US v. Joshua Caudill
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:05-cr-00135-JTC-1 Copies to all parties and the district court/agency. [998845406].. [11-4144]
Appeal: 11-4144
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Date Filed: 05/02/2012
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4144
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSHUA PAUL CAUDILL, a/k/a Josh Caudill,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
John T. Copenhaver,
Jr., District Judge. (2:05-cr-00135-JTC-1)
Argued:
March 23, 2012
Decided:
May 2, 2012
Before DAVIS and DIAZ, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Davis and Senior Judge Kiser joined.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.
Philip
Henry Wright, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee.
ON BRIEF: Mary Lou Newberger,
Federal Public Defender, David R. Bungard, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. R. Booth Goodwin II,
United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Circuit Judge:
After
serving
a
federal
prison
sentence
following
his
conviction for a drug offense, Joshua Paul Caudill committed
numerous
violations
Consequently,
the
of
the
district
terms
court
of
his
revoked
supervised
Caudill’s
release.
supervised
release and imposed a sentence of twenty-one months in prison,
followed
by
a
period
of
thirty-nine
months
of
supervised
release.
Caudill, who did not object before the district court,
now contends that the sentence was plainly unreasonable because
the
court
impermissibly
focused
offense leading to revocation.
on
the
seriousness
of
the
Reviewing for plain error, we
affirm.
I.
Caudill pled guilty to possession with intent to distribute
crack cocaine, in violation of 21 U.S.C. § 841(a)(1), before the
U.S. District Court for the Southern District of West Virginia.
The court sentenced Caudill to sixty months in prison, followed
by
four
standard
years
of
conditions
supervised
of
release.
In
supervision--including
addition
to
requirements
the
to
not commit any other federal or state crime, refrain from the
excessive use of alcohol or drugs, and notify probation within
seventy-two hours of any arrest--the court imposed a special
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condition,
Date Filed: 05/02/2012
requiring
Caudill
to
Page: 4 of 13
participate
in
an
in-patient
substance abuse program.
Caudill began violating the terms of his release almost
immediately.
Caudill’s
Within six months of the start of his supervision,
probation
officer
filed
a
Petition
for
Warrant
or
Summons for Offender Under Supervision, recommending revocation
of
Caudill’s
suspected
supervised
violations,
release.
including
The
four
petition
positive
listed
drug
five
tests
for
marijuana, a state conviction for driving under the influence,
failure to refrain from the excessive use of alcohol, failure to
provide
timely
notice
of
an
arrest,
and
discharge
from
the
community confinement center for fighting.
The
Caudill
district
admitted
court
a
revocation
violations
the
held
contained
hearing
at
in
petition.
the
which
Caudill requested, however, that the district court hold his
revocation in abeyance and modify the conditions of release to
require
an
additional
six
months
of
community
confinement.
Caudill acknowledged that if he again violated the terms of his
release or was discharged from the community confinement center,
“the
court
is
likely
imprisonment on him.”
In
response,
the
to
impose
a
very
significant
term
of
J.A. 33.
court
stated
that
it
had
anticipated
imposing a prison sentence of six to twelve months based on the
violations and the range of imprisonment prescribed by the U.S.
4
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Date Filed: 05/02/2012
Sentencing Guidelines.
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The court noted that it was “disturbed”
that the violations occurred so soon following Caudill’s release
and was “dubious about whether or not [Caudill] really [had] any
desire to conform [his] conduct to the requirements of society”
or
the
community
nevertheless
confinement
agreed
with
center.
Caudill’s
Id.
34.
request,
The
court
holding
the
revocation in abeyance and ordering six additional months of
community confinement.
The court warned Caudill, however, that
“this is the last chance you have.”
Within
six
months
of
the
Id. 35.
hearing,
Caudill’s
probation
officer submitted a second petition recommending revocation of
Caudill’s supervised release.
The petition restated the prior
violations and added that Caudill had been discharged from the
community confinement center for multiple rules violations.
In
an amendment to the petition, the probation officer described an
additional violation, alleging that Caudill participated in a
transaction involving drugs and a stolen firearm.
At a second revocation hearing, Caudill admitted to the
rules violations at the community confinement center--including
failure to complete release forms and possession of contraband
in the form of a cell phone, rolling papers, and a lighter--but
contested the merits of the decision to discharge him.
also
challenged
offense.
The
the
violation
government
related
presented
5
to
the
evidence
drug
to
Caudill
and
gun
support
the
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violations, including testimony from several witnesses involved
in
the
drug
investigation.
and
firearm
transaction
and
subsequent
The evidence showed that Caudill sold a stolen
firearm on behalf of an associate in exchange for $400 worth of
OxyContin pills.
