United States v. Ferguson , 263 F. App'x 308 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4396
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS LEE FERGUSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Terrence W. Boyle,
District Judge. (5:03-cr-00281-BO)
Submitted: November 21, 2007 Decided: January 28, 2008
Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Travis Lee Ferguson appeals the district court’s order
revoking his term of supervised release and sentencing him to
eighteen months’ imprisonment. Ferguson contends that the sentence
imposed by the district court was plainly unreasonable because the
court did not properly consider the 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2007) factors and because the district court gave no
explanation for choosing a sentence above the advisory policy
statement range calculated under United States Sentencing
Guidelines Manual § 7B1.4(a), p.s. (2006).
The sentencing court has broad discretion to revoke a
defendant’s 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). A sentence imposed after revocation of
supervised release should be affirmed if it is within the
applicable statutory maximum and is not plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006),
cert. denied, 127 S. Ct. 1813 (2007). We have decided that we will
first assess 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.
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A sentence is procedurally reasonable if the district court
considered the 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. If a sentence is found to be
either procedurally or substantively unreasonable, this court must
“decide whether the sentence is plainly unreasonable.” Id. at 439.
Regarding the procedural aspect, we find that Ferguson’s
sentence was reasonable because the court considered the advisory
range and the applicable § 3553(a) factors. During the revocation
hearing, the court had for its consideration the supervised release
violation worksheet which noted the advisory custody range provided
under USSG § 7B1.4(a). Additionally, although the court did not
specifically reference § 3553(a), the court’s colloquy with the
probation officer showed that it also considered the “history and
characteristics of the defendant,” the need for deterrence, and the
need to protect the public from further crimes. See United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006) (holding that
court need not explicitly address each factor or refer to the
statute).
Turning to the question of substantive unreasonableness,
we conclude that, even if the district court’s failure to
adequately explain its reasons for Ferguson’s eighteen-month
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sentence rendered the sentence unreasonable, the sentence is not
plainly unreasonable. The district court was fully aware of
Ferguson’s history of misconduct during his incarceration; in
addition, on the day after his release, Ferguson admitted using
marijuana and cocaine. Within just a month of being released from
prison, Ferguson engaged in drug use on at least two occasions,
failed to show up for two treatment appointments, and failed to
participate in urinalysis as directed. In short, Ferguson failed
to even attempt to comply with the terms of his supervised release.
In light of this record, and the substantial latitude and broad
discretion accorded district courts in devising appropriate
revocation sentences, see Crudup, 461 F.3d at 439, we conclude that
Ferguson’s sentence, which was situated half-way between the top of
the policy statement guidelines range and the statutory maximum,
was not plainly unreasonable. See Moulden, 478 F.3d at 652(defining plainly unreasonable sentence as one that is clearly or
obviously erroneous).
Accordingly, we affirm Ferguson’s sentence. 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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