                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-29-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5470




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                                                NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                       _______________

                         No. 05-5470
                       _______________

               UNITED STATES OF AMERICA

                               v.

                      ROGER W. ELLIS,

                           Appellant.

                    ____________________

         On Appeal From the United States District Court
               for the Middle District of Pennsylvania
                         (No. 94-cr-00256)
    District Judge: Honorable Thomas I. Vanaskie, Chief Judge

           Submitted Under Third Circuit LAR 34.1(a)
                      November 8, 2006

Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges.

                  (Filed: November 29, 2006)
                     __________________

                  OPINION OF THE COURT
                    __________________
CHAGARES, Circuit Judge.

       Appellant Roger W. Ellis (“Ellis”) appeals from the District Court’s Order of

December 15, 2005 revoking his supervised release and imposing the statutory maximum

term of imprisonment of twenty-four months. We will affirm.

                                             I.

       We write only for the parties, therefore a lengthy recitation of the facts and

procedural background is unnecessary.

       On November 30, 1995, Ellis pled guilty to one count of possession of a firearm

by a felon in violation of 18 U.S.C. § 922(g)(1), and one count of possession of an

unregistered firearm in violation of 26 U.S.C. § 5861(d). On March 28, 1996, Ellis was

sentenced to a 120-month term of imprisonment on each count to run concurrently and a

two-year term of supervised release on each count also running concurrently. Ellis

commenced his term of supervised release on November 13, 2003, but Ellis’s liberty

lasted only a scant eight months. On July 28, 2004, he was arrested for violating the

terms and conditions of his supervised release. On September 16, 2004, the District

Court revoked Ellis’s supervised release and sentenced him to a four-month term of

imprisonment followed by a one-year term of supervised release.

       Ellis served the four-month term. He commenced his second period of supervised

release on November 24, 2004, but history was soon to repeat. In August 2005, a warrant

was again issued for Ellis’s arrest for violating several conditions of his supervised

release. Specifically, the warrant charged Ellis with violating the General Condition

                                              2
which forbade Ellis from committing another federal, state or local crime, as well as three

Standard Conditions. In violation of Standard Condition # 2, Ellis failed to submit a

report for the month of July 2005 and failed to report to the Probation Office as directed

on August 12, 2005. In violation of Standard Condition # 11, Ellis failed to notify his

Probation Officer within seventy-two hours of the receipt of a citation for speeding from

Pennsylvania State Police in June 2005 and he failed to inform Probation that he had been

charged by Pennsylvania State Police with allegedly assaulting his girlfriend in July 2005.

Finally, Ellis repeatedly failed to attend scheduled individual and group drug and alcohol

counseling sessions occurring during the months of April, May, and June 2005, in

violation of Standard Condition # 15.

       At the revocation hearing, Ellis admitted violating the three aforementioned

Standard Conditions and waived his right to a probable cause hearing thereon. The

Government agreed to dismiss the allegation that Ellis violated the General Condition.

Thereafter, the District Court heard arguments from the parties on the appropriate

sentence to impose. Ellis maintained that the imposition of another four-month term of

incarceration would be the most appropriate punishment. The Government argued for the

imposition of a longer sentence. Ellis’s original criminal history category was VI, that

being the highest, and the subsequent activity leading to this revocation hearing

constituted Grade C violations of his supervised release.1 Thus, the range of


       1
         The record before us on appeal does not reflect whether the crimes for which
Ellis pled guilty originally (felon in possession and possession of unregistered firearm)

                                             3
imprisonment applicable upon revocation, pursuant to the advisory United States

Sentencing Guidelines § 7B1.4 (Chapter 7 Policy Statement Revocation Table), was

between eight and fourteen months, with the maximum sentence under 18 U.S.C. §

3583(e) for a Class C or D felony being twenty-four months. Ultimately, the District

Court rejected Ellis’s request for a four-month sentence, sentencing Ellis instead to the

statutory maximum term of twenty-four months imprisonment.

       Ellis timely appealed.

                                               II.

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

“When there is no applicable sentencing guideline (Chapter 7 policy statements are not

‘sentencing guidelines’), and when the district court sentences within statutory limits . . . ,

we are empowered to review the sentence and will not disturb it unless it is ‘plainly

unreasonable.’” United States v. Blackston, 940 F.2d 877, 894 (3d Cir. 1991) (citing 18

U.S.C. § 3742(e)(4)). Prior to United States v. Booker, 543 U.S. 220 (2005), we

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

unreasonable’ sentence.” United States v. Dees, ---- F.3d ----, 2006 WL 3209989, at *3


were classified as Class C or Class D felonies. According to the presentence report, the
maximum term of imprisonment for counts I and II is ten years for each. “An offense that
is not specifically classified by a letter grade in the section defining it, is classified if the
maximum term of imprisonment authorized is – . . . (3) less than twenty-five years but ten
or more years, as a Class C felony; (4) less than ten years but five or more years, as a
Class D felony.” 18 U.S.C. § 3559(a)(3)-(4). Class C and Class D felonies are grouped
together in 18 U.S.C. § 3583(e) for purposes of determining the maximum statutory term
of incarceration upon revocation of supervised release.

                                               4
(3d Cir. Nov. 8, 2006) (citing United States v. Schwegel, 126 F.3d 551, 555 (3d Cir.

1997); 18 U.S.C. § 3742(a)(4)).

       Ellis contends that a reasonableness standard applies in reviewing the District

Court’s consideration of § 3553(a) factors. Booker, 543 U.S. at 262 (“Nor do we share

the dissenters’ doubts about the practicality of a ‘reasonableness’ standard of review.

