US v. Andrew Wallace, No. 15-4094 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4094 UNITED STATES OF AMERICA, Appellee, v. ANDREW WALLACE, Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:10-cr-00152-AWA-TEM) Argued: September 23, 2016 Decided: December 5, 2016 Before DUNCAN, AGEE, and HARRIS, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Andrew Curtis Bosse, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Acting Federal Public Defender, Alexandria, Virginia, Richard J. Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, Darryl J. Mitchell, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After Andrew Wallace violated the terms of his supervised release, the district court revoked his release and sentenced him to Wallace the statutory challenges maximum the plainly unreasonable. 1 of sentence sixty on months’ the grounds imprisonment. that it is Finding no error, we affirm. I. In 1992, Wallace pleaded guilty to one count of being a felon in possession of a firearm, two counts of armed robbery, and one count of carrying a firearm during a crime of violence. The district court found him to be an armed career criminal and sentenced supervised him to 240 release. months The in terms prison, of his with three supervised years of release required Wallace to maintain a steady job, notify the probation officer of any change of residence, and report any instances in which he was arrested or questioned by law enforcement. Wallace was released from prison on November 9, 2009, and his supervised release began. On November 15, 2010, Wallace’s probation officer filed a petition to revoke his supervision after Wallace was arrested and charged with two counts of sodomy by force and one count of 1 On appeal, Wallace challenges only his sentence, not the revocation of his supervised release. 2 rape. At the time of his arrest, Wallace was living in his vehicle. A woman staying with Wallace in his vehicle accused him of the sexual assault. Upon Wallace’s arrest, a search of his vehicle yielded binoculars, heavy rope, a knit cap, gloves, and three knives, which were considered as burglary tools. In addition to the sexual assault crimes, the revocation petition charged Wallace with possession of a dangerous weapon (that is, the knives found in his vehicle) and failure to notify his probation officer that he was unemployed. The state court eventually dismissed the sodomy and rape charges. In proceeding, the the later district revocation court of determined supervised that the release dismissed charges and dangerous weapon allegations were not supported by probable cause. Because only the failure to notify of unemployment, a minor violation, remained, the district court dismissed the petition at the Government’s request. On September 10, 2012, the probation officer filed another petition to revoke Wallace’s supervised release. charged indecent Wallace with liberties committing and reckless two new driving. This petition criminal The offenses: revocation petition alleged that while Wallace was babysitting a ten-yearold girl, he walked into her bathroom while she was taking a bath, and the girl covered herself with a washcloth. Wallace requested that she remove the washcloth, and the girl refused. 3 When Wallace began to unzip his trousers, the girl screamed, and Wallace left. Local law enforcement arrested Wallace charged him with indecent liberties with a minor. 18, 2014, petition, the probation informing conditional guilty the plea office court and filed that was an convicted On November addendum Wallace in and had to entered state court its a of indecent liberties with a child. The state court sentenced him to three five years in prison, with years and two months suspended, and three years of supervised probation. On July 12, 2012, Wallace was convicted in state court of driving eighty-five miles per hour in a fifty-five-mile–per-hour zone. He was sentenced to 110 days’ imprisonment, with 105 days suspended, and two years’ probation. Although Wallace appealed that conviction, his appeal had been denied before the district court’s revocation hearing. The revocation petition also charged Wallace with failure to notify the probation officer of a change in residence. On June 18, 2012, Wallace informed his probation officer that he had been evicted from his apartment and was residing at a local rescue mission. On July 25th, local police informed the probation officer that Wallace had not been at the mission since July 7th. After being questioned by his probation officer, Wallace stated that he was living in his car and explained that 4 he did not report the change in residence since he did not have an actual address to report. Finally, the petition alleged that Wallace had failed to notify his probation officer of contact with law enforcement. On July 13th, police were dispatched to a transit center after receiving reports of a man offering women rides to their homes. The police made contact with Wallace, who had a woman in his vehicle. The frightened, officers positioning between her and Wallace. reported herself that so that the the woman appeared officers were Although Wallace denied offering rides to women, the woman indicated that he was in fact attempting to do so and that Wallace claimed he had given rides to other women. Wallace claimed that he did not know he needed to notify the probation office of this contact with police, although he was later banned from the transit center for his inappropriate conduct. At the revocation hearing, Wallace admitted all the allegations other than the indecent liberties charge, since it was on appeal. 