*1 sufficiently prejudicial assessment were a motion under 28 U.S.C. 2255.
support IV. Conclusion reasons, foregoing For the because Tra- prove prejudiced villion failed to he was ground alleged either due counsel’s inef- fectiveness, he has not met his burden. inherently
No “fundamental defect which complete miscarriage jus- results tice” has been shown to exist and the Accordingly,
result of the trial is reliable. we will affirm the decision of the District denying Travillion’s 2255 motion.
UNITED STATES of America THORNHILL, Appellant. M. Theresa 13-2876, 13-2877, Nos. 13-2878. Appeals, United States Court of Third Circuit. Argued March 2014. July Filed:
role and the establishment of a sys “new tem of release.” Gozlon-Per States, etz v. United 498 U.S. (1991). S.Ct. L.Ed.2d 919 system” “new was codified in 18 U.S.C. *3 3583, provision included a at subsec (g) which mandates the revocation of supervised imposition release and the of a imprisonment term of under certain enu merated circumstances. 18 U.S.C. § 3583(g).1 question The we consider is: once § 3583(g)’smandatory provision triggered, guides what a district court’s exercise discretion in determining the length of the defendant’s term of imprison- ment? We conclude that this exercise of guided by discretion is the sentencing fac- set forth in tors 18 U.S.C.
I. 2002, pled guilty Theresa Thornhill single count of bank fraud in violation of Haywood, Ivory, Rebecca R. Michael L. 18 U.S.C. the United States [argued], Attorney Office United States District Court for the Western District of PA, Pittsburgh, Appellee. for 23, 2003, Pennsylvania. May On the Dis- Long, [argued], Elisa A. Office of Feder- to, trict Court sentenced Thornhill inter Defender, PA, Pittsburgh, al Public for alia, imprisonment 21 months and a
Appellant. five-year supervised term of release. She was also directed to RENDELL, SMITH, make restitution in Before: (2003 Conviction). $25,521.12 HARDIMAN, the amount of Judges. Circuit five-year Thornhill’s OPINION release for the 2003 Conviction commenced SMITH, Judge. Circuit 30, on December In a 2004. Petition on 30, Supervised May Release dated Congress enacted the Sentenc- (First Petition), Act, probation Thornhill’s ing Reform a measure which offi- pro- foundly cer advised the District that: sentencing pro- the old “revise[d] States, Thornhill had samples cess.” Mistretta v. United submitted six urine positive marijuana; U.S. 109 S.Ct. that tested L.Ed.2d she had (1989). One of the outpatient reforms effected failed to attend her treatment abuse; the Act special pa- was the elimination of for substance she had neither re- 3583(g) provides, part, 1. Section imprisonment in relevant to serve a term of not to exceed engages that if the defendant in certain con- the maximum term of author- involving duct controlled substances or fire- (e)(3).” ized under subsection 18 U.S.C. arms, that "the court shall revoke the term of 3583(g). require release and the defendant officer con- probation The trial nor filed release. officer probation ported to The representations. had not firmed counsel’s and she reports; requisite agreed restitution. to the modifications. toward District Court any payments made war- proba- issued a bench February On July rant, was arrested and Thornhill Petition Supplemental filed a tion officer Thereafter, probation Petition). officer (Third Release Supervised on Petition Supplement filed Motion alleged petition This new (Second Petition), Release Supervised on positive marijuana tested again had the condi- violations of additional alleging February January and three occasions The Sec- release. tions of su- 2008, thereby violating conditions had that Thornhill charged Petition ond stemming pervised release by opening in fraudulent conduct engaged Third refer- Petition also Conviction. *4 at different accounts four four bank plea to guilty enced Thornhill’s using four City National Bank branches information, the commis- which established It al- Security Social numbers. different crime. sion of a federal checks drawn deposited she had leged that District Court On March new ac- accounts into these on closed hearing for a conducted both counts, that this conduct and concluded on the hearing and a the 2007 Conviction U.S.C. to fraud amounted bank Second, Petitions, First, Third which and security 1344(1), use of social fraudulent her su- of the terms of alleged violations 408(a)(7)(B), under 42 U.S.C. numbers the 2003 Conviction. release on pervised identity theft under 18 aggravated and offered several exhibits Defense counsel 1028A(a)(l). attached Exhibits U.S.C. provide insight into Thornhill’s intended to that Na- Petition established to the Second circumstances, including a four- personal a loss of City Bank sustained tional clini- single-spaced report from page, teen $7,648.65. Brams, S. Ph.D. psychologist cal Jolie Thornhill waived November On She report thorough. Dr. was Brams’s pled guilty an and right her to indictment that, contrary presen- to earlier noted charging her information to a one-count significant a report, Thornhill had tence of 18 U.S.C. bank fraud violation with issues as a child. history psychiatric Conviction). 