United States v. Daniel Maloney , 536 F. App'x 289 ( 2013 )


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  •                                                                 NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 12-4411
    _____________
    UNITED STATES OF AMERICA
    v.
    DANIEL TIMOTHY MALONEY,
    Appellant
    __________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Criminal No. 2-04-cr-00116-001)
    District Judge: Hon. Alan N. Bloch
    __________
    Submitted under Third Circuit LAR 34.1(a)
    September 9, 2013
    Before: SMITH, ALDISERT and SLOVITER, Circuit Judges.
    (Filed: September 10, 2013)
    __________
    OPINION OF THE COURT
    __________
    ALDISERT, Circuit Judge.
    Daniel Timothy Maloney appeals from a final judgment of the United States
    District Court for the Western District of Pennsylvania imposing a 24-month sentence of
    imprisonment for violation of various supervised release conditions. This appeal requires
    us to decide whether the Court abused its discretion by imposing a sentence that exceeds
    the advisory Sentencing Guidelines range by six months. We conclude it did not and will
    affirm the judgment of the District Court.
    I.
    Because we write primarily for the parties, who are familiar with the facts and the
    proceedings in this case, we will revisit them only briefly.
    Maloney was convicted and sentenced to 87 months’ imprisonment followed by
    36 months’ supervised release for robbing a bank. During his supervised release,
    Maloney was required to submit to drug testing, pay restitution, and refrain from the
    unlawful use of controlled substances. He violated these conditions, and the District
    Court held a revocation hearing, at which the Court considered Maloney’s extensive
    history of substance abuse and decided to continue the hearing pending his voluntary and
    successful completion of a 28-day inpatient drug treatment program. The Court
    emphasized that any further violation of the conditions of his supervised release would
    result in imposition of a sentence of imprisonment.
    Maloney successfully completed his 28-day inpatient treatment, but thereafter
    again violated the conditions of his supervised release. At a subsequent revocation
    hearing, the Court gave Maloney the option of going to prison or entering an inpatient
    treatment program. When Maloney informed the Court that he preferred to enter an
    inpatient program, and that he had a particular program in mind, the Court informed
    Maloney that he would need to attend “the inpatient program that the Probation Office
    makes arrangements for, not [his own] choice of program.” App. 146.
    Maloney, however, disobeyed the Court’s instruction by checking himself into a
    program, without any arrangements through the Probation Office. The Court reconvened
    2
    the revocation proceeding when it learned that Maloney was being “uncooperative” and
    “disregarding the rules of [that] program.” App. 157. At this third and final hearing on
    November 15, 2012, the Court calculated Maloney’s Sentencing Guidelines range to be
    12 to 18 months’ imprisonment for possession of a controlled substance in violation of
    the terms of his supervised release, and allowed Maloney’s attorney to make
    recommendations for a sentence of non-incarceration. At the close of the hearing, the
    Court stated:
    Your continued involvement in illegal narcotics is especially troublesome,
    in light of your extensive criminal history. This illustrates your continued
    disregard for the law and your unwillingness to comply with the law.
    Indeed, you have so little regard for the seriousness of your conditions of
    release that you actually appeared at your prior violation hearing under the
    influence of drugs and alcohol.
    Your behavior is not indicative of someone who is genuinely seeking to
    turn his life around, and a sentence of incarceration above the
    recommended guideline range is needed to provide adequate punishment, to
    promote respect for the law, and to have any meaningful impact on
    deterrence.
    App. 164-165. It then sentenced Maloney to the statutory maximum of 24 months’
    imprisonment. Maloney timely appeals. 1
    II.
    “[W]hile the extent of the difference between a particular sentence and the
    recommended Guidelines range is surely relevant, courts of appeals must review all
    sentences—whether inside, just outside, or significantly outside the Guidelines range—
    under a deferential abuse-of-discretion standard.” Gall v. United States, 
    552 U.S. 38
    , 41
    1
    The District Court had jurisdiction under 
    18 U.S.C. § 3231
    . We exercise
    jurisdiction pursuant to 
    28 U.S.C. § 1291
    , and 
    18 U.S.C. § 3742
    (a)(1), which authorizes
    the appeal of sentences “imposed in violation of the law.” See United States v. Cooper,
    
