United States v. Moulden ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4630
DAMIEN TROY MOULDEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(3:01-cr-00210-REP-2)
Argued: February 2, 2007
Decided: March 7, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Traxler joined.
COUNSEL
ARGUED: Mary Elizabeth Maguire, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Rich-
mond, Virginia, for Appellant. Sara Elizabeth Flannery, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:
Michael S. Nachmanoff, Acting Federal Public Defender, Alexandria,
Virginia, for Appellant. Chuck Rosenberg, United States Attorney,
Alexandria, Virginia, for Appellee.
2 UNITED STATES v. MOULDEN
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Damien Troy Moulden appeals an 18-month sentence, imposed fol-
lowing the revocation of his probation. We affirm.
I.
In November 2001, Moulden pleaded guilty to one count of con-
spiracy to commit bank fraud and pass counterfeit checks. See 18
U.S.C. §§ 371, 513(a), 1344 (2000). At that time, the court sentenced
Moulden to three years’ probation and ordered him to pay $31,625.80
in restitution. Moulden’s probation carried with it a number of stan-
dard conditions, such as a requirement that Moulden not commit any
crime, as well as special conditions — including periodic drug testing,
participation in a substance abuse program, six months of home
detention, and regular restitution payments.
In March 2004, Moulden tested positive for marijuana use, but the
district court signed a "No Action Violation Report." Eight months
later, in November 2004, Moulden again tested positive for mari-
juana, and failed to make his monthly restitution payments, but the
court still did not revoke his probation. However, with Moulden’s
consent, the court extended the supervision period by two years.
Nevertheless, Moulden continued to violate the conditions of his
probation. In April 2006, Moulden’s probation officer submitted to
the court a Petition on Probation, to which an Addendum was added
in May, alleging that Moulden had violated numerous conditions of
his probation, ultimately including: failure to satisfactorily participate
in a drug treatment program, use of marijuana, commission of "law
violations," failure to pay restitution as directed, failure to submit
monthly supervision reports as directed, and failure to report an arrest
or questioning by law enforcement to the probation officer within 72
hours of contact. In response, the district court issued a summons,
directing Moulden to show cause why the court should not revoke his
probation.
UNITED STATES v. MOULDEN 3
On May 12, Moulden failed to appear in response to that summons.
The court then issued a bench warrant for his arrest. Moulden self-
surrendered on May 22, and on June 8, 2006, the court held a hearing
on the violations. At this hearing, Moulden pleaded guilty to the vio-
lations in the Petition and Addendum.1 Under the gradation scheme
of violations provided in the United States Sentencing Commission
Guidelines Manual, each of the admitted violations is a "Grade C"
violation — the lowest of the three grades of violation. See U.S.S.G.
§ 7B1.1 (2005).
After the court accepted Moulden’s guilty pleas, it heard testimony
from Moulden, his mother, and his probation officer prior to imposing
sentence. Relevant testimony focused on the extent to which Moulden
had paid restitution, whether Moulden had been gainfully employed
as required by the conditions of his probation, and the extent to which
Moulden had made other positive strides in his life, including mentor-
ing high school students and ceasing his marijuana use. The Govern-
ment introduced testimony from Moulden’s probation officer
suggesting that Moulden had "absconded from probation," and disput-
ing Moulden’s suggestion that he had met his restitution obligations.
The court credited the probation officer’s testimony. Although
defense counsel attempted to characterize Moulden’s violations as
"technical," the district court disagreed, finding that the violations
were "serious," notwithstanding the fact that they were "only" grade
C violations.
1
We do note one irregularity. The record indicates that Moulden never
admitted to the allegation that he committed "law violations" (e.g., driv-
ing on a suspended registration). Although we cannot be certain, it
appears that his failure to admit to this lone charge was due to inadver-
tence and not to any contest of the allegation. On appeal, Moulden does
not argue that the district court erroneously relied on this particular alle-
gation in fashioning the revocation sentence; an examination of the
record reveals no evidence that the court did so. Nor does Moulden raise
any other claim of error assertedly arising from the court’s failure to ask
for a separate admission on this allegation. Indeed, Moulden’s brief erro-
neously states that he, in fact, admitted to this alleged violation. See Brief
of Appellant at 3, 4. Therefore, Moulden has waived any claim of error
arising from this issue. See United States v. Dove, 247 F.3d 152, 156 n.4
(4th Cir. 2001) (noting issues not argued by the parties are waived).