1344(1) (2007 The informa- history hospitalizations, included This on the criminal conduct was based concern complete parental “a lack of noted in the Second Petition. described also nurturing.” report or described defense guilty plea, Thornhill’s At her at the of a history of sexual abuse hands that, advised the counsel in her family which had resulted member office, services according pretrial placement into foster care. Thornhill’s the condi- cooperating with was Thornhill similarly by physical marked marriage was Specifically, counsel of her release. tions opined Dr. Brams and mental abuse. reporting that she the court was told symp- many signs Thornhill had and that officer as probation her stress disorder toms of post-traumatic negative. weekly drug screens tested her impact- that her “mental health difficulties addition, counsel defense noted in a ability to deal with her life ed her hoped supervising probation officer manner, consistently efficacious cloud[ed] of the residence move out could more vulnera- judgment, and made her custodian, agree- third-party of her manipulations husband.” [the] ble monitor- eliminating the electronic able length impact Dr. described pre- of her Brams that had been condition Thornhill experi- of the domestic violence family continued present her, and characterized her enced extended fam- obstacles for especially those created ily situation as “toxic.” The report high- by her abusive husband. Dr. Brams noted lighted the limited resources available to that Thornhill was concerned about who help Thornhill. would care for her children if she were to be incarcerated. And Thornhill expressed Brams, According to Dr. had a belief that the progress she had made insight some into predicament, and she negated would be if she were to be incar- opined there could be a “good prog- cerated. opined Dr. Brams that Thornhill if nostic outcome the correct resources are “has done well during the last few put place.” The report concluded months,” making “solid and positive recov- stating: ery many traumatic events.” Appropriate psychiatric treatment Beyond her crucial, reports, written Dr. Brams also and she has demonstrated a hearing. testified at She acknowl- (cid:127)willingness comply recognizes edged that Thornhill had marijuana, used need for these clearly She services. but noted that it was on a life, therapeutic wants to a “normal” have but has basis when she had run out of her medi- opportunity had little to learn how to cation and when she “was under a However, great create one. underneath his- deal of According Brams, stress.” to Dr. tory dysfunction appears to be a *5 marijuana Thornhill did not use “for recre- young potential woman who has the to purposes.” ational probation change. officer also testified about her progress provided Defense counsel also the Dis- following the 2007 Conviction. page, trict Court with a six single-spaced After hearing testimony, supplemental report from Dr. the District Brams. The imposed Court sentence. supplemental report Looking at a discussed Thornhill’s guideline range progress previous eight over for bank of six months. fraud to opined Dr. fourteen months of imprisonment, Brams granted a substantial downward Thornhill’s life likely is as as it stable variance based on Thornhill’s diminished been, has ever recognizes and while she capacity mental responsibility and her for support officer, probation of her at- raising her two sons. He counselor, sentenced her to torney,. and in reality it is Ms. day imprisonment, one of imposed a five- generally Thornhill who has dealt an year release, supervised term of di- appropriate life, manner with her as pay rected that she restitution to National adult, parent, employee, and citizen. It City Bank. important for the Court to note that she has done so in the face of continuing The hearing then turned to the viola- stressors, family and immense dysfunc- First, Second, alleged tions tion with purposeful threats to her emo- Third Petitions. Thornhill admitted the physical safety by tional and various allegations in petitions, gov- and the family members. encouraged ernment to a impose supplemental report within-guideline eigh- advised that sentence of to twelve employed part Thornhill was a imprisonment. time as teen months of Neverthe- less, nursing According licensed assistant. revoking supervised after her release Brams, Conviction, Dr. receiving Thornhill was coun- on the 2003 the District Court seling complying services and with day sentenced her to one of imprisonment, regime. medication concurrently to be served with the sen- imprison- of term within-guideline a posed the 2007 Conviction. imposed tence conviction, to months on each another of nine imposed the Court Importantly, 24- by concurrently, release followed supervised of three-year term be served release. supervised Conviction. the 2003 term month im- release supervised The terms and Fifth Fourth allegations included 2007 Conviction posed for include averments that did Petitions dur- home detention period of nine-month crimi- engaged additional Thornhill had to wear required was which Thornhill returned an indictment But nal conduct. Sep- In device. monitoring an electronic 2009, May alleged that jury in by grand being months after six tember almost July around to in or “May 2008 subject yet sentenced, Thornhill “knowingly exe- 2008,” again Release Supervised on Petition another execute attempted] cute[d] Petition), alleging one (Fourth to defraud” another and artifice scheme mon- electronic with her tampered she had § 1344. On of 18 U.S.C. bank violation addition, transmitter.2 itoring Judge District 2009 the same October had alleged that Thornhill Petition Fourth on her 2003 had sentenced Thornhill who times for several positive again tested fraud, ac- for bank and 2007 Convictions marijuana. plea to the of- guilty cepted Thornhill’s Supervised on Petition Supplemental A Conviction). (2009 fraud of bank fense Petition) just a (Fifth followed Release sentenced Thornhill February of he alleged that Petition This month later. months, 24of terma scheduled to attend had failed: four-year aby followed attend appointments; mental health restitution. payment release officer; probation with scheduled visits on Thornhill’s term that were to file the reports com- 2009 Convictions release; and the terms of In a July 2011.3 Show menced restitution. toward any payments make *6 Petition) (Sixth April dated Petition Cause 28, 2008, revoca- yet another On October officer al- 26, 2013, probation Thornhill’s conducted before hearing was again violated that Thornhill had leged admitted Judge. Thornhill same District for each supervised release of her terms that had using marijuana and she alleged Petition The Sixth conviction. as re- monitoring wearing the device been several violations she had committed that: to the violations admitted quired. She also and Crimi- Pennsylvania’s Vehicle Code again, Fifth Petition. forth in the Once set marijuana on Code; for positive tested nal Thornhill had violated found occasions;4 to attend mental failed seven supervised release the conditions and nei- appointments; health treatment release on both supervised revoked office probation to the reported im- ther He the 2007 Convictions. 