    437 F.3d 324
    , 326-328 (3d Cir. 2006).
    3
    (2007). 2
    First, we must “ensure that the district court committed no significant procedural
    error.” United States v. Sevilla, 
    541 F.3d 226
    , 230 (3d Cir. 2008). To determine whether
    a district court committed procedural error we examine whether it (1) correctly calculated
    the applicable Sentencing Guidelines range, (2) ruled on all motions for departure, and
    (3) exercised its discretion in sentencing by considering the 
    18 U.S.C. § 3553
    (a) factors.
    United States v. Gunter, 
    462 F.3d 237
    , 247 (3d Cir. 2006). If the district court “decides
    that an outside-Guidelines sentence is warranted, [it] must consider the extent of the
    deviation and ensure that the justification is sufficiently compelling to support the degree
    of the variance.” Gall, 
    552 U.S. at 50
    . After settling on the appropriate sentence, the
    district court “must adequately explain the chosen sentence to allow for meaningful
    appellate review.” 
    Id.
    Next, “[i]f we determine that the district court has committed no significant
    procedural error, we then review the substantive reasonableness of the sentence,” Sevilla,
    
    541 F.3d at 230
     (internal quotation marks and citations omitted), examining “whether the
    record as a whole reflects rational and meaningful consideration of the factors
    enumerated in § 3553(a).” United States v. Merced, 
    603 F.3d 203
    , 214 (3d Cir. 2010)
    (internal quotation marks and citations omitted). We will affirm “unless no reasonable
    sentencing court would have imposed the same sentence on [the] particular defendant for
    2
    Although Maloney’s attorney did not, at the close of sentencing, object to the
    District Court’s alleged failure to meaningfully consider all relevant § 3553(a) factors,
    counsel did, during the hearing, raise facts relating to those factors in support of a
    sentence of non-incarceration. Accordingly, counsel did not need to re-raise the issue to
    avert plain error review, notwithstanding the Government’s arguments to the contrary.
    See United States v. Sevilla, 
    541 F.3d 226
    , 231 (3d Cir. 2008) (defendant is deemed to
    have preserved his objection when “during sentencing proceedings [he] properly raised a
    meritorious factual or legal issue relating to one or more of the factors enumerated in 
    18 U.S.C. § 3553
    (a)”).
    4
    the reasons the district court provided.” 
    Id.
     (internal quotation marks and citations
    omitted).
    Additional considerations apply when, as here, a district court imposes a sentence
    for violation of supervised release conditions. United States v. Bungar, 
    478 F.3d 540
    , 543
    (3d Cir. 2007). “[A] [s]entence is imposed for violations of supervised release primarily
    to sanction 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. at 544
     (internal quotation marks and citations omitted). “[The] sentencing ranges set forth in
    the revocation table at U.S.S.G. § 7B1.4(a) are merely advisory.” Id. (internal quotation
    marks and citations omitted).
    A.
    We conclude that the District Court did not commit any procedural error. The
    record shows that the Court provided a thorough and detailed explanation of why a
    sentence of incarceration above the Sentencing Guidelines range was warranted. The
    Court considered the nature and circumstances of the offense and Maloney’s history and
    characteristics. Maloney was instructed by the Court to enter an inpatient drug treatment
    program of his probation officer’s choosing. Instead, Maloney checked himself into a
    drug treatment program and then “fail[ed] to make a good faith effort to comply with the
    conditions of [his] drug treatment.” App. 157. The Court noted that this violation was
    only one of many committed during his supervised release, noting that he had used heroin
    and consumed alcohol immediately before his last revocation hearing. It concluded that
    Maloney’s behavior was “not indicative of someone who is genuinely seeking to turn his
    life around,” id. at 164, and that a sentence of incarceration exceeding the Sentencing
    Guidelines range was “needed to provide adequate punishment, to promote respect for
    5
    the law, and to have any meaningful impact of deterrence,” id. at 164-165. We are
    therefore satisfied that the Court gave meaningful consideration to the § 3553(a) factors
    and adequately explained its decision to impose an outside-Guidelines sentence.
    B.
    We conclude also that the sentence imposed by the District Court was not
    substantively unreasonable. Maloney “disregard[ed] . . . the Court’s order that [he] enter
    a program arranged by the probation officer,” “fail[ed] to make a good faith effort to
    comply with the conditions of [his] drug treatment,” and committed various other
    violations of his supervised release. App. 157-158. As the District Court concluded, these
    violations, in the aggregate, demonstrated a “disregard for the law.” App. 154. We do not
    conclude that “no reasonable sentencing court would have imposed the same sentence . . .
    for the reasons the district court provided,” see Merced, 
    603 F.3d at 214
    , and accordingly
    we are satisfied that the sentence was substantively reasonable.
    *      *      *      *      *
    We have considered all of the arguments advanced by the parties and conclude
    that no further discussion is necessary. The judgment of the District Court will be
    AFFIRMED.
    6