‘Reasonableness’ standards are not foreign to sentencing law. The Act has long required

their use in important sentencing circumstances-both on review of departures, see 18

U.S.C. § 3742(e)(3) (1994 ed.), and on review of sentences imposed where there was no

applicable Guideline, see §§ 3742(a)(4), (b)(4), (e)(4). Together, these cases account for

about 16.7% of sentencing appeals. See United States Sentencing Commission, 2002

Sourcebook of Federal Sentencing Statistics 107, n. 1, 111 (at least 711 of 5,018

sentencing appeals involved departures), 108 (at least 126 of 5,018 sentencing appeals

involved the imposition of a term of imprisonment after the revocation of supervised

release).”).

       We conclude that Ellis’s sentence satisfies either standard of review, and therefore

we need not determine at this time which standard of review applies to violations of

supervised release.

                                                 III.

       Section 3583(e) governs the revocation of supervised release. It states,

               The court may, after considering the factors set forth in section
               3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
               (a)(7)--

                                                  5
                  ....

           (3) 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 for the offense that resulted in such term of supervised
           release without credit for time previously served on postrelease
           supervision, if the court, pursuant to the Federal Rules of Criminal
           Procedure applicable to revocation of probation or supervised release,
           finds by a preponderance of the evidence that the defendant violated a
           condition of supervised release, except that a defendant whose term is
           revoked under this paragraph may not be required to serve on any such
           revocation . . . more than 2 years in prison if such offense is a class C or
           D felony . . . .


18 U.S.C. § 3583(e)(3). The § 3553(a) factors referred to within § 3583(e) include: “(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.

       On appeal, Ellis contends that the District Court failed to articulate explicitly its

consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a) as relevant to 18

U.S.C. § 3583(e). According to Ellis, Booker obligates the District Court to discuss in

detail all of the § 3553(a) factors and state on the record the reasons for the sentence

imposed. Ellis argues that because the record is devoid of such in depth, particularized

analysis, the sentence is unreasonable. Ellis seeks remand for re-sentencing. Ellis also

asserts that his sentence violates § 3553(a) because it is greater than necessary to meet the

purposes of sentencing. We disagree.


                                              6
       We made clear in Blackston that, within the realm of supervised release, the

District Court need only “consider” relevant policy statements and the § 3553(a) factors

listed in § 3583(e). Blackston, 940 F.2d at 893. “In fact, there is no requirement that the

district court make specific findings with respect to each of the section 3553(a) factors

that it considered. At the time of sentencing, the district court simply must state on the

record its general reasons under section 3553(a) for rejecting the Chapter 7 policy

statements and for imposing a more stringent sentence.” Id.; accord United States v.

Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (recognizing that the District Court does not

have to “discuss and make findings as to each of the § 3553(a) factors if the record makes

clear the court took the factors into account in sentencing”).

       Here the District Court offered several reasons for its decision to sentence Ellis to

twenty-four months imprisonment instead of applying the § 7B1.4 range of eight to

fourteen months, and it is clear that the “record as a whole reflects rational and

meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United

States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). The District Court noted that it

had already given Ellis “a break” in sentencing him to four months imprisonment the first

time his supervised release was revoked, and that by his own admission, Ellis was having

difficulty adapting to society.2 The District Court found that Ellis knowingly violated the


       2
         Given the opportunity to address the court, Ellis stated: “It ain’t been easy
adapting to society, I’ll tell you that. And like he said, there is no reason why I didn’t,
other than I knew I was going to jail, so I just didn’t report.” Ellis’s attorney conceded
that Ellis “has had a problem with probation all along.”

                                              7
terms and conditions of his release even after receiving several warnings from Probation,

which demonstrated a lack of respect for the law and an inability to handle the

requirements of supervision. Taking this into account, the District Court reasonably

concluded that a longer term of incarceration, without further, pointless supervised

release was necessary to protect the community, to provide deterrence, and to promote

respect for the law. These considerations are relevant to the history and characteristics of

the defendant, the need to deter criminal conduct, and the need to protect the public from

further crimes by the defendant, 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-(C), and also provide

the District Court with a solid basis for rejecting the § 7B1.4 range and imposing the

more stringent statutory maximum sentence.

       Additionally, the District Court considered defense counsel’s request for a

downward departure from the advisory Chapter 7 sentencing range. The request was

rejected clearly because such a term of imprisonment failed to deter Ellis from criminal

conduct when the same was imposed for Ellis’s violation of his first term of supervised

release. Consideration here relates directly to the need to deter criminal conduct and to

provide the defendant with correctional treatment in the most effective manner. 18

U.S.C. §§ 3553(a)(2)(B), (D).

       Ellis points specifically to § 3553(a)(6), the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar

conduct, and argues that the District Court failed to address this factor, rendering the

sentence unreasonable. However, at the revocation hearing, Ellis did not present the

                                              8
District Court with any information related to sentence disparities, and does not do so on

appeal. Ellis has not met his burden on appeal to prove the sentence was unreasonable.

                                            IV.

       We conclude that the District Court gave meaningful consideration to the

applicable Chapter 7 sentencing range and statutory maximum term of imprisonment as

well as the pertinent § 3553(a) factors in revoking Ellis’s supervised release. The District

Court did not abuse its discretion when it rejected the range of eight to fourteen months,

imposing instead the maximum term of twenty-four months incarceration. Finally, the

sentence of twenty-four months imprisonment is not unreasonable given that Ellis

demonstrated an inability or unwillingness to comply with the requirements of supervised

release not once, but twice.

       Accordingly, for the foregoing reasons, we will affirm the judgment of sentence

imposed by the District Court.




                                             9
