United States v. Robert Padgett , 788 F.3d 370 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4625
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT PADGETT, a/k/a Snoop,
Defendant - Appellant.
No. 14-4627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT PADGETT, a/k/a Snoop,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington and Charleston. Irene
C. Berger, District Judge. (3:98-cr-00048-3; 2:09-cr-00160-1)
Argued: May 13, 2015 Decided: June 9, 2015
Before MOTZ, SHEDD, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Shedd and Judge Diaz joined.
ARGUED: Carl E. Hostler, PRIM LAW FIRM, PLLC, Hurricane, West
Virginia, for Appellant. Candace Haley Bunn, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
ON BRIEF: R. Booth Goodwin II, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.
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DIANA GRIBBON MOTZ, Circuit Judge:
The district court revoked Robert L. Padgett’s two
concurrent terms of supervised release and sentenced him to
consecutive terms of imprisonment, followed by new concurrent
terms of supervised release. Padgett appeals, and for the
reasons that follow, we affirm.
I.
These consolidated cases boast a lengthy procedural history
that we summarize briefly. In 1998, Padgett was convicted of
conspiracy to distribute and possess with intent to distribute
cocaine base, in violation of 21 U.S.C. § 846. In 2009, he was
again convicted, this time for attempted escape from custody in
violation of 18 U.S.C. § 751(a). Padgett’s sentence for each
conviction included a term of supervised release. In January
2013, the district court revoked Padgett’s supervised release in
both cases in a consolidated order not at issue in this appeal.
The court then sentenced Padgett to two days in prison, followed
once again by two concurrent terms of supervised release. In
July 2014, the court again revoked his supervised release in
both cases. This second revocation -- and the resultant
sentences -- provide the basis for this appeal.
In petitioning the court to order this second revocation,
the Government alleged four violations of the terms of Padgett’s
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supervised release: possession of a firearm, two counts of
battery, and possession of a switchblade knife. Following an
evidentiary hearing, the district court found that the
Government had proven, by a preponderance of the evidence, that
Padgett possessed a firearm, committed one count of battery, and
possessed a switchblade knife. Based on these violations, the
court revoked Padgett’s supervised release in both cases. The
court then sentenced Padgett to consecutive terms of ten months
and fourteen months in prison, followed by concurrent terms of
twenty-four and twenty months of supervised release. Padgett
noted a timely appeal.
II.
Padgett maintains that the district court “abused its
discretion” when it made one of the findings underlying its
decision to revoke his release. Appellant’s Br. 2. We heard
argument in this case to clarify our standard of review for such
findings. We review a district court’s ultimate decision to
revoke a defendant’s supervised release for abuse of discretion.
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
But, like our sister circuits, we review a district court’s
factual findings underlying a revocation for clear error. See
United States v. Preacely, 702 F.3d 373, 375-76 (7th Cir. 2012);
United States v. Oquendo-Rivera, 586 F.3d 63, 67 (1st Cir.
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2009). Of course, reliance on a clearly erroneous material fact
itself constitutes an abuse of discretion. See United States v.
Zayyad, 741 F.3d 452, 458 (4th Cir. 2014).
We will not disturb a district court’s revocation sentence
unless it falls outside the statutory maximum or is otherwise
“plainly unreasonable.” United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006). Only if a revocation sentence is
unreasonable must we assess whether it is plainly so. United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007). In
determining whether a revocation sentence is unreasonable, we
strike “a more deferential appellate posture” than we do when
reviewing original sentences. Id. (internal quotation marks and
citation omitted). Nonetheless, “the [same] procedural and
substantive considerations” that guide “our review of original
sentences” inform our review of revocation sentences as well.
Crudup, 461 F.3d at 438. The sentencing court “must consider”
both the policy statements and the applicable policy statement
range found in Chapter 7 of the Sentencing Guidelines manual, as
well as “the applicable [18 U.S.C.] § 3553(a) factors.”
