United States of America v. Henry Dailey

United States Court of Appeals
For the Eighth Circuit
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No. 23-2355
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Henry Dailey
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 16, 2024
Filed: August 27, 2024
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Before LOKEN, COLLOTON,1 and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
Four months after Henry Dailey began a ten-year term of supervised release,
his Probation Officer filed a Violation Report alleging numerous violations of his
supervised release conditions. At the revocation hearing, Dailey stipulated to the
1Judge Colloton became chief judge of the Circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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majority of the alleged violations, resulting in an advisory guidelines sentencing
range 6 to 12 months imprisonment. Rejecting the parties joint recommendation of
6 months imprisonment followed by a ten-year term of supervised release, the district
court2 revoked supervised release and sentenced Daily to 12 months imprisonment
followed by a 240-month term of supervised release. Dailey appeals the new term of
supervised release. We affirm.
I. Background
In 2017, Dailey pleaded guilty to one count of Interstate Transportation for
Prostitution in violation of 18 U.S.C. § 2421. The charges arose out of Dailey’s
involvement in a commercial sex trafficking ring in which he and other leaders used
violence and drugs to control victims of the organization. In a binding Plea
Agreement, see Fed. R. Crim. P. 11(c)(1)(C), Dailey admitted the victim said in a
recorded interview that Dailey and his co-defendant recruited and forced her to have
sex with pimps who forced drugs upon her, threatened her with extreme violence, and
on one occasion Dailey raped her for making offensive comments. The government
dismissed a second Interstate Transportation count involving a second victim and a
charge of Conspiracy to Commit Sex Trafficking of an Adult by Force, Fraud or
Coercion, see 18 U.S.C. §§ 1591(a) and (b)(1), 1594 (a) and (c).
The Plea Agreement provided that Dailey understood and agreed that the court
must impose a sentence of not less than 72 nor more than 84 months imprisonment,
must impose a period of supervised release of at least 5 years, and “may impose a
term of supervised release of up to life” under 18 U.S.C. § 3583(k). See USSG
§ 5D1.2(c) (“The term of supervised release imposed shall be not less than any
statutorily required term of supervised release.”). In April 2018, the district court
2The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
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accepted the Plea Agreement and sentenced Dailey to 84 months imprisonment
followed by 120 months of supervised release.
Dailey completed his term of incarceration and began supervised release in
November 2022. On March 31, 2023, Probation Officer Laura Kline filed a Violation
Report alleging numerous violations of mandatory, special, and standard conditions
of his supervised release. All were Grade C violations except violation of the
mandatory condition that Dailey “must not commit another federal, state or local
crime,” a Grade B violation. See USSG § 7B1.1(a). The new law violations were
based on allegations that Dailey failed to register two unauthorized, internet-capable
devices (a cell phone and tablet) in violation of Missouri law, and that forensic
examination of the phone revealed evidence of Dailey’s involvement in marijuana
and fentanyl sales. The Report concluded:
Even after being confronted with evidence of his dishonest and high-risk
behaviors, and given ample opportunities to be truthful, he has
continued to deny, minimize, and justify his high-risk, noncompliant
behaviors. . . . It is clear he does not have respect for the conditions of
supervision and believes the rules do not apply to him. He is a danger
to the community based on his lengthy and violent criminal history and
he appears to be fully entrenched in his deviant cycle and possibly
engaged in the same behaviors as in the instant offense. He . . . is not
amenable to community supervision at this time.
The court ordered that a warrant issue and Dailey was taken into custody. At
a preliminary revocation hearing on May 2, the government called Probation Officer
Kline and asked the court to accept the Report as her direct testimony. Overruling
Dailey’s hearsay objections, the magistrate judge3 accepted the Report as Probation
Officer Kline’s testimony on direct exam. Dailey’s counsel then cross-examined her.
3The Honorable W. Brian Gaddy, United States Magistrate Judge for the
Western District of Missouri.
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After hearing arguments by both parties, the court concluded there was probable
cause to proceed. The final revocation hearing was scheduled for May 25 before the
district court.
