US v. Loy Boney

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:01-cr-00064-F-1. Copies to all parties and the district court/agency. [998463207] [10-4148]

US v. Loy Boney

Doc. 0

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Date Filed: 11/10/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4148 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. LOY BONEY, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:01-cr-00064-F-1) Submitted: October 25, 2010 Decided: November 10, 2010

Before WILKINSON, DAVIS, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Loy Boney appeals the sixty-month sentence imposed

upon revocation of his term of supervised release.

Boney argues

on appeal that his sentence is procedurally unreasonable because the district court improperly considered factors not permitted by 18 U.S.C. § 3583(e) (2006). We will not We affirm. a sentence imposed after

disturb

revocation of supervised release if it is within the prescribed statutory range and is not plainly unreasonable. United In the

States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). making this determination, we first consider whether

sentence is unreasonable.

Id. at 438. "This initial inquiry

takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences." United States v. Moulden, 478 F.3d

652, 656 (4th Cir. 2007) (internal quotation marks and citation omitted). The however. 2010). district court's discretion is not unlimited,

United States v. Thompson, 595 F.3d 544, 547 (4th Cir. Although a district 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 omitted), the court must consider the Chapter Seven policy statements in the federal sentencing 2

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guidelines manual, as well as the statutory requirements and factors applicable 3583(e) to revocation sentences under 18 U.S.C. "at

§§ 3553(a),

(2006).

Chapter

Seven

provides,

revocation, the court should sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator." USSG ch. 7, pt. A(3)(b). Section

3583 approves consideration of a majority of the factors listed in § 3553(a), omitting only two. 18 U.S.C. § 3583(e). Among

the omitted factors is the need "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." Citing plainly Crudup, 18 U.S.C. § 3553(a)(2)(A). contends the that his sentence is

Boney

unreasonable

because

court's

upward

departure

sentence reflected one of the § 3553(a)(2)(A) factors, namely, the seriousness of Boney's revocation offenses. Specifically,

Boney points to the district court's explicit reference to his "continued engagement in criminal conduct activity involving

illegal substances" and the fact that three of Boney's arrests cited by the probation officer in the revocation motion involved illegal drugs. In considering this improper factor, Boney

argues, the court failed to give adequate consideration to the sentencing cases. 3 factors that are relevant to supervised release

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In this case, the district court considered Boney's sentence treatment repeated reduction and drug from use of his while the original on sentence, Boney's and drug his

supervised of his

release,

violations

terms

supervised

release,

which included predominantly drug-related offenses.

While Boney

accurately states the court noted the drug-related nature of the revocation offenses and the number of those violations involving illegal drugs, the district court did not explicitly state it had considered the seriousness of the revocation conduct. In

fact, the court clearly considered these facts in the context of assessing the need to protect the public from Boney's future crimes, a required consideration for revocation sentences.

See 18 U.S.C. § 3553(a)(2)(C). that Boney's "continued

In this regard, the court found in a criminal to activity society."

engagement posed

involving

illegal

substances

threat

Moreover, the district court is required to consider the nature and circumstances of the offense and the history and

characteristics of the defendant. 3583(e). To the extent the

See 18 U.S.C. §§

3553(a)(1),

court

arguably

considered

the

seriousness of the revocation conduct, viewed as a whole, we find any such consideration was only one of many factors

considered by the court and such consideration did not render Boney's sentence procedurally unreasonable. 4 The grounds cited

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by

the

district

court

were

relevant

to

other

required

considerations, including the nature and circumstances of the offense, the history and characteristics of the defendant, and the need to protect the public. Furthermore, the court's

comments implicitly suggest that it imposed a sentence above the advisory policy statement range as a result of Boney's breach of trust. See USSG ch. 7, pt. A, introductory cmt. n.3(b) ("[A]t

revocation the [district] court should sanction primarily the defendant's breach of trust."). We further reject Boney's contention that the district court improperly considered Boney's sentence reduction as

lenient treatment in fashioning his revocation sentence. is no clear indication that the district court

There the

deemed

reduction as lenient treatment previously given to Boney by the courts. reduction In any event, the court was authorized to consider the in considering Boney's history and characteristics.

See 18 U.S.C. § 3553(a)(1). Accordingly we conclude that Boney's sentence is not plainly unreasonable. district facts court. legal before We We therefore affirm the judgment of the dispense with are and oral argument because in aid the the the

and

contentions the court

adequately argument

presented not

materials

would

decisional process. AFFIRMED 5