Caudill also provided drugs to facilitate a
drug deal between the same individual and customers, who turned
out to include a confidential informant and an undercover police
officer.
The district court found by a preponderance of the evidence
that
Caudill
violations.
OxyContin
had
committed
the
additional
supervised
release
The court concluded that Caudill’s distribution of
pills,
a
Grade
offense
and
calculated
fifteen
to
twenty-one
an
A
violation,
advisory
months.
was
range
the
of
Neither
most
serious
imprisonment
Caudill
nor
of
the
government objected to the court’s factual findings, and both
sides
agreed
with
the
guidelines
calculation.
argued for a sentence within the guidelines range.
to
persuade
the
court
to
allow
him
to
Caudill
then
In an effort
self-report,
Caudill
described several mitigating factors, including his compliance
with bond requirements, recent work history, and the birth of
his son.
The court sentenced Caudill to twenty-one months in prison,
a sentence at the high end of the guidelines range, followed by
6
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a
Document: 37
period
of
Date Filed: 05/02/2012
thirty-nine
months
of
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supervised
release.
When
announcing its sentence, the court began as follows:
[I]n view of the seriousness of the charges in this
matter, not only those that the court earlier found,
but these more recent ones that have been more grave
indeed than those that the court had originally found,
it seems to me that it is appropriate to sentence you
substantially, and although I believe that a sentence
within
the
suggested
range
under
the
advisory
guidelines is appropriate, I also believe it ought to
be at the top of that range.
Id. 213.
the
The court also took into account “the need to protect
public
from
continuing
criminal
conduct”
and
others from engaging in like conduct.”
Id.
remanded
serving
Caudill
immediately.
into
custody
to
begin
“to
deter
The court then
his
sentence
Caudill did not object to the sentence but now
appeals, contending that the sentence was plainly unreasonable
because the district court improperly focused on the seriousness
of his revocation violation when imposing the sentence.
II.
A.
We review a sentence imposed following the revocation of
supervised release to determine if it is “plainly unreasonable.”
United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). *
*
“In
Recognizing that one panel of this court may not overrule
another, Caudill nevertheless asks us to reconsider the plainly
unreasonable standard adopted in Crudup.
We decline Caudill’s
(Continued)
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determining whether a sentence is plainly unreasonable, we first
decide whether the sentence is unreasonable,” applying the same
procedural
and
substantive
considerations
reviewing an initial sentence.
that
Id. at 438.
we
employ
in
If the revocation
sentence is either procedurally or substantively unreasonable,
“we
must
then
decide
whether
the
sentence
is
plainly
unreasonable, relying on the definition of ‘plain’ that we use
in our ‘plain’ error analysis.”
Id. at 439.
Because Caudill did not object or argue for a different
sentence from the one imposed, he must satisfy the additional
requirements of plain error review.
See United States v. Lynn,
592 F.3d 572, 578 (4th Cir. 2010) (ruling that to preserve a
sentencing
sentence
error,
a
different
defendant
than
the
need
one
only
have
imposed).
To
argued
for
satisfy
a
plain
error, Caudill must show not only that an error was made and
that
the
error
was
plain--requirements
he
must
already
meet
under Crudup--but also that the error affected his substantial
rights.
Id.
at
580.
Even
if
Caudill
satisfies
these
requirements, we retain discretion and will correct the error
invitation and instead apply the binding law of the circuit.
See United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005)
(“A decision of a panel of this court becomes the law of the
circuit and is binding on other panels unless it is overruled by
a subsequent en banc opinion of this court or a superseding
contrary decision of the Supreme Court.” (citation omitted)).
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only if it “seriously affects the fairness, integrity or public
reputation
of
Massenburg,
judicial
564
omitted).
F.3d
Caudill
proceedings.”
337,
is
343
(4th
unable
to
United
Cir.
2009)
satisfy
any
States
v.
(citation
of
these
requirements.
B.
A
district
court
has
“broad
discretion
to
revoke
its
previous sentence and impose a term of imprisonment up to the
statutory
maximum.”
Crudup,
461
internal quotation marks omitted).
F.3d
at
439
(citation
and
When selecting a revocation
sentence, the court must consider all relevant guidelines policy
statements, as well the statutory requirements outlined in 18
U.S.C. § 3583.
Id.
Section 3583 directs courts to consider
nearly all of the same factors it considers during an initial
sentencing.