2 The district court found Wallace in violation of the conditions of his supervised release and noted that, for 2 Wallace’s appeal, in which he only alleged his right to a speedy trial was violated, has since been denied by both the Court of Appeals of Virginia and the Supreme Court of Virginia. See Wallace v. Commonwealth, 774 S.E.2d 482 (Va. Ct. App. 2015), aff’d, No. 151296, 2016 WL 3135485 (Va. June 2, 2016). 5 purposes of the United States Sentencing Commission’s (“USSC”) guidelines, his criminal history warranted a category of six, and his most conviction, statement serious was range incarceration. a violation, grade of In A violation, fifty-one making the a to indecent garnering sixty-three sentencing liberties a policy months of recommendation, the Government discussed the prior dismissed petition, emphasizing the “very serious” charges of rape and forcible sodomy. 41. The Government then moved on to the “very serious” and “very disturbing” indecent liberties conviction, terming state court’s sentence for this charge “a disgrace.” 42. J.A. the J.A. 41- This pattern of dangerous behavior led the Government to request a sentence of at least forty-eight months. Wallace liberties disputed conviction the as a categorization grade A of violation, the and indecent the court ordered the parties to submit briefs on the issue and adjourned the hearing. The parties later stipulated that the indecent liberties conviction was indeed a grade B violation, reducing the policy statement range to twenty-one to twenty-seven months. At the reconvened revocation hearing, the Government again asked the court to consider the safety of the public and impose a sentence above the policy statement range. Wallace informed the court that he had obtained a civil judgment of $300,000 against his accuser on the dismissed rape and sodomy charges. 6 He explained that the only reason he pleaded guilty to the indecent liberties charge is that he had been in jail for almost two years at that point and essentially received a time-served sentence. Wallace suggested that the state-supervised probation rendered further federal supervision unnecessary. Finally, he requested the court to impose a sentence between six and eight months, well below the USSC’s policy statement range. In announcing its decision, the district court discussed the sentencing factors found in 18 U.S.C. § 3553(a), stating, “Deterrence is a factor. treatment sentencing is a The public is a factor. factor.” report J.A. completed for 64. The Wallace’s court Correctional reviewed robbery and the weapon convictions, noting his criminal record and family history. The court briefly touched on his arrest for rape and sodomy and discussed the knives and burglary tools discovered by the police in their search of Wallace’s vehicle. The court went on to recognize that the state dismissed the rape and sodomy charges and Wallace had obtained a civil judgment against the accuser. The district court also took into consideration Wallace’s reckless driving conviction and failure to inform the probation office about his change in residence and the incident of harassment at the transit center from which he had been banned. After this fairly extensive discussion of violations of his supervised release, the court stated: 7 Wallace’s So it is creepy. So I hope you’re sincere in your desire to get treatment. I’ll say that first. I’m looking at the 3553(a) statutory factors. 21 to 27 months is not sufficient, in the Court’s view, and, you know, the statutory max is 60. In light of your criminal history category of six, the violent charges that you [pleaded guilty to in 1992], and then you’ve been under our supervision, but you’ve got these flags which concern the Court. So I’m looking at specific deterrence as it pertains to you and protecting the public. Then I do agree with [defense counsel] that you do not need any more federal supervision in light of all the supervision that you’re going to be getting via the state. So all that being said, I’m going to sentence you to 60 months. You will be remanded to the custody of the marshals. Then you will have no more federal supervised release once you do that. And then we just hope that you get well and hope you don’t commit any other offenses that cause you to be returned back in a jumper or handcuffs or a cage for the rest of your days. J.A. 68-69. jurisdiction Wallace over this filed appeal a timely under 28 appeal. U.S.C. We § 1291 have and 18 “unless it U.S.C. § 3742(a). II. The falls Court outside the unreasonable.” 