United States v. Tucker , 321 F. App'x 307 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4476
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
VALENTINO LEON TUCKER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
District Judge. (7:06-cr-00042-D-2)
Submitted: February 17, 2009 Decided: March 30, 2009
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, Charles K. McCotter, Jr., MCCOTTER,
ASHTON & SMITH, P.A., New Bern, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Banumathi
Rangarajan, Jennifer May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Valentino Leon Tucker appeals his seventy-two month
sentence imposed following revocation of his original sentence
of probation. Tucker pled guilty to one count of making a
material false statement in connection with the purchase of a
firearm, in violation of 18 U.S.C. § 922(a)(6) (2006), and was
sentenced to three years of probation. Tucker admitted each of
the alleged violations in the three motions for revocation filed
by his probation officer. Following a lengthy hearing, the
district court provided a detailed explanation for its sentence.
Tucker timely noted his appeal and argues that, for various
reasons, his sentence is plainly unreasonable.
This court reviews a sentence imposed upon revocation
of a defendant’s probation to determine whether the sentence is
“plainly unreasonable.” United States v. Moulden, 478 F.3d 652,
656 (4th Cir. 2007). In determining whether a probation
revocation sentence is “plainly unreasonable,” this court must
first determine whether the sentence is procedurally or
substantively unreasonable. Id. Although a sentencing court
must consider the Chapter Seven policy statements and the
applicable 18 U.S.C. § 3553(a) (2006) factors in fashioning its
sentence, the sentencing court retains broad discretion to
revoke a defendant’s probation and impose a term of imprisonment
up to the statutory maximum. Id. Only if the defendant
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demonstrates that the sentence is unreasonable will this court
consider whether the sentence was “plainly unreasonable.” Id.Tucker first claims that his seventy-two month
sentence is unreasonable simply because it is higher than his
original advisory guidelines range of eighteen to twenty-four
months and his revocation advisory guidelines policy statement
range of fifteen to twenty-one months’ imprisonment. Tucker’s
sentence was both procedurally and substantively reasonable,
however. The district court, in both its ruling from the bench
and its written order, provided an exhaustive and reasoned
explanation for Tucker’s sentence. The record shows that the
district court considered the Chapter 7 policy statements and
advisory guidelines range, § 3553(a)(4)(B), the relevant
§ 3553(a) factors, Tucker’s abysmal performance on probation,
his criminal history, his original sentence of probation after
receiving a substantial assistance departure, and the arguments
of counsel in sentencing Tucker. Thus, Tucker’s sentence was
procedurally reasonable.
The district court’s decision to impose a sentence
greater than both Tucker’s original guidelines range and the
advisory policy statement range was also substantively
reasonable. Tucker committed multiple Grade C violations
including continued drug use, refusal of drug treatment, and
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failure to submit to drug testing. Tucker also pled guilty to
felony sale of marijuana, a Grade A violation.
Tucker’s advisory policy statement range was based
only on the severity of the Grade A violation and did not
reflect his numerous Grade C violations. See Moulden, 478 F.3d
at 658. Moreover, Tucker’s original sentence was based on a
substantial assistance departure. See U.S. Sentencing
Guidelines Manual (“USSG”) § 7B1.4 cmt. n.4 (2008).
Additionally, the district court properly considered the
inherent breach of trust in Tucker’s conduct while on probation.
USSG ch. 7, pt. A, introductory cmt. 3(b); United States v.
Verkhoglyad, 516 F.3d 122, 130 n.6 (2d Cir. 2008). Finally,
Tucker continued his criminal behavior, virtually without
interruption, despite lenient treatment from the district court.
Accordingly, because Tucker’s sentence was substantively
reasonable, his first claim is without merit.
Tucker next claims that “the district court failed to
properly analyze sentences, Guidelines, policy statements and
sentencing disparity.” This assertion is simply belied by the
record.
Tucker next alleges that he should have received
credit for the seven months he spent in state custody on his
federal detainer. “A defendant shall be given credit toward the
service of a term of imprisonment for any time he has spent in
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official detention prior to the date the sentence commences.”
18 U.S.C. § 3585(b) (2006). Section 3585 does not permit a
district court to determine credit at sentencing. United States
v. Wilson, 503 U.S. 329, 334 (1992). Rather, only the Attorney
General, through the Bureau of Prisons, may compute credit. Id.
at 334-35. Therefore, the district court was without authority
to order the Bureau of Prisons to give Tucker credit for the
time served. Additionally, Tucker admitted that he received
some credit from North Carolina toward his North Carolina
sentences for the seven months he spent waiting for his
probation revocation hearing. Tucker was, therefore, not
entitled to have credit already applied to his state sentence
counted a second time and applied to his federal sentence. 18
U.S.C. § 3585(b). Accordingly, the district court did not err
in failing to direct that Tucker be given credit for the seven
months he spent in state custody on the federal detainer.
Tucker’s fourth argument on appeal is that the
district court failed to consider sentencing disparities between
his co-defendant, Donte Nathaniel Johnson, and himself. A
district court need not robotically tick through each subsection
of § 3553(a). United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006). Here, the context and record establish that the
district court considered the § 3553(a) factors and found the
circumstances warranted a sentence above the advisory guidelines
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policy statement range. Moreover, § 3553(a) seeks only to avoid
unwarranted sentencing disparities. Unlike his co-defendant,
Tucker was initially given a sentence of probation, and as the
district court noted, a sentence within Tucker’s original
advisory guidelines range would not address his abysmal
performance on probation.
Finally, Tucker contends that the district court
improperly punished him for the criminal conduct underlying his
revocation by relying heavily on his new felony conviction and
imposing a consecutive sentence without giving him credit for
time served. Tucker’s claim is without merit as the court was
entitled to consider the fact that his Grade C violations were
likely to, and did, result in new felonious conduct, and the
guidelines instructed that his sentence should be consecutive to
his state sentence. USSG §§ 7B1.3(f), 7B1.4 cmt. n.3.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions are adequately detailed in the materials before the
court, and argument would not aid the decisional process.
AFFIRMED
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