United States v. Cabell , 351 F. App'x 799 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4696
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANDRA KAY CABELL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:04-cr-00031-1)
Submitted: November 4, 2009 Decided: November 12, 2009
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Lisa G. Johnston,
Assistant United States Attorney, Huntington, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sandra Kay Cabell appeals the eleven-month sentence
she received after the district court revoked her supervised
release. She argues that the sentence was plainly unreasonable
because it was too long and did not further the purposes of
sentencing. We affirm.
A sentence imposed after revocation of supervised
release will be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). We
first review the sentence for reasonableness, “follow[ing]
generally the procedural and substantive considerations that
[are] employ[ed] in [the] review of original sentences, . . .
with some necessary modifications to take into account the
unique nature of supervised release revocation sentences.” Id.
at 438-39; see United States v. Finley, 531 F.3d 288, 294 (4th
Cir. 2008) (“In applying the ‘plainly unreasonable’ standard, we
first determine, using the instructions given in Gall [v. United
States, 552 U.S. 38, __, 128 S. Ct. 586, 597 (2007)], whether a
sentence is ‘unreasonable.’”).
Although the district court must consider the Chapter
7 policy statements and the requirements of 18 U.S.C.A.
§§ 3553(a), 3853 (West 2000 & Supp. 2009), “the sentencing court
retains broad discretion to revoke a defendant=s probation [or
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supervised release] and impose a term of imprisonment up to the
statutory maximum.” United States v. Moulden, 478 F.3d 652, 657
(4th Cir. 2007) (citing Crudup, 461 F.3d at 439). * In Cabell’s
case, the statutory maximum revocation sentence was two years.
A sentence is procedurally reasonable if the district
court considered the Chapter 7 policy statements and the
pertinent factors in § 3553(a). Crudup, 461 F.3d at 440. A
sentence is substantively reasonable if the district court
stated a proper basis for concluding that the defendant should
receive the sentence imposed, up to the statutory maximum. Id.Only if a sentence is found to be procedurally or substantively
unreasonable will this court “decide whether the sentence is
plainly unreasonable.” Id.The district court considered the Chapter 7 policy
statements, that is, the sentencing range of 5-11 months
recommended by the probation officer. The court also considered
Cabell’s history and characteristics, the need to deter further
criminal conduct on her part, the need to protect the public,
and her need for treatment that could help her to avoid drugs
and crime in the future.
*
This court held in Moulden that the same standard of review
applies to probation revocation sentences and supervised release
revocation sentences. Moulden, 478 F.3d at 656.
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Cabell argues that the district court’s rationale for
an eleven-month sentence was “purely punitive,” and does not
allow her to participate in the Bureau of Prisons residential
drug treatment program or mandate that she take part in a long-
term drug treatment program when she begins her new term of
supervised release. She maintains that a shorter prison
sentence would have been adequate, and a requirement that she
participate in a long-term drug treatment program “would have
addressed the underlying cause” of her prior criminal conduct
and her supervised release violations.
Cabell has not shown that the sentence was either
procedurally or substantively unreasonable. The district court
considered the revocation range and the pertinent § 3553(a)
factors. The court made an individualized assessment of what
sentence would best serve the goals of sentencing and Cabell’s
personal needs and imposed a sentence within the statutory range
and the revocation range.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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