United States v. Austin Webb, Jr. , 738 F.3d 638 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4856
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AUSTIN ROMAINE WEBB, JR., a/k/a Luck,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:06-cr-00004-NKM-1)
Argued: September 20, 2013 Decided: December 19, 2013
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Davis and Judge Keenan joined.
ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal
Public Defender, Roanoke, Virginia, Frederick T. Heblich,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant. Timothy J.
Heaphy, United States Attorney, Roanoke, Virginia, Ronald M.
Huber, Assistant United States Attorney, Alyssa Kuhn, Third Year
Law Intern, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
FLOYD, Circuit Judge:
Austin Romaine Webb, Jr., appeals his thirty-two month
sentence imposed following the revocation of his supervised
release, claiming that his sentence is plainly unreasonable
because the district court considered statutorily prohibited
factors in formulating his revocation sentence. Finding no
reversible error, we affirm.
I.
Webb pled guilty in 2006 to conspiracy to possess with
intent to distribute fifty grams or more of cocaine base and a
detectable amount of cocaine hydrochloride, in violation of
21 U.S.C. § 846, and was sentenced to an eighty-month term of
imprisonment followed by a five-year term of supervised release.
Benefitting from a sixteen-month reduction to his sentence
pursuant to Amendment 706 to the United States Sentencing
Guidelines (U.S.S.G.), Webb began serving his supervised release
term in August 2010.
Less than one year into his term of supervised release,
Webb was arrested in New York City on charges for criminal
possession of marijuana and unlawful possession of marijuana.
That same month, he tested positive for use of marijuana. In
September 2011, the district court found that Webb had committed
a Grade C violation of his supervised release and granted the
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government’s request to take the matter under advisement for six
months.
In September and December 2011, Jefferson Area Drug
Enforcement Task Force detectives conducted two controlled
purchases of cocaine base from Webb in Charlottesville,
Virginia. After the second controlled purchase, officers
arrested Webb and confiscated 12.1 grams of cocaine base from
his person. In January 2012, a federal grand jury indicted Webb
for conspiracy to distribute cocaine base, distribution of
cocaine base, and possession of cocaine base with intent to
distribute, in violation of 21 U.S.C. §§ 841(b)(1)(C), 846. He
subsequently pled guilty to conspiracy to distribute twenty-
eight or more grams of crack cocaine.
Webb appeared for sentencing and for a hearing on the
supervised release violation in October 2012. With respect to
the conspiracy conviction, the district court granted the
government’s motion for a downward departure based upon Webb’s
substantial assistance and sentenced him to eighty months’
imprisonment followed by eight years of supervised release. As
to the supervised release violation, the government pressed the
court for a “significant sentence” at the high end of Webb’s
Guidelines range, noting that Webb previously had benefitted
from a U.S.S.G. § 5K1.1 motion but that he was caught selling
drugs thirteen months later. Webb’s counsel conceded that the
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violation was “troubling,” given that it occurred shortly after
Webb was released, but requested that the court impose a
sentence near the low end of the Guidelines range.
Concluding that Webb’s conduct constituted a Grade A
violation, the court revoked the term of supervision and
sentenced Webb to thirty-two months’ imprisonment to run
consecutively to any other federal or state sentence. In doing
so, the court explained the rationale for its sentence as
follows:
After considering the evidence and argument from the
government and the defendant, the specific sentence
recommended includes the nature and circumstances, the
seriousness of the violation, provides just
punishment, reveals the history and characteristics of
the defendant, promotes respect for the conditions of
supervision imposed by the court, and affords adequate
deterrence to noncompliant behavior, and provides
protection from the public from further crimes of the
defendant.
The district court also noted that the thirty-two month sentence
was appropriate in light of Webb’s continued pattern of
committing drug offenses.
Webb did not object to the district court’s revocation
sentence. He now appeals, contending that the thirty-two month
sentence imposed upon revocation of his supervised release is
plainly unreasonable.
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II.
A.
A district court has broad discretion when imposing a
sentence upon revocation of supervised release. United States
v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will affirm
a revocation sentence if it is within the statutory maximum and
is not “plainly unreasonable.” United States v. Crudup, 461
F.3d 433, 438 (4th Cir. 2006). In making this determination, we
first consider whether the sentence imposed is procedurally or
substantively unreasonable. Id. at 438-39. Only if we find the
sentence unreasonable must we decide “whether it is ‘plainly’
so.” United States v. Moulden, 478 F.3d 652, 657 (4th Cir.
2007) (quoting Crudup, 461 F.3d at 439).
Because Webb did not raise any objection to the court’s
explanation of his sentence, we review the record below for
plain error. United States v. Hargrove, 625 F.3d 170, 183-84
(4th Cir. 2010). To establish plain error, Webb must show
(1) that the district court erred, (2) that the error is clear
or obvious, and (3) that the error affected his substantial
rights, meaning that it “affected the outcome of the district
court proceedings.” United States v. Olano, 507 U.S. 725, 732-
34 (1993). Even when this burden is met, we retain discretion
whether to recognize the error and will deny relief unless the
district court’s error “seriously affect[s] the fairness,
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integrity or public reputation of judicial proceedings.” Id. at
736 (alteration in original) (quoting United States v. Young,
470 U.S. 1, 15 (1985)) (internal quotation marks omitted).
B.
In exercising its discretion to impose a sentence of
imprisonment upon revocation of a defendant’s supervised
release, a district court is guided by the Chapter Seven policy
statements in the federal Guidelines manual, as well as the
statutory factors applicable to revocation sentences under 18
U.S.C. §§ 3553(a), 3583(e). Chapter Seven instructs that, in
fashioning a revocation sentence, “the court should sanction
primarily 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.” U.S.
