United States v. Bolden ( 2023 )

Case: 22-40839 Document: 00516820903 Page: 1 Date Filed: 07/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 14, 2023
No. 22-40839
Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Bradley Jeremiah Bolden,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:21-CR-614-1
______________________________
Before Haynes and Engelhardt, Circuit Judges, and deGravelles,
District Judge.1
Per Curiam:*
Appellant Bradley Jeremiah Bolden (“Bolden”) appeals the district
court’s revocation sentence. For the reasons explained below, we AFFIRM
the district court’s sentence.
_____________________
1
United States District Judge for the Middle District of Louisiana, sitting by
designation.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5. Judge
Haynes concurs in the judgment only.
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No. 22-40839
I. Background
In 2021, Bolden pleaded guilty to conspiracy to transport and move
within the United States an alien who had come to, entered, and remained in
the United States in violation of law. Bolden was sentenced to five months of
imprisonment, to be followed by three years of supervised release. Bolden did
not appeal his conviction or sentence. He began serving his supervised
release on August 6, 2021.
In October 2021, the probation officer filed a report indicating that
Bolden submitted a urine sample that tested positive for marijuana. The
probation officer recommended that Bolden continue on supervised release,
as she warned Bolden that further noncompliance could result in revocation
proceedings and the district court could address the violation at a later date.
The district court concurred with the probation officer’s recommendation.
In July 2022, Bolden’s new probation officer submitted a petition for
a warrant or summons, alleging that Bolden violated the terms of his
supervised release. The probation officer recommended that his supervised
release be revoked. The district court ordered the issuance of a warrant and
no bond. Bolden was arrested on November 1, 2022.
In December 2022, the probation officer submitted a superseding
petition for warrant or summons and recommended that Bolden’s supervised
release be revoked. The superseding petition alleged that Bolden violated the
terms of his supervised release by (1) testing positive for marijuana; (2) failing
“to submit to urine surveillance”; (3) failing to participate in drug and
alcohol treatment, as directed, by failing to submit to drug tests; (4) failing to
participate in mental health treatment, as directed; (5) failing to contact his
assigned probation officer as instructed; (6) failing to report to the U.S.
Probation Office as instructed by his probation officer; (7) failing to notify his
probation officer prior to his change in employment; (8) “leaving the judicial
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district without permission”; (9) failing to notify his probation officer within
72 hours of arrest; and (10) failing to pay the $100 special assessment.
At the revocation hearing, Bolden pleaded true to leaving the judicial
district without permission (allegation 8) and failing to make any payments
towards the $100 special assessment (allegation 10). The Government
moved to dismiss the remaining 8 allegations. The Government argued that
an upward variance “well above the recommended [guidelines] range” was
appropriate. It argued that Bolden engaged in “countless supervised release
violations.” It maintained that his supervised release violations were “well
outside the norm” because of his “ongoing conduct from the time of his
release” and “in particular, his vulgar and just plain rude behavior toward
the Probation Officer.” The Government pointed out that Bolden’s original
sentence was “quite low[,]” as he received a below-guidelines sentence of
only five months. It argued that Bolden had “yet to receive a sentence which
has effectively taught him respect for the law.”
In response, Bolden, through counsel, asked for a sentence of time
served with the termination of supervised release so that he could “get back
to his family and save his business.” He noted that he had been detained
almost two months. In the alternative, Bolden asked that his term of
supervised release term “continue until it was originally set to expire.” He
emphasized his lack of criminal history and noted that he is not one “well
versed in navigating” supervised release requirements. Bolden also
highlighted that his supervised release violations were technical in nature.
The district court stated that it reviewed Bolden’s file carefully, as
well as the letters from Bolden’s family and friends. The district court
expressed that it “[did]n’t quite get it[,]” noting that Bolden was 29 years
old, knew what he needed to be doing, “[b]ut for whatever reason, [he]
decided that [he] just [was]n’t going to do it.” The district court highlighted
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that Bolden was convicted of “a very serious offense” that had
consequences, including compliance with the conditions of supervised
release. The district court told Bolden that he needed to comply with the
imposed conditions of supervised release, as they were part of his sentence.