Two days before the hearing, the government advised the court by email that
Dailey’s counsel had said Dailey would stipulate (i) that if called, Officer Kline
would testify consistent with her Violation Report; (ii) that Dailey would “admit to
all of the alleged violations in that report,” except for alleged violations of conditions
that he must not commit another federal, state or local crime; must not communicate
or interact with someone he knew was engaged in criminal activity without the
probation officer’s permission; and shall comply with all state and federal sex
offender registration requirements; and (iii) that the parties agreed to recommend a
sentence of 6 months imprisonment to be followed by a ten-year term of supervised
release, understanding that their recommendation was not binding on the court.
Copied on the email, Dailey’s counsel replied, “I have spoken with my client
yesterday and he does confirm the information listed in [the government’s] email.”
At the final hearing, the district court began by asking defense counsel if
Dailey “is going to stipulate to some of the violations,” as the email had advised.
Defense counsel replied, “Yes, Your Honor.” Dailey then stipulated to all alleged
violations except the three noted in the email.4 The court confirmed that the advisory
guidelines range for the stipulated Grade C violations, coupled with Dailey’s
Category IV criminal history, was 6 to 12 months imprisonment. The parties
confirmed their joint recommendation of 6 months imprisonment to be followed by
a ten-year term of supervised release.
4“Where the defendant is ‘aware of the stipulation and does not object to the
stipulation in court,’ we presume that he has acquiesced in his counsel’s stipulation.”
United States v. Robinson, 617 F.3d 984, 989 (8th Cir. 2010) (cleaned up) (quotation
omitted).
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The district court declined to follow the joint recommendation, instead
imposing a revocation sentence of 12 months imprisonment to be followed by 240
months supervised release. Speaking directly to Dailey, the court explained:
[The] underlying crime here that got you on this supervised
release scares me because the things that happened in this underlying
case still scare me.
. . . . .
I understand there’s a joint recommendation, but I want you to
understand this: This is serious and I’m not playing games. So it’s the
judgment of this court that the defendant is sentenced to the Bureau of
Prisons for 12 months and 240 months on supervised release.
And I’m saying that because I want you to know we are not giving
up. We are going to stay focused, and every time you come back here,
it’s going to be a worse sentence.
Neither party responded when the court asked for “anything additional.” No
objections were raised. Dailey appeals the revocation term of supervised release,
alleging procedural errors and a substantively unreasonable sentence.5 “We review
the district court’s imposition of a revocation sentence for abuse of discretion, first
questioning whether the court committed procedural error and then ensuring the
sentence was substantively reasonable.” United States v. Trung Dang, 907 F.3d 561,
564 (8th Cir. 2018).
5Dailey does not challenge the revocation of his supervised release or the 12-
month term of incarceration.
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II. Procedural Error
A district court commits procedural error when it “bas[es] a sentence on
unproven, disputed allegations rather than facts.” United States v. Richey, 758 F.3d
999, 1002 (8th Cir. 2014), citing Gall v. United States, 552 U.S. 38, 50 (2007).
Consequently, “a revocation sentence may not be based on disputed, unproven
allegations in the probation officer’s reports” because such reports are not evidence.
Id. at 1002-03. However, the government may present evidence to the court to prove
the existence of those facts. Id. at 1002.
Dailey argues the district court committed procedural error by giving improper
weight to allegations of new drug crimes in the Violation Report to which Dailey
objected at the Preliminary Revocation Hearing, and “by not allowing Mr. Dailey to
defend the unstipulated allegations . . . used to determine [his] sentence.” Dailey did
not raise these issues before the district court despite being invited to do so. “[I]f
counsel does not timely object that the reasons for imposing a [sentence] have not
been adequately explained, defendant has voluntarily relinquished the issue” by
depriving the appellate court of the district court’s response to a timely objection.
United States v. Deatherage, 682 F.3d 755, 763 n.4 (8th Cir. 2012). Therefore, we
could treat these issues as waived but will consider them forfeited and subject to plain
error review, a “formidable” standard of review. “The court’s explanation is
sufficient if the sentencing record taken as a whole demonstrates that the court
considered the relevant factors.” United States v. Krzyzaniak, 702 F.3d 1082, 1085
(8th Cir. 2013) (citation omitted).
