United States v. Archie Darby , 583 F. App'x 126 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4210
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARCHIE TERRACE DARBY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:10-cr-00150-PMD-2)
Submitted: August 14, 2014 Decided: September 8, 2014
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. William Nettles, United States
Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Archie Terrace Darby appeals the sentence imposed by
the district court after the court revoked Darby’s supervised
release. The district court varied upward from the six to
twelve month range determined pursuant to U.S. Sentencing
Guidelines Manual §§ 7B1.1, 7B1.4 (2012), and imposed a sentence
of twenty-four months of imprisonment, with no further
supervised release. On appeal, Darby argues that his sentence
is procedurally unreasonable because the district court
considered impermissible factors in deciding to vary upward, and
that his sentence is substantively unreasonable because it was
not based on his breach of trust. We affirm.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United
States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will
affirm a sentence imposed after revocation of supervised release
if it is within the applicable statutory maximum and not
“plainly unreasonable.” United States v. Crudup, 461 F.3d 433,
437, 439-40 (4th Cir. 2006). In determining whether a
revocation sentence is plainly unreasonable, we first assess the
sentence for unreasonableness, “follow[ing] generally the
procedural and substantive considerations that [it] employ[s] in
[its] review of original sentences.” Id. at 438. When a
district court has imposed a variant sentence, we consider the
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reasonableness of imposing a variance and the extent of the
variance. United States v. Tucker, 473 F.3d 556, 561 (4th Cir.
2007). “Generally, if the reasons justifying the variance are
tied to [18 U.S.C.] § 3553(a) and are plausible, the sentence
will be deemed reasonable.” Id. (internal quotation marks and
citation omitted).
In exercising its discretion the district court “is
guided by the Chapter Seven policy statements in the federal
Guidelines manual, as well as the statutory factors applicable
to revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e).”
Webb, 738 F.3d at 641. “Chapter Seven instructs that, in
fashioning a revocation sentence, ‘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.’” Id.
(quoting U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b)
(2012)). In determining the length of a sentence imposed upon
revocation of supervised release, 18 U.S.C. § 3583(e) requires a
sentencing court to consider all but two of the factors listed
in 18 U.S.C. § 3553(a). One of the excluded 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) (2012), Crudup, 461
F.3d at 439.
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A supervised release revocation sentence is
procedurally reasonable if the district court properly
calculates the Guidelines’ Chapter 7 advisory policy statement
range and explains the sentence adequately after considering the
policy statements and the 18 U.S.C. § 3553(a) factors it is
permitted to consider in a supervised release revocation case.
18 U.S.C. § 3583(e) (2012); United States v. Thompson, 595 F.3d
544, 547 (4th Cir. 2010); Crudup, 461 F.3d at 439. A revocation
sentence is substantively reasonable if the district court
states a proper basis for concluding the defendant should
receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440. Only if a sentence is found
procedurally or substantively unreasonable will we “then decide
whether the sentence is plainly unreasonable.” Id. at 439. A
sentence is plainly unreasonable if it is clearly or obviously
unreasonable. Id.
Darby argues his sentence is procedurally unreasonable
because the district court improperly considered that he had
fathered seven children by four different women and had not
supported those children, that he posted threats to law
enforcement on Facebook and used the post to glorify gang
affiliations, that he had been a bad example to his children,
and the § 3553(a)(2)(A) factors. Our review of the record leads
us to reject Darby’s argument. Darby introduced the subject of
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his children during his allocution as a reason for a lesser
sentence. The district court’s comments merely reflected its
opinion that Darby’s statements at the hearing were inconsistent
with his actions prior to that point. With regard to the
§ 3553(a)(2)(A) factors, we have recognized that “[a]lthough
§ 3583(e) enumerates the factors a district court should
consider when formulating a revocation sentence, it does not
expressly prohibit a court from referencing other relevant
factors omitted from the statute.” Webb, 738 F.3d at 641. As
long as a court does not base a revocation sentence
predominately on the § 3553(a)(2)(A) factors, “mere reference to
such considerations does not render a revocation sentence
procedurally unreasonable when those factors are relevant to,
and considered in conjunction with, the enumerated § 3553(a)
factors.” Id. at 642. The court did not err in this case, and
Darby’s sentence is not procedurally unreasonable.
Darby next argues that his sentence is substantively
unreasonable because it was not based on his breach of trust and
failure to follow the conditions of supervised release, but
rather on his lifestyle decisions and new criminal conduct.
This argument is belied by the record. The court’s explanation
of its sentencing determination clearly reflects that the court
was primarily addressing Darby’s breach of trust as evidenced by
his near complete disregard for the conditions of his supervised
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release. The court’s mention of Darby’s lifestyle and criminal
conduct were examples of how he had breached that trust and
flaunted the conditions of supervised release. Finally, the
district court’s upward variance to a twenty-four month sentence
was justified by the circumstances of Darby’s case and more than
adequately explained by the court. Darby’s sentence is not
substantively unreasonable.
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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