-cr USA v. Altman

1
06-4276 -cr
USA v. Altman
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
5
6
August Term, 2006 7
8
(Argued: May 8, 2007 Decided: August 16, 2007) 9
10
Docket No. 06-4276-cr 11
12
13
UNITED STATES OF AMERICA, 14
Appellee, 15
16
–v.– 17
18
DONNELL HARGROVE, ALSO KNOWN AS THIRST, NAKIM WEST, ALSO KNOWN AS KNOCK, ALSO 19
KNOWN AS KNOCKIE, JASON CAMPBELL, BEVERLY RICHARDSON, ALSO KNOWN AS BEVERLY, 20
JAMES E. JOHNSON, ALSO KNOWN AS GOLDI, 21
22
Defendants 23
24
TERRANCE ALTMAN, 25
26
27
Defendant-Appellant. 28
29
30
31
Before: 32
FEINBERG, CALABRESI, and WESLEY, Circuit Judges. 33
34
Appeal from a judgment of the United States District Court for the Southern District of 35
New York (McMahon, J.), sua sponte imposing a sentence outside the range recommended by 36
the applicable Sentencing Guidelines policy statement for revocations of supervised release. 37
38
AFFIRMED. 39
40
41

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2
MARSHALL A. MINTZ, Mintz & Oppenheim LLP, New York, NY, for Defendant- 1
Appellant. 2
3
EUGENE INGOGLIA, Assistant United States Attorney on behalf of Michael J. 4
Garcia, United States Attorney for the Southern District of New York (Celeste L. 5
Koeleveld, Assistant United States Attorney, of counsel, on the brief), New York, 6
NY, for Appellee. 7
8
9
10
WESLEY, Circuit Judge: 11
This case asks us to decide, in effect, whether United States v. Booker, 543 U.S. 220 12
(2005), and our jurisprudence since then has made it necessary for district courts to give notice 13
before sua sponte imposing a sentence outside the range recommended by the applicable United 14
States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) policy statements for violation of 15
conditions of supervised release. We hold that such notice and an opportunity to challenge the 16
basis for the sentence outside the applicable advisory range need not be given. Accordingly, we 17
affirm the sentence imposed. 18
Background 19
On January 19, 2006, appellant Terrence Altman pleaded guilty to a one count 20
superseding misdemeanor information, which charged him with knowingly, intentionally, and 21
unlawfully possessing a controlled substance in violation of 21 U.S.C. §§ 812 and 844. Before 22
Judge Colleen McMahon, Altman waived his presentence investigation report and requested that 23
he be sentenced on that date. The district court sentenced Altman to a term of imprisonment of 24
time served and supervised release of one year, and ordered him to pay a $1,000 fine and a 25
special assessment of $25. As a condition of supervised release, Altman agreed not to possess or 26
use any controlled substance and to submit to periodic drug tests. 27

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1 The government moved to dismiss this third specification on July 20, 2006, and Judge
McMahon did so.
2 Grade C violations involve “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.” U.S.S.G. § 7B1.1(a)(3).
3 For purposes of clarity, we speak of “sentencing guidelines” as distinguished from
policy statements which, along with sentencing guidelines, are a part of the Guidelines.
3
On March 28, 2006, Altman reported to the United States Probation Office for the 1
Southern District of New York (“Probation Office”) and provided a urine sample – a required 2
condition of his supervised release. On May 3, 2006, the Probation Office sent a Request for 3
Court Action to Judge McMahon noting that the urinalysis had tested positive for cocaine, the 4
use of which Altman apparently denied, and that Altman had refused to submit to a subsequent 5
urinalysis in April 2006. Specifically, the report stated three violations of Altman’s supervised 6
release: (1) Altman had used cocaine at some point on or prior to March 28; (2) Altman had 7
possessed cocaine at some point on or prior to March 28; and (3) Altman had refused to provide 8
a urine sample in April.1 The report noted that the the first two violations were “Grade C” 9
violations.2 The report further specified that according to U.S.S.G. § 7B1.4, which is a non- 10
binding policy statement as opposed to a previously mandatory sentencing guideline,3 the 11
possible range of imprisonment for Altman for violating the conditions of his supervised release 12
was three to nine months, with a statutory maximum of one year. Following a hearing on July 13
20, 2006, Altman was found guilty of violations (1) and (2). Judge McMahon then adjourned the 14
matter for sentencing pending the preparation of a presentence investigation report but continued 15
Altman’s supervised release with the added condition that he be tested for drug use every other 16
week. 17