§ 3553(a)
See 18 U.S.C. § 3583(e) (listing the factors from
that
sentencing).
a
court
should
consider
during
revocation
Omitted from this list, however, is “the need for
the sentence imposed to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment
for the offense.”
Id. § 3553(a)(2)(A).
Omission of the seriousness of the offense from the list of
factors
courts
reflects
the
must
U.S.
consider
during
Sentencing
9
revocation
Commission’s
view
sentencing
that
“at
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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.”
U.S. Sentencing Guidelines Manual ch.
7, pt. A, introductory cmt. 3(b).
Instead, “the court with
jurisdiction over the criminal conduct leading to revocation is
the
more
appropriate
criminal
body
conduct.”
to
impose
Id.
punishment
Accordingly,
for
during
that
new
revocation
sentencing, courts should not seek to punish the defendant for
the offense leading to revocation but should instead impose a
sentence that appropriately sanctions him for his “breach of
trust.”
See id.
In this case, however, Caudill is unable to
show that the district court’s reference to the seriousness of
the offense leading to revocation constituted error--plain or
otherwise--or rendered his sentence plainly unreasonable.
While
not
specifically
listed
consider
seriousness
of
the
permissible
factors.
as
a
during
offense
For
is
factor
that
revocation
related
example,
should
sentencing,
to
courts
courts
several
the
the
consider
must
of
the
history and characteristics of the defendant, the need to afford
adequate deterrence to criminal conduct, and the need to protect
the public from further crimes of the defendant.
§ 3583(e)
(listing
appropriate
§ 3553(a)(1),
factors
for
(a)(2)(B),
consideration
10
and
during
18 U.S.C.
(a)(2)(C)
as
revocation
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sentencing).
Date Filed: 05/02/2012
The
seriousness
of
Page: 11 of 13
the
offense
leading
to
revocation is closely intertwined with a defendant’s history and
characteristics and is relevant to his propensity for recidivism
and ability to integrate into the community.
court
may
giving
properly
rise
to
consider
the
the
revocation
seriousness
in
connection
Accordingly, a
of
the
with
conduct
the
other
statutory factors.
Here, the district court did not err by considering the
seriousness of the offense leading to revocation when sentencing
Caudill.
Caudill’s
recent
drug
and
firearm
offense
was
a
relevant part of his history and characteristics, which included
past drug use and a drug-related conviction.
Furthermore, the
court expressly referenced the need to protect the public and
deter others when it announced Caudill’s sentence.
In the first
hearing, the court also noted that it was disturbed that Caudill
had violated his conditions of release so soon after serving his
sentence and questioned whether he would be able to follow the
rules in the future.
district
sanction
court’s
for
unreasonable.
Based on this record, we conclude that the
within-guidelines
Caudill’s
breach
of
sentence
trust
and
was
was
a
proper
not
plainly
In the context of the two sentencing hearings,
the court’s reference to the seriousness of the offense did not
violate
§ 3583(e)
and
did
not
otherwise.
11
constitute
error--plain
or
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Even if the district court did commit plain error--which it
did not--Caudill is nevertheless unable to satisfy the remaining
requirements of plain error review.
In order to show that the
error affected his substantial rights, Caudill must show that
the district court’s consideration of the conduct leading to
revocation “had a prejudicial effect on the sentence imposed.”
Lynn, 592 F.3d at 580.
Caudill
knew
that
he
After the first revocation hearing,
faced
“a
very
significant
term
imprisonment” if he violated the terms of his release.
Accordingly,
in
the
below-guidelines
consider
Id. 210.
second
sentence
imposing
a
hearing,
but
sentence
he
instead
within
did
not
“ask[ed]
the
J.A. 33.
argue
the
of
for
court
guideline[s]
a
to
range.”
To the extent Caudill offered any mitigating factors,
his purpose was to convince the court to allow him to selfreport.
Because
Caudill
argued
for
the
sentence
ultimately
imposed, he cannot show that any error affected his substantial
rights.
See Lynn, 592 F.3d at 580.
Finally, this is not a case in which our failure to correct
an
error
would
seriously
affect
the
fairness,
integrity,
or
public reputation of judicial proceedings.
Caudill repeatedly
violated
release,
the
conditions
of
his
supervised
within a month of his release from prison.
beginning
He failed numerous
drug tests, was convicted of driving under the influence, and
was twice discharged from the community confinement center for
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failure
Document: 37
to
comply
Date Filed: 05/02/2012
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with
The
its
rules.
district
court
had
already given Caudill a second chance when he again violated the
terms of his release by engaging in serious criminal conduct
involving stolen guns and drugs.
On this record, we decline to
exercise our discretion to grant relief for plain error.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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