United States v. Bohan

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-2331
UNITED STATES,
Appellee,
v.
LAURIE BOHAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr. Senior U.S. District Judge]
Before
Torruella, Boudin and Thompson,
Circuit Judges.
Laurie Bohan on brief pro se.
Seth R. Aframe, Assistant United States Attorney and John P.
Kacavas, United States Attorney, on brief for appellee.
August 29, 2012
Per Curiam. Defendant-appellant Laurie Bohan appeals
from the eighteen-month, above-guideline sentence imposed following
revocation of supervised release. She raises two legal challenges
to the procedure followed by the sentencing court: 1) that the
court impermissibly considered "the seriousness of the offense," a
factor set forth in 18 U.S.C. §3553(a)(2)(A), in violation of
§3583(e); and 2) that the court failed to adequately take into
consideration the need to avoid unwarranted sentencing disparities
between similarly-situated defendants, i.e., those convicted of
crack offenses committed before the Fair Sentencing Act (FSA) took
effect and those convicted after the FSA took effect. We review
the sentence for abuse of discretion. United States v. Vargas-
Davila, 649 F.3d 129, 130 (1st Cir. 2011).
I. Consideration of § 3553(a)(2)(A) Factors
Appellant argues that the sentencing court impermissibly
considered § 3553(a)(2)(A) factors, including the need for the
sentence imposed to "reflect the seriousness of the offense" and to
"provide just punishment for the offense." This argument is
unavailing in light of our recent holding that "[a]lthough section
3583(e)(3) incorporates by reference, and thus encourages
consideration of certain enumerated subsections of section 3553(a),
it does not forbid consideration of other pertinent section 3553(a)
factors." Vargas-Davila, 649 F.3d at 132. See also United States v.
Young, 634 F.3d 233, 239 (3d Cir. 2011) ("joining the Court of
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Appeals for the Second and Sixth Circuits in holding that a
district court does not commit procedural error in taking into
account the § 3553(a)(2)(A) factors when imposing a sentence for
the violation of supervised release"); United States v. Lewis, 498
F.3d 393, 399-400 (6th Cir. 2007); United States v. Williams, 443
F.3d 35, 48 (2d Cir. 2006); but see United States v. Miller, 634
F.3d 841, 844 (5th Cir. 2011)(agreeing with the Fourth and Ninth
Circuits that "it is improper for a district court to rely on §
3553(a)(2)(A) for the modification or revocation of a supervised
release term").1
The record fails to support Bohan's contention that the
sentencing court, in adopting the Probation Officer's recommended
18-month sentence, violated the Guidelines Policy Statement that
the sentence imposed upon revocation should sanction the
defendant's breach of trust rather than impose punishment for new
criminal conduct that led to the revocation. See U.S.S.G. Ch. 7,
Pt.A(3)(b). Neither the Revocation Report nor the sentencing court
stated that an 18-month sentence was required to punish Bohan for
her new criminal conduct. Instead, the Probation Office, in
requesting a "punitive sanction," emphasized her repeated
violations of supervised release, her "contempt for court orders,"
1
Because we reject appellant's argument that it was improper
for the court to rely on § 3553(a)(2)(A) factors, we need not reach
the government's contention that sentence was imposed pursuant to
§ 3583(g) and, therefore, that any limitations on factors that can
be considered under § 3583(e) do not apply.
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and her "chronically poor community supervision adjustment." And
the court in imposing sentence, emphasized the multiple
opportunities the Probation Office had given her to address her
substance abuse issue, and her failure take advantage of those
opportunities and to accept responsibility for her actions. Those
reasons fall within the Guidelines "breach of trust" approach,
which permits consideration of "the nature of the conduct leading
to the revocation . . . in measuring the extent of the breach of
trust," and imposition of a sentence "intended to sanction the
violator for failing to abide by the conditions of the court-
ordered supervision." U.S.S.G. Ch. 7, Pt.A (3)(b), intro.comment.
II. Consideration of Sentencing Disparities
Appellant argues that the sentence was procedurally
unreasonable because the court failed to consider "the need to
avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct," §
3553(a)(6), when it continued to treat her conviction as a Class B
felony at the time of revocation, rather than a Class C felony, as
it would have been under the FSA.
When this argument was presented at sentencing, the court
noted that "any changes [in the law] are not applicable." That is
consistent with this court's holding that the FSA "does not apply
to individuals who were sentenced before the FSA was signed into
law on August 3, 2010." United States v. Curet, 670 F.3d 296, 308
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(1st Cir. 2012). However, the court also stated that the changes
in the law "can certainly be considered." Appellant's claim that
the court failed to consider the changes in the law (and the
resulting disparities in the maximum sentences under § 3583(e) for
defendants originally sentenced before the FSA was enacted and
those sentenced after its enactment), is based on the court's
failure to expressly mention that factor in imposing sentence.
"While the court must consider all of the incorporated
section 3553(a) factors, it need not do so mechanically." Vargas-
Davila, 649 F.3d at 131. The district court listed three factors
in explaining its sentence. Its failure to mention the others does
not establish that the court failed to consider the other § 3553(a)
factors cross-referenced by § 3583(e). "A judge need not mention
every § 3553(a) factor nor intone any particular magic words. And
certainly a judge need not give each factor equal billing." United
States v. Denson, ___ F.3d ___, 2012 WL 3125111, *6 (1st Cir. Aug.
2, 2012). See United States v. Butler-Acevedo, 656 F.3d 97, 101
(1st Cir. 2011)(rejecting argument that court failed to consider
potential sentencing disparities although "the court may not have
specifically referenced this factor directly").
The court stated that it had considered the applicable §
3553(a) factors, which statement "'is entitled to some weight.'"
United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011).
Appellant based its disparity argument to the court on the fact
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that under the FSA, the statutory maximum sentence under § 3583(e)
would have been lower. The court imposed a sentence below the
statutory maximum. Its choice not to emphasize the disparity
factor "'is not a basis for a founded claim of sentencing error.'"
United States v. Rodriguez, 525 F.3d 85, 110 (1st Cir. 2008).
Affirmed. See 1st Cir. R. 27.0(c).
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