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4
Before Altman could be sentenced, he returned to the Probation Office for another drug 1
test on August 4, 2006. In a second Request for Court Action, the Probation Office informed the 2
court that Altman had tested positive for cocaine/benzoylecgonine. The report alleged two 3
violations: (1) use of a controlled substance; (2) possession of a controlled substance. Again, the 4
report noted a revocation range of three to nine months of imprisonment, with a statutory 5
maximum of one year. Altman was thereafter arrested. 6
On September 6, 2006, Altman appeared before the district court in order to address the 7
second violation of his supervised release. After some discussion, Altman offered to plead guilty 8
to the first specification, use of a controlled substance, which the government agreed to accept in 9
satisfaction of the violation petition. The district court explained: 10
Let me tell you what can happen to you as a result of these violations. I can, if you are 11
found guilty of these violations, either or both of them, sentence you to not more than [a] 12
one year period of incarceration. Because they are Grade C violations there is a guideline 13
range of three to nine months which I’m not bound by. I cannot go beyond one year by 14
statute because your original conviction was for a Class A misdemeanor. 15
16
For sentencing purposes, the district court agreed to consolidate both the first and second 17
violations of supervised release. Judge McMahon clarified that regardless of the number of 18
violations, Altman faced a maximum one year in prison. After a detailed allocution, Altman 19
pleaded guilty to use of a controlled substance; he also waived the preparation of a presentence 20
investigation report. The court sentenced Altman to one year of incarceration. In so doing, 21
Judge McMahon stated: 22
You got a very good deal, Mr. Altman . . . on the original case. You were cut a 23
tremendous break. I was very happ[y] about that. I liked your family and thought 24
everything was going to work out. And everything has not worked out. You’ve been 25
here twice on use violations. And the first time you absolutely denied using and I 26

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5
disbelieved you, especially in view of the testimony of the chemist. And this time you 1
admit using. But you’re stressed, and probation officers didn’t treat you nicely, and the 2
dog ate your homework. So you used. And I do not see any sign, Mr. Altman, that you 3
would succeed in a residential treatment program. 4
5
I agree with the government that the appropriate thing to do is to give you a sentence of 6
incarceration. We’re now dealing with two separate occasions, a conviction on three 7
violations. And I’m going to sentence you . . . for a term of one year . . . . 8
It is this sentence that Altman now appeals to us, primarily on the grounds that the district court 9
did not give him notice that it intended to impose a sentence beyond the three to nine month 10
range. 11
Discussion 12
Altman contends on appeal that the district court erred when it failed to provide him 13
notice of its intention to impose sua sponte a sentence outside the range recommended by the 14
applicable Guidelines policy statement for revocations of supervised release, a question we 15
originally considered a decade ago before the changes brought upon the federal sentencing 16
scheme by United States v. Booker, 543 U.S. 220 (2005), and its progeny. United States v. 17
Pelensky, 129 F.3d 63 (2d Cir. 1997), presented a set of facts similar to those before us now. 18
Pelensky was sentenced to imprisonment followed by supervised release. Id. at 65. During his 19
term of supervised release, Pelensky, inter alia, tested positive for drug use, contrary to the terms 20
of his release. Id. Pelensky came before the district court for a hearing on the government’s 21
petition for revocation of his supervised release, at which point his counsel requested that the 22
proceeding be adjourned without sentencing in order to allow him to enter a drug treatment 23
program. Id. at 65, 66. The Guidelines’ Chapter Seven policy statements recommended a 24
sentencing range of five to eleven months. Id. at 66. 25

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6
The district court decided to adjourn sentencing so that Pelensky could enter the treatment 1
program. Id. However, the court warned Pelensky that if he failed to complete the program, he 2
faced “being sentenced to 11 months, and perhaps longer, depending upon what is permissible 3
under the statute.” Id. (emphasis in original omitted). Pelensky, despite the warning, did not 4
complete the treatment program. Id. When Pelensky came before the district court for his 5
sentencing hearing, the judge noted the suggested range of five to eleven months but decided, 6
instead, to impose the statutory maximum of thirty-six months. Id. Pelensky raised several 7
arguments before us, but the one germane to Altman’s appeal argued that the district court was 8
required to give him notice before imposing sua sponte a sentence higher than that suggested by 9
the Guidelines’ Chapter Seven policy statements. Id. at 69. 10
We affirmed the district court. We began by noting that “[t]here is no sentencing 11
guideline governing violations of supervised release.” Id. Further, “[a]lthough a district court, in 12
sentencing a defendant for a violation of supervised release, is directed to consider the 13
non-binding policy statements found in Chapter Seven of the Guidelines Manual, the court 14
ultimately has broad discretion to revoke its previous sentence and impose a term of 15
imprisonment up to the statutory maximum.” Id. (internal quotation marks omitted). As an 16
initial matter, we found that Pelensky did have some notice that the district court might depart 17
from the policy statements and its grounds for doing so because the district court warned him that 18
if he failed to complete the treatment he could face up to eleven months or longer. Id. However, 19
we held that “[i]n any event, . . . the court was not required to give notice to Pelensky before 20
imposing a sentence above the range suggested by [the Guidelines’] Chapter Seven’s non- 21

