United States v. Stephen Tucciarone , 572 F. App'x 202 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4214
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN TUCCIARONE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:05-cr-00085-JAG-1)
Submitted: October 25, 2013 Decided: May 22, 2014
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Patrick L. Bryant,
Appellate Attorney, Richmond, Virginia, for Appellant. Peter
Sinclair Duffey, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Tucciarone appeals the district court’s
judgment revoking his supervised release and sentencing him to
thirty-six months’ imprisonment. On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal but
questioning whether the district court erred by imposing a
thirty-six month sentence. We affirm.
We will affirm a sentence imposed after revocation of
supervised release if it is within the applicable statutory
range and not “plainly unreasonable.” United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). “In determining whether a
sentence is plainly unreasonable, we first decide whether the
sentence is unreasonable[,] . . . follow[ing] generally the
procedural and substantive considerations that we employ in our
review of original sentences . . . .” Id. at 438. But we
“take[] a more deferential appellate posture concerning issues
of fact and the exercise of discretion than reasonableness
review for guidelines sentences.” United States v. Moulden, 478
F.3d 652, 656 (4th Cir. 2007) (internal quotation marks
omitted).
A revocation sentence is procedurally reasonable if
the district court properly calculates the U.S. Sentencing
Guidelines Manual Chapter Seven advisory policy statement range
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and explains the sentence adequately, after considering the
policy statements and applicable 18 U.S.C. § 3553(a) (2006)
factors. 18 U.S.C. § 3583(e) (2006); Crudup, 461 F.3d at 439.
We recently held that the “mere reference to [inapplicable §
3553(a) factors] does not render a revocation sentence
procedurally unreasonable when those factors are relevant to,
and considered in conjunction with, the enumerated § 3553(a)
factors.” United States v. Webb, 738 F.3d 638, 642 (4th Cir.
2013). A revocation sentence is substantively reasonable if the
district court states a proper basis for the sentence imposed,
up to the statutory maximum. Crudup, 461 F.3d at 440. Only if
we find a sentence unreasonable must we decide if it is plainly
so. Moulden, 478 F.3d at 657.
Counsel does not claim that Tucciarone’s sentence is
procedurally unreasonable. Rather, counsel questions its
substantive reasonableness, citing the district court’s failure
to “appropriately weigh . . . Tucciarone’s history and
characteristics” and its reliance on factors, including
Tucciarone’s “lack of respect for the law” and the seriousness
of the offenses, that are not specified in § 3583(e). See
Crudup, 461 F.3d at 439 (“[N]ot all the original sentencing
factors of § 3553(a) can be considered [in imposing] a
revocation sentence.”).
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We are not persuaded. Our review of the record before
us confirms that the district court was primarily motivated to
impose Tucciarone’s thirty-six month revocation sentence, which
is above the policy statement range but within the statutory
maximum, because Tucciarone breached the court’s trust. A
defendant’s breach of trust is “a perfectly appropriate basis—
and, in fact, the principal basis on which the Guidelines
encourage courts to ground revocation sentences.” United States
v. Bennett, 698 F.3d 194, 202 (4th Cir. 2012), cert. denied, 133
S. Ct. 1506 (2013). Given the district court's broad discretion
to revoke supervised release and impose a term of imprisonment
up to the statutory maximum, we conclude that Tucciarone’s
revocation sentence is not substantively unreasonable. Crudup,
461 F.3d at 439.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Tucciarone, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Tucciarone requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Tucciarone.
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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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