United States v. David Espaillat , 452 F. App'x 399 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4243
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ONELIO ESPAILLAT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:04-cr-00147-WDK-001)
Submitted: October 21, 2011 Decided: November 1, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Rodolfo Cejas II, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Lisa Rae McKeel, Assistant
United States Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Onelio Espaillat appeals the twenty-four-month
sentence imposed upon revocation of his term of supervised
release. Espaillat’s counsel filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal, but questioning whether the
sentence is plainly unreasonable because the district court
failed to consider the Chapter Seven policy statement range,
improperly considered factors not permitted by 18 U.S.C.
§ 3583(e) (2006), and opined that supervised release was a
privilege. Espaillat was advised of his right to file a pro se
supplemental brief, but he did not file one. We affirm.
We will not disturb a sentence imposed after
revocation of supervised release that is within the prescribed
statutory range and is not plainly unreasonable. United States
v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). In making this
determination, we first consider whether the sentence is
unreasonable. Id. at 438. “This initial inquiry 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 and citations
omitted).
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Although a district court “ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum,” Crudup, 461 F.3d at
439 (internal quotation marks omitted), the court must consider
the Chapter Seven policy statements in the federal Sentencing
Guidelines manual, as well as the statutory requirements and
factors applicable to revocation sentences under 18 U.S.C.
§§ 3553(a), 3583(e) (2006). Chapter Seven provides 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.” U.S. Sentencing Guidelines Manual ch.
7, pt. A(3)(b) (2010). Section 3583 approves consideration of a
majority of the factors listed in § 3553(a), omitting only two.
18 U.S.C. § 3583(e). Among the omitted factors is the need for
the sentence “to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for
the offense.” 18 U.S.C. § 3553(a)(2)(A).
Citing Crudup, Espaillat contends that his sentence is
plainly unreasonable because the district court improperly
considered the need to promote respect for the law, the
seriousness of the offense, and the need for just punishment.
We conclude that the district court’s observations regarding the
seriousness of Espaillat’s offense and the need to provide just
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punishment and promote respect for the law were relevant to
other required considerations, including “the nature and
circumstances of the offense and the history and characteristics
of the defendant,” adequately deterring criminal conduct, and
protecting the public from further crimes of the defendant. 18
U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C). The district court
noted Espaillat’s failure to abide by the terms of his
supervised release, a factor relevant to Chapter Seven’s policy
that a revocation sentence should focus on the breach of the
court’s trust. Moreover, the district court expressly
considered the factors in § 3553(a) that are applicable to
revocation sentences. We conclude that in light of the district
court’s articulation of factors specifically listed in § 3583,
consideration of other factors did not render Espaillat’s
sentence plainly unreasonable.
Espaillat also contends that his sentence was plainly
unreasonable because the district court did not specifically
reference the Chapter Seven policy statement sentencing range.
Consideration of the range was implicit in the court’s ruling in
light of defense counsel’s concession at the revocation hearing
that a sentence within that range was not necessarily supported
by the circumstances of Espaillat’s case and the court’s
detailed reasoning for imposing the statutory maximum sentence.
United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995).
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We further reject Espaillat’s contention that the
district court committed reversible error by referring to
supervised release as a privilege. First, the district court’s
view of supervised release as a privilege, in a general sense,
is not erroneous. See generally United States v. Johnson, 529
U.S. 53, 59 (2000) (“Congress intended supervised release to
assist individuals in their transition to community life.
Supervised release fulfills rehabilitative ends, distinct from
those served by incarceration.”). Second, Espaillat points to
no legal authority prohibiting the district court from viewing
supervised release as a privilege. We therefore find no error
in the district court’s expression of its opinion that
supervised release is a privilege.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm. This court requires that counsel
inform their client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
client 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 of the motion was served
on their client. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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