16‐4063‐cr United States v. Brooks

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2017

(Submitted: December 13, 2017 Decided: May 2, 2018)

Docket No. 16‐4063‐cr

UNITED STATES OF AMERICA, Appellee,

‐ against ‐

JAMAAL BROOKS, also known as Marley, Defendant‐Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: PARKER, LYNCH, AND CHIN, Circuit Judges.

Appeal from a judgment of revocation of supervised release of the

United States District Court for the Southern District of New York (Kaplan, J.),

sentencing defendant‐appellant, upon his guilty plea, to one year in prison

followed by a life term of supervised release. Defendant‐appellant contends that his lifetime sentence of supervised release is substantively and procedurally

unreasonable.

VACATED IN PART AND REMANDED.

Timothy V. Capozzi, Sarah Kathleen Eddy, Anna Skotko, Assistant United States Attorneys, for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Kafahni Nkrumah, Nkrumah Law PLLC, New York, New York, for Defendant‐Appellant.

PER CURIAM:

In this case, defendant‐appellant Jamaal Brooks pleaded guilty to

distributing and possessing with intent to distribute cocaine and heroin. He was

sentenced to 30 monthsʹ imprisonment and three yearsʹ supervised release.

After he completed his prison sentence and began serving his term

of supervised release, Brooks repeatedly tested positive for drugs and failed to

report for scheduled drug testing. He eventually pleaded guilty to violating the

terms of his supervised release and was sentenced to one year in prison followed

by a life term of supervised release.

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Brooks now appeals, challenging the district courtʹs imposition of

lifetime supervised release as substantively and procedurally unreasonable. For

the reasons set forth below, we vacate the sentence in part and remand for

further proceedings.

BACKGROUND

A. Original Offense

On June 3, 2013, Brooks pleaded guilty to distributing and

possessing with intent to distribute cocaine and heroin in violation of

, 841(a)(1), and

, a Class C felony. Brooks faced a statutory

maximum of 20 yearsʹ imprisonment and a mandatory minimum of three yearsʹ

supervised release.

(b)(1)(C).

Brooks was sentenced on January 16, 2014. He had a Total Offense

Level of 13 and criminal history category of IV. In the presentence report

(ʺPSRʺ), the Probation Office calculated a Guidelines range of imprisonment of 24

to 30 months, and recommended that Brooks receive a Guidelines sentence of 30

monthsʹ imprisonment. The Probation Office also recommended that Brooks

receive three yearsʹ supervised release.

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The district court sentenced Brooks to 30 monthsʹ imprisonment and

three yearsʹ supervised release. Judgment was entered February 20, 2014.

B. Violations of Supervised Release

Brooks was discharged from custody on January 24, 2015. He began

to test positive for marijuana approximately two weeks later. After three

positive test results, the Probation Office referred Brooks to an outpatient drug

treatment program. On May 13, 2015, however, Brooks was arrested and

charged in state court with possessing marijuana and a scale bearing cocaine

residue. On July 8, 2015, he was arrested again and charged with aggravated

unlicensed operation of a motor vehicle.

On June 29, 2016, the Probation Office filed a violation report with

the district court alleging that Brooks had violated the terms of his supervised

release on at least ten occasions. Following Brooksʹs arraignment on July 19,

2016, the district court granted adjournments at defense counselʹs request, in part

to allow for the resolution of the state case underlying certain specifications, and

also to provide Brooks with additional time to participate in treatment for his

drug addiction.

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On October 19, 2016, Brooks pleaded guilty to three of ten

specifications of Grade C violations of the terms of his supervised release ‐‐

Specifications 5, 6, and 7 ‐‐ which consisted of the use of a controlled substance,

marijuana, on 14 specified dates; the use of a controlled substance, cocaine, on

one specified date; and the failure to report for scheduled drug testing on six

specified dates.

At the final revocation hearing, defense counsel noted Brooksʹs

ʺserious drug problemʺ as a ʺhuge underlying factor and contributing factorʺ to

his repeated violations of supervised release, for which counsel acknowledged

Brooks still needed ʺsome assistance.ʺ App. 19‐20.

