United States v. Mallory Giles ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1913
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mallory Giles
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 12, 2012
Filed: January 28, 2013
[Unpublished]
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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In 2007, Mallory Giles was sentenced to 18 months imprisonment, to be
followed by three years of supervised release, after pleading guilty to manufacturing
and aiding and abetting in manufacturing counterfeit currency. In late 2011 and early
2012, Giles allegedly violated the terms of his supervised release by testing positive
for drugs and tampering with a urine test. After a revocation hearing, the district
court1 revoked Giles’s supervised release and sentenced him to 24 months
imprisonment. Giles now appeals the reasonableness of his sentence, and we affirm.
I.
Giles began his term of supervised release in late 2008. On November 1, 2011,
a Petition for Warrant or Summons for Offender Under Supervision (“Petition”) was
filed alleging that Giles tested positive for THC metabolite and amphetamine in June
and August of 2011, and also that Giles failed to participate in required substance
abuse treatment. On March 28, 2012, an amended Petition was filed containing the
additional allegations of attempting to tamper with a urine sample and testing positive
for THC metabolite and methamphetamine in March of 2012. At a court appearance
on April 5, 2012, Giles denied two of the allegations—noncompliance with substance
abuse treatment and using methamphetamine in March of 2012—but admitted all
other allegations in the amended Petition.
Giles’s advisory Guideline range was 5 to 11 months imprisonment. See
United States Sentencing Commission, Guidelines Manual, §7B1.4 (Grade C,
Criminal History Category III). The district court acknowledged the Guideline range,
but departed upwards and sentenced Giles to 24 months imprisonment, with no term
of supervised release to follow. Giles now appeals his sentence.
II.
“We review the substantive reasonableness of a revocation sentence ‘under a
deferential abuse-of-discretion standard.’” United States v. Miller, 557 F.3d 910, 917
(8th Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). This is true
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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“[r]egardless of whether the sentence imposed is inside or outside the Guidelines
range.” Gall, 552 U.S. at 51. In imposing a revocation sentence, “[a] district court
abuses its discretion and imposes an unreasonable sentence when it fails to consider
a relevant and significant factor, gives significant weight to an irrelevant or improper
factor, or considers the appropriate factors but commits a clear error of judgment in
weighing those factors.” United States v. Kreitinger, 576 F.3d 500, 504 (8th Cir.
2009) (quotation omitted).
A court may revoke a term of supervised release and impose imprisonment after
considering a subset of the factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. §
3583(e)(3). Giles argues that the district court abused its discretion by “ignor[ing] the
applicable advisory guideline range” and “incorrectly balancing the factors in 18
U.S.C. § 3553(a).” We disagree. During sentencing, the district court specifically
acknowledged the advisory Guideline range of 5 to 11 months. The court also
considered several of the relevant § 3553(a) factors. For example, the court discussed
the nature and circumstances of Giles’s actions, see § 3553(a)(1), noting the
“numerous and repeated violations of the terms of supervision,” and concluded that
“the defendant cannot adequately be supervised in a setting less restrictive than
prison.” The court also noted the need for deterrence. § 3553(a)(2)(B). We find no
error in the district court’s judgment, or its weighing of the relevant section 3553(a)
factors. Rather, the court’s determination that Giles’s conduct justified a sentence
above the Guideline range falls within “a sentencing court’s broad discretion in
crafting an individualized sentence.” United States v. Forde, 664 F.3d 1219, 1223
(8th Cir.), cert. denied, 132 S. Ct. 2789 (2012).
III.
Accordingly, the judgment of the district court is affirmed.
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