US v. Timothy Benton, No. 10-4267 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4267 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY ROMERO BENTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:98-cr-00036-RBS-1) Argued: May 13, 2011 Before TRAXLER, Judges. Chief Decided: Judge, and SHEDD and June 16, 2011 DUNCAN, Circuit Affirmed by unpublished per curiam opinion. ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Darryl James Mitchell, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Rodolfo Cejas II, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Emily Sowell, Third-Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: The district court determined that Timothy Romero Benton violated the conditions of his supervised release, and the court sentenced Benton to sentence available Benton. Benton 36 for months the appeals, imprisonment, Grade-C violations challenging the substantive reasonableness of the sentence. the maximum committed procedural by and We affirm. I. Benton was released by the Federal Bureau of Prisons on January 15, 2010, after serving a 147-month sentence for armed bank robbery. Benton met with his probation officer for the first time on January 19, 2010. At that meeting, the officer instructed Benton to report back to the probation office the next day and then to a substance abuse treatment center for an initial assessment. Benton called the probation officer the next day to say that he would not be reporting to the probation office officer or to that the he substance refused to abuse center. abide by the Benton told conditions of the his supervised release and asked the officer to return him to court for sentencing. Benton did return to the probation office on January 21, 2010, and he again stated that he would not abide by the conditions of supervised release and asked to be returned to court for sentencing. The probation officer thereafter filed a 3 petition on supervised release, alleging two violations -- failure to participate in a treatment program and failure to report to the probation officer. At the revocation hearing, the probation officer testified that during their first meeting, Benton didn t seem to understand why he was on supervised release, and that Benton believed he had already done his time and he shouldn t have to be doing any more time. J.A. 34. According to the probation officer, Benton was adamant in his refusal to abide by the conditions of supervised release. J.A. 35. Benton s testimony at the hearing reflected his disdain for the concept of supervised release and the specific conditions imposed on him. Benton stated that since he had not been charged with any drug crimes, he should not have been ordered to undergo a substance abuse assessment, and that he thus had no intentions of reporting to the treatment center as ordered by his probation officer. J.A. 41. He stated that he d[id]n t trust the system and he told the officer that he refused to comply with the conditions because he wanted to challenge the legality of supervised release. J.A. 42. When asked by his attorney if he intended to comply with the terms of supervised release, Benton stated he would comply within reason, if his probation officer would work with him. court then asked Benton if he 4 J.A. 42. intended to The district comply with the conditions of supervised release, and Benton reaffirmed his position, stating that I intend to follow it within reason. J.A. 46. Benton also indicated that since he had served his time, he should not be required to pay restitution, but stated that [i]f they work with me, then I will work . . . . rights. J.A. 49. the law. I love the law, if it s done right. The I have Benton claimed that he had no problem with government argued that Benton s J.A. 50. statements to his probation officer and at the hearing demonstrated that Benton had no respect for the court and that [t]here is absolutely no prospect that supervisee. this defendant J.A. 51-52. will ever be a compliant The government therefore asked the district court to terminate supervised release and impose the maximum sentence available. Counsel for Benton contended that while Benton believed that supervised release in general was illegal, Benton said that he would comply with the conditions. Counsel made no argument about what sentence would be appropriate for Benton, nor did counsel raise any objection to the sentence sought by the government. After court considering stated that it the parties arguments, had considered imposing the the district statutory maximum sentence, but that it was giving Benton the benefit of the doubt in light of Benton s shaky statements that he would comply with the conditions of supervised release. 5 J.A. 57. The court thus announced its intention to sentence Benton to six months imprisonment, to be followed by supervised release for 54 months. The court stated that if Benton were to return to court with the same business about what you are not going to do, the court would terminate supervised release and impose the maximum sentence. J.A. 57. The court explained: So we are going to start over again in six months, give you time to think about it. If you come back in here and decide you don t want to comply, that you are going to jerk the Court around, that s it. . . . The Court is certain that it is giving you a fair opportunity to succeed. I have explained it to you. There s nothing to negotiate about whether you are on supervised release or question the legality of it. There s not one ounce . . . of credence or credibility in that argument. J.A. 58. approach, Honor. As the court was instructing Benton to drop that Benton interrupted J.A. 58. to say, I can t drop it, your The court then asked, Are you telling me that when you come back, you are coming back with the same thing again? J.A. 58. Benton responded, I didn t say I was coming back with the same thing, but I have an issue where it s based on my rights. liberty. My liberty is being -- I m being deprived on my J.A. 58. The district court then changed its view and sentenced Benton to 36 months imprisonment, because Benton was evidencing to the Court that he does not accept supervised release [and that] [h]e does not plan to comply with the Court s directives to him. J.A. 58-59. The court explained that 6 Upon your completion of the 36 months, you will be a free man. You won t have to do anything. You are free to go. All right. And the reason for it is the defendant has indicated he s not going to comply and he continues to . . . challenge the right of the Court to impose supervised release. J.A. 59. Benton interjected, claiming that he did not refuse to comply with the conditions of supervised release or challenge the court s right to impose supervised release. The district court was unconvinced: [T]he Court has attempted to impose a sentence that s reasonable, but the defendant, through his words and his deeds, is resisting the Court s efforts to do that. He s made it clear