Argued, February 9, 2015
As Corrected May 7, 2015.
Appeal fro the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:06-cr-00007-RLY/WGH -- Richard L. Young, Chief Judge.
For United States of America, Plaintiff - Appellee: Todd S. Shellenbarger, Attorney, Office of The United States Attorney, Evansville, IN.
For Christopher Boultinghouse, Defendant - Appellant: Daniel J. Hillis, Attorney, Office of The Federal Public Defender, Springfield, IL; Thomas W. Patton, Attorney, Office of The Federal Public Defender, Peoria, IL.
Before ROVNER and SYKES, Circuit Judges, and WOOD,[*] District Judge.
Rovner, Circuit Judge.
At the conclusion of a hearing at which defendant-appellant Christopher Boultinghouse waived his right to representation by counsel, the district court found that Boultinghouse had violated multiple conditions of his supervised release, revoked that release, and ordered him to serve an additional prison term of 24 months. Boultinghouse appeals, contending that the district court did not do enough to ensure that his decision to proceed without the assistance of counsel at the revocation hearing was sufficiently informed to constitute a knowing waiver, and that the court failed to articulate reasons for the sentence it imposed when it revoked his supervised release. We conclude that the totality of the circumstances, including the district court's colloquy with Boultinghouse regarding his decision to proceed pro se, demonstrates that his waiver of representation by counsel was a knowing and intelligent decision as well as a voluntary one. As to the sentence, however, because the court gave no reasons for the term of imprisonment it imposed, we cannot be sure that it considered the statutory sentencing factors as it was required to do; we are therefore compelled to vacate the judgment and remand for resentencing.
In 2006, a grand jury indicted Boultinghouse on two counts of unlawfully possessing
a firearm in interstate commerce after previously having been convicted of a felony offense. See 18 U.S.C. § 922(g)(1). Boultinghouse pleaded guilty to both counts of the indictment, and the district court ordered him to serve a prison term of 77 months, to be followed by a three-year term of supervised release. By October of 2011, Boultinghouse had completed his prison term and commenced his supervised release.
On July 21, 2014, Boultinghouse's probation officer filed a petition with the district court asking that Boultinghouse be arrested and that the court revoke his supervised release. The petition alleged that Boultinghouse had failed multiple drug tests in April and May, 2014. In addition, on June 9, 2014, sheriff's deputies in Posey County, Indiana, had arrested Boultinghouse and charged him with the misdemeanor offenses of disorderly conduct and intimidation; but Boultinghouse had not reported the arrest to his probation officer as required. Based on these facts, the officer contended that Boultinghouse had committed five separate violations of the conditions of his supervised release, namely: (1) committing another criminal offense, (2) using a controlled substance, (3) frequenting a place where controlled substances are illegally sold, used, distributed, or administered, (4) unlawfully possessing a controlled substance, and (5) failing to promptly inform his probation officer that he had been arrested.
Boultinghouse was arrested pursuant to a bench warrant and appeared before the court on July 25, 2014, without counsel. The court advised Boultinghouse that he was entitled to representation and asked him if he wanted counsel. Boultinghouse replied that he did not. " I can defend myself," he told the court. R. 21 at 5. The following exchange between the court and Boultinghouse ensued:
THE COURT: All right. You understand that you would be held to the same standards that an attorney would be held to?
THE DEFENDANT: Sure.
THE COURT: Okay. All right. I've got to tell you, though, that it's not a wise decision you're making here.
THE DEFENDANT: I'm well aware of the fool-for-a-client deal, Your Honor, but this is going to be pretty simple.
R. 21 at 5. The court proceeded to review with Boultinghouse each of the charged violations of his supervised release to make sure that he understood them; Boultinghouse, after asking clarifying questions about several of the charges, indicated that he did. The court then advised Boultinghouse that he had a right to a hearing on the petition for revocation, assuming that he denied the allegations contained therein. Boultinghouse responded that he did deny the allegations " categorically," and he further advised the court that he " would like a hearing as soon as possible." R. 21 at 10. After the government informed the court that it was prepared to proceed immediately as to all but the first charged violation (commission of another offense), the court decided to proceed with the hearing forthwith.
