                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2008

USA v. Hudicek
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5000




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"USA v. Hudicek" (2008). 2008 Decisions. Paper 1417.
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                                                     NOT PRECEDENTIAL
                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No: 06-5000
                                    _______________

                            UNITED STATES OF AMERICA

                                              v.

                                  ROBERT HUDICEK,

                                          Appellant
                                    _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. No. 99-cr-00524-20)
                       District Judge: Honorable Robert F. Kelly
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 7, 2008

            Before: BARRY, JORDAN, and HARDIMAN, Circuit Judges.

                                  (Filed March 19, 2008)
                                    _______________

                               OPINION OF THE COURT
                                   _______________

JORDAN, Circuit Judge.

       Robert Hudicek appeals from the District Court’s November 27, 2006 order

sentencing him for violating the terms of his supervised release. For the reasons set forth

below, we will affirm the 18 month term of imprisonment imposed by the District Court
and vacate and remand the remainder of the District Court’s order with instructions to

impose a term of 12 months supervised release.

I.     Background

       Because we write only for the parties, a lengthy recitation of the facts and

procedural history is unnecessary.

       On August 31, 1999, Hudicek was charged with conspiracy to commit offenses

against the United States for running an illegal “chop shop,” removing vehicle

identification numbers, possessing vehicles with altered identification numbers, and

aiding and abetting the operations in a chop shop, all in violation of 18 U.S.C. §§ 371 and

2322. Hudicek entered a guilty plea on May 19, 2000. On February 22, 2001, Hudicek

was charged in another indictment with conspiracy to remove vehicle identification

numbers and possess vehicles with altered identification numbers. Hudicek also pled

guilty to that conspiracy charge. Pursuant to a plea agreement, Hudicek was to receive a

consolidated sentence for the offenses charged in the two indictments. On November 21,

2002, Hudicek was sentenced to 60 months imprisonment, followed by a three year

period of supervised release.

       Hudicek’s period of supervised release began on October 25, 2004. On August 23,

2006, the Philadelphia Police discovered that Hudicek had opened an auto detailing shop

and was associating with a known felon, in violation of the terms of his supervised

release. Evidence seized at that time implicated Hudicek in the theft of a trailer and its

contents. Hudicek was subsequently arrested and charged with criminal conspiracy and

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receiving stolen property. The United States Probation Office initiated a petition for

revocation on November 14, 2006, alleging that Hudicek violated his supervised release

by committing a state crime, a Grade B violation, and by committing three Grade C

violations.

       The District Court conducted a hearing on the Probation Office’s petition on

November 27, 2006. At the conclusion of the hearing, the District Court revoked

Hudicek’s supervised release and imposed a sentence of 18 months imprisonment

followed by 12 months of supervised release. Later, in a written order, the Court

reiterated the 18 month term of imprisonment but, rather than a 12 month period of

supervised release, the Court imposed 24 months of supervised release. Hudicek filed his

notice of appeal on December 4, 2006.

II.    Discussion

       The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(e).

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The

Chapter 7 policy statements set forth in the Sentencing Guidelines were advisory even

before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005),

rendered the Guidelines themselves advisory. See, e.g., United States v. Blackston, 940

F.2d 877, 893 (3d Cir. 1991) ( “The United States Sentencing Commission Guidelines

Manual makes clear that the Chapter 7 policy statements are not “guidelines.” ... [P]olicy

statements are merely advisory.”) (citation and footnote omitted). “Prior to Booker, [we]

reviewed ... revocation sentences for abuse of discretion that resulted in a ‘plainly

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unreasonable’ sentence.” United States v. Dees, 467 F.3d 847, 852 (3d Cir. 2006) (citing

United States v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997) (per curiam); 18 U.S.C. §§

3742(a)(4), (e)(4) and (f)(2)). Post-Booker, we review sentences for reasonableness.

United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc), cert. denied, 128 S.

Ct. 106 (2007). “The touchstone of ‘reasonableness’ is whether the record as a whole

reflects rational and meaningful consideration of the [sentencing] factors enumerated in

18 U.S.C. § 3553(a).” Id.

       Hudicek argues that the sentence imposed by the District Court must be vacated

because the District Court failed to articulate its reasons under 18 U.S.C. § 3553(a) for

imposing a sentence beyond the Chapter 7 policy statement range and because the

sentence imposed by the District Court is plainly unreasonable.1 We disagree.

