A judge in Colorado did not improperly sentence a man "in advance" when he promised the type of consequence he would impose for a repeat offense and then followed through on that promise, the federal appeals court based in Denver ruled on Monday.
Maitise Crews, who has a lengthy criminal history, is serving a 21-month prison term for violating the conditions of his supervised release. He appealed that punishment, arguing the trial judge committed "sentencing in advance" by relying on a previous warning that there would be no lenient sentence given to Crews if he wound up in court again.
Although the U.S. Court of Appeals for the 10th Circuit held earlier this year that judges must consider the facts of a defendant's current offense and may not rely solely upon their past threats of a harsh sentence, a three-judge appellate panel reviewing Crews' case determined U.S. District Court Senior Judge R. Brooke Jackson had correctly imposed Crews' current punishment.
After committing a federal firearms offense in 2007, Crews received a prison sentence followed by three years of supervised release. Within months of his release in September 2019, Crews amassed nearly one dozen violations of his supervision, largely for drug use.
Crews' probation officer determined a prison sentence between 21 and 24 months should apply based on the offenses, but recommended only one year of imprisonment plus two more years of supervised release. The government agreed with that recommendation, while Crews' defense attorney asked solely for the two years of supervised release.
At a hearing in September 2020, Crews briefly spoke on his behalf, saying he was willing to take "any kind of rehabilitation that's offered for me," as he believed it would be more productive than incarceration. Jackson noted his concern with Crews' serious criminal history and Crews' inability to abide by supervisory conditions. But the judge also wondered "how much value there will be in putting this guy in prison for a year for essentially drug offenses."
Jackson issued a sentence much lower than the guidelines called for — six months in prison plus two years of supervised probation.
However, he imposed the sentence "with a warning to Mr. Crews, and that is it is time for you, sir, to grow up," Jackson said. "If you are revoked again, the court will have no interest in continuing supervised release or in varying below the guidelines in terms of incarceration. This is your chance, sir."
Four months later, after Crews' release from incarceration, he almost immediately violated his supervisory conditions again by failing to comply with drug testing and allegedly assaulting his wife. He continued to rack up violations, including by harassing his wife and attempting to threaten a staff member at the residential reentry center where Crews was staying.
Crews appeared before Jackson for a second time in December 2021. The proposed sentencing range, as it was before, was 21 to 24 months in prison. This time, his probation officer and the government did not ask Jackson to impose a lesser sentence.
At the start of the hearing, Jackson explained he had read the case materials, letters from Crews' friends and family, and Crews' own statement. He then reminded the parties of his prior promise not to deviate from the sentencing guidelines if Crews came before him again for another violation.
"You certainly can make your argument," Jackson cautioned Crews' lawyer. "But if that's what I said, that's what I said, and that's what I meant."
The defense described several ways in which Crews himself had changed and how he now had a better chance of being successful in the community. Crews spoke at length, thanking Jackson for replying with encouragement to a letter Crews had written to the judge. Crews asked for leniency, saying more prison time would not make him better, and "will only make me bitter."
Jackson declined the request and sentenced Crews to 21 months in prison.
"What I said last time, I meant when I said, 'I'm going to give you a break today, sir, but if you violate again I'm not going to vary. I'm not going to give you another break. I'm going to give you what the guideline says you deserve,'" Jackson said. "And I meant that."
On appeal, Crews relied heavily on a recently-issued decision out of the 10th Circuit that he claimed was similar to his case. By a 2-1 ruling, a panel of the court determined a trial judge in Kansas made an error by "preordaining" the sentence of Jamaryus Moore before Moore had even committed the offense.
Moore, who pleaded guilty to robbery, asked for a lesser sentence than the recommended 51 months in prison. He wanted to show he was trustworthy and could remain on supervised release. The judge offered Moore a deal: He could have 48 months of probation, provided he remained violation-free. If Moore incurred a violation, the judge would sentence him to at least 84 months in prison.
Roughly a year into his release, Moore accumulated two minor violations. Even though the recommended sentence was only five to 11 months in prison, the judge enforced his prior promise and handed down an 84-month sentence. The 10th Circuit overturned that decision after finding no indication of how or why the trial judge arrived at the number of 84 months.
"The problem is obvious — the district court couldn’t have known whether Mr. Moore’s future conduct would justify the at-least-33-month-consecutive increase to its offered 51-month sentence," wrote Judge Gregory A. Phillips in United States v. Moore. "This makes the district court’s sentence-in-advance system procedurally unreasonable."
Crews seized on the Moore decision in arguing Jackson had committed the same error.
"Here, there is simply no way to know what sentence Mr. Crews would have received had the court not wrongly stuck to an erroneously pre-determined sentence," wrote public defender Candace Caruthers.
But the 10th Circuit's panel disagreed Crews and Moore experienced the same treatment. The trial judge in Kansas had not explained why an 84-month sentence far above the guideline range was appropriate, whereas Jackson had read all of the relevant materials, listened to Crews and imposed a sentence within the agreed-upon range.
"Rather than skipping directly to the sentence previously discussed, the district court applied its previous warning in light of the facts underlying the second revocation hearing," wrote Senior Judge Paul J. Kelly Jr. in the panel's Aug. 1 order.
The case is United States v. Crews.