United States v. Cotton, 399 F.3d 913 (8th Cir. 2005). · Go Syfert
United States v. Cotton, 399 F.3d 913 (8th Cir. 2005). Cases Citing This Book View Copy Cite
Quick Summary

The requirement to provide a written statement of reasons for departing from sentencing guidelines does not apply to sentences imposed upon the revocation of supervised release.

A defendant convicted of drug conspiracy and sentenced to supervised release violated conditions by committing a state felony and testing positive for controlled substances. The district court revoked release and imposed a 46-month prison sentence, exceeding the recommended guideline range. The defendant argued the court erred by failing to state specific reasons in a written order and that the sentence was unreasonable. The court holds that the written-order requirement for departing from guidelines does not apply to supervised release revocations, as these sentences are governed by non-binding policy statements. Reviewing the sentence for plain unreasonableness, the court finds the district court properly considered statutory factors, including the defendant's repeated violations and need for treatment, and affirms the sentence.

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At page 916 Applying reasonableness standard to revocation sentences75 citing casesaffirming a forty-six month sentence for repeated violations where the advisory range was seven to thirteen months4 citing courts put it this way · 61 listed here
  • United States v. LaAnthony Cain, 976 F.3d 778 (8th Cir. 2020).published
    United States v. Miller, 557 F.3d 910, 915-16 (8th Cir. 2009), citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005).
  • United States v. Kevin Green, No. 17-1962 (8th Cir. Aug. 24, 2018).unpublished
    The district court expressly -3- We also reject Green’s argument that 18 months of imprisonment is greater than necessary to achieve the goals of federal sentencing and is “inherently unreasonable.” We review a revocation sentence “under t…
  • United States v. Pablo Ortega, No. 16-3772 (8th Cir. Nov. 28, 2017).unpublished
    “We review a district court’s revocation sentencing decisions using the same standards that we apply to initial sentencing decisions.” United States v. Miller, 557 F.3d 910, 915-16 (8th Cir. 2009) (citing United States v. Cotton, 399 F.3d…
  • United States v. Kelvin Stanford, 642 F. App'x 657 (8th Cir. 2016).unpublished 2 cites
    United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005).
  • United States v. Noel Perez-Plascencia, 559 F. App'x 608 (8th Cir. 2014).unpublished
    (affirming a 46-month sentence for repeated violations where the *610 advisory range was 7 to 13 months)
  • United States v. Jeff Beran, 751 F.3d 872 (8th Cir. 2014).published
    See United States v. Larison, 432 F.3d 921, 922-23 (8th Cir.2006) (upholding the district court’s imposition of a 60-month revocation sentence as reasonable although the applicable sentencing guideline range was 5 to 11 months, emphasizing…
  • United States v. Jason Robert Zeimes, 564 F. App'x 253 (8th Cir. 2014).unpublished
    United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005) (listing factors).
  • United States v. Tyson Marshek, 536 F. App'x 663 (8th Cir. 2013).unpublished
    (affirming a 46-month sentence for repeated violations where the advisory range was 7 to 13 months)
  • United States v. Markquinn Jones, 451 F. App'x 629 (8th Cir. 2012).unpublished
    See, e.g., Larison, 432 F.3d at 922-24 ; United States v. Cotton, 399 F.3d 913, 916-17 (8th Cir.2005).
  • United States v. Miller, 634 F.3d 841 (5th Cir. 2011).published
    United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.2006); United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005).
Show 51 more citing cases
  • United States v. Wallace Malone, 404 F. App'x 964 (6th Cir. 2010).unpublished 5 cites
    United States v. Cotton, 399 F.3d 913, 915-16 (8th Cir. 2005); United States v. White Face, 383 F.3d 733 , 738-39 (8th Cir.2004); see also United States v. Garner, 133 Fed.Appx. 319, 320-21 (7th Cir.2005) (holding that § 3553(c) does not a…
