United States v. Joseph Kippers
2012 U.S. App. LEXIS 12668
| 5th Cir. | 2012Background
- Kippers pleaded guilty to Count 5 in a drug-conspiracy case, with Counts 1 and 2 dismissed in exchange by the Government.
- Initial sentencing of three years’ probation below guidelines occurred after considering his mental and physical disabilities.
- Two years later, a warrant was issued for his probation violation based on a violent incident resulting in arrest.
- At revocation, Kippers admitted to simple assault and urged the court to modify, not revoke, probation.
- Daughter testified to a threatening assault in which Kippers demanded money after receiving BP settlement funds and threatened to burn the house with her and the children inside.
- The district court revoked probation, sentenced Kippers to 4 years’ imprisonment with no supervised release, and restricted contact with his daughter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether probation-revocation sentences receive closer review than supervised-release revocation sentences. | Kippers argues probation revocation deserves greater scrutiny. | Kippers cites Miller to claim plain-review standard should apply. | Plain-unreasonableness standard governs; Miller governs revocation of probation." |
| Whether the district court failed to satisfy due process under §3553(a) and plain-error rules in imposing 48 months. | Kippers asserts inadequate, incorrect reasons and ignored mental illness. | Government says implicitly satisfied §3553(a) considerations. | Court found no clear plain error; district court adequately explained and implicitly weighed §3553(a) factors. |
Key Cases Cited
- United States v. Teran, 98 F.3d 831 (5th Cir. 1996) (plain-unreasonableness standard for revocation lacks guidelines)
- United States v. Miller, 634 F.3d 841 (5th Cir.) (Booker did not abolish §3742(a)(4) plain-unreasonableness review)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (requires consideration of §3553(a) factors and explain deviations)
- Whitelaw, 580 F.3d 256 (5th Cir. 2009) (plain-error review for sentencing without explicit §3553(a) reasons)
- Smith, 440 F.3d 704 (5th Cir. 2006) (implicit consideration of §3553(a) factors suffices)
- Rita v. United States, 551 U.S. 338 (2007) (gives deference to district court in sentencing decisions)
- United States v. Gonzalez, 250 F.3d 923 (5th Cir. 2001) (implicit §3553(a) factor consideration acceptable)