US v. Jon Baker

Filing 920090817

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4097 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JON DEL BAKER, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 sentence supervised of of 21 U.S.C. 952, 960 (2006). He and received four a eighteen release. months' After imprisonment Baker years' his repeatedly violated supervised release, the district court revoked his release, and sentenced him to twenty-four months' imprisonment. a timely appeal. On appeal, Baker contends that his twenty-four month sentence, the statutory maximum, is plainly unreasonable. Baker Baker filed 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. We first Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). 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 2 applying determine, States, the `plainly the Ct. unreasonable' given standard, in Gall a we [v. first United is not using S. instructions 586, If 597 128 (2007)], whether a sentence is `unreasonable.'"). we conclude that sentence unreasonable, we will affirm the sentence. 439. Crudup, 461 F.3d at 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." 461 F.3d at A 439 (internal quotation must marks provide and a Crudup, citations sufficient omitted). sentencing court explanation of the sentence to allow effective review of its reasonableness on appeal. United States v. Moulden, 478 F.3d But the court every 652, 657 (4th Cir. 2007) (probation revocation). need not "robotically tick through 3553(a)'s 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, importation Baker was concedes a class 3 that, D because under his 18 drug U.S.C. offense felony 3559(a)(4) imprisonment 3583(e)(3). (2006), upon the statutory was two was maximum years. sentenced amount 18 of revocation U.S.C. the Therefore, Baker within 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. factor to on Though the the judge did not rote discuss every is the 3553(a) unnecessary record, such recitation of demonstrate adequate consideration 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. violated the conditions of As the record reflects, Baker his release on six different occasions in two years. four times. Baker tested positive for marijuana On two other occasions, Baker failed to submit to These repeated violations indicate a Because there is a drug testing as required. lack of respect for the court and the law. 4 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. facts and legal before We dispense with oral argument because the are and adequately argument expressed not in aid the the contentions the court materials would dispositional process. AFFIRMED 5

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