  • United States v. Benton, 627 F.3d 1051 (8th Cir. 2010).published
    We have previously rejected such an argument, concluding that “a district court’s decision to exceed ‘the suggested range in the policy statements of Chapter 7 [is not] considered to be an upward departure from the guidelines.’ ” United St…
  • United States v. Marcell Bennett, 401 F. App'x 155 (8th Cir. 2010).unpublished
    (affirming a forty-six month sentence for repeated violations where the advisory range was seven to thirteen months)
  • United States v. Cates, 613 F.3d 856 (8th Cir. 2010).published
    United States v. Miller, 557 F.3d 910, 915-16 (8th Cir.2009) (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005)).
  • United States v. Wesley Running Shield, 377 F. App'x 590 (8th Cir. 2010).unpublished
    (affirming a forty-six month sentence for continued violations where the advisory range was seven to thirteen months)
  • United States v. Jesse Redmond, 353 F. App'x 64 (8th Cir. 2009).unpublished
    See, e.g., United States v. Herbeck, 282 Fed.Appx. 490, 491-92 (8th Cir.2008) (per curiam) (holding that defendant’s 36-month, above-Guidelines but below-statutory-maximum sentence upon revocation of supervised release was not unreasonable…
  • United States v. Kelly Malloy, 343 F. App'x 149 (8th Cir. 2009).unpublished
    Id.; United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005); see United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc).
  • United States v. Kreitinger, 576 F.3d 500 (8th Cir. 2009).published
    “We review a revocation sentence under the same ‘reasonableness’ standard *504 that applies to initial sentencing proceedings .... ” United States v. Merrival, 521 F.3d 889, 890 (8th Cir.2008) (quoting United States v. Cotton, 399 F.3d 913…
  • United States v. Janis Kreitinger, No. 08-3209 (8th Cir. Aug. 5, 2009).published
    "We review a revocation sentence under the same 'reasonableness' standard that applies to initial sentencing proceedings . . . ." United States v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008) (quoting United States v. Cotton, 399 F.3d 913,…
  • United States v. Abdi Mahamud, 322 F. App'x 470 (8th Cir. 2009).unpublished 2 cites
    And “[w]e review a revocation sentence under the same ‘reasonableness’ standard that applies to initial sentencing proceedings.” Id. (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005)). “[W]e review the substantive reasonabl…
  • United States v. Miller, 557 F.3d 910 (8th Cir. 2009).published
    United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005).
  • United States v. Mary Miller, No. 07-3073 (8th Cir. Mar. 9, 2009).published
    United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005).
  • United States v. Walter Miller, 557 F.3d 919 (8th Cir. 2009).published 2 cites
    United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005).
  • United States v. Thunder, 553 F.3d 605 (8th Cir. 2009).published 2 cites
    “We review a revocation sentence under the same ‘reasonableness’ standard that applies to initial sentencing proceedings.” Id. (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)). “[W]e review the substantive reasonableness…
  • United States v. Petreikis, 551 F.3d 822 (8th Cir. 2009).published 2 cites
    “We review a revocation sentence under the same ‘reasonableness’ standard that applies to initial sentencing proceedings[.]” Id. (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005)). “[W]e review the substantive reasonablene…
  • United States v. Perkins, 526 F.3d 1107 (8th Cir. 2008).published 2 cites
    (same standard of reasonableness applies to revocation hearings as to initial sentencing proceedings)
  • United States v. Bear Robe, 521 F.3d 909 (8th Cir. 2008).published 2 cites
    United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005); accord United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007); but see United States v. Hernandez-Martinez, 485 F.3d 270, 273-74 (5th Cir. 2007); United States v. Crudup, 461 F…