The district court stated that “a sentence at the top end of the
Guideline [wa]s warranted in this case due to the characteristics of the
Defendant and to promote respect for the law.” It sentenced Bolden at the
high-end of the guidelines range, to nine months of imprisonment, to be
followed by 27 months of supervised release. The district court noted that
the revocation sentence “addresse[d] the sentencing objectives in
accordance with 18 U.S.C. § 3553(a).” Bolden objected to the district
“[c]ourt’s consideration of the need to promote respect for the law in
evaluating his sentence under 18 U.S.C. 3583(c).” Bolden’s attorney
explained that “[t]he need to promote respect for the law is not one of the
factors to be considered in deciding supervised release terms[,]” stating that
he “just note[d] that for the record.” In response, the district court stated
“[g]reat” and moved on. Bolden timely filed a notice of appeal.
II. Legal Standard
We review a sentence imposed on revocation of supervised release
under a “plainly unreasonable” standard, in a two-step process. United States
v. Warren, 720 F.3d 321, 326 (5th Cir. 2013). First, we “ensure that the
district court committed no significant procedural error, such as failing to
consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence,
including failing to explain a deviation from the Guidelines range.” United
States v. Kippers, 685 F.3d 491, 497 (5th Cir.2012) (internal quotation marks
omitted). “If the district court’s sentencing decision lacks procedural error,
this court next considers the substantive reasonableness of the sentence
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imposed.” Id. If we find the sentence unreasonable, we may reverse the
district court only if we further determine “the error was obvious under
existing law.” United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
Where, as here, the appellant argues that the district court’s consideration of
an improper factor in crafting a revocation sentence is both a procedural and
substantive error, this court need not distinguish between the two in its
analysis. See United States v. Sanchez, 900 F.3d 678, 683 (5th Cir. 2018). “[A]
sentencing error occurs when an impermissible consideration is a dominant
factor in the court’s revocation sentence, but not when it is merely a
secondary concern or an additional justification for the sentence.” United
States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015) (citing United States v.
Walker, 742 F.3d 614, 616 (5th Cir.2014)).
III. Discussion
Bolden argues that his sentence is procedurally and substantively
unreasonable because the district court considered the need to promote
respect for the law in determining its sentence. However, the supervised
release hearing transcript makes plain that the district court was primarily
focused on other factors, namely, Bolden’s many alleged violations of his
supervised release including (1) testing positive for marijuana; (2) failing “to
submit to urine surveillance”; (3) failing to participate in drug and alcohol
treatment, as directed, by failing to submit to drug tests; (4) failing to
participate in mental health treatment, as directed; (5) failing to contact his
assigned probation officer as instructed; (6) failing to report to the U.S.
Probation Office as instructed by his probation officer; (7) failing to notify his
probation officer prior to his change in employment; (8) “leaving the judicial
district without permission”; (9) failing to notify his probation officer within
72 hours of arrest; and (10) failing to pay the $100 special assessment; as well
as his rude behavior towards his probation officer. Read in context, “respect
for the law” was “an additional justification” for Bolden’s sentence, not a
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“dominant factor.” Rivera, 784 F.3d at 1017. The court’s statement
demonstrates that the court was primarily frustrated with Bolden’s pattern
of noncompliance with the terms of his supervised release and chose the
sentence to afford adequate deterrence and sanction Bolden for his breach of
the court’s trust. These are permissible considerations in a revocation
hearing. See 18 U.S.C. § 3583(e); 18 U.S.C. § 3553(a)(1), (a)(2)(B); United
States v. Cano, 981 F.3d 422, 426 (5th Cir. 2020) (explaining “[a] sentence
imposed on revocation of supervised release punishes a breach of trust for
violating the conditions of supervision”(citation omitted)); U.S.S.G. Ch. 7,
Pt. A, intro. comment 3(b) (U.S. Sentencing Comm’n 2014) (explaining
when imposing revocation sentence, court primarily sanctions defendant’s
breach of trust).
For the reasons stated above, we hold that the dominant factor
motivating the district court’s sentencing decision was Bolden’s multiple
violations of his supervised release. We acknowledge that, at a single point in
the record, the district court mentioned Bolden’s lack of respect for the law.
But having reviewed the record in its entirety, we cannot say that this singular
mention constituted a dominant factor in the district court’s analysis given
the alleged violations, the testimony of his probation officer, Bolden’s
allocution, and the district court’s statements. Accordingly, Bolden has not
demonstrated a sentencing error, plain or otherwise.
IV. Conclusion
Accordingly, we AFFIRM the district court’s sentence.
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