US v. Krystal Sisler, No. 16-4519 (4th Cir. 2017)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4519 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KRYSTAL EILEEN SISLER, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, District Judge. (2:14-cr-00020-JPB-MJA-4) Submitted: January 26, 2017 Decided: March 1, 2017 Before WILKINSON and NIEMEYER, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. L. Richard Walker, Senior Litigator, Clarksburg, West Virginia, Kristen Leddy, Research and Writing Specialist, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Stephen D. Warner, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Krystal Eileen Sisler appeals the district court’s judgment sentencing her to 37 months’ imprisonment following revocation of her probation. On appeal, Sisler contends that her sentence is plainly unreasonable. We affirm. Upon revoking a defendant’s probation, a district court has broad discretion maximum. 2007). to impose a sentence up to the statutory United States v. Moulden, 478 F.3d 652, 657 (4th Cir. We apply the same standard for reviewing a sentence imposed on revocation of probation that we employ for reviewing a sentence imposed on revocation of supervised release. 655. Id. at We will affirm a revocation sentence if it is within the statutory maximum and is not “plainly unreasonable.” Id. at 656. plainly To determine whether first a revocation assess sentence whether the is unreasonable, we sentence is unreasonable. United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). Reasonableness review substantive components. involves both procedural and In conducting this review, we “take[] a more deferential appellate posture concerning issues of fact and the exercise guidelines of discretion sentences.” Moulden, quotation marks omitted). procedurally reasonable than if reasonableness 478 F.3d at review 656 for (internal A probation revocation sentence is the 2 district court considers the Sentencing Guidelines’ Chapter Seven advisory policy statement range and explains the sentence adequately after considering the policy statements and the 18 U.S.C. § 3553(a) (2012) sentencing factors. Moulden, 478 F.3d at 656-57; see 18 U.S.C. § 3565(a) (2012). It is substantively reasonable if the district court states a receive proper the basis sentence for concluding imposed, up to the the defendant statutory should maximum. Crudup, 461 F.3d at 440; see also United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (sentencing explanation in revocation context “need not be as detailed or specific” as is required for an original sentence). Only if a sentence is found procedurally or substantively unreasonable will this court “then decide whether the sentence is plainly unreasonable.” Crudup, 461 F.3d at 439. The revocation statutes make clear that courts “shall consider” the “applicable guidelines or policy statements issued by the U.S.C. Sentencing § original Commission” 3553(a)(4)(B); sentence in Moulden, reflected a rendering 478 F.3d downward a at sentence. 656. departure 18 Sisler’s from the original 30- to 37-month Guidelines range to an 18- to 24-month Guidelines range probation. that a subsequent downward variance to At the revocation hearing, defense counsel noted Sisler original and had downward no criminal departure history Guidelines 3 points, range mentioned was 18 to her 24 months, and stated that her Chapter 7 policy statement range was 3 to 9 months. Describing Sisler as a nonviolent, first-time drug offender, defense counsel argued that a sentence within or above the original unnecessary. Guidelines range would be excessive and Counsel requested a sentence of imprisonment only long enough for Sisler to gain admittance to a residential drug treatment facility. The Government argued for the same sentence it sought at the original sentencing: 18 months’ imprisonment, the low end of Sisler’s downward departure Guidelines range. In announcing Sisler’s 37-month sentence, the district court explained that it “varied upward” from what either party requested to calculated term before acknowledging district a court the the within the downward sentences demonstrated original departure requested that it Guidelines and by range variance. each considered party, the By the parties’ arguments, which included discussions of the applicable policy statements and advisory Guidelines. Cf. United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (determining that revocation sentence mentioning was procedurally advisory policy reasonable statement when, range, although court not referenced range specified in probation officer’s worksheet and counsel’s argument, thus demonstrating that policy statement range). 4 the court contemplated the Sisler also contends that the court failed to explain its consideration of the § 3553(a) sentencing factors. Although the district court did not specifically mention 18 U.S.C. § 3553(a) in imposing the sentence, it was not required to “robotically tick through § 3553(a)’s every subsection.” United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). We conclude that the district court’s explanation reflected that it evaluated the proper § 3553(a) factors relevant to Sisler, namely the nature and circumstances conditions of her 3565(a). The of Sisler’s probation. court’s conduct that See that remarks 18 Sisler violated U.S.C. the §§ 3553(a)(1), was unwilling or unable to follow the protocol of probation demonstrate that it considered Sisler’s the need breach of for the the revocation court’s trust. sentence See to U.S. sanction Sentencing Guidelines Manual USSG ch. 7, pt. A, introductory cmt. 3(b), p.s. (2014) (“[A]t revocation the [district] court should sanction primarily the defendant’s breach of trust.”). Lastly, Sisler takes issue with the district court’s conclusion that her conduct presented a danger to herself and to others, claiming that this amounted to clearly erroneous fact finding. Our review of the record on appeal leads us to conclude that the district court’s findings are supported by the record. 5 Because Sisler’s revocation sentence is not procedurally or substantively unreasonable, it is not plainly unreasonable. Accordingly, we affirm the criminal judgment. We dispense with oral contentions argument adequately because presented in the the facts and materials legal before this court are and argument would not aid the decisional process. AFFIRMED 6

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