4 UNITED STATES v. MOULDEN
The policy statements contained in Chapter 7 of the Guidelines
Manual call for three to nine months of imprisonment for commission
of a grade C probation violation by a person with Moulden’s criminal
history category (I). See U.S.S.G. § 7B1.4. The court noted this range,
but stated that it was "inadequate to address the proper punishment
necessary here." The district court instead imposed an 18-month sen-
tence, explaining that Moulden had "flaunted the rules of the court"
and "flaunted the requirements of probation." Addressing Moulden
directly, the court further explained that Moulden had been "given a
break, a substantial break," but that Moulden "acted as if [he] had no
responsibility to perform under probation." The sentence imposed was
required, in the court’s view, to teach Moulden that he "cannot behave
in a way that [he] did and that [he is] obligated to perform in accord
with the rules of society and the Court."
Moulden timely appealed, arguing that the sentence imposed is
unreasonable and should be vacated on that basis. The Government
contends, in opposition, that a revocation sentence like Moulden’s
should be vacated only if plainly unreasonable, but that the sentence
is appropriate under either standard. We first address the appropriate
standard of review, and then the merits of Moulden’s claim.
II.
In reviewing a sentence imposed after the revocation of a defen-
dant’s supervised release, we recently held, in United States v.
Crudup, 461 F.3d 433, 437 (4th Cir. 2006), that "revocation sentences
should be reviewed to determine whether they are ‘plainly unreason-
able’ with regard to [applicable 18 U.S.C.] § 3553(a) factors." Not-
withstanding our recent decision in Crudup, Moulden argues that
revocation sentences stemming from revocation of probation should
be evaluated under a "reasonableness" standard. Because we can find
no compelling reason to treat probation revocation sentences differ-
ently than supervised release revocation sentences, and many persua-
sive reasons to treat them alike, we reject Moulden’s approach.
Our decision to review both species of revocation sentences under
the same standard accords with 18 U.S.C.A. § 3742(a)(4) (West
2005), the relevant Sentencing Commission policy statements and
commentary, and our historical treatment of revocation sentences.
UNITED STATES v. MOULDEN 5
First, § 3742(a)(4) governs both sentences for revocation of proba-
tion and those imposed for revocation of supervised release. That stat-
ute provides that a defendant convicted of an "offense for which there
is no sentencing guideline" may appeal the resultant sentence if it is
"plainly unreasonable." 18 U.S.C. § 3742(a)(4).2 There are no sen-
tencing guidelines for violations of probation or supervised release.
Although Chapter 7 of the Guidelines includes a revocation table sug-
gesting appropriate terms of imprisonment for each grade of violation
at each criminal history category, the table itself is a "policy state-
ment" and not a "guideline." See U.S.S.G. § 7B1.4. Indeed, violations
of probation and supervised release are addressed in "a single set of
policy statements." See U.S.S.G., ch. 7, pt. A, introductory cmt. 4
(2005). The Commission selected this approach in order to give
courts "greater flexibility" in imposing a sentence for probation and
supervised release violations than a guideline would allow. U.S.S.G.,
ch. 7, pt. A, introductory cmts. 1, 3(a).
Moreover, a closer look at the contents of Chapter 7 of the Guide-
lines further suggests that revocation sentences of both kinds should
be treated similarly. The Guidelines Manual states that it views "vio-
lations of the conditions of probation and supervised release as func-
tionally equivalent." U.S.S.G. ch. 7, pt. B, introductory cmt. The
Commission instructs that both species of revocation sentences should
aim to "sanction the violator for failing to abide by the conditions of
the court-ordered supervision," and to punish the inherent "breach of
trust" indicated by the defendant’s behavior, rather than punish the
defendant for additional criminal behavior (to the extent that the vio-
lating behavior is criminal). U.S.S.G., ch. 7, pt. A, cmt. 3(b). As a
result, a similarly classified violation of either type of supervision is
subject to the same revocation table and the same policy statement
range. See U.S.S.G. § 7B1.4. Furthermore, in previously discussing
the unitary treatment of both types of revocation sentences by the pol-
icy statements of Chapter 7, we have noted that "there is no reason
in policy or principle to distinguish between probation revocation and
supervised release revocation." United States v. Davis, 53 F.3d 638,
640 (4th Cir. 1995).
