United States v. Turner ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4344
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY V. TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:90-00255-01)
Submitted: July 25, 2007 Decided: August 15, 2007
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Stephanie L. Haines, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey V. Turner appeals a twenty-four month sentence
imposed upon revocation of his term of supervised release. He
argues on appeal that his revocation sentence is unreasonable
because the district court relied on the seriousness of the offense
underlying the revocation when determining the sentence, in
contravention of 18 U.S.C.A. § 3583(e) (West 2000 & Supp. 2007) and
this court’s decision in United States v. Crudup, 461 F.3d 433 (4th
Cir. 2006), cert. denied, 127 S. Ct. 1813 (2007). We affirm.
In 1991, Turner pled guilty to conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846(2000), and possession of a firearm during a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1) (2000). He was
sentenced to 181 months of imprisonment followed by a three-year
term of supervised release. Turner’s supervised release commenced
on January 30, 2004. Based on Turner’s May 2, 2004, arrest in the
Eastern District of Arkansas for traveling with another convicted
felon in a vehicle with three firearms, on May 3, 2004, Turner’s
probation officer filed a “Petition for Warrant or Summons for
Offender Under Supervision” against Turner alleging four violations
of the terms of his supervised release. Specifically, the petition
alleged that Turner (1) committed another crime when he was
arrested by the Arkansas State Police in a vehicle that contained
three firearms; (2) failed to abide by his supervised release
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condition of not possessing a firearm; (3) left his district
without permission; and (4) associated with a convicted felon
without permission from his probation officer. As a result of his
May arrest, Turner was convicted on August 29, 2005, in the
district court for the Eastern District of Arkansas for possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2000).
At the revocation hearing, Turner admitted to the first
three violations and the court dismissed the fourth. Based on a
prior criminal history category of III, the advisory policy
statement range was eight to fourteen months of imprisonment with
a statutory maximum of twenty-four months. Turner argued at the
hearing that, in accordance with 18 U.S.C.A. § 3583(e) and this
court’s decision in Crudup, the district court could not consider
the seriousness of the offense as a factor in determining his
sentence. After significant argument on the issue, the district
court revoked Turner’s supervised release and sentenced him to the
statutory maximum of twenty-four months of imprisonment, finding
that the sentence reflected “the nature and circumstances of the
offense, the history and characteristics of the defendant and the
needs for deterrence.”
On appeal, Turner does not contest the revocation of his
supervised release. The gravamen of Turner’s appeal is that the
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court improperly considered the seriousness of the violations in
imposing his sentence upon revocation.
Following United States v. Booker, 543 U.S. 220, 261
(2005), this court has held revocation sentences should be reviewed
to determine whether they are plainly unreasonable with regard to
the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007) factors
applicable to supervised release revocation sentences. Crudup,
461 F.3d at 437. This court explained it must first assess the
sentence for reasonableness, “follow[ing] generally the procedural
and substantive considerations that we employ in our review of
original sentences . . . with some necessary modifications to take
into account the unique nature of supervised release revocation
sentences. Id. at 438-49. For instance, as mandated by § 3583(e),
not all the original sentencing factors of § 3553(a) can be
considered when reviewing a revocation sentence. According to
§ 3583(e), in devising a revocation sentence, the district court is
not authorized to consider whether the revocation sentence
“‘reflect[s] the seriousness of the offense, . . . promote[s]
respect for the law, and . . . provide[s] just punishment for the
offense,’ § 3553(a)(2)(A), or whether there are other ‘kinds of
sentences available,’ § 3553(a)(3).” Crudup, 461 F.3d at 439.
Under Booker and United States v. Hughes, 401 F.3d 540(4th Cir. 2005), a sentence is procedurally reasonable if the
district court considered the Chapter Seven policy statement range
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and the § 3553(a) factors that it is permitted to consider in a
release revocation case. See 18 U.S.C.A. § 3583(e); Crudup, 461
F.3d at 440. A sentence is substantively reasonable if the
district court stated a proper basis for concluding the defendant
should receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440. Should this court conclude a sentence is
reasonable, it will affirm the sentence. Id. at 439. Only if a
sentence is found unreasonable will this court “decide whether the
sentence is plainly unreasonable.” Id. (emphasis in original).
In Crudup, this court reiterated that, although a
district court must consider the Chapter Seven policy statements
and the 18 U.S.C.A. § 3553(a) factors applicable to revocation
sentences, the district court has broad discretion to revoke its
previous sentence and impose a term of imprisonment up to the
statutory maximum. Id. at 439. The court further reaffirmed that
“‘a court’s statement of its reasons for going beyond non-binding
policy statements in imposing a sentence after revoking a
defendant’s supervised release term need not be as specific as has
been required when courts departed from guidelines that were,
before Booker, considered to be mandatory.’” Id. (quoting United
States v. Lewis, 424 F.3d 239, 245 (2nd Cir. 2005)) (emphasis in
original).
In this case, there was significant discussion below as
to the court’s consideration of the seriousness of the offense in
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imposing its sentence upon revocation. It is clear from the record
that the district court was well aware that the seriousness of the
underlying conduct is not a designated factor to be considered in
sentencing on revocation of supervised release. The court
explicitly stated that it considered the seriousness of the offense
only to the extent that it pertained to its permissible
consideration of the “nature and circumstances of the offense and
the history and characteristics of the defendant.” Moreover,
here, the seriousness of the offense was clearly not the court’s
focal point. The court relied heavily on the fact that Turner
committed the underlying offense shortly after starting his
supervised release. After reviewing the record, we find that the
revocation sentence was based primarily on Turner’s breach of trust
and not primarily upon any impermissible factor. See 18 U.S.C.A.
§ 3583(e) (specifically directing sentencing courts to consider
“the nature and circumstances of the offense and the history and
characteristics of the defendant,” as set forth in 18 U.S.C.A.
§ 3553(a)(1)); U.S. Sentencing Guidelines Manual Ch.7, Pt.
A(3)(b)) (2007) (“[A]t revocation 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.”); see also
United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007)
(clarifying that, while certain considerations under 18 U.S.C.A.
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§ 3553(a)(2)(A) are not proper for the purpose of sentencing upon
revocation of supervised release, the seriousness of the offense
underlying the revocation, though not a focal point of the inquiry,
may be considered to a lesser degree as part of the criminal
history of the violator).
We find that Turner’s sentence is not plainly
unreasonable. Accordingly, we affirm his 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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