United States v. Michael Dow , 523 F. App'x 976 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4945
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DOW,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:03-cr-00058-1)
Submitted: April 3, 2013 Decided: May 1, 2013
Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, John L. File, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Dow appeals the district court’s order
revoking his supervised release and sentencing him to a twelve-
month term of incarceration and a four-year term of supervised
release. On appeal, Dow argues that the district court imposed
a plainly unreasonable sentence. Finding no reversible error,
we affirm.
In examining a sentence imposed upon revocation of
supervised release, this court “takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th
Cir. 2007) (internal quotation marks omitted). A sentence
imposed upon revocation of supervised release should be affirmed
if it is within the statutory maximum and not plainly
unreasonable. United States v. Crudup, 461 F.3d 433, 437 (4th
Cir. 2006). * In reviewing a revocation sentence, we first
consider “whether the sentence is unreasonable,” following the
same general principles we apply to our review of original
sentences. Id. at 438. Only if we find that a sentence is
*
To the extent Dow asks this court to revisit the standard
of review established in Crudup, we decline to do so. See
United States v. Bullard, 645 F.3d 237, 246 (4th Cir. 2011)
(stating that one panel of this court cannot overrule precedent
set by another panel).
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either procedurally or substantively unreasonable will we
determine whether the sentence is “plainly” so. Id. at 439.
A sentence is procedurally reasonable if the district
court has considered both the applicable 18 U.S.C. § 3553(a)
(2006) factors, see 18 U.S.C. § 3583(e) (2006), and the policy
statements set forth in Chapter Seven of the U.S. Sentencing
Guidelines Manual (“USSG”) (2012). Crudup, 461 F.3d at 439.
The district court also must provide an explanation of its
chosen sentence, although this explanation “need not be as
detailed or specific” as is required for an original sentence.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A
sentence is substantively reasonable if the district court
states a proper basis for concluding that the defendant should
receive the sentence imposed. Crudup, 461 F.3d at 440. “[T]he
court ultimately has broad discretion to revoke its previous
sentence and impose a term of imprisonment up to the statutory
maximum.” Id. at 439 (internal quotation marks omitted).
Dow first argues that his sentence is plainly
unreasonable because the district court impermissibly considered
the need to provide just punishment when imposing his sentence.
See 18 U.S.C. § 3553(a)(2)(A). Because Dow did not challenge in
the district court that court’s improper reliance on
§ 3553(a)(2)(A), he must satisfy the additional requirements of
plain error review. United States v. Hargrove, 625 F.3d 170,
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183-84 (4th Cir. 2010); see United States v. Olano, 507 U.S.
725, 732-34 (1993) (providing plain error standard). Dow has
not met these requirements.
As Dow correctly notes, 18 U.S.C. § 3583(e) mandates
that a district court consider a majority of the factors listed
in § 3553(a) when imposing a revocation sentence. Omitted from
§ 3583(e), however, are the need for the sentence to reflect the
seriousness of the offense, promote respect for the law, and
provide just punishment. See id. §§ 3553(a)(2)(A), 3583(e).
Accordingly, a district court may not impose a revocation
sentence based predominantly on such considerations. Crudup,
461 F.3d at 439. To do so contravenes the U.S. Sentencing
Commission’s direction that “at revocation the court should
sanction primarily the defendant’s breach of trust, while taking
into account, to a limited degree, the seriousness of the
underlying violation and the criminal history of the violator.”
USSG ch. 7, pt. A(3)(b).
Here, the district court’s explanation of Dow’s
sentence does not indicate a plainly improper reliance on
§ 3553(a)(2)(A). Although the court considered a prohibited
factor under § 3583(e), our review of the record reveals that,
when imposing Dow’s revocation sentence, the district court
emphasized Dow’s breach of trust, focusing on the opportunities
Dow had squandered in the past and his persistent drug use
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despite those opportunities. See 18 U.S.C. § 3553(a)(1)
(allowing court to consider nature and circumstances of offense
and history and characteristics of defendant); United States v.
Bennett, 698 F.3d 194, 201 (4th Cir. 2012), cert. denied, ___ S.
Ct. ___, 2013 WL 359745 (Mar. 4, 2013) (upholding sentence when
prohibited factor “constituted only a minor fragment of court’s
reasoning” and when court’s “concern with [the defendant’s]
breach of trust . . . far outweighed any other concerns”). In
addition, the district court considered several other
permissible factors under § 3583(e).
Dow also argues that his sentence is plainly
unreasonable because it does nothing to address his drug
addiction. We conclude that the record belies his claim. Given
the broad discretion to revoke supervised release and impose a
term of imprisonment up to the statutory maximum, Dow’s sentence
is reasonable. See Crudup, 461 F.3d at 439 (stating that, if
sentence is reasonable, inquiry ends).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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