US v. Loy Boney, No. 10-4148 (4th Cir. 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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4148 UNITED STATES OF AMERICA, Plaintiff Appellee, v. LOY BONEY, Defendant Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Loy Boney appeals the sixty-month sentence upon revocation of his term of supervised release. imposed 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. disturb a sentence imposed after revocation of supervised release if it is within the prescribed statutory range and is not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). making this determination, sentence is unreasonable. we first consider whether In the 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 guidelines manual, as well as the statutory requirements and factors applicable §§ 3553(a), to 3583(e) revocation (2006). sentences Chapter under Seven 18 U.S.C. provides, at 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, unreasonable 18 U.S.C. § 3553(a)(2)(A). Boney because contends the that court s his sentence upward is 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 factors that are relevant cases. 3 to supervised release In this case, the district court considered Boney s sentence reduction from his drug use while violations of the treatment repeated and original on terms sentence, supervised of his Boney s release, and supervised which included predominantly drug-related offenses. drug his release, 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 See 18 U.S.C. § 3553(a)(2)(C). that Boney s involving continued illegal for revocation In this regard, the court found engagement substances sentences. posed in a criminal threat to activity society. Moreover, the district court is required to consider the nature and circumstances of the offense characteristics of the defendant. and the history See 18 U.S.C. §§ and 3553(a)(1), 3583(e). To the extent the 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 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 lenient treatment in fashioning his revocation sentence. is no clear indication that the district court as There deemed the reduction as lenient treatment previously given to Boney by the courts. In any event, the court was authorized to consider the reduction 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. and materials legal before We We therefore affirm the judgment of the dispense with oral argument contentions are adequately the and argument court because presented would not the in the aid the decisional process. AFFIRMED 5
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