Here, the sentencing record makes clear there was no plain procedural error.
As to the first contention, the court did not “base” Dailey’s revocation sentence on
the new law violations. At the revocation hearing, Dailey and defense counsel
stipulated to multiple Grade C violations but not to Grade B new law violations. The
court then adopted the 6-to-12-month guideline range recommended by Probation
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Officer Kline. Had the range been “based on” a new law Grade B violation, the range
would have been 12 to 18 months imprisonment. See USSG § 7B1.4(a). The
Judgment in a Criminal Case confirms that Dailey’s revocation sentence was not
“based on” new law violations. The Judgment recites that Dailey “is adjudicated
guilty” of the four standard condition and four special condition violations he
stipulated to committing, without reference to any new law violations.
Dailey stipulated that, if called, Probation Officer Kline’s testimony would be
consistent with the Violation Report. Thus, disputed facts contained in the Report are
properly viewed as Probation Officer Kline’s direct testimony, which was subject to
cross examination at the Preliminary Revocation Hearing. The district court’s
consideration of the disputed allegations was not plain error -- Probation Officer
Kline’s testimony provided evidentiary support for the allegations, Dailey presented
no contrary evidence, and the court made no finding resolving Dailey’s objection that
denied underlying facts. See United States v. Malloy, 343 Fed. App’x 149, 152 (8th
Cir. 2009); United States v. Ross-Garner, No. 22-1679, 2022 WL 4490626, at *1 (8th
Cir. Sept. 28, 2022).
Dailey argues that statements by the court at the revocation hearing about
Dailey’s texts that referenced marijuana nonetheless establish this procedural error:
You are texting people between Daily [sic] and Mille talking about
[marijuana]. You’re on WhatsApp and there’s voicemails.
Read in context, however, the court’s reference to evidence of possible drug
transactions on Dailey’s cell phone did not reflect the court’s basis for its revocation
sentence. It was a frank warning to Dailey about what would happen if he did
commit new law violations in the future:
And at some point, it’s not supervised release violations . . . it’s a new
crime. . . . I’m just telling you if you pick up another crime, given your
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criminal history category, if you get found with fentanyl, it’s a death
sentence for you. I don’t want you to die in prison, and you don’t want
to die in prison.
“A court may caution a defendant about the consequences of future violations.”
United States v. Martin, 757 F.3d 776, 778 (8th Cir. 2014).
As to the second alleged procedural error -- not allowing Dailey to defend
unstipulated allegations used to determine his sentence -- it appears he is asserting a
violation of his due process right to confront and cross-examine adverse witnesses at
a supervised release revocation hearing. See United States v. Timmons, 950 F.3d
1047, 1049-50 (8th Cir. 2020); Fed. R. Crim. P. 32.1(b)(2)(C). The contention is
without merit. “[A]t a revocation hearing, admitting [a probation officer’s] report of
violations when she was available for cross exam did not violate [the defendant’s]
due process confrontation rights.” United States v. Clower, 54 F.4th 1024, 1027 (8th
Cir. 2022). The court did not prevent Dailey from calling Probation Officer Kline.
She was present and seated at counsel table at the final hearing; Dailey did not call
her as a witness or ask the court for permission to cross examine her, as he had at the
preliminary hearing. The court was not obligated to raise this issue sua sponte. See
United States v. Simms, 757 F.3d 728, 732-33 (8th Cir. 2014). Dailey was allowed
ample opportunity to defend against the contested violations. A district court may
rely on a preliminary-hearing transcript rather than live witness testimony to support
a supervised release revocation decision. See United States v. Left Hand, No. 21-
2507, 2022 WL 1469478, at *1 (8th Cir. May 10, 2022).
III. Substantive Reasonableness
Having found no procedural errors, we next address Dailey’s challenge to his
240-month term of supervised release as substantively unreasonable. Dailey argues
the district court imposed a substantively unreasonable sentence because “supervised
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release, prior to the Revocation of Supervised release was 120 months and the
violation[s] which Mr. Dailey admitted to were not new crimes and only amounted
to a Grade C violation.” We review “the substantive reasonableness of the court’s
revocation sentence under the same deferential abuse-of-discretion standard that
applies to initial sentencing proceedings.” United States v. Starr, No. 23-3010, 2024
WL 3630084, at *1 (8th Cir. Aug. 2, 2024) (quotation omitted).
