US v. Michael Dow, No. 12-4945 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4945 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL DOW, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Irene C. Berger, District Judge. (5:03-cr-00058-1) Submitted: April 3, 2013 Decided: May 1, 2013 Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, David R. Bungard, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, John L. File, Assistant United States Attorney, Beckley, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Dow appeals the district court s order revoking his supervised release and sentencing him to a twelvemonth term of incarceration and a four-year term of supervised release. On appeal, Dow argues that the district court imposed a plainly unreasonable sentence. Finding no reversible error, we affirm. In supervised examining sentence this release, a court imposed takes upon a revocation more of deferential appellate posture concerning issues of fact and the exercise of discretion than sentences. Cir. 2007) reasonableness review for [G]uidelines United States v. Moulden, 478 F.3d 652, 656 (4th (internal quotation marks omitted). A sentence imposed upon revocation of supervised release should be affirmed if it is within unreasonable. 2006). * Cir. the statutory maximum and not plainly United States v. Crudup, 461 F.3d 433, 437 (4th In reviewing a revocation sentence, we first consider whether the sentence is unreasonable, following the same general sentences. principles Id. at 438. we apply to our review of original Only if we find that a sentence is * To the extent Dow asks this court to revisit the standard of review established in Crudup, we decline to do so. See United States v. Bullard, 645 F.3d 237, 246 (4th Cir. 2011) (stating that one panel of this court cannot overrule precedent set by another panel). 2 either procedurally or substantively unreasonable determine whether the sentence is plainly so. will we Id. at 439. A sentence is procedurally reasonable if the district court has considered both the applicable 18 U.S.C. § 3553(a) (2006) factors, see 18 U.S.C. § 3583(e) (2006), and the policy statements set forth in Chapter Seven of the U.S. Sentencing Guidelines Manual ( USSG ) (2012). The district chosen court sentence, also must although Crudup, 461 F.3d at 439. provide this an explanation explanation need not of be its as detailed or specific as is required for an original sentence. United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). sentence is substantively reasonable if the district A court states a proper basis for concluding that the defendant should receive the sentence imposed. Crudup, 461 F.3d at 440. [T]he court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum. Id. at 439 (internal quotation marks omitted). Dow first argues that his sentence is plainly unreasonable because the district court impermissibly considered the need to provide just punishment when imposing his sentence. See 18 U.S.C. § 3553(a)(2)(A). the district court that Because Dow did not challenge in court s improper reliance on § 3553(a)(2)(A), he must satisfy the additional requirements of plain error review. United States v. Hargrove, 625 F.3d 170, 3 183-84 (4th Cir. 2010); see United States v. Olano, 507 U.S. 725, 732-34 (1993) (providing plain error standard). Dow has not met these requirements. As Dow correctly notes, 18 U.S.C. § 3583(e) mandates that a district court consider a majority of the factors listed in § 3553(a) when imposing a revocation sentence. Omitted from § 3583(e), however, are the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment. Accordingly, a district See id. court §§ 3553(a)(2)(A), may not impose a 3583(e). revocation sentence based predominantly on such considerations. 461 F.3d at 439. Commission s Crudup, To do so contravenes the U.S. Sentencing direction 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. USSG ch. 7, pt. A(3)(b). Here, sentence the does not § 3553(a)(2)(A). district indicate Although court s a explanation plainly the court improper considered of Dow s reliance a on prohibited factor under § 3583(e), our review of the record reveals that, when imposing Dow s revocation sentence, the district court emphasized Dow s breach of trust, focusing on the opportunities Dow had squandered in the past 4 and his persistent drug use despite those opportunities. See 18 U.S.C. § 3553(a)(1) (allowing court to consider nature and circumstances of offense and history and characteristics of defendant); United States v. Bennett, 698 F.3d 194, 201 (4th Cir. 2012), cert. denied, ___ S. Ct. ___, 2013 WL 359745 (Mar. 4, 2013) (upholding sentence when prohibited factor constituted only a minor fragment of court s reasoning and when court s concern with [the defendant s] breach of trust . . . far outweighed any other concerns ). addition, the district court considered several In other permissible factors under § 3583(e). Dow unreasonable addiction. also because argues it that does his nothing sentence to is address plainly his We conclude that the record belies his claim. drug Given the broad discretion to revoke supervised release and impose a term of imprisonment up to the statutory maximum, Dow s sentence is reasonable. See Crudup, 461 F.3d at 439 (stating that, if sentence is reasonable, inquiry ends). Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 5

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