United States v. Davis ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-11-2007
USA v. Davis
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4144
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-4144
UNITED STATES OF AMERICA
v.
JAMES T. DAVIS,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 95-cr-00125)
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit LAR 34.1(a)
December 10, 2007
Before: SLOVITER, AMBRO, Circuit Judges, and RESTANI*, Judge
(Filed: December 11, 2007)
OPINION
SLOVITER, Circuit Judge.
*
Hon. Jane A. Restani, Chief Judge, United States Court of
International Trade, sitting by designation.
James T. Davis appeals from the judgment of the District Court sentencing him to
thirty-six months imprisonment for violating the conditions of his supervised release to
be served consecutive to his state term of imprisonment. Davis argues that this sentence
is unreasonable. We disagree, and will affirm.
I.
As we write for the parties, we only discuss those facts relevant to our analysis.
On December 5, 2003, Davis completed serving his federal sentence for using and
carrying a firearm in relation to a drug trafficking offense and began his term of
supervised release. On December 1, 2004, Davis attended a homicide trial in a New
Jersey state court and, during the testimony of a principal prosecution witness–who had
been in protective custody due to threats against her life–was observed standing, facing
the witness, and lifting his hand toward his chin, making a gesture with his hand and
finger that suggested a firearm. When he repeated this motion, state officers escorted him
from the courtroom, arrested him and charged him with obstructing the administration of
law, making threats of violence, and tampering with witnesses.
Thereafter, the United States Probation Office filed a petition for an arrest warrant
for Davis based on the state criminal charges. As the state was holding him in custody,
the federal warrant was lodged as a detainer. Davis ultimately pled guilty to the state
charge of making terroristic threats, and was sentenced to three years imprisonment. The
state judge recommended that Davis’ sentence run concurrent with any federal sentence
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imposed on Davis for violation of supervised release.
At a subsequent hearing in federal court, Davis admitted that he had violated the
conditions of his supervised release. The District Court imposed the statutory maximum
sentence of thirty-six months, to run consecutively to Davis’ state sentence. In arriving at
this conclusion, the District Court stated that the sentence would “protect the public from
people like Mr. James Davis . . . [and] support the U.S. Probation in their efforts to
supervise people successfully.” App. at 30. The District Court also noted the serious
nature of the crime, Davis’ record of violent crimes, and Davis’ previous violations of
supervision. Finally, the District Court noted that it would make the sentence
consecutive because it did not think that “there’s any such thing as free crimes if he’s on
Supervised Release Federal on a sentence [sic], then you’re going to have to expect that
if you violate it by committing a violent crime such as this, that you’re going to pay the
price.” App. at 30.
In its oral pronouncement, the District Court stated that the thirty-six month
sentence would be followed by two years of Supervised Release. However, counsel for
both parties agreed that the period of supervised release was not permissible because the
statutory maximum prison term had been imposed. The parties brought this matter to the
District Court’s attention. To redress that error, the Court entered an order providing that
no term of supervised release would be imposed on Davis’ sentence.
Davis appeals on the ground that the District Court’s sentence was unreasonable.
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II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(4).
Prior to United States v. Booker, 543 U.S. 220 (2005), we reviewed the imposition of
consecutive sentences under the abuse of discretion standard. United States v. Spiers, 82
F.3d 1274, 1277 (3d Cir. 1996). Davis argues that our post-Booker review should be for
reasonableness, and that his sentence was unreasonable. We need not address the
question of which standard applies here, because Davis’ sentence satisfies either
standard.
Under 18 U.S.C. § 3584(a), sentencing courts may impose a term of imprisonment
that runs consecutively or concurrently. A defendant’s violation of supervised released is
considered to be a “breach of the Court’s trust,” United States v. Dees, 467 F.3d 847, 853
(3d Cir. 2006). The policy statements of the Sentencing Commission are instructive in
determining the appropriate sentence to be imposed for such violations. See United
States v. Blackston, 940 F.2d 877, 893 (3d Cir. 1991); 18 U.S.C. § 3583(d)(3). The
Sentencing Commission recommends that “[a]ny term of imprisonment imposed upon
the revocation of probation or supervised release shall be ordered to be served
consecutively to any sentence of imprisonment that the defendant is serving . . . .” U.S.
Sentencing Guidelines Manual § 7B1.3(f) (2004). Here, Davis’ sentence fell within the
advisory guideline range set forth in U.S.S.G. § 7B1.4(a). Moreover, the District Court’s
imposition of a consecutive term of imprisonment was consistent with the Guideline
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recommendation.
According to Davis, however, the entire sentence was unreasonable because it was
primarily focused on punishing the perceived seriousness of Davis’ criminal history and
the underlying offense. In its discussion, the District Court noted that the defendant
“seems to have violated every period of supervision that he was ever on.” App. at 30.
Further, although the state judge’s sentencing recommendation was relevant, the state
court judge’s task was punishing the underlying state offense, whereas the District
Court’s primary task was sanctioning Davis’ breach of trust of the federal sentence.
Thus, the District Court’s decision to impose a consecutive sentence notwithstanding the
State recommendation was not unreasonable, given the considerations that the District
Court articulated. For these reasons, we will affirm.
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