Upon revocation, Brooks faced a maximum statutory sentence of

two yearsʹ imprisonment. See

(e)(3). Although Brooksʹs original

offense was subject to a Guidelines range, his revocation sentence was not. See

U.S. Sentencing Guidelines Manual, Ch. 7, Pt. A. The Guidelines policy

statements for revocation, however, recommended a range of 6 to 12 monthsʹ

imprisonment for defendants like Brooks with a criminal history category of IV

and Grade C violations of supervised release. U.S.S.G. § 7B1.4(a) (2012). As for

an additional term of supervised release, the violation report explained that:

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Pursuant to 18 USC 3583(h), if a term of supervised release is revoked and the term of imprisonment is imposed, supervised release not to exceed life can be reimposed as authorized under the original offense, 21 USC 846, 841(a)(1), 841(b)(1)(C), less any term of imprisonment that was imposed upon revocation of supervised release.

Violation Report at 6.

The Probation Office recommended a revocation sentence of 12

monthsʹ imprisonment, but did not recommend a specific term of supervised

release. At sentencing, the Government asked the court to impose a ʺguidelines

range sentence in the upper endʺ as ʺappropriate and no more than necessary.ʺ

App. 25. The Government did not request a specific term of supervised release.

On November 10, 2015, the district court sentenced Brooks to 12

monthsʹ imprisonment and a life term of supervised release. In imposing its

sentence, the district court stated that the court, the Probation Office, and the

Government had given Brooks ʺchance after chance after chance,ʺ and Brooks

had not ʺbeen able to muster the strength of character . . . to take advantage of

the opportunities.ʺ App. 26. The district court acknowledged Brooksʹs addiction

as ʺbeyond [his] controlʺ but credited the Probation Officeʹs exceptional efforts to

assist him with that problem, noting that the court ʺha[d] not seen anything like

it in any other case.ʺ App. 25‐26.

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Additionally, as Brooks had expressed at sentencing his hope to

ʺreally get some help for [him]self,ʺ the district court advised Brooks that the life

term of supervised release was meant to provide him with ongoing access to

services and the Probation Office, ʺfor as long as it is useful,ʺ to assist with his

transition to the community and treat his addiction. App. 21, 27.

This appeal followed.

DISCUSSION

A. Supervised Release

Section 3553 provides the framework for sentencing decisions,

including the imposition of supervised release. United States v. Burden,

(2d Cir. 2017). Section 3553(a) requires the district court, in imposing a

sentence, to consider, inter alia, ʺthe need for the sentence imposed . . . to reflect

the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense.ʺ

(a)(2)(A). Section 3583(c) governs

the imposition of supervised release and ʺspecifically does not require the district

court to consider the factors listed in § 3553(a)(2)(A), all of which go to the

seriousness of the defendantʹs offense.ʺ Burden,

. Because

ʺsupervised release is not, fundamentally, part of the punishment,ʺ United States

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v. Aldeen,

(2d Cir. 2015), the omission of the § 3553(a)(2)(A)

factors accords with the purpose of supervised release, which is to ʺfulfill[ ]

rehabilitative ends, distinct from those served by incarceration,ʺ United States v.

Johnson,

(2000); see also United States v. Granderson,

(1994) (ʺSupervised release . . . is not a punishment in lieu of incarceration.ʺ).

In imposing a term of supervised release, the district court is

required to consider, among other factors, ʺthe nature and circumstances of the

offense and the history and characteristics of the defendant,ʺ

(a)(1); the need for the sentence imposed to ʺprotect the public from further

crimes of the defendantʺ and ʺprovide the defendant with needed . . . training,

medical care, or other correctional treatment,ʺ

(a)(2)(C)‐(D); ʺthe

applicable guidelines or policy statements issued by the Sentencing

Commission,ʺ

(a)(4)(B); and ʺthe need to avoid unwarranted

sentence disparities among defendants with similar records who have been

found guilty of similar conduct,ʺ

(a)(6).

Section 3583(b) sets forth the maximum terms of supervised release

a court may impose, unless a statute ʺotherwise provide[s]ʺ a different term.

(b)(2); see United States v. Mora,

(2d Cir. 1994). For a

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Class C felony, the statutory maximum term of supervised release is three years.

(b). As discussed above, however, Brooksʹs offense statute

provided a mandatory minimum of three yearsʹ supervised release. See

(b)(1)(C). We have interpreted the presence of a mandatory minimum term

in

(b), without a maximum, to allow the district court to impose

up to lifetime supervised release notwithstanding the limits of section 3583(b).