  • United States v. Merrival, 521 F.3d 889 (8th Cir. 2008).published 2 cites
    We review a revocation sentence under the same “reasonableness” standard that applies to initial sentencing proceedings, United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005), and in accordance with Gall, we review the substantive rea…
  • United States v. Priscilla Cordova, 262 F. App'x 737 (8th Cir. 2008).unpublished
    (court properly considered that defendant received substantially reduced original sentence in imposing revocation sentence in excess of suggested Guidelines range)
  • United States v. Bolds, 511 F.3d 568 (6th Cir. 2007).published 2 cites
    Indeed, the majority of our sister circuits to have considered the issue have found that there is no difference between the two standards, see Sweeting, 437 F.3d at 1106 ; Tedford, 405 F.3d at 1161 ; Cotton, 399 F.3d at 916, and the two ci…
  • United States v. Kizeart, 505 F.3d 672 (7th Cir. 2007).published 2 cites
    We explained that before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), our court and the other courts of appeals as well had held that the standard of “plainly unreasonable” was the applicable one, e.g., Uni…
  • United States v. Robert L. Baker, 491 F.3d 421 (8th Cir. 2007).published 2 cites
    A district court’s decision to sentence a defendant to a longer term than suggested by Chapter 7 is reviewed for abuse of discretion.’ ” United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005) (internal citation omitted) (quoting United…
  • United States v. Juan Hernandez-Martinez, 485 F.3d 270 (5th Cir. 2007).published 2 cites
    See United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.2006) (per curiam); United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir.2005); United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005); United States v. Fleming, 397 F.3…
  • United States v. Jones, 484 F.3d 783 (5th Cir. 2007).published
    See, e.g., United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.2006); United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir.2005); United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005). 32 .
  • United States v. Orville Red Feather, 479 F.3d 584 (8th Cir. 2007).published
    “In fashioning an appropriate revocation sentence, the district court is to consider the sentencing range, but also ‘must take into account certain of the factors listed in 18 U.S.C. § 3553 (a), including the statutory goals of deterrence,…
  • In re Grand Jury, No. 06-2819 (3d Cir. Oct. 2, 2006).published
    Compare United States v. Johnson, 403 F.3d 813 , 816- 17 (6th Cir. 2005); United States v. Soto, No. 05-2190, 2006 U.S. App. LEXIS 18552 at *4 n.2 (6th Cir. July 20, 2006) (finding the “plainly unreasonable” standard still viable after Boo…
  • United States v. Joaquin Pina, 160 F. App'x 909 (11th Cir. 2005).unpublished
  • United States v. Venester Fayne, 163 F. App'x 785 (11th Cir. 2005).unpublished
  • United States v. Gussie Livingston, 140 F. App'x 886 (11th Cir. 2005).unpublished
  • United States v. Solomon Apheus Powell, 163 F. App'x 765 (11th Cir. 2005).unpublished
  • United States v. Joseph Turner, 133 F. App'x 711 (11th Cir. 2005).unpublished
  • United States v. Ashanti Sweeting, 437 F.3d 1105 (11th Cir. 2006).published
  • United States v. Neshara Gionne Moore, 443 F.3d 790 (11th Cir. 2006).published
  • United States v. Tedford, 405 F.3d 1159 (10th Cir. 2005).published
  • United States v. Contreras-Martinez, 409 F.3d 1236 (10th Cir. 2005).published
  • United States v. Rodriguez-Quintanilla, 442 F.3d 1254 (10th Cir. 2006).published
  • United States v. Dominick Daniel Nace, 418 F.3d 945 (8th Cir. 2005).published
  • United States v. Jawad Miqbel, 444 F.3d 1173 (9th Cir. 2006).published
  • United States v. Gregory Yopp, 453 F.3d 770 (6th Cir. 2006).published
  • United States v. Michael Nelson, 453 F.3d 1004 (8th Cir. 2006).published
  • United States v. Christopher Devon Crudup, 461 F.3d 433 (4th Cir. 2006).published