2
Although, in United States v. Booker, 543 U.S. 220, 245 (2005), the
Supreme Court excised § 3742(e), it left undisturbed § 3742(a)(4).
6 UNITED STATES v. MOULDEN
Nevertheless, Moulden urges that, because a court imposing a sen-
tence upon revoking a defendant’s probation must consider all
§ 3553(a) factors, see 18 U.S.C.A. § 3565(a) (West 2005) — rather
than just some of those factors, as is the case when revoking super-
vised release, see 18 U.S.C.A. § 3583(c) (West 2005) — a probation
revocation sentence is indistinguishable from the usual guidelines
sentence for the purposes of our review. We disagree. Probation revo-
cation sentences, although they do require consideration of all of the
§ 3553(a) factors, are not true "guidelines" sentences. Even under the
mandatory guidelines regime that predated Booker, such sentences
were left to the discretion of the court and the policy statement ranges
were treated as non-mandatory. See United States v. Denard, 24 F.3d
599, 602 (4th Cir. 1994). Historically, we have viewed such sentences
as different, in kind, from a sentence imposed after a criminal convic-
tion and have accorded the district court’s determination of the appro-
priate sentence greater deference. See id.Finally, we note that none of our sister circuits has varied the stan-
dard of review applicable to the two kinds of revocation sentences. To
be sure, these courts do not necessarily agree with us as to the appro-
priate standard of review. See United States v. Miqbel, 444 F.3d 1173,
1176 & n.5 (9th Cir. 2006) (adopting a "reasonableness" standard of
review for revocation sentences); United States v. Tyson, 413 F.3d
824, 825 (8th Cir. 2005) (same); United States v. Contreras-Martinez,
409 F.3d 1236, 1241 & n.2 (10th Cir. 2005) (noting that its pre-
Booker "reasoned and reasonable" standard of review for revocation
sentences is consistent with the "reasonableness" review required by
Booker); United States v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005)
(adopting a "reasonableness" standard of review for all non-guidelines
sentences, including revocation sentences); see also United States v.
Johnson, 403 F.3d 813, 817 (6th Cir. 2005) (declining to decide the
applicable standard of review for revocation sentences); United States
v. Dees, 467 F.3d 847, 852 (3d Cir. 2006) (same). But none of them
has even suggested that the standard of review should differ depend-
ing on whether the revocation involves probation or supervised
release.
Because there is no persuasive reason to review sentences imposed
pursuant to probation revocation differently than those imposed pur-
suant to supervised release revocation, we hold, in light of Crudup,
UNITED STATES v. MOULDEN 7
that we review probation revocation sentences, like supervised release
revocation sentences, to determine if they are plainly unreasonable.
III.
In determining whether a revocation sentence is "plainly unreason-
able," Crudup directs that we must first determine whether the sen-
tence is unreasonable. 461 F.3d at 438. This initial inquiry takes a
more "deferential appellate posture concerning issues of fact and the
exercise of discretion" than reasonableness review for guidelines sen-
tences. Id. at 439 (citations omitted). Of course, as always, the sen-
tencing court must consider the policy statements contained in
Chapter 7, including the policy statement range, as "helpful assis-
tance," and must also consider the applicable § 3553(a) factors. Id.
(citations omitted). At the same time, however, the sentencing court
retains broad discretion to revoke a defendant’s probation and impose
a term of imprisonment up to the statutory maximum. Id. The court
must provide a statement of reasons for the sentence imposed, as with
the typical sentencing procedure, but this statement "need not be as
specific as has been required" for departing from a traditional guide-
lines range. Id. Only if this modified "reasonableness" analysis leads
us to conclude that the sentence was unreasonable, do we ask whether
it is "plainly" so, "relying on the definition of ‘plain’ [used] in our
‘plain’ error analysis" — that is, "clear" or "obvious." Id. (citations
omitted).
In addressing the particular merits of Moulden’s appeal, an exami-
nation of the holding in Crudup itself is instructive. In that case, the
district court sentenced the defendant to 36 months’ imprisonment on
revocation of his supervised release, although the relevant policy
statement called for a range of five to eleven months. Crudup, 461
F.3d at 435. We held, nevertheless, that the sentence was reasonable.
