On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:07-cr-00156) District Judge: Honorable Nora Barry Fischer
The opinion of the court was delivered by: Vanaskie, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) January 13, 2011
Before: SCIRICA, BARRY and VANASKIE, Circuit Judges
The principal issue presented on this appeal is whether a court may consider the factors listed in 18 U.S.C. § 3553(a)(2)(A) - "the seriousness of the offense, . . . respect for the law, and . . . just punishment for the offense" - when imposing a sentence for the violation of the conditions of supervised release. Concluding that a court is not prohibited from considering the § 3553(a)(2)(A) factors in the supervised release revocation context, we will affirm the District Court's judgment.
I.From December 4, 2003 to September 7, 2005,Appellant Joseph Young went on a forged-check-cashing spree, enlisting the assistance of several individuals to present bogus checks in exchange for a share of the proceeds. On September 22, 2005, he was sentenced in the Cambria County Court of Common Pleas on twenty separate charging instruments. The sentence on one of the charging instruments included a prison term of thirty to sixty months, which was later reduced to 273 days to twenty-four months, less one day. He was released on parole on February 13, 2006.
Undeterred by the criminal justice sanctions imposed and the fact that he was under the supervision of state parole and probation authorities, Young quickly reverted to passing counterfeit checks. On July 8, 2006, Young, with the aid of Jeanne Hooter, unsuccessfully attempted to pass a counterfeit check at a JC Penney department store at the Pittsburgh Mills Mall. This incident garnered the attention of federal law enforcement authorities. On April 17, 2007, Young and Hooter were indicted on a charge of conspiracy to make, utter, and possess counterfeit securities of an organization involved in interstate commerce, in violation of 18 U.S.C. § 371. On October 16, 2007, Young entered a plea of guilty to the conspiracy count pursuant to a written agreement. The plea agreement included several stipulations concerning such matters as the amount of loss and acceptance of responsibility. The parties further stipulated that "no other enhancements or reductions in the offense level apply." (A. 50-4.) The plea agreement also included an appeal and collateral challenge waiver.
As a result of the parties' stipulations, Young's conduct resulted in an offense level of eight. Young's prior criminal history netted sixteen points, placing him in criminal history category VI. Young's resulting advisory guideline range for imprisonment was eighteen to twenty-four months.*fn1
Young's sentencing proceeding convened on February 22, 2008. Young did not object to any of the factual findings presented in the PSR. After considering all the pertinent factors, the District Court imposed a prison term of twenty- four months, restitution in the amount of $384.74, and a supervised release term of three years. Among the conditions of supervised release, Young was not to commit another federal, state, or local crime, and was to refrain from the possession or use of any controlled substance.
Young commenced his supervised release term at the end of September 2008. He made his initial report to the Probation Office in the Western District of Pennsylvania on October 10, 2008. At that time, he tested positive for use of cocaine and acknowledged having used cocaine the prio r day. The Probation Office recommended that no action be taken based upon the admitted use of cocaine, and the District Court concurred with the recommendation.
On November 6, 2008, less than one month after supervision commenced, Young was arrested in Blair County, Pennsylvania, on charges of forgery, escape, resisting arrest, false reports to law enforcement, and false identification to law enforcement. On November 24, 2008, the District Court ordered that a bench warrant be issued for Young's arrest for violation of the terms of supervised release, with the warrant to be lodged as a detainer at the Blair County Prison.
Disposition of the supervised release violations was deferred pending the outcome of the state charges in Blair County. Young was sentenced by the state court to a prison term of ten to twenty-three and one-half months. Upon his parole from the state sentence, Young was taken into federal custody to answer for the violation of the terms and conditions of supervised release.
Young's supervised release revocation proceeding convened on January 29, 2010. Young acknowledged violating the terms and conditions of supervised release based upon the state court conviction. Finding that Young's conduct constituted a "Grade B" violation, the District Court,in accordance with U.S.S.G. § 7B1.3(a)(1), revoked Young's supervised release. Young's advisory guideline imprisonment range was determined to be twenty-one to twenty-seven months. See id. § 7B1.4(a). Because, however, Young's original federal conviction was classified as a Class D felony, the statutory maximum term of imprisonment was twenty-four months. See 18 U.S.C. § 3583(e)(3).
Acknowledging that the guideline range was advisory only, the District Court afforded defense counsel ample opportunity to substantiate Young's request for a prison term well below the advisory guideline range. Defense counsel urged that Young's latest encounter with the criminal justice system was the product of his substance abuse problems. Young also presented evidence that four persons in the local community, including a Magisterial District Judge, were willing to provide assistance to him.
The government recommended a prison term of twenty-four months, without any period of supervised release to follow. The government argued that such a sentence was necessary in view of Young's recidivism and continued drug use. The government also asserted that restitution had been made by his co-defendant, Jeanne Hooter, and not by Young. In conclusion, the government argued that a sentence of twenty-four months would at least safeguard the public for that period of time.
In rebuttal, defense counsel argued that a prison term of twenty-four months would not advance any of the applicable sentencing factors and would ignore the substantial role that Young's substance abuse problems played in his criminal history. Defense counsel also emphasized that Young had the support of four prominent members of the community, ...