  • In re Grand Jury & in the Matter of the Search of Jelanie Solomon, 465 F.3d 114 (3d Cir. 2006).published
  • United States v. Defoor, 535 F.3d 763 (8th Cir. 2008).published
  • United States v. Crudup, No. 05-4048 (4th Cir. Aug. 7, 2006).published
  • United States v. Tugen, 157 F. App'x 838 (6th Cir. 2005).unpublished
  • United States v. Soto, 189 F. App'x 470 (6th Cir. 2006).unpublished
  • United States v. Blackburn, Jon B., No. 05-3478 (7th Cir. Mar. 10, 2006).unpublished
  • United States v. Charles Edward Shurn, 128 F. App'x 552 (8th Cir. 2005).unpublished
  • United States v. Dominick Nace, No. 04-2869 (8th Cir. Aug. 18, 2005).published
  • United States v. Shaun D. Porchia, 180 F. App'x 596 (8th Cir. 2006).unpublished
  • United States v. Christopher Baker, 317 F. App'x 587 (8th Cir. 2009).unpublished
At page 915 Analyzing factors for imposing revocation sentences12 citing cases“i've exceeded the guidelines for four reasons,”1 citing court quotes it · 11 listed here
  • United States v. Freddie Sinkler, Jr., 555 F. App'x 217 (3d Cir. 2014).unpublished
    United States v. Cotton, 399 F.3d 913, 915-16 (8th Cir.2005). 5 .
  • United States v. Christopher Daniels, 477 F. App'x 424 (8th Cir. 2012).unpublished
    However, “[o]ur Circuit has squarely held that the written-order requirement of § 3553(c)(2) does not apply when the court revokes supervised release and imposes a sentence different from the term recommended by U.S.S.G. § 7B1.4.” United S…
  • United States v. Wallace Malone, 404 F. App'x 964 (6th Cir. 2010).unpublished 5 cites
    United States v. Cotton, 399 F.3d 913, 915-16 (8th Cir. 2005); United States v. White Face, 383 F.3d 733 , 738-39 (8th Cir.2004); see also United States v. Garner, 133 Fed.Appx. 319, 320-21 (7th Cir.2005) (holding that § 3553(c) does not a…
  • United States v. Robert Frank, 365 F. App'x 713 (8th Cir. 2010).unpublished
    See, e.g., Kreitinger, 576 F.3d at 504 (upholding 23-month and 35-month revocation sentences where the recommended range was 4 to 10 months because “the district court ... explained] why a more severe sentence was warranted” such as the de…
  • United States v. James Herbeck, 282 F. App'x 490 (8th Cir. 2008).unpublished
    See, e.g., id. at 924 (concluding that where the advisory guideline range upon revocation of supervised release was five to eleven months’ imprisonment, a sixty-month sentence was not unreasonable where the court considered the defendant’s…
  • United States v. Duane Larison, 432 F.3d 921 (8th Cir. 2006).published
  • United States v. Garner, Dayna, 133 F. App'x 319 (7th Cir. 2005).unpublished
  • United States v. Charles Marion, 179 F. App'x 984 (8th Cir. 2006).unpublished
  • United States v. Zachary Tew, 713 F. App'x 523 (8th Cir. 2018).unpublished
  • United States v. Velasco, 136 F. App'x 419 (2d Cir. 2005).unpublished
Show 1 more citing case
At page 914 Supervision duration considering multiple violations and history1 citing caserevocation sentence of 46 months in prison without further supervision was not unreasonable despite Guidelines range of 7-13 months where court considered defendant’s receipt of substantial reduction of original sentence, repeated violations of supervised release, risk of new felonious conduct, and…1 citing court put it this way
  • United States v. Melvin Taylor, 320 F. App'x 484 (8th Cir. 2009).unpublished 2 cites
    (revocation sentence of 46 months in prison without further supervision was not unreasonable despite Guidelines range of 7-13 months where court considered defendant’s receipt of substantial reduction of original sentenc…)
Retrieving the full opinion text from the archive…
United States
v.
Tracie D. COTTON, also known as Tracie Danner
No. 04-2237.
Court of Appeals for the Eighth Circuit.
Mar 8, 2005.
Published opinion
399 F.3d 913
2005 WL 525226
2005 U.S. App. LEXIS 3799
Rebecca J. Smith, argued, Omaha, NE, for appellant., Janice M. Lipovsky, argued, AUSA, Lincoln, NE, for appellee.
Gibson, Gruender, Riley.
Cited by 96 opinions  |  Published
Citer courts: E.D. Missouri (1)
JOHN R. GIBSON, Circuit Judge.