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4 Though it may be argued that this was dicta, it was not. The determinative factor in
Pelensky was that “[t]he district court was not required to provide notice to Pelensky of its intent
to sentence him to a term in excess of the range recommended by the non-binding policy
statements contained in Chapter Seven of the Sentencing Guidelines.” United States v. Pelensky,
129 F.3d 63, 71 (2d Cir. 1997). Thus, that Pelensky received some notice was irrelevant to the
result.
7
binding policy statements.”4 Id. at 70. We distinguished Burns v. United States, 501 U.S. 129 1
(1991), in which the United States Supreme Court enforced the notice requirements for a 2
sentencing departure for the then-mandatory sentencing guidelines. We indicated that the “notice 3
requirement does not apply to deviations from the non-binding policy statements found in 4
Chapter Seven of the Guidelines.” Pelensky, 129 F.3d at 70. We explained that “[b]ecause these 5
policy statements are merely advisory, the sentencing court is not ‘departing’ from any binding 6
guideline when it imposes a sentence in excess of the range recommended by the Chapter Seven 7
policy statements.” Id. at 70-71. “When imposing a sentence for violation of supervised release, 8
the court is bound only by the statutory maximum imposed by Congress, and is therefore under 9
no obligation to provide notice to defendants of its intent to exceed the non-binding sentencing 10
ranges recommended in Chapter Seven of the Guidelines.” Id. at 71. The question remains, 11
however, whether our holding in Pelensky with respect to notice stands post-Booker. We hold, 12
for reasons explained below, that it does. 13
In 2005, the United States Supreme Court decided Booker and “significantly altered the 14
federal sentencing regime, essentially by making the federal sentencing guidelines advisory 15
instead of mandatory.” United States v. Carlton, 442 F.3d 802, 808 (2d Cir. 2006). 16
Subsequently, this Court determined that a defendant must receive notice and an opportunity to 17
comment on matters relating to a sentence when the judge sua sponte imposes a non-Guidelines 18

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8
sentence. See United States v. Anati, 457 F.3d 233, 236 (2d Cir. 2006). 1
Appellant argues, inter alia, that a “harmonization of sentencing based on guidelines 2
and policy statements” has occurred within our jurisprudence since Booker and in conjunction 3
with Anati. See Appellant Reply Br. 6-8. Booker has changed certain aspects of sentencing, and, 4
in some ways, the once-binding sentencing guidelines now may seem more like the policy 5
statements applicable to the revocation of Altman’s supervised release. As mentioned, the 6
Guidelines are now advisory. The pre-Booker test for reviewing sentences for supervised release 7
violations now closely resembles the standard we use post-Booker to review all sentences. 8
Compare Pelensky, 129 F.3d at 69 (“In the absence of an applicable guideline, we will uphold 9
the district court’s sentence if (1) the district court considered the applicable policy statements; 10
(2) the sentence is within the statutory maximum; and (3) the sentence is reasonable.” (internal 11
quotation marks omitted)), with United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006) 12
(stating that we review sentencing decisions for reasonableness, two components of which are 13
“(1) procedural reasonableness, whereby we consider such factors as whether the district court 14
properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated 15
the Guidelines as advisory, and (c) considered the Guidelines together with the other factors 16
outlined in 18 U.S.C. § 3553(a); and (2) substantive reasonableness . . . .” (footnote omitted)). 17
Further, appellant correctly notes that the standard of review that we use to evaluate a sentence 18
pursuant to a policy statement has changed from “plainly unreasonable” to simply one of 19
“reasonableness,” the latter being the same standard of review for all sentences. See United 20
States v. Lewis, 424 F.3d 239, 243 (2d Cir. 2005). However, none of this compels us to conclude 21
that the differences between policy statements and the once-binding sentencing guidelines are 22

