United States v. Baker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JON DEL BAKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:05-cr-00551-REP-1)
Submitted: July 29, 2009 Decided: August 17, 2009
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Valencia Roberts-Brower, Assistant Federal Public
Defenders, Richmond, Virginia, for Appellant. Dana J. Boente,
United States Attorney, S. David Schiller, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jon Del Baker pled guilty to importing marijuana, in
violation of 21 U.S.C. §§ 952, 960 (2006). He received a
sentence of eighteen months’ imprisonment and four years’
supervised release. After Baker repeatedly violated his
supervised release, the district court revoked his release, and
sentenced him to twenty-four months’ imprisonment. Baker filed
a timely appeal.
On appeal, Baker contends that his twenty-four month
sentence, the statutory maximum, is plainly unreasonable. Baker
argues that the district court failed to adequately explain its
sentences, failed to promote the purposes of sentencing, and
created an unwarranted sentencing disparity among similarly
situated defendants.
We will affirm a sentence imposed after revocation of
supervised release if it is within the applicable statutory
maximum and is not plainly unreasonable. See United States v.
Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). We first
assess the sentence for unreasonableness, “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 438-39; see
United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In
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applying the ‘plainly unreasonable’ standard, we first
determine, using the instructions given in Gall [v. United
States, 128 S. Ct. 586, 597 (2007)], whether a sentence is
‘unreasonable.’”). If we conclude that a sentence is not
unreasonable, we will affirm the sentence. Crudup, 461 F.3d at
439. Only if a sentence is found procedurally or substantively
unreasonable will this court “decide whether the sentence is
plainly unreasonable.” Id.; see Finley, 531 F.3d at 294.
Although the district court must consider the Chapter
7 policy statements and the requirements of 18 U.S.C.A.
§§ 3553(a), 3583 (West 2006 & Supp. 2009), “the court ultimately
has broad discretion to revoke its previous sentence and impose
a term of imprisonment up to the statutory maximum.” Crudup,
461 F.3d at 439 (internal quotation marks and citations
omitted). A sentencing court must provide a sufficient
explanation of the sentence to allow effective review of its
reasonableness on appeal. United States v. Moulden, 478 F.3d
652, 657 (4th Cir. 2007) (probation revocation). But the court
need not “robotically tick through § 3553(a)’s every
subsection,” or “explicitly discuss every § 3353(a) factor on
the record.” United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006) (internal quotation marks and citation omitted).
Here, Baker concedes that, because his drug
importation offense was a class D felony under 18 U.S.C.
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§ 3559(a)(4) (2006), the statutory maximum amount of
imprisonment upon revocation was two years. 18 U.S.C.
§ 3583(e)(3). Therefore, Baker was sentenced within the
applicable statutory maximum.
Further, we find that Baker’s sentence was not plainly
unreasonable. The district court indicated that it was
concerned with Baker’s extensive criminal history, the repeated
lenient sentences he received from the court, and the “flagrant
nature” of Baker’s violations. These statements make it clear
that the district judge believed that Baker had not learned from
the repeated chances he was given by the court, had little
respect for the mandates of the court, and had little desire to
obey its orders. Though the judge did not discuss every
§ 3553(a) factor on the record, such rote recitation is
unnecessary to demonstrate adequate consideration of the
statutory factors. See Johnson, 445 F.3d at 345.
Baker’s argument that the district court’s sentencing
Baker to the statutory maximum resulted in sentencing
disparities has little merit. As the record reflects, Baker
violated the conditions of his release on six different
occasions in two years. Baker tested positive for marijuana
four times. On two other occasions, Baker failed to submit to
drug testing as required. These repeated violations indicate a
lack of respect for the court and the law. Because there is a
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limited range of sentencing options available to the court
during release revocation hearings it is not surprising that
Baker received the same sentence as offenders with other types
of violations. Moreover, avoidance of sentencing discrepancy is
but one of many factors to be considered by the court when
fashioning its sentence.
Accordingly, because Baker’s sentence was not
unreasonable, much less plainly so, we affirm the judgment of
the district court. We dispense with oral argument because the
facts and legal contentions are adequately expressed in the
materials before the court and argument would not aid the
dispositional process.
AFFIRMED
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