2003 and Petition, why the entire explain she did not serve police According offi- the Fourth 2. apartment found her cers were at months. wearing moni- ten-year-old the electronic son toring A246. transmitter. 3583(g) "[i]f mandates 4.Section testing, part drug ... as a defendant appears sentenced It illegal positive controlled substances tests February of imprisonment 24 months of year.” the course of 1 than 3 times over more passed only seventeen months 2010 and that positive 3583(g)(4). U.S.C. when her commenced 3583(g)’s applicability. triggered § tests record, however, does not July 2011. The drug testing as nor submitted the stead of revoking supervised release, addition, required monthly report. provide the Court should her with “struc- Sixth Petition averred that Thornhill had ture.” payments
made no restitution on the 2007 The responded by counsel stat- and 2009 Convictions and owed more than ing: “That’s what we’ve been trying to $25,000 on the 2003 Conviction. give here, her.... She’s been and been On June the same District here, and been here. That’s what Judge who had sentenced Thornhill on her plan whole has probation been. [The offi- 2003, 2007, and 2009 Convictions conducted has try give cer] worked hard to her a a third hearing. The Court structure.” recounted in detail Thornhill’s criminal his- The judge probation asked the officer tory alleged and set forth the violations of whether release should be re- the terms of her release on the probation voked. The replied record. officer Defense counsel noted that she had allegations Thornhill admitted the tried to work with except referring Sixth Petition for the state law her to different programs, but violations and the averment that she had that Thornhill had failed both to follow report failed to probation office. through and to comply with directives probation The officer noted Thornhill’s probation the Court. The officer ex- psychiatric disorders and that she had pressed her belief that Thornhill “needs been traumatized because she had wit- environment, the structured pris- such as nessed her brother’s murder. In the wake government on.” agreed, again, once murder, probation noted, of this officer urging impose the Court to a substantial cope Thornhill also had to with the murder sentence. The Assistant Attorney U.S. of one of her sons and the fact that anoth- three-year recommended a period of im- injuries er son sustained serious in a motor prisonment, consisting one-year of a term probation vehicle accident. The officer ac- on each conviction. knowledged that Thornhill’s failure to com- The Court concluded that Thornhill had ply reporting with the requirement oc- violated the conditions her supervised curred during this turbulent time. release. Thornhill then addressed the argument, during Court then heard Court. unexpected She referred to the which defense counsel noted that Thorn- trauma her life and stated: hill’s violations were Grade C violations *7 asking you anything, I’m not for but if urged the Court not to revoke her you in put jail, want to me that’s fine. emphasized release. He is, only The I’m thing asking that I’ve tragic case, nature of Thornhill’s acknowl- always reported, I’ve never not showed edging that the “Court is aware of her up for you any court. I’ve never showed history.” Counsel on to recount went disrespect just to not I’m report. ask- disorders, psychiatric her abu- my wasn’t able to be there when sive marriage, childhood and and the ser- —I brother’s murderers were convicted. tragic involving ies of events the murders just asking, I’m can I be there when the son, of her brother and her as well as the person my who shot child is tried. involving ear accident her other son. asking. you That’s all I’m If to want Counsel conceded that Thornhill had test- fine, away, sent me Your positive marijuana, ed that’s Honor. explained but But I self-medicating light prison that she was did not come out of to that, urged disrespect you. circumstances. Counsel in- her sub- made to address remarks, already been to Thornhill’s response In judge re- The following: problems. stance abuse Judge stated District on each supervised release done, voked Miss done or not you’ve Whatever subject to conviction, noting that she as Thornhill, feel personally I don’t than three for not more me. you’ve disrespected imprisonment though im- law, been here The Court you’ve conviction.6 years is the on each law to com- and been asked of twelve again time and a term of posed law, the Proba- and do what ply with to be served for each conviction months help attempting has been tion Office release consecutively, “no with although you person- have you And do. yourself to follow, you proven as have those, issues, recognize I to be al society in a free envi- unmanageable be honest, very, very difficult you’ve been directed The District Court ronment.” you’re not whenever person to deal with sen- begin Thornhill 36-month IAnd in a controlled environment. immediately.7 tence you’re difficult know whether don’t timely appeal, filed a notice Thornhill controlled you’re deal with when the revocation challenging environment, years nine but I’ve had pro- criminal in each of the three time, you with and it’s been experience ceedings.8 time, after time. after then found District Court II. C viola- had committed Grade contends that the sentences tions, positive drug tests including the upon revoca- imposed marijuana participate the failure to substantively procedurally tions were designed to address programs the various Thornhill