US v. Joshua Caudill, No. 11-4144 (4th Cir. 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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4144 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOSHUA PAUL CAUDILL, a/k/a Josh Caudill,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 Affirmed by unpublished opinion.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. Unpublished opinions are not binding precedent in this circuit. 2 DIAZ, Circuit Judge: After serving a federal prison sentence following his conviction for a drug offense, Joshua Paul Caudill committed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 3 condition, requiring Caudill to 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 Sentencing Guidelines. 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 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 a period of thirty-nine months of 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) 7 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)). 8 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 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 sentencing). The seriousness of 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 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 12 failure to comply with its rules. The 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 13

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