PAUL A. ZOSS, Chief Magistrate Judge.
On August 30, 2010, the defendant Ambrose Tyndall was sentenced by the Honorable Donald E. O'Brien, pursuant to 18 U.S.C. § 2250(a), to twelve months and one day of incarceration and five years' supervised release on a charge of failure to register as a sex offender. See Doc. Nos. 1 & 41. After completing his federal prison term, Tyndall began serving his term of supervised release on March 9, 2011.
On July 21, 2011, the court revoked Tyndall's supervised release and sentenced him to thirty days' imprisonment, followed by placement at a residential reentry center ("RRC") for six months, during which time he would participate in outpatient substance abuse treatment. The court also reimposed a term of one year of supervised release upon Tyndall's completion of his placement at the RRC. Doc. No. 56.
On August 11, 2011, Tyndall began his second term of supervised release in which he resided at an RRC in Fort Dodge, Iowa. On August 30, 2011, Tyndall was arrested for violation of the RRC's rules regarding use of alcohol. On August 31, 2011, Tyndall was released from custody and reported back to the RRC. Because of the RRC's zero-tolerance policy regarding alcohol, Tyndall was denied reentry into the facility, and a warrant was issued for his arrest.
On September 7, 2011, the court revoked Tyndall's supervised release for failing to comply with RRC rules and using alcohol, and sentenced him to three months' imprisonment and a five-year term of supervised release. Doc. No. 69. On November 30, 2011, the court modified Tyndall's supervision for Tyndall to reside at the Omaha Alcohol Program for up to 180 days. Doc. Nos. 74 & 75.
Tyndall began substance abuse treatment at the Omaha Alcohol Program in February 2012. On March 6, 2012, Tyndall was permitted to leave temporarily the program's facility, but he appeared to be intoxicated upon his return. The Omaha Tribal Police Department detained Tyndall in jail overnight, but no new charges were filed.
On March 7, 2012, upon his release from jail, Tyndall returned to the Omaha Alcohol Program to collect his personal effects and then left. On March 9, 2012, the Sioux City Police Department arrested him and charged him with public intoxication.
On March 9, 2012, Officer Kraemer filed a petition (which she supplemented on March 12) for issuance of a warrant for Tyndall's arrest based on alleged violations of his conditions of supervised release. Doc. Nos. 77 & 79. Officer Kraemer alleged that Tyndall used alcohol on March 6 and 9, 2012. Officer Kraemer further alleged that Tyndall absconded from his placement at the Omaha Alcohol Program. Officer Kraemer finally alleged that Tyndall committed a new law violation by being charged with public intoxication, a simple misdemeanor punishable by up to thirty days' imprisonment in lieu of, or in addition to, a fine. See Iowa Code §§ 123.46(2), 903.1(1)(a).
The undersigned held a revocation hearing on March 14, 2012. At the hearing, the government was represented by Assistant United States Attorney Robert Knief. Tyndall appeared in person with his attorney, Assistant Federal Public Defender Michael Smart. Neither party offered the testimony of any witnesses.
"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 district 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).
At the hearing, Tyndall admitted to all of the violations alleged in the revocation petition. Accordingly, the court finds by a preponderance of the evidence that Tyndall violated the terms and conditions of his supervised release. Having so found, 18 U.S.C. § 3583(e) requires the court to consider certain specified factors set forth in 18 U.S.C. § 3553(a), in making a determination as to whether the defendant's term of supervised release should be terminated, extended, modified, or revoked. Although the court is not required to cite each relevant factor in § 3553(a), see United States v. Franklin, 397 F.3d 604, 607 (8th Cir. 2005), the relevant factors are set forth here for the convenience of the district court in reviewing this Report and Recommendation:
18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e). After considering these factors, the court may terminate, extend, revoke, or modify the term of supervised release as set forth in § 3583(e).
Officer Kraemer recommends that Tyndall's term of supervised release should be revoked and that he should be sentenced to a term of imprisonment of six months. At the hearing, neither party contested Officer Kraemer's recommendation. The court turns to consideration of the factors set forth in 18 U.S.C. § 3553(a).
Tyndall's original offense arose from his failure to register as a sex offender after previously having been convicted of a misdemeanor crime of sexual assault. The nature of the offense and the length of Tyndall's federal sentence indicate that the crime was serious.
Tyndall exhibits a significant problem with alcohol addiction. The majority of his criminal activities have involved his use of alcohol. Absent some type of treatment for alcoholism, there is little likelihood that Tyndall will be able to refrain from continuing to violate the law. However, because all the RRCs in this district have denied his case and because Tyndall has no stable family with whom he can reside, he has exhausted all residency options in this district.
Any modification of supervised release imposed upon Tyndall must "afford adequate deterrence to criminal conduct." 18 U.S.C. § 3553(a)(2)(B). Although Tyndall is facing a prison term of up to 12 months, the court finds that imposing a lengthy term of imprisonment is not necessary to deter further criminal conduct by Tyndall. Rather, the court finds incarceration for a term of three months is a sufficient deterrent.
Any modification of Tyndall's term of supervised release must protect the public from further crimes. 18 U.S.C. § 3553(a)(2)(C). The court finds that three months' incarceration is sufficient to protect the public from further crimes while Tyndall recovers from the effects of his alcohol use.
As discussed above, it is evident from Tyndall's history that he has a significant problem with alcohol addiction, and he is in need of treatment to prevent further alcohol-related criminal activity.
The statute requires the court to consider pertinent policy statements issued by the United States Sentencing Commission, in effect at the time of Tyndall's sentencing. 18 U.S.C. § 3553(a)(5). The court finds two such policy statements to be relevant to this inquiry. The first, Classification of Violations, U.S.S.G. § 7B1.1 (Policy Statement), sets forth three grades of supervised release violations. The most serious of Tyndall's violations is a Grade C violation, which consists 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." Having so found, the court looks to the Sentencing Commission's instructions upon a finding of a Grade C violation: "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." U.S.S.G. § 7B1.3(a)(2), Revocation of Probation or Supervised Release (Policy Statement).
Should the court revoke Tyndall's supervised release, his recommended range of imprisonment pursuant to the Sentencing Guidelines would be six to twelve months, with a maximum statutory imprisonment of two years. See U.S.S.G. § 7B1.4 (Policy Statement); 18 U.S.C. § 3583(e)(3); United States v. Marrow Bone, 378 F.3d 806, 808 (8th Cir. 2004) ("[I]f the original sentence was a Class C felony, § 3583(e)(3) dictates that the revocation sentence may not exceed 24 months." (citing United States v. Hensley, 36 F.3d 39, 42 (8th Cir. 1994))).
The final consideration is whether the court's decision here 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 court finds it will not.
The undersigned has given careful consideration to the factors set forth in 18 U.S.C. § 3553(a), and
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).
In light of the foregoing, the court finds that a sentence of three months' incarceration, with no term of supervised release to follow, furthers the goals of deterrence and incapacitation, reflects the seriousness of Tyndall's revocation conduct, and provides just punishment for such conduct. Although the court recognizes under 18 U.S.C. § 3582(a) "that imprisonment is not an appropriate means of promoting correction and rehabilitation," the court has considered, as noted above, the sentencing purposes outlined in § 3553(a), including promoting respect for the law. Jasper, 338 F.3d at 867. Such a sentence is "sufficient, but not greater than necessary, to comply with" the sentence's purposes as set forth in § 3553(a)(2). 18 U.S.C. § 3553(a).
Based upon the foregoing analysis, IT IS RESPECTFULLY RECOMMENDED, unless any party files objections
Objections must be filed