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now illusory. 1
Though we need not opine on the extent of the differences between policy statements and 2
the previously mandatory sentencing guidelines, we note that our jurisprudence, even post- 3
Booker, continues to recognize differences between initial sentencing and revocation of 4
supervised release, more broadly, and, in at least one instance, differences between policy 5
statements and sentencing guidelines, more specifically. With respect to the former, we have 6
observed that “[t]his Court considered the supervised release scheme generally in the wake of 7
Booker . . . and conclude[d] that supervised release remain[ed] unaffected by Booker.” United 8
States v. McNeil, 415 F.3d 273, 276 (2d Cir. 2005) (citing United States v. Fleming, 397 F.3d 95, 9
97-99 (2d Cir. 2005)). We have drawn a sharp divide between initial sentencing and the 10
revocation of supervised release with respect to the protections and safeguards available to the 11
individual. In Carlton, we rejected constitutional challenges to the procedure for the revocation 12
of supervised release pursuant to 18 U.S.C. § 3583(e)(3). We commented that the reason the 13
defendant’s punishment under § 3583(e)(3) was “qualitatively different from a bank robbery 14
conviction obtained in the normal course of a criminal trial [] is that a sentence of supervised 15
release by its terms involves a surrender of certain constitutional rights [including certain] due 16
process rights . . . . The full panoply of procedural safeguards does not attach to the revocation 17
proceedings . . . .” Carlton, 442 F.3d at 809. 18
We have also continued to distinguish between policy statements and sentencing 19
guidelines. In Lewis, we noted in the context of revocation of supervised release that although 20
the judge had to state the reasons for a particular sentence, “a court’s statement of its reasons for 21
going beyond non-binding policy statements in imposing a sentence after revoking a defendant’s 22

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5 Because we conclude that Altman was not entitled to notice, we need not resolve the
standard of review applicable to this case.
10
supervised release term need not be as specific as has been required when courts departed from 1
guidelines that were, before Booker, considered to be mandatory.” 424 F.3d at 245. See also 2
United States v. Goffi, 446 F.3d 319, 322 (2d Cir. 2006) (noting that a sentencing court must 3
consider “non-binding policy statements applicable to probation violations [] in determining an 4
appropriate sentence. Nowhere, however, does it require a court to sentence within the 5
Guidelines range for the underlying conviction in determining punishment for separate and 6
distinct malfeasance by the defendant – violation of probation”). 7
This case, we believe, presents a situation in which a distinction continues to be 8
warranted. As we noted in Pelensky, the policy statements related to violations of supervised 9
release were advisory in 1997, and remain so today. As the status of those policy statements has 10
not changed, we do not believe that Anati requires us to conclude that a district court must 11
provide notice before imposing sua sponte a sentence outside the recommended range in the 12
context of revocation of supervised release. Anati sought to give vitality to the notice and 13
comment requirements of Federal Rule of Criminal Procedure 32(i)(1)(C) in light of the district 14
court’s continued obligation to consider the appropriate Guidelines range in determining a 15
procedurally and substantively reasonable sentence. Anati, 457 F.3d at 236. The notice 16
requirement continues to make sense in the initial sentencing context, but does not, thereby, 17
extend automatically to the context of revocation of supervised release. 18
Altman was not entitled to notice in this instance.5 He was initially sentenced in 19
accordance with the law. He was also punished for violating the terms and conditions of his 20

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6 Though notice is not mandatory, it is prudent to give such notice, especially in situations
in which the court is relying on information that is either new or not obvious when determining
the sentence.
11
original sentence. In this context, the district court judge was advised of a recommended 1
sentencing range by the applicable policy statements but was not in any way bound by that 2
suggestion. The length of the new sentence was solely a function of the district court judge’s 3
discretion given the facts found or admitted following the appropriate procedures for establishing 4
Altman’s violation of the terms of his supervised release. 5
Anati does not alter Pelensky’s holding that a defendant is not entitled to notice when a 6
district court imposes sua sponte a sentence for revocation of supervised release that is outside 7
the range recommended by the applicable Guidelines policy statements.6 We also note that post- 8
Booker, the Ninth and Tenth Circuits appear to have reached the same conclusion, though relying 9
mainly on past decisions in their respective jurisprudence. See United States v. Leonard, 483 10
F.3d 635, 638-39 (9th Cir. 2007); United States v. Shields, 221 Fed. App’x 787, 788-89 (10th 11
Cir. 2007) (unpublished). Altman was not entitled to notice in this situation. 12
13
Conclusion 14
For the reasons stated above, the sentence imposed by the district court is hereby 15
AFFIRMED. 16

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