United States v. Ryans ( 2007 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4990
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    TONYA RYANS,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Charleston.   Patrick Michael Duffy, District
    Judge. (2:02-cr-01253)
    Submitted:   July 6, 2007                 Decided:   August 15, 2007
    Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    J. Robert Haley, Assistant Federal Public Defender, Charleston,
    South Carolina, for Appellant.     Reginald Lloyd, United States
    Attorney, Rhett DeHart, Assistant United States Attorney,
    Charleston, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    In July 2003, Appellant Tonya Ryans pled guilty to
    student   loan       fraud   and   was    sentenced      to    sixteen    months   of
    incarceration with a period of two years of supervised release to
    follow.   Ryans’ supervised release commenced on February 4, 2005.
    On August 22, 2006, Ryans’ probation officer filed a Petition for
    Warrant or Summons alleging various supervised release violations.
    A   summons    was    issued   requiring         Ryans   to    appear    before    the
    magistrate judge on August 30, 2006.                Ryans failed to appear and
    the court issued an Order for Bench Warrant.                  Ryans was arrested by
    the United States Marshals on September 1, 2006.
    A violation report was prepared noting that Ryans faced
    a statutory term of imprisonment of not more than two years, an
    advisory guidelines range of three to nine months of imprisonment,
    and that “[t]here [were] no reasons for departure in this case.”
    The report alleged five violations: (1) failure to pay restitution
    and an arrearage of $5,100; (2) failure to report to the probation
    office on August 14, 2006; (3) failure to notify and provide
    verification     of    employment;       (4)   failure    to    provide   financial
    information as requested on two dates in August; and (5) failure to
    submit a monthly supervision report for June 2006.
    On September 7, 2006, Ryans appeared for her supervised
    release revocation hearing.          Although Ryans contested the alleged
    violations, the court found by a preponderance of the evidence and
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    beyond a reasonable doubt that she had violated the terms and
    conditions of her release and revoked that release. The court then
    departed from the recommended guideline range and sentenced Ryans
    to two years in prison.             While the court did not provide prior
    notice of its intent to depart from the advisory guidelines range,
    Ryans did not object to the lack of notice at the hearing or in a
    post-hearing motion.            Ryans timely appeals her sentence arguing
    that the district court erred by failing to provide notice of its
    intention       to    upwardly    depart    from    the    advisory     guidelines
    sentencing range.         Finding no error, we affirm.
    Ryans contends on appeal that the district court erred by
    not providing her with notice that it was contemplating a sentence
    above the guidelines sentencing range of imprisonment. See Fed. R.
    Civ. P. 32(h).         Because Ryans did not object, review on appeal is
    for plain error.         Under the plain error standard, Ryans must show:
    (1) there was error; (2) the error was plain; and (3) the error
    affected her substantial rights.            United States v. Olano, 
    507 U.S. 725
    ,    732-34       (1993).     Further,   even    if    these   conditions   are
    satisfied, this court may exercise its discretion to notice the
    error    only    if     the    error   “seriously   affect[s]     the    fairness,
    integrity or public reputation of judicial proceedings.”                   
    Id. at 736
     (internal quotation marks omitted).                   The burden of showing
    plain error is on the defendant.            United States v. Strickland, 
    245 F.3d 368
    , 379-80 (4th Cir. 2001).
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    This court, post-Booker* has held that, pursuant to Rule
    32(h), advance notice is required before a district court departs
    or   varies    from    the   advisory      guideline    range    in    sentencing    a
    defendant after the original judgment of conviction.                            United
    States v. Davenport, 
    445 F.3d 366
    , 371 (4th Cir. 2006).                           The
    failure to give notice that the court intends to depart is plain
    error.    United States v. McClung, 
    483 F.3d 273
    , 276 (4th Cir.
    2007).    However, this holding has not been extended to sentences
    imposed after revocation of supervised release, which is governed
    instead by Fed. R. Crim. P. 32.1.