Tracie D. Cotton appeals the district court’s[1] order sentencing her to 46 months’ imprisonment upon revocation of her supervised release. Cotton argues that because the sentence exceeded the range recommended by U.S.S.G. § 7B1.4, the district court erred by orally stating the reasons for the sentence imposed, rather than writing them in an order. She also contends that the sentence imposed was unreasonable. We affirm the sentence imposed by the district court.

Cotton was convicted of conspiracy to distribute methamphetamine in 2000 and sentenced to 168 months in prison and five years of supervised release. Later, the United States filed a motion under Fed.R.Crim.P. 35(b), which resulted in her prison sentence being reduced to 36 months. While she was serving her term of supervised release, Cotton was indicted in state court for felony possession of a controlled substance. The United States Attorney’s office moved to revoke her supervised release on the grounds that she had violated two conditions of her supervised release: (1) she had committed a state crime, felony possession of a con[*915]trolled substance, and (2) she had used controlled substances, as shown by urinalysis tests in 2003 and 2004, which revealed methamphetamine and hydrocodone in her urine.

Pursuant to an agreement between the state prosecutor, the United States Attorney and the defense, Cotton pleaded guilty in state court to felony possession of a controlled substance, while in federal court she admitted the urinalysis charge. In return, the United States dismissed the charge based on violation of a state law. The basis for revoking supervised release was therefore a Grade C violation, the least serious of the three types of violation listed in U.S.S.G. § 7B1.1. The recommended sentence for a Grade C violation for Cotton’s criminal history category was seven to thirteen months’ imprisonment. U.S.S.G. § 7B1.4(a). Notwithstanding the guidelines recommendation, the probation officer recommended a sentence of fortyr six months. The court advised Cotton that the guidelines range was not binding on the court and that she could be sentenced up to the statutory maximum of five years’ imprisonment. See 18 U.S.C.A. § 3583(e)(3) (Supp.2004). Cotton pronounced her desire to proceed with the. plea agreement.

Defense counsel argued that, despite a recommendation by the court at. the time of the original sentencing that Cotton receive a 500-hour drug treatment course in prison, she had only received a less extensive class that counsel considered inadequate. Counsel proposed that Cotton should attend a drug treatment program at a private facility as an alternative to a long prison sentence.

After argument and allocution, the district court pronounced sentence as follows:

To reflect the seriousness of the offense, to promote respect for the law, to provide for just punishment, and to afford deterrence, I revoke supervised release and sentence - Ms.’ Cotton to 46 months in prison to be followed by no terms of supervised release.
'■ I’ve exceeded-the guidelines for four reasons. We have repeated violations of the terms of supervision, so defendant . was previously a beneficiary of [a] large downward departure. ■ The ■ conduct, drug abuse, is associated' with a risk of new felonious conduct and the defendant is in need of continued drug and alcohol treatment that, at this point, I think can best be provided in prison. I recom■mend in the strongest possible terms two things to the Bureau of Prisons. That the defendant be lodged as close as possible to the State of Nebraska, and that she be enrolled in the intensive drug treatment of the Bureau of Prisons.

On appeal, Cotton contends that the district court violated the written-order' requirement of 18 U.S.C.Á. § 3553(c)(2) (2004 Supp.) (as amended by the PROTECT Act, Pub.L. No. 108-21, 117 Stat. 650, 669 (April 30, 2003)), which provides:

(c) Statement of reasons for imposing a sentence. — The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and if the sentence—
. (2) is not of the kind, or is outside the range, described in subsection (a)(4) [i.e., the. guidelines range], the specific reason for the .imposition of a sentence different from that described, - which reasons must also be stated with specificity in the written order of judgment and commitment ....

