US v. Joseph Eller, No. 14-4129 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4129 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH DERRICK ELLER, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:05-cr-00006-RLV-CH-2) Submitted: September 23, 2014 Before NIEMEYER and Senior Circuit Judge. GREGORY, Decided: Circuit September 25, 2014 Judges, and HAMILTON, Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joseph sentence Derrick imposed upon release. On appeal, Eller appeals revocation Eller of argues the thirty-seven his term that of the month supervised district court imposed a plainly unreasonable sentence because the court should have ordered that he undergo substance abuse treatment rather than imposing a term of incarceration. We affirm. A district court has broad discretion when imposing a sentence upon revocation of supervised release. States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). United Accordingly, in examining a sentence imposed upon revocation of supervised release, we take[] 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 marks omitted). that falls within the We will affirm a revocation sentence statutory maximum, sentence to be plainly unreasonable. 461 F.3d 433, 437 (4th Cir. 2006). sentence, we first consider unless we find the United States v. Crudup, In reviewing a revocation whether the sentence is unreasonable, following the same general principles we apply to our review of original sentences. Id. at 438. Only if we find a sentence to be procedurally or substantively unreasonable will we determine whether the sentence is plainly so. 2 Id. at 439. A revocation sentence is procedurally reasonable if the district court has considered both the applicable 18 U.S.C. ยง 3553(a) (2012) factors and the policy statements contained in Chapter Seven of the United States Sentencing Guidelines Manual. Crudup, 461 F.3d at 439. The district court also must provide an explanation of its chosen sentence, although this explanation need not be as detailed or specific as is required for an original sentence. (4th Cir. 2010). reasonable if concluding that imposed. United States v. Thompson, 595 F.3d 544, 547 A the revocation district the court defendant sentence states should a is substantively proper receive basis the for sentence Crudup, 461 F.3d at 440. We cannot conclude that Eller s revocation sentence is unreasonable, much less plainly so. reveals that Eller failed to take Our review of the record advantage of the multiple treatment opportunities provided to him and, ultimately, unable to refrain from using methamphetamine. was Although Eller requested that the court recommend treatment and continue him on supervision, * the court was not required to select treatment over incarceration, particularly in light of Eller s history of failed efforts to achieve sobriety. * We reject the Government s argument that Eller waived his right to argue on appeal that an active term of imprisonment is plainly unreasonable. 3 More importantly, however, Eller breached the court s trust. the Eller continued to use drugs and break the law despite many times the court granted Eller leniency. Thus, we conclude that it was not plainly unreasonable for the court to impose a term of incarceration to sanction [Eller] for failing to abide by the conditions of the court-ordered supervision, and to punish the behavior. inherent breach of trust indicated by [his] Moulden, 478 F.3d at 655 (internal quotation marks omitted). 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 4
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