United States v. Arthur Boyce ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 09-4224, 09-4225
UNITED STATES OF AMERICA
v.
ARTHUR BOYCE,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 1-07-cr-01018-001, 1-09-cr-00375-001)
District Judge: Honorable Noel L. Hillman
Submitted Under Third Circuit LAR 34.1(a)
June 29, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges
(Filed: July 2, 2010)
_____
OPINION
SLOVITER, Circuit Judge.
Arthur Boyce appeals the judgment of the District Court imposing consecutive
sentences for Boyce’s offenses of drug distribution and violation of supervised release.
The issue before us is a narrow one - limited to the Court’s imposition of fully
consecutive terms for the two offenses.
I.
In January 2009, Boyce was charged in a complaint with drug distribution in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On the day that he was arrested, the
United States Probation Department filed a petition for an arrest warrant for Boyce based
on multiple violations of his supervised release. Boyce subsequently waived indictment
and entered into a plea agreement in which he agreed both to plead guilty to distribution
and possession with intent to distribute five grams or more of crack cocaine, and to admit
that he was guilty of a Grade A violation of his supervised release. The District Court
sentenced Boyce to 197 months incarceration for the drug violation and to a consecutive
fifty-five month sentence for violating his supervised release, resulting in a total of 252
months imprisonment (21 years).
By entering into this plea agreement, Boyce waived his right to appeal the
within-guidelines sentences that he received for each offense. However, Boyce reserved
his ability to appeal the District Court’s decision to make the two sentences consecutive,
2
an argument he now presses. 1 More specifically, Boyce argues that the aggregate
sentence is unreasonable to satisfy the court’s stated purposes of specific deterrence and
public protection. He refers to the Court’s statement that Boyce’s risk of recidivism was
reduced due to his age.
In determining whether sentences should be consecutive or concurrent, district
courts must consider the factors set out in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3584(b).
Here, the District Court considered and gave some weight to Boyce’s arguments
regarding those factors, including that he should receive a combined sentence of fifteen
years because of his “eye difficulties, . . . his need for some alternative treatment or
additional mental health substance abuse treatment[,] [and] the age of . . . [Boyce’s]
predicate conviction for career offender status.” App. at 121. But the District Court’s
overwhelming concern, the one that appeared to drive the Court’s decision to make the
sentences consecutive, was the likelihood of recidivism.
In imposing the sentence, the District Court stated, “[t]he circumstances of this
offense suggest to me the risk of recidivism is enormous.” App. at 123. We need not list
all of Boyce’s prior offenses, which are set forth in detail in the presentence report, to
conclude that there was an ample factual basis for the District Court’s conclusion.
In December 2000, officers conducting a search of Boyce’s apartment found a
1
The District Court had jurisdiction under 18 U.S.C. §§
3231 and 3583(a). This court has jurisdiction under 18 U.S.C. §
3742(a) and 28 U.S.C. § 1291.
3
loaded gun, cocaine, and drug packaging materials. Boyce pled guilty to possession of
cocaine with intent to distribute and possession of a firearm in furtherance of drug
trafficking. He served more than thirty-nine months imprisonment in federal custody
until March 2004. He was subsequently tried in state court on pending charges for which
he was acquitted.
In January 2008, the Probation Office petitioned the District Court for a hearing on
Boyce’s alleged violations of conditions of his supervised release. Boyce pled guilty to
the violation of his supervised release and was sentenced to five months of imprisonment
with two years of supervised release. While that proceeding was ongoing, Boyce sold
crack and/or powder cocaine to a confidential source working with the Drug Enforcement
Agency on four separate occasions. In fact, Boyce conducted one of those drug sales only
four days before he self-surrendered for punishment regarding his supervised release
violation.
After his release from this term of imprisonment in late June 2008, Boyce received
several written warnings for non-compliance with the terms of his home confinement
condition. Then, about seven months later, Boyce once again was caught dealing drugs
when he conducted yet another crack cocaine sale with the confidential source.
The Sentencing Guidelines advise courts to assess consecutive sentences to
offenders in Boyce’s circumstances. See U.S.S.G. § 7B1.3(f) (“Any 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
4
serving, whether or not the sentence of imprisonment being served resulted from the
conduct that is the basis of the revocation of probation or supervised release.”).
The District Court’s decision to impose consecutive sentences was not an abuse of
discretion, especially given Boyce’s recent criminal history. See United States v. Tomko,
562 F.3d 558, 567-68 (3d Cir. 2009) (en banc) (setting abuse of discretion standard). The
result of the District Court following the advice of the Sentencing Guidelines may be
harsh for Boyce, but we cannot say that “no reasonable sentencing court would have
imposed the same sentence on that particular defendant for the reasons the district court
provided.” Id. at 568.
II.
For the reasons set out above, we will affirm the judgments of the District Court.
5