United States v. Jhirmal Day ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1341
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UNITED STATES OF AMERICA
v.
JHIRMAL DAY,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-05-cr-00482-002
District Judge: The Honorable Legrome D. Davis
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 18, 2013
Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges
(Filed: March 27, 2013)
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OPINION
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SMITH, Circuit Judge.
In 2006, defendant Jhirmal Day pleaded guilty to interstate robbery offenses
and was sentenced to 72 months‟ imprisonment, followed by a 3-year term of
supervised release. Day‟s term of supervised release commenced in March 2010.
Although Day voluntarily participated in the “Supervision to Aid Reentry” (STAR)
program, which provided more intensive supervision and training, Day still had
difficulty meeting the conditions of his supervised release.
In June 2011, the Government petitioned to revoke Day‟s supervised release
because of six Grade C violations: (1) Day was arrested for knowingly possessing
a controlled substance; (2) he repeatedly failed to submit monthly supervision
reports to his probation officer; (3) he repeatedly submitted urine specimens that
tested positive for marijuana; (4) he failed to attend drug treatment as directed, and
he failed to submit regular urine samples for drug testing; (5) he failed to make any
payments toward his restitution; and (6) he failed to notify his probation officer
when he changed addresses. As a result of these violations, a warrant was issued
for his arrest in June 2011; Day was subsequently arrested on October 18, 2011.
Day‟s revocation hearing was held on January 26, 2012. Day faced a
statutory maximum of 24 months‟ and an advisory guideline range of 5 to 11
months‟ imprisonment for the Grade C violations. The United States District
Court for the Eastern District of Pennsylvania revoked Day‟s term of supervised
release and imposed the statutory-maximum sentence of 24 months‟ imprisonment.
The Court ultimately denied Day‟s request for a sentence at the top of the advisory
guideline range because the Court found that Day did not put forth any effort while
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on supervised release that would warrant the Court‟s continued trust.
Subsequently, Day filed a timely appeal of the sentence.
On appeal, Day contends that the District Court committed procedural error
by failing to adequately consider the relevant sentencing factors. Day also
contends that the sentence was greater than necessary to achieve the purposes of
sentencing and should be remanded for resentencing. Because the sentence was
both procedurally and substantively reasonable, we will affirm the judgment of the
District Court.1
This Court reviews a sentence imposed upon a revocation of supervised
release for abuse of discretion. United States v. Doe, 617 F.3d 766, 769 (3d Cir.
2010). We must ensure that the sentence was both procedurally and substantively
reasonable. See id. at 769-70. First, for a sentence to be procedurally reasonable
in accordance with 18 U.S.C. § 3583(3), the record must demonstrate that the
sentencing court gave meaningful consideration to the factors set forth in
§ 3553(a). United States v. Bungar, 478 F.3d 540, 543-44 (3d Cir. 2007).
However, the sentencing court does not need to “discuss and make findings as to
each of the § 3553(a) factors if the record makes clear the court took the factors
into account in sentencing.” Id. at 543. Second, if the district court‟s procedures
1
The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction
under both 28 U.S.C. § 1291, as an appeal from a final decision of a district court, and 18
U.S.C. § 3742(a), as an appeal of a sentence imposed under the Sentencing Reform Act
of 1984.
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were reasonable, we then review the substantive reasonableness of the sentence.
Id. When reviewing for substantive reasonableness, we must consider the totality
of the circumstances and whether the sentence “falls within the broad range of
possible sentences that [could] be considered reasonable.” United States v. Wise,
515 F.3d 207, 218 (3d Cir. 2008). This Court‟s review for substantive
reasonableness, however, is highly deferential, and we will affirm “„unless no
reasonable sentencing court would have imposed the same sentence on that
particular defendant for the reasons the district court provided.‟” Doe, 617 F.3d at
770 (quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc)).
The party challenging the sentence has the burden of demonstrating the sentence‟s
unreasonableness. Bungar, 478 F.3d at 543.
In this case, the 24-month sentence was procedurally reasonable because the
District Court expressly and thoroughly considered the relevant § 3553(a) factors.
First, the sentencing-hearing transcript demonstrates that the District Court
accounted for Day‟s history and characteristics, as well as the nature and
circumstances of his Grade C violations. The District Court, for example,
acknowledged that Day was not an “evil, malicious man.” But the District Court
ultimately characterized Day‟s tenure on supervised release as an “unbroken record
of abysmal failure” because he did not do “a single thing” the Court asked of him.
Second, the District Court considered the need for the sentence imposed. The
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Court explained that it would have imposed an even longer prison term to sanction
Day‟s significant breach of trust if it were possible to do so. Third, the District
Court adequately considered the relevant guideline range for a Grade C violation
of supervised release. During the sentencing hearing, the Court explicitly
acknowledged that the correct guideline range was 5 to 11 months. Fourth, the
District Court directly relied on the Sentencing Guideline policy statements for a
revocation of supervised release. It correctly acknowledged that the Sentencing
Guidelines advise the Court to impose a sentence “primarily to sanction the
defendant‟s breach of trust” for a violation of the conditions of supervised release.
See U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. The
sentencing-hearing transcript demonstrates that the District Court carefully and
thoroughly addressed the relevant § 3553(a) factors.
Although Day argues that the District Court failed to adequately consider the
relevant § 3553(a) factors, he does not point to any specific factor that the District
Court did not address. See Appellant Br. at 10. As mentioned above, this Court
has held that the sentencing court is not required to discuss and make findings as to
each of the § 3553(a) factors. See Bungar, 478 F.3d at 543. Further, nothing in the
sentencing transcript reveals that the District Court failed to adequately consider
any of the arguments raised by Day. Beyond the relevant § 3553(a) factors and the
arguments raised at sentencing, the District Court “is not required to manufacture
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grounds for the parties or search for grounds not clearly raised on the record in a
concise and timely manner.” United States v. Dragon, 471 F.3d 501, 505 (3d Cir.
2006). Therefore, Day‟s contention that the District Court did not adequately
consider the § 3553(a) factors is baseless, and we conclude that his sentence was
procedurally reasonable.
Further, Day has not met the considerable burden of showing that the
sentence was substantively unreasonable. Day commenced supervised release in
March 2010, and by June 2011—a little more than a year later—he had already
committed six violations of the conditions of supervised release and had
disappeared from law-enforcement supervision. Besides the six Grade C
violations, Day did not take advantage of the opportunities the Government
provided for him for re-entry under the STAR program. Finally, Day offered no
colorable reason as to why his sentence should be mitigated. Day argues that he
should have received a reduced sentence because he made a good-faith effort to
find and maintain employment as evidenced by the construction job he purportedly
maintained for a month. However, the probation officer was never able to confirm
Day‟s employment, and Day offered no documentation of this position.
Additionally, Day admitted that he spent all of the money he earned on clothes,
despite the fact that he owed more than $4,000 in restitution.
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In conclusion, Day failed to demonstrate that the District Court abused its
discretion in imposing the 24-month statutory-maximum sentence. Accordingly,
we will affirm the judgment of the District Court.
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