UNITED STATES of America, Plaintiff-Appellee, v. Michael A. HOFIERKA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronald Carl ANDREWS, a/k/a “Barracuda“, Defendant-Appellant.
Nos. 95-2151, 95-2258
United States Court of Appeals, Eleventh Circuit.
May 16, 1996.
83 F.3d 357
Non-Argument Calendars.
Other circuits have granted an extension. The First Circuit, noting that the appeal was neither meritless nor interposed solely for delay and the government had not suggested that it would present the district director with any other reason for refusing the reinstatement, directed the government to treat the voluntary departure period as beginning to run on the effective date of its mandate.13 The Fourth Circuit reinstated the thirty-day period for voluntary departure from the date of issuance of the mandate, noting that there was no evidence that the circumstances that originally entitled the immigrant to a voluntary departure had changed and the I.N.S. had not suggested that it would present the district director with any other reason for refusing reinstatement.14 The Ninth Circuit en banc, “viewing the award of voluntary departure as part of the deportation order,” held that “the voluntary departure period does not expire until after our affirmance of the deportation order.”15
We find the reasoning of the Tenth Circuit persuasive, and adopt the reasoning stated in Castaneda v. INS that, absent a Congressional empowerment to act, this court lacks jurisdictional authority to grant an extension.16
Here, the Board granted petitioner an extension within the February 4, 1994, decision dismissing his appeal from the denial of his requests for asylum and withholding of deportation, stating that “the respondent is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the district director.” Petitioner‘s petition for review was filed in this court on March 4, 1994, within the 30 days granted for departure, and stayed deportation pending the determination of the petition.17 The request for reinstatement is, therefore, denied.18
Conclusion
The order of the Board of Immigration Appeals is AFFIRMED, and petitioner‘s request for reinstatement of his period of voluntary departure is DENIED without prejudice to consideration of his request for an extension pending before the district director.
Thomas Morris, Charles L. Truncale, Asst. U.S. Attys., Jacksonville, Florida, Tamra Phipps, Asst. U.S. Atty., Tampa, Florida, for the U.S. in No. 95-2151.
William M. Kent, Asst. Fed. Public Defender, Jacksonville, FL, for Appellant in No. 95-2258.
James R. Klindt, Peggy M. Ronca, Asst. U.S. Attys., Jacksonville, FL, Tamra Phipps, Asst. U.S. Atty., Tampa, FL, for the U.S. in No. 95-2258.
Before TJOFLAT, Chief Judge, and HATCHETT and ANDERSON, Circuit Judges.
PER CURIAM:
This case comes to us on consolidated appeal. Appellants Michael A. Hofierka and Ronald Carl Andrews separately appeal the sentences imposed on them for violating the
I. BACKGROUND
A. Appellant Hofierka
In 1993, Hofierka pleaded guilty to making a false claim to an agency of the United States in violation of
The petition seeking revocation of his supervised release alleged that Hofierka violated the conditions of his release by using cocaine and failing to participate in a drug treatment program. At his revocation hearing, Hofierka admitted that he had been dismissed from his drug treatment program because of his drug use. The district court revoked Hofierka‘s supervised release and sentenced him to twenty-four months of imprisonment.2 The twenty-four-month sentence exceeded the applicable Chapter 7 sentencing range of seven to thirteen months. See
B. Appellant Andrews
In 1988, Andrews pleaded guilty to possession of marijuana, in violation of
In October 1992, Andrews began his term of supervised release. Within one year, in September 1993, Andrews was arrested in Florida for violations of state law which included conspiracy to traffic in cocaine and possession of a firearm by a convicted felon. On October 19, 1993, Andrews pleaded guilty to these charges; however, he subsequently moved to set aside his plea. He argued that he had not been advised that the offense to which he pleaded guilty carried a fifteen-year mandatory minimum prison sentence and that the state court had improperly promised that his state sentence would run concurrently to any federal sentence he received for violating the terms of his supervised release. The state court denied Andrew‘s motion. His conviction was affirmed on appeal.