2015). 3 Cir. will 4 uphold a statutory revocation maximum or sentence is otherwise plainly United States v. Padgett, 788 F.3d 370, 373 (4th We first determine 3 whether the sentence is We have omitted internal quotation marks, alterations, and citations here and throughout this opinion, unless otherwise noted. 8 procedurally and substantively reasonable. United States v. Wynn, 786 F.3d 339, 341 (4th Cir. 2015); see also United States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012) (instructing that this analysis should follow the directions provided in Gall v. United States, 552 U.S. 38 (2007)). unreasonable if the district A sentence is procedurally court failed to explain its sentence, neglected to consider the USSC’s suggested sentencing range or the § 3553(a) sentencing factors when determining the sentence, or contemplated an improper § 3553(a) factor. Gall, 552 U.S. at 51; Bennett, 698 F.3d at 200. for substantive reasonableness, the Court See In reviewing must “take into account the totality of the circumstances, including the extent of any variance from the [policy statement] range.” U.S. at 51. Gall, 552 If we find that the sentence is reasonable, the analysis ends there. Wynn, 786 F.3d at 341. If the sentence is unreasonable, the Court then determines whether it is plainly unreasonable, that is, whether it “run[s] afoul of clearly settled law.” United States v. Thompson, 595 F.3d 544, 548 (4th Cir. 2010). 4 The parties dispute whether we should review the sentence under the “plain error” standard. Because the Court finds that the sentence is proper under the more defendant-friendly “plainly unreasonable” standard, it is unnecessary to determine whether the “plain error” standard applies. 9 We are imposition sentence. even of a more deferential revocation to sentence the than district with the court’s original A district court is given “broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum.” United States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006); see also United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (stating that our reasonableness “inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences”). The USSC’s suggested non-binding “policy sentencing statement” range rather for than revocation a is a “guideline.” See U.S. Sentencing Guidelines Manual § 7B1.4; Thompson, 595 F.3d at 54647; see also Moulden, 478 F.3d at 655. The district court has “greater flexibility in imposing a sentence for . . . supervised release violations than a guideline would allow.” Moulden, 478 F.3d at 655. III. Wallace argues that the sentence is procedurally unreasonable because the district court impermissibly considered a § 3553(a) factor not included in § 3583(e) and it failed to provide an adequate explanation when imposing the sentence. address each contention in turn. 10 We A. 18 U.S.C. § 3583 instructs that the district court must consider certain sentence upon include the criminal factors defendant’s of and the in § 3553(a) supervised revoking offense, protection found release. criminal the history, need among public, for prohibit[ed] . . . from omitted from the statute.” 641 (4th Cir. 2013). § 3553(a)(2)(A) are imposing factors nature of the deterrence specific and Compare 18 “reference referencing other relevant factors United States v. Webb, 738 F.3d 638, For example, intertwined to U.S.C. A court is not “expressly with “the the factors listed factors the in courts § 3553(a)(2)(A) are Id. expressly authorized to consider under § 3583(e).” mere a These the others. § 3583(e), with 18 U.S.C. § 3553(a). when The sentencing considerations, without more, [does not] automatically render a revocation sentence unreasonable.” district court “impose[s] a Id. at 642. revocation Only when a sentence based predominately on the seriousness of the releasee’s violation or the need for the sentence to promote respect for the law and provide just punishment” will the sentence is procedurally unreasonable. Wallace took the calculating maintains seriousness his that of sentence. the the He 11 Court conclude that the Id. district court violations points to into the impermissibly account in Government’s extensive discussion of the indecent liberties conviction, its characterization of the offense as “very serious,” description of the state sentence as “a disgrace.” and its Wallace also takes issue with the Government dwelling on the dismissed rape and sodomy charges and the district court’s reference to those charges at the sentencing hearing. the district court’s Finally, Wallace challenges consideration of the transit center incident, for which Wallace was never arrested or charged, and the court calling Wallace’s actions “creepy.” Wallace’s arguments are unavailing. The bulk of his contentions regarding the indecent liberties conviction and the dismissed rape and sodomy charges revolve around assertions the Government made to the district court instead of the court’s own statements. It is unclear how Wallace expects to impute the Government’s averments to the district court’s reasoning, but we are not willing to take the speculative leap required to make that inference. The district court clearly stated that a statutory maximum sentence was warranted for specific deterrence and public protection, two § 3553(a) factors it was permitted to consider. The court did not mention the word “serious” other than to state that it found Wallace “guilty of the serious violation” (in comparison to the other violations) of indecent liberties for the purposes of the sentencing hearing. 