United States v. Joseph Eller ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4129
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH DERRICK ELLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:05-cr-00006-RLV-CH-2)
Submitted: September 23, 2014 Decided: September 25, 2014
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Amy E.
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Derrick Eller appeals the thirty-seven month
sentence imposed upon revocation of his term of supervised
release. On appeal, Eller argues that the district court
imposed a plainly unreasonable sentence because the court should
have ordered that he undergo substance abuse treatment rather
than imposing a term of incarceration. 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). Accordingly,
in examining a sentence imposed upon revocation of supervised
release, 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). We will affirm a revocation sentence
that falls within the statutory maximum, unless we find the
sentence to be “plainly unreasonable.” United States v. Crudup,
461 F.3d 433, 437 (4th Cir. 2006). In reviewing a revocation
sentence, we first consider “whether the sentence is
unreasonable,” following the same general principles we apply to
our review of original sentences. Id. at 438. Only if we find
a sentence to be procedurally or substantively unreasonable will
we determine whether the sentence is “plainly” so. Id. at 439.
2
A revocation sentence is procedurally reasonable if
the district court has considered both the applicable 18 U.S.C.
§ 3553(a) (2012) factors and the policy statements contained in
Chapter Seven of the United States Sentencing Guidelines Manual.
Crudup, 461 F.3d at 439. The district court also must provide
an explanation of its chosen sentence, although this explanation
“need not be as detailed or specific” as is required for an
original sentence. United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010). A revocation sentence is substantively
reasonable if the district court states a proper basis for
concluding that the defendant should receive the sentence
imposed. Crudup, 461 F.3d at 440.
We cannot conclude that Eller’s revocation sentence is
unreasonable, much less plainly so. Our review of the record
reveals that Eller failed to take advantage of the multiple
treatment opportunities provided to him and, ultimately, was
unable to refrain from using methamphetamine. Although Eller
requested that the court recommend treatment and continue him on
supervision, * the court was not required to select treatment over
incarceration, particularly in light of Eller’s history of
failed efforts to achieve sobriety.
*
We reject the Government’s argument that Eller waived his
right to argue on appeal that an active term of imprisonment is
plainly unreasonable.
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More importantly, however, Eller breached the court’s
trust. Eller continued to use drugs and break the law despite
the many times the court granted Eller leniency. Thus, we
conclude that it was not plainly unreasonable for the court to
impose a term of incarceration “to sanction [Eller] for failing
to abide by the conditions of the court-ordered supervision, and
to punish the inherent breach of trust indicated by [his]
behavior.” Moulden, 478 F.3d at 655 (internal quotation marks
omitted).
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
4