Meanwhile, on October 29, 1993, proceedings had begun in federal court to revoke Andrews’ supervised release. At his final revocation hearing, Andrews refused to admit he had committed a violation of the terms of his supervised release. He argued that the denial of his motion to withdraw his guilty plea was pending before a state appellate court. The district court granted the government‘s motion for a continuance of the revocation hearing.3 By the time the pro-
In support of its contention that Andrews violated the terms of his supervised release, the government offered only Andrews’ state judgment of conviction. Andrews did not challenge the fact of his conviction or the admission of the judgment into evidence. Instead, he offered a copy of his plea agreement into evidence.4 Andrews argued that the plea agreement on its face proved that his state conviction was based upon an invalid guilty plea.5 The district court rejected these contentions and found that Andrews had violated the terms of his supervised release. Andrews was sentenced to five years of imprisonment.6 Before imposing this sentence, the court noted that Andrews had committed the violation within one year of beginning supervised release and that, based on this history, “that seems to be a course of conduct he periodically follows.” The term of imprisonment imposed on Andrews exceeds the range of twenty-four to thirty months set forth in Chapter 7 of the Sentencing Guidelines. See
II. DISCUSSION
A. Sentences under Chapter 7
Hofierka and Andrews argue that the district court improperly imposed a sentence in excess of the range specified in
Appellants go further, however, by arguing that the recent amendment of
(a) Factors to be considered in imposing a sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
. . . .
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentenc-
ing Commission pursuant to section 994(a)(1) of title 28, United States Code, and that are in effect on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code;
(5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2) that is in effect on the date the defendant is sentenced;
. . . .
(b) Application of guidelines in imposing a sentence.—The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described.
(new text underlined). Appellants argue that subsection (b) requires the sentencing court to impose a sentence within the range specified for a violation of probation or supervised release.
The Sixth Circuit in United States v. West, 59 F.3d 32 (6th Cir.), cert. denied, 516 U.S. 980, 116 S.Ct. 486, 133 L.Ed.2d 413 (1995), recently rejected this argument. The court held that the amendment to § 3553 does not render the sentencing range in Chapter 7 mandatory. First, it found that, under the plain meaning of subsection (b), a sentencing court is only required to impose a sentence within the applicable guideline range. Id. at 35. The court held that because Chapter 7 is merely a policy statement and not a guideline, sentencing courts are not bound by it. Id.8 We readily follow the court in West and adopt its reasoning. See also United States v. Escamilla, 70 F.3d 835 (5th Cir.1995).
The plain language of § 3553 indicates that the sentencing court, in imposing a sentence upon revocation of a defendant‘s supervised release, must at least consider the sentencing range prescribed by the Sentencing Commission‘s policy statements. The heading and text of subsection (b) make clear that its mandatory language refers only to those situations in which sentences are imposed pursuant to guidelines. Because the Chapter 7 sentencing range is a mere policy statement and not a guideline (in the sense of binding courts), the language in subsection (b) does not apply to sentencing under Chapter 7.
Indeed, the interpretation pressed by appellants would not make practical sense. The Sentencing Commission specifically stated in Chapter 7 that it issued advisory policy statements rather than guidelines for sentences imposed upon the revocation of supervised release in order to provide district courts with greater flexibility. Milano, 32 F.3d at 1503 (citing
Hofierka and Andrews alternatively argue that, even if the Chapter 7 sentencing range is not binding, the district court failed to consider this range before imposing the sentences. In Milano, we held that sentencing courts must consider the policy statements in Chapter 7 before imposing a sentence, although they are not bound to follow these statements. 32 F.3d at 1503. We review the district court‘s decision to exceed the Chapter 7 sentencing range for an abuse of discre-
As to both appellants, the record amply reveals that the district court adequately considered the Chapter 7 sentencing range. In both cases, the district court explicitly mentioned the Chapter 7 range and chose to exceed it.
B. Notice of Intent to Exceed the Chapter 7 Sentencing Range
Appellants argue that the district court failed to provide any notice of its intent to exceed the Chapter 7 sentencing range. It is clear that a district court must give a defendant reasonable notice before sua sponte departing upward from a guideline sentencing range “on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government.” Burns v. United States, 501 U.S. 129, 137-38, 111 S.Ct. 2182, 2187-88, 115 L.Ed.2d 123 (1991); United States v. Valentine, 21 F.3d 395, 397 (11th Cir.1994). The purpose behind this rule is to promote “focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences.” Burns, 501 U.S. at 137, 111 S.Ct. at 2187. With proper notice, defendants are able to marshal evidence with which to contest facts supporting a proposed upward departure. Valentine, 21 F.3d at 398. We have not decided whether a sentencing court must give notice before exceeding a Chapter 7 recommended sentencing range.