12 J.A. 45. Nor is it error that the court described the dismissed rape and sodomy charges in discussing Wallace’s history. The district court certainly had the authority to acknowledge the events occurring between the beginning of Wallace’s supervised release and the sentencing dismissed petition. police tools,” court found hearing, and other to the probation permitted was to determination. those in the In addition to the dismissed charges, the knives according including items factor constituting office, this and into “burglary the its district sentencing There is no indication that the court based its decision on the “seriousness” of the dismissed rape and sodomy charges or considered sentencing decision. them as a factor in arriving at its In any event, the district court cured any possible error when it expressly recognized that the charges were dropped and that Wallace had obtained a civil judgment against the accuser. Similarly, the district court did not impermissibly consider the transit center event as the violation for failure to inform the probation officer of contact with police. appropriate for the district surrounding that violation. to tie the “creepy” court to recount the It was details Furthermore, although Wallace tries comment to the court’s transit center discussion, it is clear from the comment’s position immediately 13 after the court’s recognition of the indecent liberties conviction that it referred to Wallace’s conduct as a whole. B. The district court is required to “adequately explain” its sentencing determination, regardless of whether it adopts the USSC’s suggested departure. sentence or makes Thompson, 595 F.3d at 547. an upward or downward “A court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence, but it still must provide a statement of reasons for the sentence imposed.” Id. The district court is not obligated to “robotically tick through § 3553(a)’s every subsection.” 657. Moulden, 478 F.3d at The explanation need only be sufficient enough to allow us to “effectively review the reasonableness of the sentence” and assure us “that the sentencing court considered the § 3553(a) factors with regard to the particular defendant before [it].” Id. Wallace argues that the district court’s explanation for the statutory contends that maximum the sentence district was court insufficient. erred when it He also failed to consider a sentence somewhere between the policy statement range and the statutory maximum. While the district court’s sentencing explanation tenuously close to being insufficient, we find it adequate. 14 edges The court explicitly considered the USSC’s policy statement range as required. Then, circumstances after a surrounding expressed concern about Wallace’s criminal detailed the account charged the The all violations, violations history. of in of the court conjunction district court the with sentenced Wallace to the statutory maximum based on the § 3553(a) factors of specific deterrence and public protection. the district court met the low bar of While succinct, reasonableness applies to revocation of supervised release. that The brevity of the district court’s analysis, although not ideal, does not require vacation and remand for resentencing. Our holding Thompson. remanded is There, for a not new the inconsistent Court vacated sentencing with the Thompson’s proceeding after decision sentence the and district court sentenced him to the policy statement maximum term. Thompson, 595 F.3d at 546. in See The district court had not applied the § 3553(a) factors and only discussed “Thompson’s history, conduct, and characteristics” after announcing that sentence and in the context of whether he should be allowed to self-report to prison. Id. We held that the district court erred because it did not “giv[e] any indication of its reasons” for its sentence. 15 Id. at 547. That is not the case here, where the district court provided sufficient, albeit brief, support for its decision. 5 IV. For the foregoing reasons, the order of the district court is AFFIRMED. 5 Had this been an appeal from an initial sentence, we would perhaps be inclined to decide differently. However, in view of the higher deference afforded to the district court in revocation proceedings, and that the court’s sentencing statements were well in excess of the deficiency found in Thompson, we conclude that the district court explained its decision sufficiently. 16

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