as- particular, unreasonable. and her sub- health disorders her mental Judge erred the District serts that explained that The Court stance abuse. reject- reasons for failing to articulate his triggered the man- positive drug tests range, and guideline ing the recommended 3583(g), §in datory provision how, if, or he consid- by failing to indicate imprisonment. a term of which sentencing factors enumerated ered the exception acknowledged The Court addition, Thorn- 18 U.S.C. mandatory revocation.5 He 3583(g)’s failed the District Court hill submits that concluded, however, exception mitigation arguments. respond to her in Thornhill’s case was not warranted Thornhill, these errors ren- According to efforts that had light of the unsuccessful 3583(d) the 2009 Conviction. to twelve months for provides that the “Court six 5. Section availability ap- whether the shall consider A399. pro- treatment propriate substance abuse past or grams, an individual's current or trial had been advised that the 7. Because he programs, warrants an participation in such to com- son's murderer was scheduled of her exception the rule of section ... week, judge requested the mence in a against 3583(g) considering action when cooperation of the United States Marshal's *8 drug test.” 18 who fails defendant custody was in local Service while Thornhill 3583(d). § U.S.C. appear. subpoenaed to the event she was guideline reviewing advisory for each the 6. In jurisdiction exercised un- 8. The District Court conviction, pointed out that the District Court 3583(g). §§ We have 18 U.S.C. 3231 and der advisory guideline range for the 2003 the § months, appellate jurisdiction under 28 U.S.C. 1291 five to was three to nine Conviction Conviction, § U.S.C. and 18 the 2007 eleven months for
307 Ostensibly, sub- language dered the District Court’s sentences this lends some stantively support unreasonable. government’s contention that the District Court did not err because government contends required it was not to consider merit, arguments arguing lack Thornhill’s 3553(a) § factors. Yet the Doe language is required that a district court “is not not controlling. Because the Doe Court 3553(a) § consider the factors when revo ultimately concluded that the District by supervised governed cation of release is Court had authority exercised its under alone, § 3583(g).” For that reason 3583(e)’s § discretionary provi- revocation government asserts that claim sion, the upon statement relied by the error procedural must fail. Nonethe government Furthermore, is dictum. less, government submits that the Dis § Court’s 3583(g) “observation” that does trict Court did consider some of the 3553(a) explicitly § not refer to the factors 3553(a) § sentencing factors and that the does not holding amount to a that these proce Court’s revocation order is neither play factors have no role to in mandatory durally substantively nor unreasonable. proceeding.10 revocation Accordingly, we are left to § decide whether the III.9 factors must be considered a district A. judge in deciding length of a term of imprisonment following According government, mandatory revoca- § 3583(g). tion under 3583(g) § court has determined that once applies, the District is required not B. to consider the in impos factors imprisonment. a term of It relies on binding authority, absence of Doe, our decision in United States v. 617 we must determine whether the statute (3d Cir.2010). 766, There, F.3d 772 provides specific guidance we to a district noted the types proceed two of revocation exercising when discretion in his/her ings: discretionary under choosing appropriate term imprison 3583(e)(3) mandatory un following mandatory revocation of § 3583(g). regard der Id. “Statutory interpreta With release. mandatory provision, requires begin we stated that that we with a careful [mandatory revocation reading “[w]hile under] of the text.” Zimmerman v. Nor (3d 3583(g) 170, expressly require does not con Corp., S. 706 F.3d 177 Cir. folk 2013). factors, sideration of the it does See also Barnhart v. Sigmon Coal Co., prohibit the sentencing court from do 122 U.S. S.Ct. (2002) (“As ing so.” Id. L.Ed.2d 908 in all statutory 3583(i)). question involving § 9. The of whether the proce We review consider dural and substantive reasonableness of a sen imposing a term of imposed upon tence revocation of 3583(g) presents subject an issue of law release for an abuse of discretion. United Smith, plenary review. See United States v. (3d Bungar, States v. 478 F.3d Cir. (3d Cir.2006) (noting, 2007). appeal challenging the context of an a condi- release, tion of that our review is Indeed, government tacitly acknowl- plenary legal to the extent it concerns is- letter, edges 28(j) as much. Rule its sue); Poellnitz, see also United States v. government quotation characterized this (3d Cir.2004) (applying plenary F.3d merely Doe anas “observation.” question statutory interpretation review to *9 308 Significant- penalty.11 of a imposition lan- cases, begin we with
construction
(e)
statute.”).
that the court’s
directs
ly, subsection
guage of the
must be
step
at
two
to revoke
decision
solely
confined
is not
inquiry
Our
factors
considering” certain
made “after
Rather,
3583(g).
§
“[i]n
of
to the text
3553(a).
§
18 U.S.C.
in
forth
set
statutory interpretation,
of
matters
3583(e).
§
language is
statutory
meaning’ of
‘plain
only
considering
mandatory
not
by
3583(g) pertains to
illuminated
Section
often
issue,
statutory language’
particular
set
in this
process
‘the
out
revocation.
in
section
of the
3583(e)
the structure
but also
§
to that of
is similar
subsection
found,
‘the
[and]
is
key language
which
(2) makes no refer-
step
and
but eliminates
and its
as a whole
of the statute
”
design
3553(a). Thus, this
§to
subsection
ence
442
Tupone,
v.
object.’ United
(1)
by the
finding
a
only
steps:
two
entails
Cir.2006)
(3d
(quoting Unit
F.3d
in
four
one of the
circumstances
court that
Schneider, 14 F.3d
ed States
(2)
so,
occurred;
if
and
§ 3583(g)(1) (4)—
therefore,
Cir.1994)).