See United States v. Cassesse,

(2d Cir. 2012); Mora,

.

The Sentencing Commission has promulgated Guidelines for

supervised release. See U.S.S.G. § 5D1.2. For a Class C felony, the Guidelines

recommend a term of at least one year but no more than three years. U.S.S.G.

§ 5D1.2(a)(2). Brooksʹs applicable Guidelines range was also three yearsʹ

supervised release, the mandatory minimum for his offense. See U.S.S.G.

§ 5D1.2, cmt. 6 (explaining how a statutorily required minimum term of

supervised release affects the term of supervised release provided by the

guidelines).

B. Revocation of Supervised Release

Sentencing for violations of supervised release is governed by

. When a defendant violates the terms of his supervised release, the

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district court may revoke a term of supervised release, and require the defendant

to serve a term of imprisonment.

(e)(3). Upon revocation, the

district court may not impose a term of imprisonment greater than the statutory

maximum terms set forth in

(e)(3). If the underlying offense that

led to the supervised release term was a Class C felony, the maximum is two

yearsʹ imprisonment.

(e)(3).

The Sentencing Commission has only issued policy statements for

terms of imprisonment after revocation, which classify violations, U.S.S.G. §

7B1.3, and recommend applicable sentencing ranges, U.S.S.G. § 7B1.4. As noted

above, for Brooksʹs violations, the applicable range was 6 to 12 monthsʹ

imprisonment, with a statutory maximum of two years. U.S.S.G. § 7B1.4(a).

After revoking a defendantʹs supervised release, the district court is

also authorized to impose an additional term of supervised release that does not

exceed the maximum term authorized by the underlying offense.

(h).1 The district court is required to consider the same set of factors as

1 The revocation statute was originally silent on the question of whether a renewed term of supervised release may be imposed in addition to a prison term. See Cassesse,

. In 1994, Congress amended the provisions to provide explicitly that a renewed term of supervised release may be imposed for a supervised release violation. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103‐322, § 110505,

, 2017, codified at

(h). ‐ 10 ‐

those it must consider when imposing supervised release for the underlying

offense. See Burden,

(ʺLike

(c), § 3583(e) omits

§ 3553(a)(2)(A) from the list of § 3553(a) factors that courts are instructed to

consider in . . . revoking supervised release.ʺ).

The Sentencing Commission has not issued separate policy

statements for terms of supervised release upon revocation. See U.S.S.G.

§ 7B1.3(g)(2) (providing only that a court may impose new term of supervised

that ʺshall not exceed the term of supervised release authorized by statuteʺ for

the underlying offense). As discussed above, Brooksʹs offense statute authorized

up to lifetime supervised release upon revocation.

C. Sentencing Review

Brooks challenges the substantive and procedural reasonableness of

his sentence. We review the reasonableness of a sentence under a ʺdeferential

abuse‐of‐discretion standard.ʺ Aldeen,

(quoting Gall v. United

States,

(2007)). Sentences for violations of supervised release are

reviewed under ʺthe same standard as for sentencing generally: whether the

sentence imposed is reasonable.ʺ United States v. McNeil,

(2d

Cir. 2005); see also United States v. Hargrove,

(2d Cir. 2007) (ʺ[T]he

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standard of review that we use to evaluate a sentence pursuant to a policy

statement . . . [is] simply one of ʹreasonableness,ʹ the latter being the same

standard of review for all sentences.ʺ).

District judges are given considerable discretion in fashioning the

proper sentence for criminal defendants. Cavera, 550 F.3d at 188. This discretion

extends to sentences imposed for violations of supervised release, including the

imposition of additional terms of supervised release. See Aldeen, 792 F.3d at 251‐

52.

Still, supervised release is itself a serious sanction that imposes

significant limitations on a defendantʹs liberty. See United States v. Reyes,

(2d Cir. 2002) (the imposition of supervised release requires a defendant

to ʺcomply with certain conditions, enforced by federal probation officers, or face

further penal sanctionsʺ); United States v. Myers,

(2d Cir. 2005)

(holding that a district courtʹs broad discretion to tailor conditions of supervised

release is not ʺuntrammelledʺ in light of a defendantʹs liberty interests).

A lifetime of supervised release is an extreme and unusual remedy.

