US v. Kevin Covington, No. 13-4851 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4851 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN COVINGTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., District Judge. (3:11-cr-00148-JAG-1) Submitted: April 4, 2014 Decided: April 16, 2014 Before KING, AGEE, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Mary E. Maguire, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Michael C. Moore, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kevin Covington appeals the district court s order revoking his supervised release and imposing a twenty-four-month sentence. Tapia Covington asserts that the district court violated v. United States, 131 S. Ct. 2382 (2011), when it allegedly imposed the statutory maximum sentence to allow him to receive substance abuse rehabilitation services, and that his sentence is plainly unreasonable in light of his seven-to- thirteen-month sentencing range and the parties request that he be sentenced within that range. Finding no reversible error, we affirm. In reviewing a sentence imposed after revocation of supervised release, this court 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 supervised release unreasonable. Cir. 2010). Cir. omitted). revocation Thus, sentence if we it will is not affirm a plainly United States v. Thompson, 595 F.3d 544, 546 (4th The first step is to determine whether the sentence is unreasonable. (4th marks 2006). substantively United States v. Crudup, 461 F.3d 433, 438 Only unreasonable if the will 2 sentence the is inquiry procedurally proceed to or the second step, which plainly unreasonable. is to determine whether the sentence is Id. at 439. A sentence is procedurally reasonable if the district court has considered the policy statements contained in Chapter Seven of the Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a) (2012) factors, Crudup, 461 F.3d adequately explained the chosen sentence. 547. at 440, and has Thompson, 595 F.3d at When reviewing a sentence above the sentencing range, we may consider the extent of the deviation, but must give due deference to the district court s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. v. United States, 552 U.S. 38, 51 (2007). Gall The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties arguments and has a reasoned basis for exercising his own legal decisionmaking authority. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal brackets and quotation marks omitted). Although the Carter rationale applies to revocation hearings, [a] court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing Thompson, 595 F.3d at reasoning may be clear 547 a post-conviction (noting from that context a and sentence[.] district that the court s court s statements throughout the sentencing hearing may be considered). 3 A sentence is substantively reasonable if the district court states a proper basis for its imposition of a sentence up to the statutory maximum. however, the district Crudup, 461 F.3d at 440. court has broad Ultimately, discretion to revoke supervised release and impose a sentence up to that maximum. Moulden, 478 F.3d at 657. We conclude that Covington s sentence is not unreasonable. court correctly twenty-four-month To the contrary, the district calculated the policy statement range, adequately explained its sentence, appropriately relied on the relevant statutory factors, and sentenced Covington statutory maximum applicable to his offense. Covington s sentence, the district to the When it explained court discussed the seriousness of his offense, particularly Covington s breach of trust, which is consistent with the principle that the breach of trust inherent in a supervised release violation should be the sentencing court s primary consideration. 437. Crudup, 461 F.3d at The district court then went on to discuss Covington s poor performance on supervision and his high risk of recidivism. During this Covington s discussion, need for drug the district treatment, but court acknowledged specifically stated that it was not considering that need in setting the length of imprisonment. 4 Admittedly, during its the sentence district court did eventually that it wanted pronouncement state Covington clean of drugs for as long as possible[,] which was followed by its admonition that the longer you have an opportunity to go to NA, the better you will be. Tapia objection to the Because Covington raised a district court s explanation for his sentence, however, he afforded the district court an opportunity to cure any possible Tapia error. Notably, when Covington s counsel the objected improperly relying twenty-four-month and on argued his sentence, that need the for district treatment district court to court was justify the clarified that the reasons for the sentence imposed were punishment for his breach of trust, deterrence, and Covington s risk of recidivism. Thus, viewed in their entirety, the district court s comments make clear that its sentencing decision was based on permissible factors, and at worst, its comments regarding Covington s need for drug treatment Accordingly, reviewing were any quickly error corrected by the mis-statements. district court for harmlessness, see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010), we find that even if the district court committed error when it referred during sentencing to Covington s need for drug treatment, the record establishes that the district court would have reached the same result even if it had decided the . . . issue the other way. See United States v. Montes-Flores, 5 736 F.3d 357, 370 (4th Cir. 2013) (internal quotation marks omitted). This conclusion is reinforced by the district court s written sentencing order, which, like the bulk of its comments at the hearing, addresses Covington s breach of trust, his history and characteristics, and the need to afford adequate deterrence. Although the oral pronouncement of sentence controls, United States v. Doswell, 670 F.3d 526, 531 n.3 (4th Cir. 2012), we are obliged to accord substantial deference to a district court s interpretation of its own judgment. United States v. Mann, 709 F.3d 301, 305 (4th Cir. 2013) (internal quotation marks, alterations and citation omitted). the extent sentencing the record judge s is reasonable unclear, we must understanding of Thus, to defer the to the record and particularly his interpretation of his own earlier findings. Id. at 306 (emphasis omitted); see United States v. Naramor, 726 F.3d 1160, 1171 (10th Cir. 2013) ( We, like our fellow circuits, recognize the importance of Tapia s instruction but we certainly are not looking for stray remarks and technical errors to set aside sentencing compliant. ). decisions that were certainly Tapia Because the record makes clear that the district court did not impose the twenty-four-month sentence to allow Covington an opportunity to obtain rehabilitation in prison, and since it establishes that the district court would have imposed 6 the same sentence upon Covington even if it had not considered his need for drug treatment, we discern no reversible procedural error in Covington s sentence. We also discern no error in Covington s sentence based on the district court s alleged failure to give sufficient weight to his policy statement range and explain why it rejected the parties arguments for a sentence within that range. contrary, the record establishes that the To the district court explicitly recognized on two separate occasions that the first thing it was Covington s to consider sentencing before range, seven-to-thirteen months. which imposing it sentence correctly noted was was The record also establishes that the district court was fully engaged at Covington s sentencing and that although particular it listened sentence and to counsel s Covington s plea arguments for for leniency, a it believed that under the relevant statutory factors, a statutory maximum sentence was appropriate. In fact, although the district court afforded Covington an opportunity to plea for leniency based on his desire to stop using narcotics, the district court made clear that if Covington truly wanted to get himself clean, he would need to obtain counseling outside of prison because, as the parties requested during their argument for a lesser sentence, it was not going to impose a supervised release term after his sentence was complete. 7 Although the district court imposed a sentence above the advisory policy statement range, the district court noted that it was doing so because Covington breached the court s trust, he showed a lack of responsibility while on supervised release, there was a need to deter Covington and others from criminal crimes, conduct and vocational to and to provide training protect Covington or other the public with from needed correctional Covington s educational treatment. or And although the district court entertained Covington s request for leniency, as well as the Government s request for a within- Guidelines sentence, it is clear the district court found that other factors mandated a higher sentence. district court s substantive which was error the rationale in the statutory was justified imposition maximum We find that the of and discern Covington s applicable to his Crudup, 461 F.3d at 440; Moulden, 478 F.3d at 658. no sentence, offense. Having discerned no procedural or substantive error in the district court s imposition of a twenty-four-month sentence, it necessarily follows that [Covington s] sentence is not plainly unreasonable. Crudup, 461 F.3d at 440. Based on the foregoing, we affirm the district court s order. legal We dispense with oral argument because the facts and contentions are adequately 8 presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 9
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