(3d
is
analysis,
Our
must
automatic and the court
is
revocation
and struc
only by
text
informed
as a
imprisonment”
of
impose a “term
but also the
entirety,
§
in its
of
ture
penalty.
Sentencing Re
of the
and structure
text
why
makes
two-step process
This
clear
Act,
3551-3586,
§§
established
which
form
3583(e)
§
Congress referred
regime.
sentencing
3553(a)
factors,
why it
§
supervised
re-
pertains
Section
§
in the
need to mention
did not
§
This section es-
18 U.S.C.
lease.
provision
mandatory
may be
supervised
release
tablishes
Congress explicitly
§
consid-
tied
3583(g).
component
a
of a sen-
initially as
imposed
§
of
eration
addition,
§
once
Id.
tence.
3583(e)
by a
§
to the exercise of discretion
termi-
may
release
be
imposed, supervised
“(1)
deciding
court in
district
whether
extended,
nated,
or
Id.
revoked.
supervised
a term of
release^]
terminate
(3).
3583(e)(1), (2),
supervised
If
§
(2)
supervised
of
re-
...
extend a term
imprison-
a
of
revoked and term
is
release
(3)
lease[,]
supervised
a term of
...
revoke
may
imposed,
is
(4)
the defendant to
... or
order
release^]
supervised
term of
by another
be followed
place
at his
of residence.”
remain
3583(h).
§ Id.
release.
3583(e).
mandatory revoca-
§
U.S.C.
takes
supervised
of
Revocation
however,
district
affords the
provision,
3583(e)
§
discretionary under
two forms:
making
decision
court
discretion
no
Doe,
3583(g).
mandatory under
trig-
3583(g)
Once
about revocation.
3583(e)
at 772. Section
establishes
F.3d
automatic. There
gered,
revocation is
discretionary revo-
three-step process for
need, therefore,
Congress
was no
(1)
by the court that the
finding
cation:
factors should
instruct
super-
violated
condition
defendant
prior making
a decision
be considered
(2)
release;
court
by
a decision
vised
mandatory
about
super-
the defendant’s term
to revoke
(3)
revocation,
release;
3583(g).
following
vised
3583(e)(3) ("The
the offense
may,
statute for
release authorized
court
11. 18 U.S.C.
supervised
re-
that resulted in such
considering
factors set forth in
[certain]
after
prepon-
by a
...
if the court ...
finds
lease
...
revoke a
term
release,
the defendant
the evidence that
require
the defendant to serve
derance
release”).
a condition of
part
violated
prison all or
term
*10
Moreover, there was no need to refer to shall consider the factors set forth in sec-
3553(a)
§
enacting
provision
(the
in
3553(a));
court,
§
de-
“[i]n
mandatory
revocation.
text
of
termining whether to impose a fine ...
§ 3583(g) specifies
when
of the
consider,”
alia,
3553(a)
that
shall
inter
§
the
exist,
enumerated circumstances
revoca-
factors);
3583(c) (inclusion
§
of supervised
tion is mandated and a district court “shall
part
release as a
of a sentence requires
...
require the defendant to serve a term
3553(a) factors).
§
consideration of certain
imprisonment.”
of
The penalty dictated
Indeed,
3553(a)
§
consideration of the
fac-
by § 3583(g)
imprisonment”—
term of
—“a
tors is not limited to determining
type
the
unique
is not
revocation of
penalty
of
and the
penal-
attributes
is, rather,
§ 3583(g).
release under
It
3553(a)
ty. Section
applies
also
when a
component
common
of most sentences that
court decides
multiple
whether
sentences
may
imposed following
be
a defendant’s
are to run concurrently or consecutively.
§
conviction. See 18
(govern-
U.S.C.
3584(b).
§
18 U.S.C.
imposition
the
or modification of a
3553(a)
in
Nothing
the language
§of
imprisonment);
term of
United States v.
application
limits its
to a
pro-
revocation
Goodson,
(3d Cir.2008)
ceeding
§
under
3583(g). Nor does
(listing
penalties
may
be a compo-
3582(a)
§
include language concerning the
sentence).
nent of a
§
Section
3582 itself
factors to be considered in determining the
“court,
provides that a
in determining
length of a
imprisonment
term of
whether
impose
imprison-
a term of
3553(a)
§
renders
inapplicable to a manda-
ment,
...
determining
in
length
tory
proceeding.
revocation
And the man-
term,
shall consider the factors set
datory revocation provision itself does not
3553(a)
forth
section
they
the extent
3553(a)
prohibit
§
consideration of the
fac-
3582(a)
applicable[.]”
§
are
(emphasis
Id.
setting
tors in
length
term
added). Thus,
usage
statutory
of the
imprisonment required by the statute. 18
phrase
“term of
imprisonment”
Doe,
§ 3583(g);
U.S.C.
ence the
are to be
sentencing factors
the
held that
District
that the
Having concluded
term
an
imposing
in
additional
considered
obliged to consider
Court was
they are
release because
supervised
of
3553(a)
length of
deciding
§
factors
3583(c),
provision
§
in 18 U.S.C.