Our Circuit has squarely held that the written-order requirement ■ of § 3553(c)(2) does not apply when the court revokes supervised release and imposes a[*916] sentence different from the term recommended by U.S.S.G. § 7B1.4. United States v. White Face, 383 F.3d 733, 738-39 (8th Cir.2004) (Murphy, J.). We reasoned that the written-order requirement applies to departures from the guidelines range, whereas revocation of supervised release is not governed by guidelines, but only policy statements which are not binding on the court (although the court must consider them). Id. “[A] revocation sentence exceeding the suggested range in the policy statements of Chapter 7 has not been considered to be an upward departure from the guidelines.” Id. at 738. We must reject Cotton’s first argument.

Cotton also argues that the sentence she received was unreasonable. In White Face we stated:

When there is no applicable sentencing guideline, as in the case of a revocation ‘ sentence, we review to determine whether the sentence was plainly unreasonable. See 18 U.S.C. § 3742(e)(4). A district court’s decision to sentence a defendant to a longer term than suggested by Chapter 7 is reviewed for abuse of discretion.

383 F.3d at 737. Under 18 U.S.C.A. § 3583(e), the district court must take into account certain of the factors listed in 18 U.S.C. § 3553(a), including the statutory goals of deterrence, incapacitation, and rehabilitation, §§ 3553(a)(2)(B), (C) & (D); the pertinent circumstances of the individual case, § 3553(a)(1); applicable policy statements, §§ 3553(a)(4) & (5); sentencing uniformity, § 3553(a)(6); and restitution, § 3553(a)(7). See White Face, 383 F.3d at 740.

The Supreme Court has just handed down its opinion in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),[2] which vitally affects the standard of review in guidelines cases. Justice Breyer, writing for the court, excised 18 U.S.C.A. § 3742(e) (2004 Supp.) and prescribed a new standard of review for guidelines cases generally. — U.S. at - - -, 125 S.Ct. at 764-69. However, the new standard of review will not change the result in this case, because the new standard is actually the same as the one we would have used otherwise. The new standard is review for unreasonableness with regard to § 3553(a). Booker, — U.S. at -, 125 S.Ct. at 765. This is the same standard prescribed in § 3742(e)(4). Booker, — U.S. at -, 125 S.Ct. at 766. Indeed, the Supreme Court cited White Face as an example of the use of the standard. Id.See also United States v. Fleming, 397 F.3d 95 (2d Cir.2005) (applying reasonableness standard of review in revocation of-supervised release case after Booker).

The district court explicitly discussed the statutory sentencing goals and gave four good reasons for its sentence: Cotton had repeatedly violated the conditions of her supervised release[3] ; she had received a substantial reduction of her original sentence through the Rule 35 motion; the nature of her violations put her at risk for serious criminal conduct; and[*917] she could best receive drug treatment within prison. Considering the statutory goals of sentencing and the facts and circumstances of this case, see 18 U.S.C.A. § 8583(e), the sentence imposed is not unreasonable.

We affirm the sentence imposed.

1

The Honorable Richard G. Kopf, Chief Judge for the United States District Court for the District of Nebraska.

2

Cotton has not argued, either in the district court or here, that her sentencing violated the Sixth Amendment or that she is entitled to relief under Booker. We therefore do not consider any such argument.

3

Cotton states that she had a prescription for hydrocodone but simply forgot to tell the probation officer. At the sentencing hearing, Cotton admitted to the court that on the day she tested positive for hydrocodone, she affirmatively told the probation officer she was not taking any medications. At any rate, the great majority of the urinalysis violations involved methamphetamine, not hydrocodone, and so the district court’s reasoning would be valid even if the hydrocodone violations were excused.