See U.S. Sentencing Commʹn, Federal Offenders Sentenced to Supervised Release

58‐60 (2010) (fewer than one percent of federal defendants sentenced between

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fiscal years 2005‐09 received a lifetime term of supervised release). It indefinitely

subjects a defendant to the possibility of imprisonment for violating its terms.

See United States v. C.R.,

(E.D.N.Y. 2013) (rejecting

governmentʹs request for lifetime supervised release ʺas too severe [and]

inhibitory of rehabilitationʺ in a distribution of child pornography case, and

instead imposing a sentence of five yearsʹ supervised release).

A lifetime of supervised release is also, to some degree, at odds with

the rehabilitative purpose of supervised release, as it presumes that the need for

supervision will never end and that the defendant is essentially incorrigible. See

Johnson,

(ʺCongress intended supervised release to assist

individuals in their transition to community life.ʺ). Accordingly, the severity of a

life sentence of supervised release justifies a closer look at the district courtʹs

decision to impose such a sentence. We have previously recognized this

principle. See Mora, 22 F.3d at 413‐14; United States v. Stevens,

(2d

Cir. 1999).

In both Mora and Stevens, we reviewed the imposition of life terms

of supervised release for reasonableness, that is, ʺwhether the departure [from

the Guidelines and general statute maximum for supervised release] [was]

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reasonable in light of the justification given,ʺ Mora,

(quoting United

States v. Campbell,

(2d Cir. 1992) (emphasis added)); Stevens,

. Although Mora and Stevens were in the pre‐Booker era of mandatory

guideline sentencing and involved sentences for new criminal offenses

committed while the defendants were on release,2 we also review for

reasonableness in a revocation setting. See Aldeen,

(ʺThe standard

of review on the appeal of a sentence for violation of supervised release is . . .

whether the sentence imposed is reasonable.ʺ (citation and internal quotation

marks omitted)).

In Mora, we reversed the district courtʹs sentence of lifetime

supervised release for a defendant who violated the terms of her supervised

release for a drug trafficking offense by engaging in further drug trafficking, for

which she pled guilty to possession of heroin with intent to distribute, a Class B

felony.

.

2 The Sentencing Commission has provided, by policy statement, that where a defendant is convicted of a criminal charge that also is a basis of the violation of supervised release, the policy statements do not purport to provide the appropriate sanction for the criminal charge itself. The appropriate sentence on any new criminal conviction should be a separate determination. U.S. Sentencing Guidelines Manual § 7B1.1, cmt. 1. ‐ 14 ‐

Although the general statute and Guidelines provided a five‐year

maximum period of supervised release for Class B felonies, Moraʹs offense

statute required a term of at least four years. See id. at 411‐13. We held that by

providing a mandatory minimum term of supervised release with no specified

maximum, the offense statute authorized the district court to impose up to a life

term of supervised release. Id. at 412. Nevertheless, we found that the

magnitude of the departure in Moraʹs case from the general statute and

Guidelines maximum of five yearsʹ supervised release for Class B felonies was

unreasonable under the circumstances. Id. at 414.

In reversing the sentence, we emphasized that in imposing a term of

supervised release, district courts are required to consider, among other factors,

ʺthe need to avoid unwarranted sentencing disparities among defendants with

similar records who have been found guilty of similar conduct,ʺ

(a)(6), and found that ʺ[i]t is difficult to understand why a life term of

supervised release is reasonable for a defendant who is no different from any

other recidivist,ʺ Mora,

; see also Stevens, 192 F.3d at 267‐78

(reversing district courtʹs sentence of lifetime supervised release based on finding

that defendant convicted of heroin possession had committed perjury and

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exhibited antisocial behavior, because district court did not ʺsufficiently

distinguish this defendant from any other recidivist who has committed perjury

at trialʺ).

D. Application

As in Mora, Brooksʹs offense statute permitted the district court to

impose up to a life term of supervised release. See

(b)(1)(C); Mora,

222 F.3d at 412. For the court to do so, however, there had to be a significant

justification to support the severity of that sentence or conduct that distinguished

Brooks from similar recidivists. See United States v. Chartier,

(2d

Cir. 1991), abrogated on other grounds by United States v. Hargrett,

, 449‐

51 (2d Cir. 1998) (ʺThough a sentencing judge retains discretion . . . he must

demonstrate that he has thoughtfully discharged his statutory obligation [under

§ 3553(c)], with a degree of care appropriate to the severity of the punishment

ultimately selected.ʺ); see also

(a)(6) (in determining the length of

the term of supervised release upon revocation, a court is required to ʺconsider

the need to avoid unwarranted sentencing disparities among defendants with

similar recordsʺ). Neither are present on this record.