“listed
fol
impose
of
term
initial term
imposition of the
governing the
turn
3583(g),
§
we
under
lowing revocation
Id. at 501. See
release.”
District
that
Thornhill’s assertion
594
Santiago-Rivera,
v.
States
also United
proeedurally.
United
erred
Court
(1st Cir.2010)
82,
(reasoning that
F.3d
84
(3d
Gunter,
237, 247
States v.
3583(h)
not list the
§
though
even
“does
“three-step
Cir.2006),
established a
we
in im-
factors to be considered
[§
]
calculating the
After
sentencing process.”
a
release as
a
term
posing
ruling on
formally
guideline sentence
sentence,
it is
rea-
a revocation
part of
sentencing
parties, a
any motions of the
are
inference that
factors
sonable
by
exercise its discretion
court
then
must
imposing
to be considered
same as those
factors
release”);
considering the relevant
an initial
540,
appropriate
an
sentence.
determining
F.3d
Bungar,
v.
478
States
United
(3d Cir.2007) (concluding, without
contends
District
542-43
appeal of a
review of
objection,
by
that our
an
step
process
of this
erred
the third
at
“for reason-
order
mandatory revocation
is
(1)
meaningful
give rational and
failing to:
and that “to be reasonable
ableness”
fac
relevant
to the
consideration
must demonstrate the
record
sentence,
(2)
tors;
adequately explain
meaningful consideration
gave
court
deviation
including
explanation
3553(a) factors”).
(3) respond to
guidelines;
from the
holding
arguments
is consistent with
colorable
Finally, our
defense counsel’s
of the Sen-
sentencing scheme
is on Thornhill
overall
The burden
mitigation.
Act,
repeatedly
which
tencing Reform
sen
that the District Court’s
demonstrate
by a
sen-
the exercise
discretion
tethers
v.
States
tence
unreasonable. United
is
the factors set out
tencing judge to
(3d Cir.2006),
Cooper,
F.3d
332
437
indeed for
It would be odd
Kimbrough
grounds by
abrogated on other
that
Congress,
specifying
after
States,
S.Ct.
552 U.S.
v. United
a district
must inform
(2007).
558, 169L.Ed.2d 481
in imposing
of discretion
court’s exercise
abuse of discre
review for
We
sentence,
see
of a
component
each
Tomko,
F.3d
v.
tion.
United
3582(a),
3562(a), 3572(a),
3553(a),
§§
(en banc).
(3d Cir.2009)
In Tom-
558, 567
3583(c),
court carte
give
to then
district
ko,
“it
that
is essential
emphasized
we
imprison-
imposing
term
blanche
as
make an ‘individualized
courts
district
mandatory
following
”
presented.’
the facts
based on
3583(g).
See
sessment
supervised release
States,
suffice,
(quoting
Id.
Gall United
U.S.
while in
longer
others a
explana-
128 S.Ct.
58,
dates Dis- that the we conclude years. argument, hill’s of three a sentence advocated responded considered fully trict Court Dis- that the able confirms The record arguments colorable defense counsel’s understood to and Judge listened trict mitigation. argument arguments. Thornhill’s these § 3583(g), contrary to the dictates Dis- demonstrates The record recognized this. meaningfully considered trict Court also revo- 3583(g) required explained He 3553(a) factors. Consistent the relevant posi- had tested because cation 3553(a)(1), fully consid- the Court §with three than marijuana on more tive nature and circumstances ered the Although the de- year. in one occasions history violations, together with appli- explicitly advance did not fense beginning At the and characteristics. 3583(d) exception in cability of the its almost- reviewed hearing, the Court imprison- mandate of relaxing the permits with Thornhill’s involvement ten-year on its 3583(g), the Court He noted cases since 2003. criminal *13 excep- That exception. addressed the own fraud and the for bank three convictions explained, justified, the Court was He proceedings. previous her failure to attend on Thornhill’s based he had the substantial variance pointed out health and mental substance abuse current the 2007 Conviction and granted on inability to re- her as well as programs, in resulting proceeding, first revocation short, imprisonment drug free. main and day of sentence to one 3583(g)’s ap- certainty of because was release. period an additional plicability. above, knew of the the Court As noted mitigation. Her argued Thornhill Thornhill faced while personal difficulties claimed, were she attributable problems, hearing ar- release. After her mur- having brother’s witnessed to stated parties, the Court guments der, the emotional trauma dealing with history of’ Thornhill’s that it was “aware murder of one of resulting from both the files the extensive and had “considered injuries of and the serious anoth- sons cases, reports and presentence these fully were con- These circumstances er. sentencings, the initial regarding addenda the District Court. sidered ... as previous Court’s allocu- attentively to Thornhill’s listened allegations responses as [her] well “did not explained that she tion. government’s evi- petition disrespect” to prison out of come rendered its find- The Court then dence.” ... Court, unexpected trauma but “[t]he set forth the violations ings concerning my happened in something that life.” was rec- review of the the Sixth Petition. Our directly responded to Judge District our conclusion that compels ord Thornhill, telling “personally” that he 3553(a)(1) was Court’s consideration disrespected you’ve though not “feel as did adequate. To other- more than conclude “personal acknowledged the He then me.” District ignore to wise would be described and ex- Thornhill had issues” nine that “I’ve had Judge’s statement that the “law is the law.” to her plained you, and been with it’s years experience addition, pro- at the of the conclusion time, time, after after time.” requested the United ceeding the Court 3553(a)(2) directs Section keep Marshal’s Office for the the need sentence court to consider locally the event she custody offense, of the “to reflect the seriousness in the trial of appear subpoenaed were law,” promote respect pro- for the “to her belief that Thornhill “would not be just punishment,” compliant” any vide to deter further program with offered out- conduct, protect public” criminal “to side a facility.” “lock-down She noted provide that, and to correctional treatment despite her attempts to work with Thornhill, the most effective manner. 