United States v. Jim Novak , 500 F. App'x 244 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4290
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIM NOVAK, a/k/a/ James Novak,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:09-cr-00168-F-1)
Submitted: November 29, 2012 Decided: December 19, 2012
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne V. Watford-McKinney, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Novak was convicted of several drug distribution
charges in 2005. Although his Guidelines range was 180 to 181
months’ imprisonment, the district court granted a significant
downward departure, sentencing him to 57 months in prison. In
2009, Novak was placed on supervised release. He failed to
comply with the terms of supervised release, and the probation
office moved for revocation. The district court revoked Novak's
supervised release, noting that Novak had already benefitted
from a substantial downward departure in his initial sentencing,
he repeatedly failed to comply with the terms of supervised
release, and he had a serious drug or alcohol problem. The
district court stated that Novak “has certainly had every
opportunity and he has blown it.” (J.A. 19). The court also
noted that, due to the downward departure in sentencing upon
Novak’s conviction, he received “a tremendous break,” he “didn’t
take advantage of it,” and the court “just d[id]n’t understand
it.” (J.A. 20). The court opined that “the only thing I can do
for him is to get him in jail long enough to go through the
intensive drug treatment program.” (J.A. 20). With that
observation, and recognizing that the U.S. Sentencing Guidelines
Policy Statement range upon revocation was four to ten months,
the court revoked Novak’s supervised release and sentenced him
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to thirty-six months’ imprisonment, followed by two years of
supervised release.
Novak appealed. We vacated his sentence and remanded
for resentencing in light of the Supreme Court’s intervening
decision in Tapia v. United States, 131 S. Ct. 2382 (2011)
(holding that the availability of drug treatment could not be
the basis for an upward departure in sentencing). United States
v. Novak, No. 11-4358 (4th Cir. Dec. 21, 2011) (unpublished).
On remand, Novak noted that he had served eleven
months’ imprisonment, that he had a potential job opportunity if
released, and that he intended to return to school following his
release. He said he had begun taking antidepressants while
incarcerated. Although there was no substance abuse program at
his place of incarceration, he had received some treatment prior
to his current term of incarceration and was on a wait list for
a community-based alcohol treatment program following his
release. He also said that, while incarcerated, he found a
shank in the prison yard and, rather than selling it or using
it, he turned it over to prison guards. He asked for a sentence
of time served and a return to supervised release. The
Government asked the court to reimpose a thirty-six month
sentence.
The district court reiterated its findings as to the
reasons for revocation, and sentenced Novak to a twenty-four
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month term of imprisonment. The court explained the departure
from the four-to-ten month Guidelines Policy Statement range by
noting that it had awarded a substantial downward departure in
Novak’s initial sentencing, and Novak had not used to his
advantage the opportunity given to him by the district court.
Novak again appeals, contending the twenty-four-month sentence
was plainly unreasonable because the district court did not
address Novak’s arguments for a lower term of imprisonment.
A sentence imposed upon revocation of supervised
release will be upheld unless it is plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). A
sentence is procedurally reasonable if the court considers the
policy statements in the Guidelines and indicates the reasons
for its chosen sentence. Id. at 440; United States v. Thompson,
595 F.3d 544, 547 (4th Cir. 2010).
In Tapia, the Supreme Court held that 18 U.S.C.
§ 3582(a) "precludes federal courts from imposing or lengthening
a prison term in order to promote a criminal defendant’s
rehabilitation." 131 S. Ct. at 2385, 2389. Thus, a district
court erred in imposing a longer sentence than it would
otherwise have imposed with the purpose of insuring that the
defendant would be eligible for a drug treatment program while
incarcerated. Id. We recently extended the holding of Tapia to
resentencing proceedings following the revocation of supervised
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release. United States v. Bennett, __ F.3d __, __, 2012 WL
5265802, slip op. at 2, 7 (4th Cir. Oct. 25, 2012) (No. 11-
4401).
Novak contends that on remand, the district court
committed procedural error by not considering his arguments in
mitigation. Although the district court did not specifically
discuss these arguments, the court gave a valid reason for the
sentence imposed — the approximately 60% downward departure
Novak received at his initial sentencing, and his squandering of
that opportunity when released. Moreover, only one fact —
Novak’s seeking treatment for his depression — favors his
position. Novak’s new wife, whose support he cited in the first
revocation proceeding, had left him by the time of the second
revocation proceeding; the job prospect was not certain; and
Novak had not previously been able to maintain steady employment
or to follow through with substance abuse treatment. Finally,
his decision not to sell or use the shank he found in the prison
yard is hardly laudable; declining to commit a crime is, or
should be, the norm, not the salutary exception to the rule.
These facts, considered together, make clear that the
district court did not commit procedural error, and that the
sentence was not plainly unreasonable. Accordingly, we affirm.
We dispense with oral argument because the facts and legal
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contentions are adequately presented on the record and argument
would not significantly aid the decisional process.
AFFIRMED
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