Moulden, 478 F.3d at 656; see also United States v. Webb, 738
F.3d 638, 641 (4th Cir. 2013). A sentence within the policy
statement range is “presumed reasonable,” Webb, 738 F.3d at 642,
though “the sentencing court retains broad discretion to . . .
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impose a term of imprisonment up to the statutory maximum,”
Moulden, 478 F.3d at 657.
III.
Padgett challenges only the district court’s finding that
he possessed a firearm and its imposition of what he contends is
a plainly unreasonable revocation sentence. Both arguments
fail.
A.
At the revocation hearing, the Government offered three
witnesses to support the firearm allegation. First, Deputy J.W.
Eary testified that, while on patrol, he heard five gun shots
fired in rapid succession. He then received a call directing
him to Sheer Fantasy, where Padgett worked, to investigate a
possible shooting. Witnesses at Sheer Fantasy reported that the
shots had been fired by a black male, dressed in black clothing.
Shortly thereafter, nearby officers apprehended Padgett, who
matched the witnesses’ description, and located five shell
casings less than a block from Sheer Fantasy. Second, Melanie
Curnutte testified that she witnessed an altercation between two
men in the Sheer Fantasy parking lot on the night in question.
One of the men, whom she recognized as Padgett, fired five shots
in the area where the shell casings had been found. Finally,
Nicole McEwan, a forensic analyst and qualified gunshot residue
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expert, testified that residue samples taken from Padgett’s
hands and face on the night he was apprehended contained
particles consistent with gunshot residue. McEwan offered her
expert opinion that Padgett had either discharged a firearm or
come into contact with an environment where gunshot residue was
present.
Padgett’s counsel cross-examined each of the Government’s
witnesses, eliciting testimony from McEwan that gunshot residue
could be transferred by means other than discharging a firearm.
The defense then offered a single witness -- Jessica Johnson,
Padgett’s girlfriend at the time. Johnson testified that she
too heard five gunshots that night, but that she was inside her
home at the time, with Padgett.
On the basis of all this evidence, the district court found
that the Government had proven, by a preponderance of the
evidence, that Padgett had possessed a firearm. This standard
requires only that “the existence of a fact” be “more probable
than its nonexistence.” United States v. Manigan, 592 F.3d 621,
631 (4th Cir. 2010) (internal quotation marks and citation
omitted). The court did not clearly err in finding Padgett
possessed a firearm, and so revocation of his supervised release
was not an abuse of discretion.
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B.
The district court also imposed a reasonable revocation
sentence. Though the court did not cite to Chapter 7 of the
Guidelines or to § 3553(a), the factors it relied on closely
track the language of both. This “provide[s us] a sufficient
explanation so that we may effectively review the reasonableness
of the sentence” imposed. Moulden, 478 F.3d at 657.
Such review leaves little doubt here. The consecutive
terms of ten and fourteen months’ imprisonment (Padgett does not
challenge the new terms of supervised release) fall within the
policy statement ranges and so are “presumed reasonable.” Webb,
738 F.3d at 642. And though the combined term of twenty-four
months represents the maximum in-range sentence, the district
court had ample reason to eschew leniency here. Padgett had
violated the terms of his supervised release once before,
squandering the second chance afforded him by committing
multiple serious violations of his supervision. A top-of-the-
range sentence falls well within the “broad” zone of discretion
sentencing courts enjoy in this context. Crudup, 461 F.3d at
440.
Padgett’s attempts to suggest otherwise are unconvincing.
He characterizes the sentence as “excessive,” but only after
assuming away the possession-of-a-firearm violation.
Appellant’s Br. 11. Of course, this is unavailing. We have
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held that the district court’s finding of that violation was not
clear error.
Upon revoking Padgett’s supervised release, the district
court correctly calculated the policy statement range,
considered the appropriate factors under Chapter 7 and
§ 3553(a), and sentenced Padgett to a term of imprisonment
within that range. The result was a reasonable revocation
sentence that we decline to overturn on appeal.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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