    Unlike    Rule     32(h),     Rule   32.1   contains         no   notice
    requirement in its express terms.              Pre-Booker, courts agreed that
    no   notice     of    intent     to   depart    was    required       in   revocation
    proceedings because the policy statements in Chapter 7 are merely
    advisory.     See United States v. Shaw, 
    180 F.3d 920
     (8th Cir. 1999);
    United States v. McClanahan, 
    136 F.3d 1146
     (7th Cir. 1998); United
    States v. Taylor, 78 Fed. App’x 893 (4th Cir. 2003).                             Ryans
    contends that post-Booker, now that the sentencing guidelines and
    the Chapter 7 policy statements are both merely advisory, the need
    to   distinguish       between    notice    requirements    in    sentencing       and
    revocation hearings has evaporated. Thus, she concludes, the court
    should engraft the notice requirement for sentencing departures to
    supervised release violations.
    *
    United States v. Booker, 
    543 U.S. 220
     (2005).
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    We disagree with Ryans’ analysis.          Ryans wholly ignores
    the fact that Rule 32.1 has not been amended post-Booker to include
    a notice requirement.         In addition, Ryans points to no authority
    that supports her position.            Ryans cites to United States v.
    Davenport, in which the court explained that post-Booker, Rule
    32(h)    still    contained   a   notice   requirement   before   sentencing
    hearings because “[t]here is essentially no limit on the number of
    potential factors that may warrant a departure or a variance, and
    neither the defendant nor the Government is in a position to guess
    when or on what grounds a district court might depart or vary from
    the   guidelines.”      
    445 F.3d at 371
       (internal   quotation   marks
    omitted).    This case is inapplicable to her argument because it
    discusses only Rule 32(h) in the post-Booker sentencing environment
    and does not purport to apply to Rule 32.1.
    Moreover, Ryans’ twenty-four month sentence falls within
    the range authorized by statute and is reviewable only to determine
    if it is “plainly unreasonable” with regard to those 
    18 U.S.C. § 3553
    (a)(2000) factors applicable to supervised release revocation
    sentences.       United States v. Crudup, 
    461 F.3d 433
    , 437 (4th Cir.
    2006). As purely advisory policy statements, the sentencing ranges
    provided by USSG § 7B1.4, have never bound the sentencing court.
    See United States v. Davis, 
    53 F.3d 638
    , 640 n.6, 642 (4th Cir.
    1995).    This court grants broad authority to the district court to
    revoke its previous sentence and impose a term of imprisonment up
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    to the statutory maximum.             Crudup, 
    461 F.3d at
    440 (citing United
    States v. Lewis, 
    424 F.3d 239
    , 244 (2d Cir. 2005)).
    Here, while Ryans was sentenced over the guidelines
    range, her sentence did not exceed the statutory maximum of two
    years.    The       district    court    more       than    adequately    provided      its
    reasoning for the sentence, stating that it had “examined this case
    very carefully, including the Defendant’s behavior, the Guidelines
    that    are    in     effect,   and     the    statutory      factors     under   Section
    3553(a).”       The district court stated that the Government’s request
    was insufficient to address punishment or the “Defendant’s problems
    and needs,” including the need to be treated for mental health
    problems       and    personality     disorders        which    had   been   previously
    diagnosed.          The court outlined her “totally” noncompliant behavior
    while on supervision, the seriousness of the offense and her
    “whitewash[ing]” of it, her lack of respect for the law and total
    disdain       for    the   judicial     process,      and    the   need    for    adequate
    deterrence of criminal conduct. Ryans concedes that there was
    overwhelming         evidence    supporting         the    court’s    grounds     for   its
    sentence.       We conclude that no notice was required prior to the
    upward departure from the advisory guidelines sentencing range and
    that Ryans’ sentence was not plainly unreasonable. Accordingly, we
    affirm Ryans’ sentence. 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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