United States of America v. Sophia L. Austin

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 12-4431
UNITED STATES COURT OF APPEALS
File Name: 13a0695n.06
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SOPHIA L. AUSTIN,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
O P I N I O N
BEFORE: ROGERS and COOK, Circuit Judges; VAN TATENHOVE, District Judge.*
GREGORY F. VAN TATENHOVE, District Judge. In 2007, Sophia Austin pled guilty
to violating 18 U.S.C. § 641, theft of government funds. Austin completed her term of imprisonment
and was on supervised release when she violated the terms of her release. Three issues are now
before the Court arising from that violation and the sentence imposed.
I
The factual basis for Austin’s conviction was theft of over $180,000 of United States
Railroad Retirement widow’s benefits that was paid to Austin’s mother--after she was deceased.
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern*
District of Kentucky, sitting by designation.
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Austin was sentenced to thirty-seven months’ imprisonment and restitution for the amount of money
that was stolen, followed by a three-year term of supervised release.
While under supervision, and subject to required drug testing and restitution payments,
Austin tested positive for cocaine and was accused of not making the required payments. The
district court responded by summoning Austin to appear for a revocation proceeding. She appeared
with counsel, and after some indecision, decided to contest the violations. Austin’s probation officer
was immediately called by the United States to testify as to the supporting facts. Following direct
and cross-examination, the court found that Austin violated the conditions of her release. Seven
months incarceration was imposed, which constituted a sentence at the bottom of the guideline
range. Austin’s supervised release was also extended: “I will extend twelve months the original
three years that I put in place.” Objections were sought, but none was asserted by either party.
Austin submits three arguments for consideration on appeal: her sentence is substantively
unreasonable; the length of the new term of supervised release is unclear; and she was provided
ineffective assistance of counsel. We affirm the term of incarceration, remand for clarification
regarding the length of supervised release, and decline to review Austin’s counsel’s performance.
II
A sentence rendered after revocation of supervised release is reviewed under an abuse of
discretion standard. United States v. Peebles, 624 F.3d 344, 347 (6th Cir. 2010) (quoting United
States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009)). If a sentence is procedurally and
substantively reasonable, it is upheld. Id. (citing Kontrol, 554 F.3d at 1092). Only the substantive
reasonableness is challenged by Austin. “The sentence may be substantively unreasonable if the
district court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or
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unreasonably weighs a pertinent factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011)
(citing United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008)). A rebuttable presumption of
reasonableness attaches to sentences within the applicable Guidelines range. Id. (citing United
States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008)).
The essence of Austin’s argument is that the purpose of supervised release--rehabilitation--
was not honored by the district court’s sentence. United States v. Lewis, 498 F.3d 393, 397 (6th Cir.
2007). In support, Austin offers that she needed treatment for her drug problem, not incarceration.
Austin expounded on this issue in a letter to the district court dated prior to the revocation
proceeding. [R. 27-2.] In the letter, Austin acknowledged using drugs but attributed her use to
stresses caused by her family. She requested counseling as punishment. [Id.]
Austin neglects to mention that the district court explained why treatment was not going to
be selected: treatment had been provided after she tested positive for drugs in April 2012. In July
2012, she failed the drug screens at issue in the revocation proceeding. Furthermore, at the
proceeding Austin vacillated about agreeing to the violations, eventually deciding to contest them.
The district court was faced with a defendant who both admitted and denied using drugs.
Treatment could have been imposed by the court, but that it deemed another option preferable is
completely reasonable. There is nothing to suggest that this within-Guidelines sentence was not
carefully considered, individually tailored, and one to which deference is due. We find no abuse of
discretion.
Austin’s next argument is reviewed for plain error because she did not object to the sentence.
See United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004). Although plain error requires a
finding that there is a clear and obvious error that affected an appellant’s substantial rights and “the
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fairness, integrity or public reputation of judicial proceedings,” Brooks, 628 F.3d at 797, that
standard is met, as the United States concedes.
Austin’s underlying conviction constitutes a Class C felony. 18 U.S.C. § 3559(a)(3). The
maximum term of supervised release for a Class C felony is three years, § 3583(b)(2), and that term
remains unchanged at a revocation hearing with one modification. See § 3583(h). The maximum
amount of time supervision can be imposed must be calculated after any period of incarceration is
subtracted. Id.; United States v. Brown, 639 F.3d 735, 737 (6th Cir. 2011). In this case, once a
seven-month sentence of imprisonment was ordered, twenty-nine months was the longest possible
period of supervision that could be imposed. The district court’s sentence, however, appears to
exceed that limit.
After Austin was ordered to be incarcerated, the district court explained, “I will extend the
term of her supervised release for twelve months. The additional twelve months of supervised
release, which will follow after her release, obviously, from the Bureau of Prisons. I will extend
twelve months the original three years that I put in place.” The United States explains that this
sentence has at least two different interpretations, but regardless the sentence is too long. Plain error
thus results. See United States v. Brown, 163 F. App’x 370, 373 (6th Cir. 2006). Consequently, we
vacate Austin’s supervised release sentence and remand to the district court for resentencing only
as to that matter.
Review of a claim for ineffective assistance of counsel is disfavored on direct appeal. United
States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012) (citing Massaro v. United States, 538 U.S.
500, 504 (2003)). This preference exists because the available record is formed for a purpose other
than reviewing the performance of counsel. Id. Therefore, it is typically inadequate to properly
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support this ancillary proceeding. Id. The paucity of information about Austin’s counsel’s decisions
and the circumstances surrounding the hearing results in a conclusion in accordance with Ferguson.
See, e.g., United States v. Urbina, 459 F. App’x 549, 551 (6th Cir. 2012). It should be noted that
Austin is not prejudiced by this finding as she may pursue this claim via collateral attack. Id. (citing
Massaro, 538 U.S. 508-09).
III
For the aforementioned reasons, we AFFIRM Austin’s term of incarceration, REMAND for
the limited purpose of resentencing Austin for her period of supervised release, and DECLINE to
review Austin’s claim for ineffective assistance of counsel.
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