US v. Seth Slaby

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00261-LMB-1 Copies to all parties and the district court/agency. [999921609].. [15-4815]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4815

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SETH JON PAUL SLABY,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:15-cr-00261-LMB-1)

Submitted:

August 16, 2016

Decided:

September 1, 2016

Before GREGORY, Chief Judge, and AGEE and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Kevin R. Brehm,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant.
Dana J. Boente, United States Attorney, Tobias D.
Tobler, Alexander P. Berrang, Assistant United States Attorneys,
Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Seth Jon Paul Slaby pled guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2012).
district court imposed a 21-month sentence.

The

On appeal, Slaby

contends that the district court procedurally erred at sentencing
by relying on facts alleged in a letter submitted to the court by
Slaby’s former girlfriend.

We affirm.

We review a sentence for reasonableness, applying an abuse of
discretion standard.

Gall v. United States, 552 U.S. 38, 46

(2007). A district court commits procedural error if it “select[s]
a sentence based on clearly erroneous facts[.]”

Id. at 51.

In

selecting a sentence, a district court may “rely only on evidence
with

some

minimal

level

of

reliability,

and

the

Guidelines

themselves demand that the evidence used have ‘sufficient indicia
of reliability to support its probable accuracy[.]’”

United

States v. Powell, 650 F.3d 388, 393-94 (4th Cir. 2011) (internal
citation

omitted)

§ 6A1.3(a)).

(quoting

This

U.S.

threshold

Sentencing

for

the

Guidelines

reliability

of

Manual
facts

supporting a sentence protects a defendant’s “due process right to
be sentenced only on information which is accurate.”

United

States v. Lee, 540 F.2d 1205, 1211 (4th Cir. 1976).
At sentencing, the district court clearly stated that it was
not considering any allegations in the letter from Slaby’s former
girlfriend

that

were

not

also
2

either

contained

in

Slaby’s

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presentence report (“PSR”) or already presented to the court during
argument on Slaby’s motion for pretrial bond.

A sentencing court

is entitled to a presumption that it is capable of disregarding
evidence that it deems unsupported or improper.

See United States

v.

(stating

Fay,

668

F.2d

375,

380

(8th

Cir.

1981)

that

a

sentencing court “will not be presumed to have considered something
[it] explicitly disregarded”); see also United States v. Castro,
413 F.2d 891, 895 n.7 (1st Cir. 1969) (“A jury may have difficulty
in disregarding extrajudicial statements implicating a defendant.
We will not presume that a judge suffers from the same disability.
Indeed, the presumption is to the contrary.”).
Here,
presumption.

the

record

supports

the

application

of

this

Slaby’s PSR reflected that he sustained two juvenile

convictions for assault and battery as well as an adult conviction
for assault on a law enforcement officer, and that he paid a peace
bond to resolve another assault charge he incurred as an adult.
Additionally, Slaby faced a pending strangulation charge stemming
from a domestic incident and was subject to several protective
orders of various natures in the years preceding the sentencing at
issue. At sentencing, the district court focused on Slaby’s record
as detailed in his PSR and his dubious explanation for possessing
the firearm in question.

In addition to stating that it was

disregarding unsupported portions of the letter, the court never
mentioned any of the allegations contained in the letter that did
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not otherwise appear in Slaby’s PSR.

Accordingly, the presumption

applies and there is no basis to conclude that the district court
relied on the unsupported factual allegations in the letter.
Therefore, we affirm the district court’s judgment.

We

dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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