At the outset, it is clear the district court was authorized to impose as part of
its revocation sentence a new term of supervised release “equal to the maximum term
of supervised release authorized for the original conviction offense.” United States
v. Asalati, 615 F.3d 1001, 1007 (8th Cir. 2010) (quotation omitted); see 18 U.S.C.
§ 3583(h). Here, in the initial Plea Agreement, Dailey understood and agreed that the
court was authorized to impose a term of supervised release of between five years and
life for his underlying violation of 18 U.S.C. § 2421, as 18 U.S.C. § 3583(k)
expressly authorized. It is well-settled in this circuit that a court imposing a
revocation sentence is not “cabined by the supervised release term originally
imposed,” but only by “the term statutorily authorized for the offense of conviction
(minus any revocation terms of imprisonment).” United States v. Palmer, 380 F.3d
395, 398 (8th Cir. 2004) (en banc); see Trung Dang, 907 F.3d at 567 (rejecting
percentage-based sentencing arguments).
In determining the appropriate term of supervised release, a district court must
consider the § 3553(a) sentencing factors cited in § 3583(e). The court abuses its
discretion when it “gives significant weight to an improper or irrelevant factor.”
United States v. Barber, 4 F.4th 689, 692 (8th Cir. 2021) (quotation omitted). Dailey
argues the district court erred by giving weight to his contentious relationship with
Probation Officer Kline because that is an improper or irrelevant factor. He points
to statements at the revocation hearing which show the court relied on “animosity”
between Dailey and Probation Officer Kline:
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This officer is my representative in the field. She does everything
I’ve asked her to do. I really like her. If you want to avoid coming to
see me, you need to understand that she’s my representative. She’s just
as good as being the judge, and if you want to stay away from me, you
need to do everything she asks you to do.
. . . . .
The only way you’re going to avoid [a new crime prison sentence]
is if you treat this PO just like you treat me, and everything she says, you
make sure that’s the biggest priority in your life and you don’t skip one
sexual offender counseling. You register everything you’ve got, you’re
fully honest . . . .
I hope you decide you want to die on the outside, that you want
to live a life, you want to have a job, you want to have your own place,
you don’t want to be involved in texting people about fentanyl or
marijuana or other things that will get you in enormous trouble.
Contrary to Dailey’s assertion, these statements were a warning to Dailey
personally to follow the terms of his supervised release, which include standard
conditions that he “must follow the instructions of the probation officer related to the
conditions of supervision” and “answer truthfully the questions asked by [his]
probation officer,” requirements he stipulated to violating numerous times in his first
four months on release, or risk future revocation proceedings.
At a revocation hearing, the court may caution the defendant that future
violations may result in harsher terms of imprisonment. See Martin, 757 F.3d at 778.
Here, the court, having sentenced Dailey for the underlying Interstate Transportation
for Prostitution offense, was well aware of Dailey’s criminal history. The court knew
from the Violation Report and the Grade C violations Dailey admitted that he had
ignored Probation Officer Kline’s compliance instructions and treated her with
disrespect. The court’s statements “demonstrate a consideration of [Dailey’s] history
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and characteristics and a concern for protecting the public, both proper [§ 3553(a)]
factors.” Asalati, 615 F.3d at 1007. They do not show the court erred, much less
plainly erred, by relying on an improper factor.
The district court did not abuse its discretion in imposing an authorized term
of supervised release substantially longer than the original term. See United States
v. DeMarrias, 895 F.3d 570, 575 (8th Cir. 2018) (lifetime term not substantively
unreasonable when repeat violent offender’s original term was ten years); Asalati,
615 F.3d at 1007 (lifetime term not substantively unreasonable when original term
was five years but repeat offender “has demonstrated himself capable of committing
crimes with such violent force”).
The judgment of the district court is affirmed.
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