US v. Archie Darby, No. 14-4210 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4210 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARCHIE TERRACE DARBY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:10-cr-00150-PMD-2) Submitted: August 14, 2014 Before NIEMEYER Circuit Judge. and MOTZ, Decided: Circuit Judges, September 8, 2014 and DAVIS, Senior Affirmed by unpublished per curiam opinion. J. Robert Haley, Assistant Federal Public Defender, Charleston, South Carolina, for Appellant. William Nettles, United States Attorney, M. Rhett DeHart, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Archie Terrace Darby appeals the sentence imposed by the district court after the court revoked Darby s supervised release. twelve The month district range court varied determined upward pursuant from to the U.S. six to Sentencing Guidelines Manual §§ 7B1.1, 7B1.4 (2012), and imposed a sentence of twenty-four months supervised release. is procedurally of imprisonment, with no further On appeal, Darby argues that his sentence unreasonable because the district court considered impermissible factors in deciding to vary upward, and that his sentence is substantively unreasonable because it was not based on his breach of trust. We affirm. A district court has broad discretion when imposing a sentence upon revocation of supervised release. United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will affirm a sentence imposed after revocation of supervised release if it is within the plainly unreasonable. 437, 439-40 (4th applicable statutory maximum and not United States v. Crudup, 461 F.3d 433, Cir. 2006). In determining whether a revocation sentence is plainly unreasonable, we first assess the sentence for unreasonableness, follow[ing] generally the procedural and substantive considerations that [it] employ[s] in [its] review of original sentences. Id. at 438. When a district court has imposed a variant sentence, we consider the 2 reasonableness variance. 2007). of imposing a variance and the extent of the United States v. Tucker, 473 F.3d 556, 561 (4th Cir. Generally, if the reasons justifying the variance are tied to [18 U.S.C.] § 3553(a) and are plausible, the sentence will be deemed reasonable. Id. (internal quotation marks and citation omitted). In exercising its discretion the district court is guided by the Chapter Seven policy statements in the federal Guidelines manual, as well as the statutory factors applicable to revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e). Webb, 738 fashioning F.3d a at 641. revocation Chapter sentence, Seven the instructs court should that, in 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. Id. (quoting U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b) (2012)). In determining the length of a sentence imposed upon revocation of supervised release, 18 U.S.C. § 3583(e) requires a sentencing court to consider all but two of the factors listed in 18 U.S.C. § 3553(a). One of the excluded factors is the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A) (2012), Crudup, 461 F.3d at 439. 3 A supervised release revocation reasonable if district procedurally the sentence court is properly calculates the Guidelines Chapter 7 advisory policy statement range and explains the sentence adequately after considering the policy statements and the 18 U.S.C. § 3553(a) factors it is permitted to consider in a supervised release revocation case. 18 U.S.C. § 3583(e) (2012); United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010); Crudup, 461 F.3d at 439. sentence states is a substantively proper basis receive the sentence Crudup, 461 F.3d reasonable for concluding imposed, at if up 440. to Only the the the if a A revocation district defendant statutory sentence court should maximum. is found procedurally or substantively unreasonable will we then decide whether the sentence is plainly unreasonable. Id. at 439. A sentence is plainly unreasonable if it is clearly or obviously unreasonable. Id. Darby argues his sentence is procedurally unreasonable because the district court improperly considered that he had fathered seven supported enforcement those on children by four children, that Facebook and different he used women posted the post and threats to had not to law glorify gang affiliations, that he had been a bad example to his children, and the § 3553(a)(2)(A) factors. us to reject Darby s argument. Our review of the record leads Darby introduced the subject of 4 his children during his allocution as a reason for a lesser sentence. The district court s comments merely reflected its opinion that Darby s statements at the hearing were inconsistent with his actions § 3553(a)(2)(A) § 3583(e) prior to factors, enumerates that we the point. have With recognized factors a regard that district to the [a]lthough court should consider when formulating a revocation sentence, it does not expressly prohibit a court from factors omitted from the statute. long as a court does not referencing other relevant Webb, 738 F.3d at 641. base a revocation As sentence predominately on the § 3553(a)(2)(A) factors, mere reference to such considerations does not render a revocation sentence procedurally unreasonable when those factors are relevant to, and considered factors. in conjunction Id. at 642. with, the enumerated § 3553(a) The court did not err in this case, and Darby s sentence is not procedurally unreasonable. Darby next argues that his sentence is substantively unreasonable because it was not based on his breach of trust and failure rather to on follow his the conditions lifestyle decisions of supervised and This argument is belied by the record. new release, criminal but conduct. The court s explanation of its sentencing determination clearly reflects that the court was primarily addressing Darby s breach of trust as evidenced by his near complete disregard for the conditions of his supervised 5 release. The court s mention of Darby s lifestyle and criminal conduct were examples of how he had breached that trust and flaunted the conditions of supervised release. Finally, the district court s upward variance to a twenty-four month sentence was justified by the circumstances of Darby s case and more than adequately explained by the court. Darby s sentence is not substantively unreasonable. 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 6

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