Because we hold that the Chapter 7 sentencing range is not binding on district courts and that it is within their discretion to exceed this range, it follows that exceeding this range does not constitute a “departure.” See United States v. Mathena, 23 F.3d 87, 93 n. 13 (5th Cir.1994) (“A sentence which diverges from advisory policy statements is not a departure such that a court has to provide notice or make specific findings normally associated with departures under § 3553(b).“); United States v. Davis, 53 F.3d 638, 642 n. 15 (4th Cir.1995) (“It is well established that ‘[a] sentence which diverges from advisory policy statements is not a departure.’ “) (quoting Mathena, supra); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, 502 U.S. 992, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991) (“When working with policy statements (as opposed to guidelines), the district court is not required . . . to impose a sentence outside of the prescribed range . . . by finding an aggravating factor that warrants an upward departure. . . .“). Consequently, we hold that the sentencing court is not required to give notice of its intent to exceed the Chapter 7 sentencing range.
This conclusion follows directly from the nature of sentencing under Chapter 7. By statute, Congress has authorized maximum terms of supervised release which vary depending on the nature of the original felony.
The facts of the present cases illustrate our point. Before sentencing Hofierka, the district court made clear that the maximum allowable sentence was two years. With this in mind, the parties discussed at length Hofierka‘s troublesome drug addiction and attempted to arrive at a sentence which would address his particular needs. Hofierka suggested a sentence within the Chapter 7 range, which was considered, but the court chose to impose the maximum sentence.
Similarly, at his final revocation sentencing proceeding, the court informed Andrews that although Chapter 7 recommended a range of twenty-four to thirty months, the maximum sentence was up to five years. The judge permitted both parties to present evidence and argument on the appropriate sentence. Based on Andrews’ apparent pattern of committing drug offenses a short time after his release from prison, the court elected to impose the maximum sentence.
C. Collateral Review of Andrews’ Underlying Conviction
Finally, Andrews contends that the district court erred in relying on his state conviction as grounds to revoke his supervised release. He challenges his state conviction, arguing that the state‘s misrepresentations rendered his guilty plea unconstitutional. Andrews entered into a written plea agreement with the Florida state attorney in which, he contends, he agreed to plead guilty to a charge of cocaine trafficking in exchange for a sentence not to exceed fifteen years and to run concurrently with the sentence he anticipated upon revocation of his supervised release. Relying on Finch v. Vaughn, 67 F.3d 909, 916 (11th Cir.1995), he urges us to declare his guilty plea unconstitutional because it was not knowing, intelligent, and voluntary.10 He concludes that the district court improperly relied on this unconstitutional conviction as the sole evidence of a violation of the terms of his supervised release.
We hold that, under the circumstances of this case, the judgment of conviction was sufficient notwithstanding Andrews’ claim that it was based on an unconstitutional guilty plea. A court may revoke a defendant‘s term of supervised release and impose a prison sentence when it finds by a preponderance of the evidence that the defendant violated a condition of his or her supervised release.
As to Andrews’ argument that the conviction was unconstitutional, a supervised release revocation proceeding is not the proper forum in which to attack the conviction giving rise to the revocation. See United States v. Francischine, 512 F.2d 827, 828-29 (5th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975) (“[T]he underlying validity of a conviction cannot be asserted as a defense in a probation revocation proceeding [and] the conviction‘s validity may be collaterally attacked only in a separate proceeding under
The rule from Francischine unquestionably applies in this context. The Constitution does not require otherwise. Cf. Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 1738, 128 L.Ed.2d 517 (1994) (suggesting that the Constitution may only require such collateral review for failure to appoint counsel to represent an indigent defendant); United States v. Roman, 989 F.2d 1117, 1120 (11th Cir.1993) (en banc) (suggesting that the Constitution may only require such collateral review of uncounseled convictions). As the Supreme Court recently suggested in a different but analogous context, refusal to permit such collateral attack of convictions furthers the goal of finality of judgments. See Custis, 511 U.S. at 496-97, 114 S.Ct. at 1738-39. The sentence in this case will be presumed valid until it is vacated on direct review or in an appropriate collateral proceeding. Cf. United States v. Almand, 992 F.2d 316, 317 (11th Cir.1993) (“A sentence is presumed valid until vacated under § 2255.“). If Andrews’ conviction is reversed, he may seek appropriate modification of his supervised release revocation sentence at that time. Cf. Custis, 511 U.S. at 497, 114 S.Ct. at 1739 (“If [defendant] is successful in attacking these state sentences, he may then apply for reopening of any federal sentence enhanced by the state sentence.“). Of course, we express no opinion on what might constitute such an appropriate modification.
III. CONCLUSION
Accordingly, for the foregoing reasons, we affirm the district court‘s judgments and sentences with respect to both Hofierka and Andrews.
AFFIRMED.12