Early on in that hearing, the court noted for the record that it had summoned an experienced criminal defense attorney to the courtroom to serve as stand-by counsel for Boultinghouse. The court urged Boultinghouse to consult with that attorney as he wished. Boultinghouse acknowledged the court's invitation.
The government called Boultinghouse's probation officer, Robert DeCarli, as its first and only witness. After confirming that he had reviewed with Boultinghouse at the commencement of his supervised release each of the conditions of release underlying the charged violations, DeCarli recounted
the facts underlying the revocation petition.
With respect to the unreported arrest, DeCarli testified that he had eventually received a report from the Federal Bureau of Investigation's National Crime Information Center indicating that Boultinghouse had been arrested in Posey County, Indiana, on June 9, 2014, for disorderly conduct and intimidation. Boultinghouse had not disclosed this arrest to him within 72 hours, as the conditions of his supervised release required him to do, nor had he mentioned it at an in-person meeting with DeCarli that took place on June 18, 2014.
DeCarli indicated that the drug use, possession, and frequenting charges were based on a succession of positive urinalysis results from Boultinghouse in April, May, and June 2014. DeCarli had personally supervised each of the urine " drops" that Boultinghouse submitted on these occasions. He explained that in each instance, he followed the same procedure employed with respect to the collection of all such specimens for testing. DeCarli would prepare a standard chain of custody form, have Boultinghouse complete the donor certification and consent portion of the form, write Boultinghouse's initials on a seal used to secure the specimen, and then place his own signature on the seal. After the urine sample was collected, Boultinghouse would affix the seal to the container and drop it into an evidence bag, which was then sealed in front of him.
Boultinghouse failed the first of four narcotics tests on April 10, 2014. That test indicated positive results for both marijuana and methamphetamine. According to DeCarli, Boultinghouse admitted to having used both drugs approximately five days earlier. When DeCarli had Boultinghouse submit another sample on May 5, he again tested positive for both marijuana and methamphetamine; and DeCarli testified that Boultinghouse again admitted to having used both drugs. Repeat testing one week later produced a positive result for marijuana alone, and Boultinghouse confessed to marijuana use, according to DeCarli. DeCarli recalled that after the two positive test results in May, he offered Boultinghouse the opportunity to undergo substance abuse treatment but that Boultinghouse declined the offer on both occasions. Finally, a June 26 analysis again yielded a positive result for marijuana; but Boultinghouse denied marijuana use prior to this test. By this time, DeCarli had also become aware of Boultinghouse's June 9 arrest in Posey County.
At this juncture, DeCarli testified, he advised Boultinghouse that something had to be done in view of the (unreported) arrest and multiple positive drug tests. " The minimal option," DeCarli told Boultinghouse, was to ask the court to modify the conditions of his release to include placement in a halfway house for a period of up to 180 days. R. 21 at 21-22. DeCarli testified that Boultinghouse had initially consented to the proposal, agreed to waive his right to a hearing on this proposed modification, and signed a waiver. See R. 5-1. DeCarli had then filed a petition with the district court seeking the modification. See R. 5. But Boultinghouse evidently had experienced a change of heart, and several days later, he had filed a pro se, emergency motion seeking to have DeCarli removed from his case or to terminate his supervised release. Once
DeCarli had became aware of Boultinghouse's motion, he had filed the petition to revoke Boultinghouse's supervised release, triggering the hearing that is the subject of this appeal. See R. 9.
DeCarli's direct examination concluded with his recommendation that Boultinghouse's supervised release be revoked and that he be incarcerated for a period of 21 months (the minimum term recommended by the applicable policy statement of the Sentencing Guidelines) with no additional supervision to follow.
Before the cross-examination of DeCarli commenced, the court revisited the matter of ...