Id. at 440. Procedurally, the district court had considered the advisory
policy statement range and Crudup failed to identify any § 3553(a)
factor that was not considered by the court. Id. Substantively, the
court had noted that Crudup had an admitted pattern of violating the
conditions of his supervised release — despite a number of opportuni-
ties to take advantage of the leniency of the court. Id.
Moulden’s infractions were more numerous than Crudup’s, and
arguably more serious. The district court ultimately revoked Crudup’s
8 UNITED STATES v. MOULDEN
supervised release because he repeatedly failed to take required drug
tests, used illicit drugs, and quit his job. Crudup, 461 F.3d at 435.
Moulden, by contrast, "absconded" from probation (by failing to com-
plete the required reports and keep the required contact with his pro-
bation officer), used illicit drugs, failed to complete a required drug
treatment program, failed to pay restitution as required by the court,
and failed to report contact with law enforcement officers as was
required. The sentencing court noted, with dismay, each of these vio-
lations. The court’s statement of reasons is replete with evidence that
it viewed Moulden’s behavior as evidence of repeated and serious
breaches of trust — the type of breaches that are explicitly contem-
plated as the reasons for imposing a revocation sentence. See
U.S.S.G., ch. 7, pt. A, cmt. 3(b).
Moulden contends that the district court insufficiently analyzed the
§ 3553(a) factors and therefore erred procedurally in imposing Moul-
den’s sentence. We disagree. We have repeatedly said post-Booker
that a court need not "robotically tick through § 3553(a)’s every sub-
section." United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006);
see also United States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir.
2006). A court must, however, provide a sufficient explanation so that
we may effectively review the reasonableness of the sentence.
Montes-Pineda, 445 F.3d at 380. That explanation should also pro-
vide us an assurance that the sentencing court considered the
§ 3553(a) factors with regard to the particular defendant before him,
and also considered any potentially meritorious arguments raised by
the parties with regard to sentencing. Id.
In this case, the district court made explicit the reasons for its
departure from the Chapter 7 policy statement range. These reasons
included: Moulden’s repeated decisions not to comply with the condi-
tions set by the court, Moulden’s need to learn to act under the rules
of society and the court, his "flaunt[ing]" of the rules and require-
ments of probation, and the need for Moulden to learn and rehabilitate
himself after a series of "serious" probation violations. Even if not
couched in the precise language of § 3553(a), each of these reasons
can be matched to a factor appropriate for consideration under that
statute and was clearly tied to Moulden’s particular situation. Moul-
den advanced before the district court the same arguments he has
made on appeal — primarily that, apart from some minor missteps,
UNITED STATES v. MOULDEN 9
Moulden had made positive advancements towards successful reha-
bilitation — and the district court considered all of these arguments
prior to selection of a sentence. In short, the district court articulated
clear and appropriate reasons under § 3553(a).
Finally, Moulden challenges the substantive reasonableness of his
sentence. The sentence imposed was substantial in light of the three
to nine month range suggested by the policy statements. However,
Moulden’s violations, while all grade C violations, were numerous
and pervasive. As the district court noted, Moulden had not made the
required restitution payments, had not completed the required drug
treatment program, had repeatedly tested positive for marijuana, and
had failed to submit required reports to his probation officer. It is
appropriate for a court, in facing a repeat probation violator, to take
account of the fact that the policy statement range is based only upon
the severity of the single most severe violation. See Crudup, 461 F.3d
at 440. Put another way, had Moulden committed only one Grade C
violation of probation, instead of the pattern of repeated violations to
which he pleaded guilty, the three to nine month range suggested by
the policy statements would have been the same. We cannot, and will
not, hold that it is unreasonable for a sentencing court to take account
not only of the severity of the violations, but also their number, in
fashioning a revocation sentence.
In sum, in light of Moulden’s pattern of refusing to conform to the
requirements of probation, the considered, reasoned explanation given
by the district court for imposing a sentence above the policy state-
ment range, and the structure and standard of our review of revocation
sentences, we simply cannot agree with Moulden’s contention that his
sentence was unreasonable. As we find that Moulden’s sentence was
not unreasonable, we certainly cannot conclude that it is plainly so.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.