Sentencing Guidelines Manual ch. 7, pt. A(3)(b) (2012). Section
3583(e), the statute governing supervised release, further
directs courts to consider factors enumerated in “section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
(a)(6), and (a)(7)” * when imposing a sentence upon revocation of
*
The cross-referenced § 3553(a) factors include (1) “the
nature and circumstances of the offense and the history and
characteristics of the defendant”; (2) “the need for the
sentence imposed . . . to afford adequate deterrence to criminal
conduct,” “to protect the public from further crimes of the
defendant,” and “to provide the defendant needed educational or
(Continued)
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supervised release. Absent from these enumerated factors is
§ 3553(a)(2)(A), which requires district courts to consider the
need for the imposed sentence “to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment for the offense.” Accordingly, in Crudup, we stated,
without analysis or explanation, that a district court is not
permitted to impose a revocation sentence based upon these
omitted considerations. 461 F.3d at 439.
Relying on Crudup, Webb contends that his revocation
sentence is plainly unreasonable because the district court
mentioned the § 3553(a)(2)(A) factors when announcing Webb’s
thirty-two month sentence. We disagree. Although § 3583(e)
enumerates the factors a district court should consider when
formulating a revocation sentence, it does not expressly
prohibit a court from referencing other relevant factors omitted
from the statute. And, as many of our sister circuits have
recognized, the factors listed in § 3553(a)(2)(A) are
vocational training, medical care, or other correctional
treatment in the most effective manner”; (3) the sentencing
range established by the Guidelines; (4) the pertinent policy
statements of the Sentencing Commission; (5) “the need to avoid
unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar conduct”; and
(6) “the need to provide restitution to any victims of the
offense.”
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intertwined with the factors courts are expressly authorized to
consider under § 3583(e). See, e.g., United States v. Young,
634 F.3d 233, 239 (3d Cir. 2011) (“[T]he ‘nature and
circumstances of the offense,’ a mandatory revocation
consideration under § 3583(e), necessarily encompasses the
seriousness of the violation of supervised release.”); United
States v. Lewis, 498 F.3d 393, 399-400 (6th Cir. 2007) (“[T]he
three considerations in § 3553(a)(2)(A), namely the need ‘to
reflect the seriousness of the offense,’ ‘to promote respect for
the law,’ and ‘to provide just punishment for the offense,’ are
essentially redundant with matters courts are already permitted
to take into consideration when imposing sentences for violation
of supervised release.”); United States v. Williams, 443 F.3d
35, 47-48 (2d Cir. 2006) (“[Section] 3583(e) cannot reasonably
be interpreted to exclude consideration of the seriousness of
the releasee’s violation, given the other factors that must be
considered.”).
A district court’s meaningful consideration of the
enumerated § 3553(a) factors when imposing a revocation sentence
typically will include analysis that furthers the purposes of
post-revocation incarceration. Given that the § 3553(a)(2)(A)
factors are closely related to the factors district courts are
instructed to consider under § 3583(e), we fail to see how a
district court’s reference to the § 3553(a)(2)(A) sentencing
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considerations, without more, would automatically render a
revocation sentence unreasonable. Accordingly, although a
district court may not impose a revocation sentence based
predominately on the seriousness of the releasee’s violation or
the need for the sentence to promote respect for the law and
provide just punishment, we conclude that mere reference to such
considerations does not render a revocation sentence
procedurally unreasonable when those factors are relevant to,
and considered in conjunction with, the enumerated § 3553(a)
factors. See United States v. Miqbel, 444 F.3d 1173, 1182 (9th
Cir. 2006).
In determining the sentence to impose upon revocation of
Webb’s supervised release, the district court noted its
consideration of the Chapter Seven policy statements and
discussed several of the enumerated § 3553(a) factors, including
the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for the sentence to
afford adequate deterrence to noncompliant behavior, and the
need for the sentence to provide protection to the public from
Webb’s criminal behavior. Although the district court
referenced the three omitted § 3553(a) factors, namely the
seriousness of Webb’s offense, the need to provide just
punishment, and the need to promote respect for the conditions
of supervision, we conclude that those factors were related to
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other considerations permissibly relied upon by the district
court. Indeed, the district court’s references to the
seriousness of Webb’s violation and imposing just punishment
were made in connection with its consideration of the nature and
circumstances of Webb’s offense as well as its determination
that Webb’s sentence would adequately deter violations of
supervised release, both of which are approved factors under
§ 3583(e). Further, the court’s reference to promoting respect
for the conditions of supervision was germane to Webb’s
individual history and the need to sanction his breach of the
court’s trust, considerations relevant to the Chapter Seven
policy statements. Because the district court appropriately
focused its discussion on the Chapter Seven policy statements
and based Webb’s revocation sentence on factors listed in
§ 3583(e), we discern no error, much less plain error, in the
district court’s consideration of related factors.
Finally, assuming arguendo Webb were able to demonstrate
the district court committed plain error, we nevertheless
conclude he is unable to show that the court’s error affected
his substantial rights by influencing the outcome of the
revocation hearing. Webb’s thirty-two month revocation sentence
is near the bottom of his Chapter Seven range of thirty to
thirty-seven months and is presumed reasonable. United States
v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Webb has not
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argued that he would have received a lower sentence had the
district court not committed the errors he alleges, and
therefore, he has failed to justify a remand for resentencing.
United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010)
(explaining that to satisfy the third element of plain error
review “in the sentencing context, the defendant must show that
he would have received a lower sentence had the error not
occurred”). Accordingly, he has failed to satisfy the third
prong of plain error review.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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