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The district court advised Brooks that it was imposing a life term of

supervised release in part because he had already received ʺchance after chance

after chance,ʺ but failed to ʺmuster the strength of characterʺ to take advantage of

the multiple opportunities he had received. App. 26. Because ʺa court may not

take account of retribution (the first purpose listed in § 3553(a)(2)) when

imposing a term of supervised release,ʺ Tapia v. United States,

(2011), including when imposing a term of supervised release upon revocation,

(e), this justification alone cannot support Brooksʹs lifetime

sentence. See Burden,

(reversing lifetime supervised release

because sentence was ʺdriven largely by the past seriousnessʺ of the crimes and a

ʺretributive rationale cannot support the lifetime sentences of supervised release

imposedʺ).

The district court also explained that a life term of supervised

release was intended to provide Brooks with resources to treat his drug addiction

for ʺas long as it is usefulʺ to him. App. 31. This reason accords with the

purpose of supervised release. See also

(a)(2)(D) (the court shall

consider the need to ʺprovide the defendant with needed educational or

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vocational training, medical care, or other correctional treatment in the most

effective mannerʺ).

Nevertheless, on this record, Brooksʹs conduct is not distinguishable

from that of many other recidivist defendants in his position struggling with

drug addiction. Brooksʹs violations of supervised release center on a drug habit

that he has been unable, thus far, to kick. Unfortunately, cases are legion in

which offenders with repeated drug violations or other recidivism problems are

sentenced to far shorter terms of supervised release. See, e.g., Hargrove, 497 F.3d

at 257‐58 (affirming a one‐year sentence with no additional term of supervised

release upon revocation of defendantʹs supervised release for repeated cocaine

use before and after drug treatment); United States v. Ilayayev,

,

451‐52 (E.D.N.Y. 2011) (sentencing a defendant to one day in custody followed

by new term of two yearsʹ supervised release upon revocation for four violations

of supervised release related to use of PCP, cocaine, heroin, and other drugs).

In contrast, cases in which life terms of supervised release have been

affirmed have typically involved child pornography or violent crimes. See, e.g.,

U.S. Sentencing Commʹn, Federal Offenders Sentenced to Supervised Release, 58‐

59 (the ʺoverwhelming majorityʺ ‐‐ more than 95 percent ‐‐ of those who received

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lifetime supervised release between 2005‐09 were convicted of sex offenses); see

also United States v. Wright,

(6th Cir. 2014) (affirming district

courtʹs sentence of lifetime supervised release for defendant who pled guilty to

conspiracy and attempt to use weapon of mass destruction); United States v.

Asalati,

(8th Cir. 2010) (affirming life term of supervised

release for defendant whose ʺparticipation in a violent assault demonstrates a

continued and escalating danger to the publicʺ); United States v. Hayes,

(2d Cir. 2006) (affirming lifetime supervised release sentence for

defendant convicted of distributing child pornography, and citing congressional

findings recommending lifetime supervised release for sex offenses because of

studies demonstrating high rates of recidivism of sex offenders).

We are therefore not persuaded that the imposition of a life term of

supervised release ‐‐ upon Brooksʹs first revocation ‐‐ is reasonable in light of the

justifications given by the district court. Cf. Cassesse,

(upholding lifetime supervised release where court adequately explained

reasoning and defendant had been convicted of new criminal offenses multiple

times while on supervised release). Given the non‐violent nature of Brooksʹs

violations and the difficulty faced by so many offenders in controlling addiction,

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we conclude that his behavior was not so extreme or unusual as to justify a life

term of supervised release. See United States v. Ahuja,

(2d Cir.

1991) (ʺ[I]n cases where . . . the sentence imposed by the district court strains the

bounds of reasonableness, remand for resentencing may well be warranted.ʺ).

We leave it to the capable and experienced district judge to set a

term of supervised release consistent with the factors set forth in § 3583(e), that

will provide Brooks with access to drug treatment and other support and

resources. We hold only that, at this time, on this record, a life term of

supervised release is not warranted.

CONCLUSION

The judgment of the district court is VACATED IN PART and the

case is REMANDED for further proceedings.

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