US v. Valentino Tucker

Filing 920090330

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4476

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. VALENTINO LEON TUCKER, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:06-cr-00042-D-2)

Submitted:

February 17, 2009

Decided:

March 30, 2009

Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Rudolph A. Ashton, III, Charles K. McCotter, Jr., MCCOTTER, ASHTON & SMITH, P.A., New Bern, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Banumathi Rangarajan, Jennifer May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Valentino Leon Tucker appeals his seventy-two month

sentence imposed following revocation of his original sentence of probation. Tucker pled guilty to one count of making a

material false statement in connection with the purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6) (2006), and was sentenced to three years of probation. Tucker admitted each of

the alleged violations in the three motions for revocation filed by his probation officer. Following a lengthy hearing, the

district court provided a detailed explanation for its sentence. Tucker timely noted his appeal and argues that, for various

reasons, his sentence is plainly unreasonable. This court reviews a sentence imposed upon revocation of a defendant's probation to determine whether the sentence is "plainly unreasonable." 656 (4th Cir. 2007). United States v. Moulden, 478 F.3d 652, In determining whether a probation

revocation sentence is "plainly unreasonable," this court must first determine whether the Id. Seven sentence is procedurally or

substantively unreasonable. must consider the Chapter

Although a sentencing court policy statements and the

applicable 18 U.S.C. § 3553(a) (2006) factors in fashioning its sentence, the sentencing court retains broad discretion to

revoke a defendant's probation and impose a term of imprisonment up to the statutory maximum. 2 Id. Only if the defendant

demonstrates that the sentence is unreasonable will this court consider whether the sentence was "plainly unreasonable." Tucker first claims that his seventy-two Id. month

sentence is unreasonable simply because it is higher than his original advisory guidelines range of eighteen to twenty-four months and his revocation advisory guidelines policy statement range of fifteen to twenty-one months' imprisonment. sentence however. and its was both procedurally and substantively Tucker's

reasonable,

The district court, in both its ruling from the bench written order, provided an exhaustive and reasoned

explanation for Tucker's sentence.

The record shows that the

district court considered the Chapter 7 policy statements and advisory § 3553(a) guidelines factors, range, § 3553(a)(4)(B), abysmal performance the on relevant probation,

Tucker's

his criminal history, his original sentence of probation after receiving a substantial assistance departure, and the arguments of counsel in sentencing Tucker. procedurally reasonable. The district court's decision to impose a sentence Thus, Tucker's sentence was

greater than both Tucker's original guidelines range and the advisory policy statement range was also Grade substantively C violations

reasonable.

Tucker

committed

multiple

including continued drug use, refusal of drug treatment, and

3

failure to submit to drug testing.

Tucker also pled guilty to

felony sale of marijuana, a Grade A violation. Tucker's only on the advisory of policy Grade statement A range was based not

severity

the

violation

and

did

reflect his numerous Grade C violations. at 658.

See Moulden, 478 F.3d

Moreover, Tucker's original sentence was based on a assistance Manual the departure. § 7B1.4 court See U.S. n.4 Sentencing (2008). the

substantial Guidelines Additionally,

("USSG") district

cmt.

properly

considered

inherent breach of trust in Tucker's conduct while on probation. USSG ch. 7, pt. A, introductory cmt. 3(b); United States v. Verkhoglyad, 516 F.3d 122, 130 n.6 (2d Cir. 2008). Tucker continued his criminal behavior, virtually Finally, without

interruption, despite lenient treatment from the district court. Accordingly, because Tucker's sentence was substantively

reasonable, his first claim is without merit. Tucker next claims that "the district court failed to properly analyze sentences, Guidelines, policy statements and

sentencing disparity." record. Tucker next

This assertion is simply belied by the

alleges

that

he

should

have

received

credit for the seven months he spent in state custody on his federal detainer. "A defendant shall be given credit toward the

service of a term of imprisonment for any time he has spent in 4

official detention prior to the date the sentence commences." 18 U.S.C. § 3585(b) (2006). Section 3585 does not permit a

district court to determine credit at sentencing. v. Wilson, 503 U.S. 329, 334 (1992).

United States

Rather, only the Attorney Id.

General, through the Bureau of Prisons, may compute credit. at 334-35.

Therefore, the district court was without authority

to order the Bureau of Prisons to give Tucker credit for the time served. some credit Additionally, Tucker admitted that he received from the North seven Carolina months toward he his North Carolina for his not

sentences probation

for

spent was,

waiting

revocation

hearing.

Tucker

therefore,

entitled to have credit already applied to his state sentence counted a second time and applied to his federal sentence. U.S.C. § 3585(b). 18

Accordingly, the district court did not err

in failing to direct that Tucker be given credit for the seven months he spent in state custody on the federal detainer. Tucker's fourth argument on appeal is that the

district court failed to consider sentencing disparities between his co-defendant, Donte Nathaniel Johnson, and himself. A

district court need not robotically tick through each subsection of § 3553(a). Cir. 2006). United States v. Johnson, 445 F.3d 339, 345 (4th Here, the context and record establish that the

district court considered the § 3553(a) factors and found the circumstances warranted a sentence above the advisory guidelines 5

policy statement range. unwarranted sentencing

Moreover, § 3553(a) seeks only to avoid disparities. Unlike his co-defendant,

Tucker was initially given a sentence of probation, and as the district advisory court noted, a sentence would within not Tucker's his original abysmal

guidelines

range

address

performance on probation. Finally, Tucker contends that the district court

improperly punished him for the criminal conduct underlying his revocation by relying heavily on his new felony conviction and imposing a consecutive sentence without giving him credit for time served. Tucker's claim is without merit as the court was

entitled to consider the fact that his Grade C violations were likely to, and did, result in new felonious conduct, and the guidelines instructed that his sentence should be consecutive to his state sentence. USSG §§ 7B1.3(f), 7B1.4 cmt. n.3.

Accordingly, we affirm the judgment of the district court. We dispense with oral argument as the facts and legal

contentions are adequately detailed in the materials before the court, and argument would not aid the decisional process.

AFFIRMED

6