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UNITED STATES v. HOOKER

October 12, 1993

UNITED STATES OF AMERICA,
v.
VALERIE MALISSE HOOKER, Defendant.



The opinion of the court was delivered by: JOYCE HENS GREEN

 This matter is before the Court on the August 24, 1993, remand from the United States Court of Appeals for the District of Columbia Circuit ("Circuit Court"). *fn1" The Circuit Court affirmed this Court's application of the evidentiary standard used to revoke the probation of defendant Valerie Malisse Hooker ("Hooker"), but remanded for the purpose of identifying whether the Court found that defendant violated a "specific probation condition" or whether it made a "general finding of a probation violation." If the Court finds a specific violation of probation, it is obligated to revoke probation. A general finding of a probation violation, in contrast, permits the Court to retain discretion over the revocation decision. For the reasons explained below, the Court finds a general probation violation.

 I. Background

 On September 3, 1991, Hooker pleaded guilty to distributing cocaine base in violation of 21 U.S.C. §§ 841(a) & (b)(1)(C). 993 F.2d at 898. Although the United States Sentencing Guidelines mandate a 63-78 month sentence for this offense, this Court departed from the guidelines and sentenced Hooker to two years of probation commencing January 10, 1992. See U.S.S.G. § 2D1.1.

 Hooker was subsequently arrested on June 22, 1992. A grand jury in the Superior Court of the District of Columbia indicted Hooker on two counts of possession of cocaine base with intent to distribute, and one count of possession of drug paraphernalia. Defendant was released pending trial. At the time of this Court's probation revocation hearing, these charges were still pending. *fn2"

 Defendant was again arrested on September 3, 1992, for violating the same statutory provision. At the hearing on the government's motion for pretrial detention, Magistrate Judge Patrick J. Attridge concluded that probable cause existed to find that defendant possessed cocaine base with intent to distribute. The Magistrate Judge found that Hooker was a danger to the community and ordered that she be detained. The government subsequently dismissed this case, but it was pending grand jury indictment at the time of the probation revocation hearing in this Court.

 Because both of these arrests occurred during the pendency of Hooker's probation, the probation officer requested a compliance hearing. At the probation revocation hearing held on October 8 and 22, *fn3" 1992, this Court found that the government had proven either "to the reasonable satisfaction of the judge" or by a preponderance of the evidence that Hooker had violated her probation. *fn4"

 The Court found this to be a Grade "A" violation under section 7B1.1(A)(1) of the sentencing guidelines. Under this section, the Court ruled that it "must mandatorily revoke probation" and sentence Hooker to between twelve and eighteen months incarceration. See U.S.S.G. § § 7B1.3 ("Upon a finding of a Grade A or B violation, the court shall revoke probation.") (emphasis added); 7B1.4 (requiring minimum sentence of twelve months for Grade A violation). The Court sentenced Hooker to the "lowest end of that period of time," twelve months. Hooker appealed.

 On appeal, Hooker raised three issues. First, she argued that the probation revocation violated her constitutional right to due process because "she lacked sufficient notice of the evidentiary standard that the district court would apply." 993 F.2d at 899. The Circuit Court rejected this argument; it ruled that Local Rule 309(c)(4) of the District Court provided constitutionally sufficient notice that a preponderance of the evidence standard is applicable to a probation revocation determination. *fn5" The Circuit Court then concurred with this Court's determination that there was little, if any, difference between the standards, and noted that this Court had found a probation violation under either standard. 993 F.2d at 899.

 Second, Hooker argued that the revocation proceeding violated her constitutional right to due process because the preponderance of the evidence standard "does not provide adequate protection to the defendant." Id. She asserted that the constitution required a clear and convincing evidence standard. Id. Reasoning that once the government has obtained a conviction a defendant has diminished liberty interests that are adequately protected by the preponderance of the evidence standard, the Circuit Court rejected this argument. Id. at 900.

 The Circuit Court then turned to Hooker's third and final argument. Hooker argued that this Court erred in viewing the policy statements in Chapter VII of the Sentencing Guidelines as binding. Notwithstanding the mandatory language of section 7B1.3(a)(1) of the sentencing guidelines, the Circuit Court ruled that this section was "merely advisory." 993 F.2d at 900. The Circuit Court based this ruling on the Introduction to Chapter 7 of the guidelines, which indicates that the Sentencing Commission only intended the Policy Statements in Chapter 7 to be "advisory" in order to afford greater flexibility to itself and the Courts. Id.

 Consequently, the Circuit Court remanded for these proceedings. The Circuit Court indicated that this Court must determine whether Hooker violated a "specific probation condition," or whether the Court made a "general finding of a probation violation." Id. at 901. If the Court finds a violation of a "specific probation condition," then it is "obligated. . . to revoke probation." Id. (emphasis added). In contrast, a "general finding of a probation violation permits [this] Judge to retain discretion over the revocation decision. . . . See 18 U.S.C. § 3565(a)." Id. (emphasis added). In exercising this discretion, the Circuit Court instructed that this Court "should consider, but not feel bound by, the Policy Statements in Chapter VII." Id.

 The Circuit Court did not explain its distinction between "specific probation violation" and a "general violation of probation." This Court will assume that by a "specific probation violation," the Circuit Court meant a finding of possession of a controlled substance to trigger 18 U.S.C. § 3565. (Probation Condition No. 7). This is the only logical reading of the Circuit Court's opinion because the Circuit Court uses "not associating with individuals involved in criminal activity" (Probation Condition No. 9) as an example of a ...


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