US v. Stephen Tucciarone, No. 13-4214 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4214 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEPHEN TUCCIARONE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:05-cr-00085-JAG-1) Submitted: October 25, 2013 Decided: May 22, 2014 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Robert J. Wagner, Assistant Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Richmond, Virginia, for Appellant. Peter Sinclair Duffey, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stephen Tucciarone appeals the district court s judgment revoking his supervised release and sentencing him to thirty-six months imprisonment. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there questioning are whether no the meritorious district thirty-six month sentence. issues for erred by court appeal but imposing a We affirm. We will affirm a sentence imposed after revocation of supervised release if it is within the applicable statutory range and not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In determining whether a sentence is plainly unreasonable, we first decide whether the sentence is unreasonable[,] . . . follow[ing] generally the procedural and substantive considerations that we employ in our review of original sentences . . . . Id. at 438. But we take[] a more deferential appellate posture concerning issues of fact and the exercise of discretion review for guidelines sentences. F.3d 652, 656 (4th Cir. than reasonableness United States v. Moulden, 478 2007) (internal quotation marks omitted). A the revocation district court sentence properly is procedurally calculates the reasonable U.S. if Sentencing Guidelines Manual Chapter Seven advisory policy statement range 2 and explains policy the statements factors. sentence and adequately, applicable 18 after U.S.C. considering § 3553(a) the (2006) 18 U.S.C. § 3583(e) (2006); Crudup, 461 F.3d at 439. We recently held that the mere reference to [inapplicable § 3553(a) factors] does not render a revocation sentence procedurally unreasonable when those factors are relevant to, and considered in conjunction with, the enumerated § 3553(a) factors. 2013). United States v. Webb, 738 F.3d 638, 642 (4th Cir. A revocation sentence is substantively reasonable if the district court states a proper basis for the sentence imposed, up to the statutory maximum. Crudup, 461 F.3d at 440. Only if we find a sentence unreasonable must we decide if it is plainly so. Moulden, 478 F.3d at 657. Counsel does not claim that Tucciarone s sentence is procedurally unreasonable. Rather, counsel questions its substantive reasonableness, citing the district court s failure to appropriately characteristics weigh and . its . . Tucciarone s reliance on history factors, and including Tucciarone s lack of respect for the law and the seriousness of the offenses, that Crudup, 461 at factors of F.3d are 439 § 3553(a) not specified ( [N]ot can be revocation sentence. ). 3 all the considered in § 3583(e). original [in See sentencing imposing] a We are not persuaded. Our review of the record before us confirms that the district court was primarily motivated to impose Tucciarone s thirty-six month revocation sentence, which is above the policy statement range but within the statutory maximum, because Tucciarone breached the court s trust. A defendant s breach of trust is a perfectly appropriate basis and, in fact, the principal basis on which the encourage courts to ground revocation sentences. Guidelines United States v. Bennett, 698 F.3d 194, 202 (4th Cir. 2012), cert. denied, 133 S. Ct. 1506 (2013). Given the district court's broad discretion to revoke supervised release and impose a term of imprisonment up to the statutory maximum, we conclude that Tucciarone s revocation sentence is not substantively unreasonable. Crudup, 461 F.3d at 439. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Tucciarone, in writing, of the right to petition the Supreme Court of the United States for further review. If Tucciarone requests that a petition be filed, believes but counsel that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Tucciarone. 4 We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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