18 U.S.C. “[ejvery step way ... she (D). 3553(a)(2)(A), (B), (C), Thorn- comply with fail[ed] directive.” The recidivism, applicability hill's and the of probation agreed officer that Thornhill § 3583(g) requiring imposition aof “needs the structured environment ... [of] term imprisonment, brought these prison.” Thereafter, again the Court sig- § 3553 considerations to the forefront of naled the incapacitation, need for stating revocation hearing. We are well-satis- that Thornhill unmanageable was when fied that the Court took these into she was not in a controlled environment account. and that she “unmanageable in a free society environment.” dialogue
The Court’s with defense coun- sel telling. argued Defense counsel 3553(a)(3) required by (4), As the Court did not have to find a violation Judge District addressed the kinds of sen- just and that Thornhill struc- “need[ed] applicable tences available and the ranges replied: ture.” The Court “That’s what of sentence for the violations with respect we’ve been trying give her ... She’s to each of the convictions.13 He also ad- here, here, been and been and been grade violations, dressed the of the various here.... So how going else are we to pointed out that the maximum term of that, accomplish forcing without her into a *14 imprisonment on each conviction was 36 situation.” exchange clearly This reveals months, increasing and noted the guideline the supervi- Court’s conclusion that mere range for light each conviction in of the sion had been in curbing ineffective Thorn- expanded history category criminal on the abuse, deterring hill’s substance crimi- her latter two convictions. And he noted the conduct, nal or compelling compliance advisory nature of sentencing ranges. the regimen with a of mental health treatment. This discussion was sufficient to demon- short, incapacitation and deterrence had 3553(a)(3) strate consideration necessary. become (4).14 reject therefore We Thornhill’s con-
The District Court then asked the tention pro- that the District Court to failed bation officer for her expressed adequately view. She consider the factors. 3553(a)(5) applicable 3553(a)(4)(B) 13. Section was not to sentencing 14. Section a directs (cid:127) applicable policy court to proceeding. this consider the state- Section commentary 3553(a)(6) ments. to United was not relevant because there (U.S.S.G.) Sentencing pro- Guideline 7B1.4 was no need to avoid unwarranted sentence original vides that the "[w]here sentence was disparities proceeding. in this revocation departure the result ... of downward that 3553(a)(7) requires Section consideration of guideline resulted in a sentence below the provide the "need restitution to victims range applicable underly- defendant’s of the offense." Because Thornhill's failure conduct, upward departure may be pay alleged restitution was violation 7B1.4, applic. warranted.” U.S.S.G. note 4 Petition, sentencing the Sixth this factor was (2012). Although the District Court did not manifestly appropriately relevant. The Court statement, specifically policy refer to this it is factor, making finding addressed this that nonetheless informative because of the sub- paid any Thornhill had not restitution since stantial downward variance re- June 2011. Thornhill’s dire financial con- ceived on the 2007 Conviction. This variance dition, however, obviated the need to further aspect history, was an of Thornhill’s and the address this factor. specific Court made reference to it. substantively sentence rendered her rors that maintains we have concluded Because the sen unreasonable. explain adequately failed proce- err did not ultimately upon. We it decided tence that is no merit sentencing that there judge durally, we conclude acknowledge that Tomko, Rita, challenge. 551 U.S. See have said more.” ‘‘might to her substantive instructs, “if the (instructing 2456. Rita that 127 S.Ct. at at however, and record” are that “context procedurally court’s sentence district determining whether important sound, affirm it unless no reason- will we the evidence considered “sentencing judge imposed have would court able conclude that arguments.” Id. We particular defen- sentence on the same that make clear and context the record pro- district court the reasons the dant for all of fully considered the District Court vided”). of the arguments and the