       In imposing a sentence for a violation of supervised release, the District Court

should consider the sentencing range suggested by the Chapter 7 policy statements, as

well as “(1) the nature and circumstances of the offense; (2) the history and characteristics

of the defendant; (3) the need to afford adequate deterrence to criminal conduct; (4) the

need to protect the public from further crimes of the defendant; and (5) the need to

provide the defendant with appropriate treatment.” Blackston, 940 F.2d at 893 (citing 18

U.S.C. §§ 3553(a) and 3583(e)).


  1
    The government, citing United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006),
argues that, because Hudicek did not raise these objections before the District Court, we
should review them for plain error. We find Hudicek’s claims to be without merit under
either the plain error or abuse of discretion standard of review.
                                             4
       Given Hudicek’s criminal history category, the term of imprisonment

recommended by the Chapter 7 policy statement was 8 to 14 months. U.S.S.G. § 7B1.4.

The District Court explained its reasons for imposing an 18 month term of imprisonment

and a term of supervised release as follows:

       Well among the many bad things about violating supervised release is
       that it causes the Court to go back and look at the original pre-sentence
       report and of course the original sentence to prison was 60 months. But
       that was really a reduction from a sentencing guideline range which at
       that time was mandatory of 87 to 108 months. While he was on pre-
       trial release for auto theft, it was determined that he had stolen about
       seven motorcycles. While he was on pre-trial release for auto theft, it
       was determined that he attempted to interfere with the investigation by
       threatening cooperating witnesses. And in his long career, in this pre-
       sentence report, indicated that he was involved in several high speed
       chases with police. I bring this up because Mr. Hudicek, you’ve got to
       figure it out. The Government and the City Police have decided to do
       what they can to put a stop to automobile theft and you are just going to
       keep getting caught. You’ve got to learn a new trade. I may well have
       said this to you at the time of sentencing the first time. But I don’t hold
       out much hope for you. The sentence of the Court is that you undergo
       imprisonment in the Bureau of Prisons for a period of 18 months. ...
       That is followed by a period of supervised release of 12 months. That
       is the sentence of the Court.

(App. 116A-117A.) Based on the record, we are satisfied that the District Court

sufficiently articulated its reasons for imposing the sentence, consistent with § 3553(a).

       We are also satisfied that the sentence of imprisonment imposed by the District

Court was reasonable. Hudicek committed four violations of the terms of his supervised

release, including committing a new crime. During his initial sentencing, Hudicek

received a substantial departure. Even with the additional 18 months of imprisonment he

received for violating his supervised release, the total sentence of 78 months

                                               5
imprisonment is still below the initial Guideline range of 87 to 108 months. The District

Court did not err or abuse its discretion in finding that a sentence in excess of the Chapter

7 advisory range was appropriate. The 18 month term of imprisonment imposed by the

District Court was reasonable and will be affirmed.

       Finally, Hudicek and the government agree that, during the hearing, the District

Court imposed a new term of supervised release of 12 months. That portion of the

sentence was also reasonable. However, the District Court’s written judgment states that

the new term of supervised release is 24 months. That too may have been reasonable but,

as the parties agree, we must vacate that portion of the order and remand to the District

Court with instructions to conform its written judgment to the term of supervised release

it imposed on the record during the November 27, 2006 hearing. See United States v.

Chasmer, 952 F.2d 50, 52 (3d Cir. 1991) (“In the circumstances we think it appropriate to

indicate that we will follow the ‘firmly established and settled principle of federal

criminal law that an orally pronounced sentence controls over a judgment and

commitment order when the two conflict.’”) (quoting United States v. Villano, 816 F.2d

1448, 1450 (10th Cir. 1987)).

III.   Conclusion

       The 18 month term of imprisonment imposed by the District Court in its

November 27, 2006 order will be affirmed. We will vacate the remainder of the order

and remand to the District Court with instructions to conform the written judgment to the



                                              6
term of 12 months supervised release stated on the record during the November 27, 2006

hearing.




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