he challenges the Court s right and his responsibility to be on supervised release. So the Court does not believe it appropriate to continue to waste the resources of this Court on someone who does not respect the system or will not comply. Therefore, the Court will give him what he s due under the law and release him. J.A. 59-60. II. Benton district appeals, court challenging as both the sentence procedurally imposed and by the substantively unreasonable. A sentence imposed on revocation of supervised release may be reversed if it 3742(a)(4). In unreasonable, we is plainly determining must first unreasonable. whether decide 7 a sentence whether the 18 is U.S.C. § plainly sentence is United States v. Crudup, 461 F.3d 433, 438 (4th unreasonable. Cir. 2006). Only if this court finds the sentence unreasonable must we decide whether it is plainly so. See United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007). Reviewing generally the involves substantive reasonableness the same reasonableness of a revocation considerations employed in of the procedural review original sentences imposed in criminal proceedings. 461 F.3d at 438. our review sentence of and the See Crudup, In the context of supervised release, however, takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences. Moulden, 478 F.3d at 656 (internal quotation marks omitted). Benton argues his sentence is procedurally unreasonable because the district court did not consider the sentencing range suggested in Chapter 7 of the Sentencing Guidelines or the relevant § 3553(a) factors and did not sufficiently explain the basis for imposing the maximum sentence. Because Benton made no arguments about what sentence would be appropriate and did not object after sentence was imposed, we review for plain error only. See United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010) ( By drawing arguments from § 3553 for a sentence different than the one ultimately imposed, an aggrieved party sufficiently alerts the district court of its responsibility to 8 render an individualized explanation addressing those arguments, and thus preserves [his] claim. ). In our view, Benton has failed to carry his burden of showing that plain error occurred. A sentence is procedurally reasonable if the district court considered the relevant policy statements set forth in Chapter 7 of the Sentencing Guidelines and the applicable factors set out in 18 U.S.C. § 3553(a) and sufficiently explained the sentence imposed. See United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010); Moulden, 478 F.3d at 657. Nonetheless, [w]e have repeatedly said post-Booker that a court need not robotically tick through § 3553(a) s every subsection. at 657 (internal quotation marks Moulden, 478 F.3d omitted). The court s explanation of its sentence must be sufficient to permit us to effectively review the reasonableness of the sentence, id., but the explanation for a sentence exceeding that recommended by the Guidelines policy statements need not be as specific as might be required in the context of an initial sentencing, see id. at 657; Crudup, 461 F.3d at 439. In this case, the district court did not explicitly refer to the Guidelines suggested sentencing range, nor did the court specifically mention the other relevant § 3553(a) factors. 18 U.S.C. § 3583(e) (listing the § 3553(a) factors to considered when modifying or revoking supervised release). See be We nonetheless believe that the record as a whole demonstrates that 9 the court in fact properly considered the advisory sentencing range and the relevant statutory factors and sufficiently explained the basis for the sentence imposed. Preliminarily, we note that the court s initial decision to impose a sentence of six months demonstrates that the court was in fact aware Guidelines. of the sentencing range suggested by the Moreover, the factor driving the sentence in this case, as the district court made abundantly clear, was Benton s own defiant intransigence. After considering the statements Benton made to his probation officer and during the hearing, the district court concluded as a factual matter that Benton would not comply with the conditions of supervised release and that the appropriate imprisonment sentence and therefore termination of was the supervised maximum term release. of The concerns expressed by the court during the hearing were clearly related to several of the relevant § 3553(a) factors, see 18 U.S.C. § 3553(a)(1), consideration of Moulden, F.3d 478 articulated (a)(2)(B) Benton s clear at and & individual 658 (finding appropriate (C), and reflected See circumstances. that reasons district under § court 3553(a) where court s reasons, [e]ven if not couched in the precise language of § 3553(a), . . . [could] be matched to a factor appropriate clearly for tied to consideration [the under defendant s] 10 that statute particular and [were] situation ). Because the established district that he court s statements considered all during required the hearing factors before imposing sentence and were sufficiently detailed to permit us to review the reasonableness of the sentence imposed, we find no procedural error, plain or otherwise. As to Benton s contention that the sentence imposed was substantively unreasonable, we again disagree. A sentence is substantively reasonable if the district court states a proper basis for maximum. its imposition of a sentence up to the statutory See Crudup, 461 F.3d at 440; see also Thompson, 595 F.3d at 548 ( For a sentence to be plainly unreasonable, . . . it must run afoul of clearly settled law. ). preliminarily indicated that a six-month While the court sentence would be reasonable if Benton intended to comply with the conditions of supervised release, the district court subsequently concluded, based on Benton s continued statements to the court, that Benton in fact did not intend supervised release. to comply with the conditions of The district court s factual finding on this point is a fair reading of the many statements made by Benton to his probation officer and during the course of the hearing. Given the record-supported factual finding by the district court and our highly deferential review of revocation sentences, see Moulden, 478 F.3d at 656; Crudup, 461 F.3d at 439, we cannot conclude that the district court erred, much less 11 plainly erred, by imposing the maximum revocation sentence on a defendant who refuses supervised release. say that it to comply with the conditions of The sentence is substantial, but we cannot is substantively unreasonable under the sentence is circumstances of this case. III. As neither the explained procedurally sentence plainly above, is nor not the substantively unreasonable, unreasonable. challenges and affirm district it Accordingly, the 36-month court s unreasonable. quite we sentence clearly reject imposed Because is not Benton s by the district court. AFFIRMED 12
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