the evidence IV. reason, we are hard- For parties. District Court’s find that pressed to sum, Supreme we mindful are or unreasonable procedurally was order sen- in Rita that “[t]he observation Court’s an abuse of discretion. it constituted to, greater access tencing judge has proceeding, At the time of this with, case familiarity individual experi nearly had a decade him than the before individual defendant He had demonstrat ence with Thornhill. appeals court.” or Commission Af help her. leniency his ed efforts 357-58, 127 2456. That is S.Ct. U.S. fully he was advising parties ter case, the Dis- where especially so history and her Thornhill’s char aware of closely over time had followed trict Court he had reviewed and that acteristics her su- violations of repeated files, empha Judge extensive District the District Given pervised release. in the sen for structure sized the need with Thornhill Judge’s experience Thornhill’s viola he must impose. tence his to have been meas- what we consider of trust on not a breach tions were violations, we con- ured treatment of fully The Court single conviction. be should not clude that the sentences separate three imposing that it was aware *15 disturbed. separate convictions. penalties three affirm. We will conveyed that a adequately His words imprisonment was called lengthy term RENDELL, Concurring Judge, Circuit § his more le 3583(g) under because Dissenting part: part of discretion had neither nient exercises colleagues that agree my I with Thornhill from criminal conduct deterred required to Court consider District was to her the seri adequately conveyed nor 3553(a) § forth in 18 U.S.C. the factors set circumstances. ous nature of her Thornhill, readily I sentencing Ms. sum, the District In we conclude opin- join eloquent their and well-reasoned revoking Thornhill’s terms Court’s order ion on that issue. imposing three majority’s part ways disposi- I with the procedurally not separate penalties was however, I so tion, would remand because unreasonable. meaningfully can the District Court C. in con- sentencing factors consider those mandatory imprisonment nection with challenges the Thornhill also substantive of her upon revocation of Ms. Thornhill sentence. of her reasonableness length of her supervised release. view, procedural er- District Court’s issue, squarely prophet,” lacking any reason to anticipate 3553(a) § and the factors should be requirement we set today. out See weighed. This is especially true because Brown, United States v. 595 F.3d (3d District upward giving Cir.2010). Court varied But fairness dictates that Ms. Thornhill years. a sentence of three when we announce a new rule that could impact length imposed sentence today,
Until we have never addressed a remand for resentencing is appropriate. 3553(a) § whether the sentencing factors See id. (remanding for resentencing where be must considered in the context of man- court, a district “[Hacking ... clairvoy- datory release, revocation of supervised ance,” failed to anticipate requirement and, indeed, § 3583(g), under few other § consider post-Booker); factors Courts Appeals have discussed this is- Manzella, United States v. length. sue at If anything, as the Govern- (3d Cir.2007) (remanding for resen- out, points previously our case law tencing upon holding prison sentences hinted that consideration of the factors could not imposed be for rehabilitative appropriate, required, was but not in this purposes). Doe, context. See United States v. (3d Cir.2010). However, F.3d only We need review the briefly record
today
clearly
we
hold for the first time
to determine that the District Court did
that such consideration is mandatory. The not,
fact,
foresee our holding and mean-
majority finds that the District Court an-
ingfully
consider the
factors.
ticipated
holding
meaningfully
The District
provided
no explanation
considered the sentencing factors under
three-year,
its
above-guidelines sen-
tence, beyond the bare statement that Ms.
[herjself
“proven
Thornhill had
case,
to be un-
might
the usual
we
debate
manageable in
society
a free
whether the scattered
environment.”
statements of a dis-
(App.400.)2
trict
A
“manageability,”
court resemble a
defendant’s
discussion of the
pertinent
However,
mean,
whatever that
sentencing
might
is not
factors.
included
here,
among the
inkling
the District Court had no
considerations listed
3553(a). Thus,
analysis
that an
the sole explana-
required,
consequence,
provided by
and as a
never
the District Court does
mentioned the factors once.1
This was
show rational and meaningful consider-
through
no fault
Court,
of the District
ation of the
factors.3 This alone
it
by “judge
conducted as was
not a
[and]
necessitates
remand for resentencing.
"
3553(a)”
States,
appears only
once in the tran-
3. Rita v. United
551 U.S.
script,
objection
in Ms. Thornhill's
at the con-
(2007),
S.Ct.
We cannot know how 3553(a) factors, dants-Appellees. consideration of the which require, we now would have affected No. 13-2011. Ms. Thornhill’s sentence. Speculation on part our to what the Court might as have United States Appeals, Court of considering, been and whether those rea- Fourth Circuit. 3553(a), sons coincide with cannot be enough to uphold Ms. above- Argued: May 2014. short, guidelines sentence. Ms. Thorn- July Decided: hill deserves to have the rule announced today applied to her I case. respectfully
dissent majority’s disposition. from the AMEUR,
Mammar Plaintiff-Appellant, GATES, Robert M. in his ca- individual pacity; Rumsfeld, Donald indi- his capacity; Wolfowitz, vidual Paul capacity; Eng- his individual Gordon land, capacity; in his individual McGarrah, James M. his individual capacity; Myers, Richard B. in his capacity; Pace, individual Peter in his capacity; individual Michael Glenn Mullen, “Mike”, in his ca- individual
pacity; Hill, James T. in his individu- capacity;
al Craddock, Bantz in his capacity; Geoffrey individual D. Mil- ler, capacity; Jay in his individual
Hood, capacity; in his individual Har- ry Harris, Jr., B. in his ca- individual
pacity; Buzby, Mark H. in his individ- capacity; Adolph McQueen,
ual in his capacity; Cannon, individual Nelson capacity; in his individual Michael Bumgarner, capacity; in his individual Dennis, capaci- Wade in his individual ty; Vargo, Bruce in his individual ca-
pacity; Rodriguez, Esteban his in-