentence sufficient, but not greater than necessary, to comply
with the purposes set forth in paragraph (2)” 18 U.S.C.
§ 3553(a) (emphasis added). Section 3553(a)(1) requires the
court to consider “nature and circumstances of the offense and
the history and characteristics of the defendant.” The court
must also consider the need for the sentence imposed:
(B) to afford adequate deterrence to criminal con-
duct;
(C) to protect the public from further crimes of the
defendant; and
3226 UNITED STATES v. HAMMONS
(D) to provide the defendant with needed educa-
tional or vocational training, medical care, or
other correctional treatment in the most effec-
tive manner
18 U.S.C. § 3553(a)(2). The court must also consider, but is
not bound by, the applicable sentencing range as set forth in
the guidelines. 18 U.S.C. § 3553(a)(4).
[3] The district court, however, is not to consider “the need
for the sentence imposed to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A); see
Miqbel, 444 F.3d at 1181-82 (stating that § 3583 “specifically
omits, however, § 3553(a)(2)(A)”). This means that “at a
revocation sentencing, a court may appropriately sanction a
violator for his ‘breach of trust,’ but may not punish him for
the criminal conduct underlying the revocation.”
Id. at 1182;
see also
Simtob, 485 F.3d at 1063 (stating that the district
court “may not impose a revocation sentence solely, or even
primarily, based on the new criminal offense underlying the
revocation”) (emphasis in original).
2. The District Court Failed to Provide Any Reasons for
Hammons’s Sentence
[4] Under 18 U.S.C. § 3553(c), a district court is required
to explain the reasons for imposing a particular sentence. See
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc) (“Once the sentence is selected, the district court must
explain it sufficiently to permit meaningful appellate
review.”);
Miqbel, 444 F.3d at 1177 n.7 (applying the require-
ments of § 3553(c) to the revocation of supervised release
under 18 U.S.C. § 3583). Although such explanation should
come from the district court, “adequate explanation in some
cases may also be inferred from the PSR or the record as a
whole.”
Carty, 520 F.3d at 992. We have stated that:
UNITED STATES v. HAMMONS 3227
a sufficient explanation will necessarily vary
depending upon the complexity of the particular
case, whether the sentence chosen is inside or out-
side the Guidelines, and the strength and seriousness
of the proffered reasons for imposing a sentence that
differs from the Guidelines range. A within-
Guidelines sentence ordinarily needs little explana-
tion unless a party has requested a specific departure,
argued that a different sentence is otherwise war-
ranted, or challenged the Guidelines calculation
itself as contrary to § 3553(a).
Id.
[5] In this case, the district court offered no explanation for
imposing a ten month sentence upon Hammons. The district
court did not discuss the applicable guideline range, nor did
the district court address any of the applicable sentencing fac-
tors set forth in § 3553 and § 3583. Rather, the district court
merely stated that he was sentencing Hammons to ten months
of imprisonment. Indeed, the only statement the district court
made regarding its decision was that “I don’t give sentences
without careful consideration. That’s the sentence.”
[6] The government argues that the district court’s reasons
are clear from the record and the revocation hearing tran-
script. In particular, the government asserts that the reasons
for imposing the sentence can be inferred from the three ques-
tions the district court asked Hammons regarding his drunk
driving conviction. This argument fails because the three
pointed questions the district court asked Hammons provide
little, if any, insight regarding the reasons for imposing a ten
month sentence.
[7] Furthermore, the reasons for the ten month sentence
cannot be inferred from the Probation Office’s Violation
Report because the reasons in the Violation Report support a
sentence of up to 180 days in a Residential Reentry Center.
3228 UNITED STATES v. HAMMONS
Such a sentence was rejected by the district court. Accord-
ingly, we cannot say that the reasons for such a sentence are
“implicit” from the record as a whole. See Carty, 520 F.3d at
992.
[8] In United States v. Waknine, this court recently held that
a district court’s failure to consider the 18 U.S.C. § 3553(a)
sentencing factors before imposing a within-guideline range
sentence constituted plain
error. 543 F.3d at 554 (citing Gall
v. United States, ___ U.S. ___,
128 S. Ct. 586, 596-97
(2007)). In Waknine, the “error was patent insofar as the dis-
trict court gave no reasons in reference to the § 3553(a) fac-
tors before imposing the sentence.”
