United States v. Black , 289 F. App'x 613 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4981
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CASSANDRA BLACK,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:07-cr-00105-RJC; 1:04-cr-00226-1)
Submitted: June 20, 2008 Decided: July 14, 2008
Before MOTZ and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Steven
Slawinski, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cassandra Black appeals an eighteen-month sentence
imposed upon revocation of her term of supervised release. Black
contends on appeal that the district court erred in determining her
revocation sentence by considering a factor that was not permitted
by 18 U.S.C. § 3583 (e) (2000). We affirm.
A sentence imposed after revocation of supervised release
will be affirmed if it is within the applicable statutory maximum
and is not plainly unreasonable. United States v. Crudup, 461 F.3d
433, 437, 439-40 (4th Cir. 2006), cert. denied, 127 S. Ct. 1813(2007). We must initially determine the reasonableness of the
revocation sentence by generally following the procedural and
substantive considerations employed in a review of original
sentences, “with some necessary modifications to take into account
the unique nature of supervised release revocation sentences.” Id.
at 438-39. If the revocation sentence is not unreasonable, it will
be affirmed; however, if the sentence is in some manner
procedurally or substantively unreasonable, there must be a second
determination of whether it is plainly so. Id. at 439.
Black contends her sentence is plainly unreasonable
because the district court impermissibly considered promoting
respect for the law as a factor in fashioning its sentence. While
a district court “ultimately has broad discretion to revoke its
previous sentence and impose a term of imprisonment up to the
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statutory maximum,” Crudup, 461 F.3d at 439 (internal quotation
marks omitted), the court must consider the Chapter Seven policy
statements as well as the statutory requirements and factors
applicable to revocation sentences under 18 U.S.C. §§ 3553(a),
3583(e) (2000). Section 3583 approves consideration of a majority
of the factors listed in § 3553(a), omitting only two. 18 U.S.C.
§ 3583(e). Included among the omitted factors is the need “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).
The district court offered multiple reasons supporting
its decision to impose an eighteen-month sentence. First, the
court considered Black’s serious medical condition that was both
caused and exacerbated by continued substance abuse. The court
noted that Black tested positive for cocaine while in the hospital
and concluded that the medical care and substance abuse treatment
she could receive while incarcerated would be in her best interest.
Next, the court considered that this was the second time Black’s
term of supervised release had ended in failure. The court noted
that the fifteen-month term of imprisonment imposed after Black’s
first revocation did not deter her from falling into a pattern of
misconduct upon her release. Finally, the court considered the
Government’s recommendation that a term of imprisonment above the
advisory guideline range be imposed, and stated: “I think it is in
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the best interest of you to [serve eighteen months’ imprisonment].
It also promotes respect for the law. There has been just utter
disrespect for the probation office and the terms and conditions of
supervised release.”
Even assuming the district court improperly considered a
factor not specifically permitted by 18 U.S.C. § 3583(e), we
nevertheless conclude that Black’s sentence is not plainly
unreasonable. Here, the district court’s focus at sentencing was
on the potential to provide Black with much needed medical and
substance abuse treatment. The court further focused on Black’s
history of failing to comply with the terms of supervised release.
While the court referenced the omitted factor of promoting respect
for the law, it tempered this reference by subsequently referring
to the disrespect Black had specifically shown the probation
office. Therefore, the district court primarily based the
revocation sentence on permissible factors, rendering the resulting
sentence not plainly unreasonable. See United States v. Lewis, 498
F.3d 393, 399-400 (6th Cir. 2007) (rejecting a per se rule that
consideration of § 3553(a)(2)(A) results in an unreasonable
sentence, plainly or otherwise, and instead interpreting § 3583(e)
as requiring consideration of the enumerated factors in § 3553(a)
without forbidding consideration of other relevant factors), pet.
for cert. filed, __ U.S.L.W. __ (U.S. Apr. 11, 2008) (No. 07-1295);
United States v. Williams, 443 F.3d 35, 47-48 (2d Cir. 2006)
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(same); cf. United States v. Miqbel, 444 F.3d 1173, 1182-83 (9th
Cir. 2006) (stating in dicta that while it did “not suggest that a
mere reference to promoting respect for the law would in itself
render a sentence unreasonable,” it could result in reversible
error if the record failed to establish that permissible factors
were properly considered and formed the basis of the sentence).
Accordingly, we affirm the judgment of the district
court. 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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