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2nd Circuit Rules on Latest Post-'Booker' Issue
Federal appeals court finds notice not required in violation of release conditions
New York Law Journal
August 27, 2007
District courts are not required to give notice before imposing a sentence outside the guidelines range for violations of conditions of supervised release, the 2nd U.S. Circuit Court of Appeals has ruled.
The court in United States v. Altman, 06-4276-cr, said that a judge imposing such sentence need not give notice or afford the defendant an opportunity to challenge the sentence because supervised release is governed by nonbinding policy statements.
Judges Wilfred Feinberg, Guido Calabresi and Richard Wesley decided the appeal. Wesley wrote for the panel.
The issue is the latest to arise from the landmark case of United States v. Booker, 543 U.S. 220 (2005), which wrought dramatic changes in the sentencing scheme largely by finding that the guidelines were advisory instead of mandatory.
Altman pleaded guilty on Jan. 19, 2006, to the misdemeanor of knowingly possessing a controlled substance.
Southern District of New York Judge Colleen McMahon sentenced him to time served and a one-year period of supervised release, during which Altman agreed to undergo drug testing.
On May 3, 2006, the Probation Office notified McMahon that Altman had tested positive for cocaine on one occasion and refused to submit a sample on another. He again tested positive on Aug. 4, 2006.
At a hearing to address the violation of the terms of his release on Sept. 6, 2006, McMahon said there was a suggested guideline range of three to nine months for the violation, "which I am not bound by," and added that Altman was eligible for up to one year in prison.
Altman pleaded guilty to use of a controlled substance and waived the preparation of a presentence investigation report.
McMahon then sentenced him to serve one year, saying "And this time you admit using. But you're stressed, and probation officers didn't treat you nicely, and the dog ate your homework. So you used. And I do not see any sign, Mr. Altman, that you would succeed in a residential treatment program."
On the appeal, Altman argued that a defendant is entitled to notice and an opportunity to challenge where a judge sua sponte imposes a sentence higher than that called for in the guidelines policy statement.
Wesley explained that the case presented facts similar to United States v. Pelensky, 129 F.3d 63 (2d Cir. 1997), where the court said although "a district court, in sentencing a defendant for a violation of supervised release, is directed to consider the nonbinding policy statements found in Chapter Seven of the Guidelines Manual, the court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum."
However, the judge said, the question remains "whether our holding in Pelensky with respect to notice stands post-Booker."
The court held that it does.
Following Booker, Wesley said the circuit, in United States v. Anati, 457 F. 3d 233 (2006), found that "a defendant must receive notice and opportunity to comment on matters relating to a sentence when the judge sua sponte imposes a non-Guidelines sentence."
Altman argued that a "harmonization of sentencing based on guidelines and policy statements" has occurred in the circuit's jurisprudence since Booker and with the Anati ruling.
But Wesley said that, while the pre-Booker test for reviewing sentences for supervised release violations now closely resembles the standard used post-Booker to review all sentences, nothing compelled the court to "conclude that the differences between policy statements and the once-binding sentencing guidelines are illusory."
He said, "We have drawn a sharp divide between initial sentencing and the revocation of supervised release with respect to the protections and safeguards available to the individual."
And the court has continued to distinguish between policy statements and sentencing guidelines, he said.
"This case, we believe, presents a situation in which a distinction continues to be warranted," Wesley said. "As we noted in Pelensky, the policy statements related to violations of supervised release were advisory in 1997, and remain so today."
Thus, Anati does not alter the holding of Pelensky that a defendant is not entitled to notice when a district court imposes sua sponte a sentence outside the range called for by the policy statements, he said.
Marshall Mintz of Mintz & Oppenheim represented Altman.
Assistant U.S. Attorneys Eugene Ingoglia and Celesete Koeleveld represented the government.
