USA v. Kirk McBean

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 19, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-14160
Non-Argument Calendar
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D. C. Docket No. 09-00255-CR-1-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIRK MCBEAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 19, 2010)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Kirk McBean appeals his sentence of ten months of imprisonment and three

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years of supervised release following the revocation of his supervised release, 18
U.S.C. § 3583(e). The district court ruled that McBean violated a term of his
supervised release by failing to comply with instructions of a probation officer that
McBean not visit his wife. We affirm.
I. BACKGROUND
On September 25, 2003, McBean pleaded guilty to possession with the
intent to distribute cocaine. McBean was sentenced to 80 months of imprisonment
and five years of supervised release. McBean was released from prison on July 3,
2008.
McBean’s probation officer filed a petition to modify the terms of McBean’s
supervised release. The probation officer requested the district court require that
McBean complete a mental health treatment program. In support of the request for
modification, the probation officer explained that McBean had allegedly assaulted
his wife and McBean had exhibited “anger control issues.” On October 6, 2008,
the district court modified McBean’s supervised release to require that McBean
attend counseling.
On February 17, 2009, a probation officer petitioned to revoke McBean’s
supervised release. The petition stated that McBean had violated six conditions of
his supervised release, including the failure to comply with the instruction that
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McBean complete counseling before residing with his wife. According to the
petition, on December 3, 2008, McBean’s wife reported that McBean had moved
home, and on December 4, a probation officer discovered McBean in his wife’s
house.
On June 9, 2009, a probation officer filed an amended petition to revoke.
The amendment stated that McBean on two other occasions had failed to comply
with an oral instruction to refrain from contacting his wife: on December 23, 2008,
McBean returned to his wife’s house, where he “was involved in a domestic
altercation”; and in March 2009, McBean “contacted his wife in a threatening
manner,” which violated a temporary restraining order issued by a Georgia court.
At the hearing to revoke, McBean admitted the violations. McBean’s
attorney referred to the violations as “technical” and argued that in December 2008
McBean had visited his wife’s home at her request. The district court proceeded to
discuss briefly with McBean’s attorney the facts underlying McBean’s visits to his
wife’s house and the restraining order.
The government and McBean submitted a joint recommendation that the
district court reincarcerate McBean for ten months, and then release him without
supervision. The district court found that supervised release was necessary for
“somebody that has given this many manifestations of anger issues and anger
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toward a particular person.” McBean admitted that “[i]t seem[ed] [he] [had]
somewhat of anger issues”; he “may have been confused” about the instructions
given by his probation officer; and he had persisted in “comply[ing] with the terms
of the probation . . . [his] way.” McBean discussed his difficulties finding a job
and, after asserting that he visited his wife’s house to perform yardwork, he
accused his wife of destroying a letter that the probation office had mailed
mistakenly to her.
The district court sentenced McBean to ten months of imprisonment and
three years of supervised release. The court explained that supervised release was
necessary to address McBean’s resistance to counseling, his volatile relationship
with his wife, and McBean’s refusal to comply with the instruction of his probation
officer. McBean said that he would have subpoenaed his wife to testify had he
known the domestic situation “was a concern of the court.” After further
discussion, the district court explained that it did not credit fully either the version
of events given by McBean or reported by his wife, but the court could determine
the situation was “volatile” and, “that being the situation, it was incumbent on [the
court] to ensure that [there was] enough supervision to make sure the situation
doesn’t get out of control.”
The court later entered a written order of revocation. The court stated that it
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was “unpersuaded, as a general rule, as to the wisdom of a policy that effectively
rewards a recalcitrant and disobedient offender by discontinuing the very
supervision against which the offender has consistently rebelled,” and the court
“remain[ed] concerned about the volatility of the situation between [McBean] and
his estranged wife and the danger posed to the latter by [McBean’s] anger issues.”
The court accepted McBean’s version of events as “accurate,” but nonetheless
“conclude[d] that it would be a dereliction of its duty not to continue supervision
of [McBean] in an effort to encourage his compliance with appropriate conditions
of release.”
II. STANDARDS OF REVIEW
We review a sentence imposed after revocation of supervised release for
reasonableness. See United States v. Sweeting, 437 F.3d 1105, 1106–07 (11th Cir.
2006). We review the reasonableness of a sentence for an abuse of discretion.
Gall v. United States, 128 S. Ct. 586, 597 (2007). An objection or argument not
raised in the district court is reviewed for plain error. United States v. Aguillard,
217 F.3d 1319, 1320 (11th Cir. 2000).
III. DISCUSSION
McBean argues that his sentence to 10 months of imprisonment and three
years of supervised release is unreasonable. McBean argues that the district court
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imposed an excessive sentence based on McBean’s domestic altercations with his
wife, which he argues for the first time on appeal was an “impermissible factor” to
consider at sentencing. McBean also argues that he was not given notice of or an
“opportunity to rebut the allegations of domestic abuse.” These arguments fail.
McBean’s sentence is reasonable. McBean’s domestic disputes were central
to the revocation proceeding, and the district court did not plainly err by
considering the nature and circumstances of McBean’s violation and McBean’s
relationship with his wife to fashion an appropriate sentence. The district court
explained that incarceration and supervised release would deter McBean from
similar misconduct, impress McBean about the need to comply with the law, and
protect McBean, his wife, and the public by removing McBean from a volatile
situation. McBean complains he was not prepared to address the evidence about
his domestic altercations, but that complaint is absurd. The government sought to
revoke McBean’s supervised release because he defied the instructions of his
probation officer not to contact his wife, and McBean offered evidence about his
domestic dispute to explain his misconduct. The district court did not abuse its
discretion by imposing a sentence within the guideline range.
McBean’s sentence is AFFIRMED.
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