Id. There was “no
contemporaneous announcement of the calculated Guidelines
range or satisfaction of the requirement that the sentence be
reconciled for reasonableness in light of the § 3553(a) fac-
tors.”
Id. Accordingly, we stated that:
[a]lthough it is a close question whether Waknine
can satisfy the third prong of the plain error test, we
conclude that the district court’s total failure to
announce its calculated Guidelines range to the par-
ties and to consider expressly the § 3553(a) factors
is such a serious departure from established proce-
dures that we will not reject the appeal because of
the prejudice prong of plain error review.
Id. at 554 (emphasis added). “Given the flagrant nature of the
district court’s error,” which seriously affects the public repu-
tation of judicial proceedings, this court exercised its “discre-
tion to notice the forfeited error,” and vacated Waknine’s
sentence and remanded for resentencing.
Id. at 555.
[9] Waknine controls here. Indeed, the district court’s fail-
ure to follow “established procedures” in this case was argu-
ably even more flagrant than in Waknine. First, whereas
Waknine was sentenced before the Supreme Court’s decision
in Gall and our en banc decision in Carty, Hammons was sen-
UNITED STATES v. HAMMONS 3229
tenced in July 2008, well after both decisions had been pub-
lished. Accordingly, the district court should have been aware
of the requirement that it consider the § 3553(a) sentencing
factors and state on the record the reasons for imposing Ham-
mons’s ten month sentence. Second, the district court in Wak-
nine announced that “it was sentencing at the mid-point of the
Guidelines range, viewing the criminal history as I.” 543 F.3d
at 544. Although insufficient to satisfy the requirements of
§ 3553(c), this statement at least provided “the district court’s
basic reasoning.”
Id. Here, the district court failed to provide
any guidance with respect to its sentencing decision. Rather,
the district court merely stated that it does not “give sentences
without careful consideration.” As in Waknine, the flagrant
nature of the district court’s error alone is sufficient to estab-
lish plain error.
B. The District Court’s Reliance on an Improper Guideline
Range and Failure to Calculate the Appropriate Guide-
line Range Constituted Plain Error
The district court’s failure to calculate the appropriate
guideline range and its reliance on an incorrect Criminal His-
tory Category calculation also constituted plain error.
[10] “All sentencing proceedings are to begin by determin-
ing the applicable Guidelines range.” Carty, 520 F.3d at 991.
The “range must be calculated correctly” and “[i]t would be
procedural error for a district court to fail to calculate—or to
calculate incorrectly—the Guidelines range.”
Id. at 991, 993.
Here, it is undisputed that the district court did not calculate
the guideline range and that the Probation Office’s Violation
Report contained the wrong Criminal History Category.
[11] Although both of these errors clearly satisfy the first
two prongs of the plain error analysis, whether these two
errors “affect[ ] substantial rights” is a closer question. The
government argues that the district court’s failure to calculate
the appropriate guideline range does not constitute plain error
3230 UNITED STATES v. HAMMONS
and did not affect substantial rights because the ultimate sen-
tence (ten months) was within the correct guideline range
(four to ten months). This argument fails.
[12] While it is true that the ultimate sentence fell within
the appropriate range, it is unclear whether the district court
intended to sentence Hammons to the high-end of the guide-
line range, or one month below the high-end of the guideline
range. Without discussing the appropriate guideline range on
the record, as required by Ninth Circuit precedent, it is diffi-
cult to discern the district court’s intentions. The incorrect
Criminal History Category could easily have affected Ham-
mons’s substantial rights and led the district court to impose
an additional one month of imprisonment.
[13] Accordingly, we hold that these errors affected sub-
stantial rights and constituted plain error. Moreover, when
viewed in combination with the district court’s complete fail-
ure to address the appropriate sentencing factors set forth in
§ 3553 and § 3583, it is clear that these errors “ ‘seriously
affect the . . . public reputation of judicial proceedings.’ ”
Waknine, 543 F.3d at 555 (quoting
Johnson, 520 U.S. at 467).
IV. CONCLUSION
For the foregoing reasons, we hold: (1) that the district
court committed plain error by failing to discuss any of the
applicable sentencing factors; and (2) that the district court
committed plain error by failing to calculate the appropriate
guideline range and by relying upon an incorrect Criminal
History Category calculation.
We VACATE Hammons’s sentence and REMAND to the
district court for resentencing. The mandate shall issue forth-
with.
VACATED AND REMANDED
