United States v. Robert Dowling ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-1745
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UNITED STATES OF AMERICA
v.
ROBERT DOWLING,
Appellant
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On Appeal from the District Court
of the Virgin Islands, Division of St. Croix
(D.C. No. 1-05-cr-00031-001)
District Judge: Honorable Wilma A. Lewis
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Submitted Pursuant to LAR 34.1(a)
December 13, 2019
Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges
(Opinion filed: September 22, 2020)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge
Robert Dowling appeals the sentence imposed following revocation of his
supervised release. He claims the sentence of an additional year of incarceration and
especially the five years of supervised release is unduly punitive. However, as we cannot
substitute our judgment for the district court’s, we must affirm.
Dowling claims the sentence that was imposed upon the revocation was both
procedurally and substantively erroneous. Our review of both claims is for an abuse of
discretion. This is a “highly deferential” review1 and a defendant alleging “substantive
unreasonableness carries a heavy burden.”2 Dowling is not alleging that the district court
failed to consider the § 3553(a) factors. Rather, he claims the court did not apply them
properly.3 Specifically, Dowling claims the district court did not factor in Dowling’s age
or his overall conduct since release from incarceration, including his compliance with all
other terms of his release.4
We must affirm the district court unless “no reasonable sentencing court would
have imposed the same sentence on that particular defendant for the reasons the district
court provided.”5 Given its consideration of the 3553(a) factors and the district court’s
focus on Dowling’s history and general deterrence, we cannot conclude that no
reasonable court could have imposed this sentence.
1
United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007).
2
United States v. Clarke, 726 F.3d 496, 500 (3d Cir. 2013).
3
Appellant Br. at 22.
4
Id.5
United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
2
We appreciate Dowling’s argument that supervised release is intended to facilitate
rehabilitation and transition from prison back to the community; not to inflict additional
punishment.6 We therefore understand his concern that the court appeared to focus on
punishment and Dowling’s need to reflect on his actions.7 Moreover, we note that the
U.S. Sentencing Commission has found that the likelihood of recidivism decreases over
time.
However, it is not for us to substitute our judgment for that of the district court.
The district court did not commit procedural error in imposing this sentence, and
Dowling’s claim is not to the contrary. Since we find no substantive error, we will affirm
the judgment of sentence that the court imposed.
6
See United States v. Johnson, 529 U.S. 53, 59 (2000) (“Congress intended supervised
release to assist individuals in their transition to community life. Supervised release
fulfills rehabilitative ends, distinct from those served by incarceration.”).
7
App. at 86–91. This is especially concerning considering technical violations, like
failing a drug test, are a major contributor to revocation. See U.S. SENTENCING COMM’N,
FEDERAL OFFENDERS SENTENCED TO SUPERVISED RELEASE 68 (2010). Rearrest rates for
recidivism (including technical violations) decrease over time with 16.6% of offenders in
the Sentencing Commissions study facing their first rearrest within one year and only
3.7% after five years. See U.S. SENTENCING COMM’N, RECIDIVISM AMONG FEDERAL
OFFENDERS: A COMPREHENSIVE OVERVIEW 16 (2016).
3