Filed: May 02, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4144 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSHUA PAUL CAUDILL, a/k/a Josh Caudill, Defendant – Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:05-cr-00135-JTC-1) Argued: March 23, 2012 Decided: May 2, 2012 Before DAVIS and DIAZ, Circuit Judges, and Jackson L. KISER, Senior United States District Judge
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4144 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSHUA PAUL CAUDILL, a/k/a Josh Caudill, Defendant – Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (2:05-cr-00135-JTC-1) Argued: March 23, 2012 Decided: May 2, 2012 Before DAVIS and DIAZ, Circuit Judges, and Jackson L. KISER, Senior United States District Judge ..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4144
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSHUA PAUL CAUDILL, a/k/a Josh Caudill,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:05-cr-00135-JTC-1)
Argued: March 23, 2012 Decided: May 2, 2012
Before DAVIS and DIAZ, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Davis and Senior Judge Kiser joined.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Philip
Henry Wright, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger,
Federal Public Defender, David R. Bungard, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. R. Booth Goodwin II,
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
After serving a federal prison sentence following his
conviction for a drug offense, Joshua Paul Caudill committed
numerous violations of the terms of his supervised release.
Consequently, the district court revoked Caudill’s supervised
release and imposed a sentence of twenty-one months in prison,
followed by a period of thirty-nine months of supervised
release. Caudill, who did not object before the district court,
now contends that the sentence was plainly unreasonable because
the court impermissibly focused on the seriousness of the
offense leading to revocation. Reviewing for plain error, we
affirm.
I.
Caudill pled guilty to possession with intent to distribute
crack cocaine, in violation of 21 U.S.C. § 841(a)(1), before the
U.S. District Court for the Southern District of West Virginia.
The court sentenced Caudill to sixty months in prison, followed
by four years of supervised release. In addition to the
standard conditions of supervision--including requirements to
not commit any other federal or state crime, refrain from the
excessive use of alcohol or drugs, and notify probation within
seventy-two hours of any arrest--the court imposed a special
3
condition, requiring Caudill to participate in an in-patient
substance abuse program.
Caudill began violating the terms of his release almost
immediately. Within six months of the start of his supervision,
Caudill’s probation officer filed a Petition for Warrant or
Summons for Offender Under Supervision, recommending revocation
of Caudill’s supervised release. The petition listed five
suspected violations, including four positive drug tests for
marijuana, a state conviction for driving under the influence,
failure to refrain from the excessive use of alcohol, failure to
provide timely notice of an arrest, and discharge from the
community confinement center for fighting.
The district court held a revocation hearing at which
Caudill admitted the violations contained in the petition.
Caudill requested, however, that the district court hold his
revocation in abeyance and modify the conditions of release to
require an additional six months of community confinement.
Caudill acknowledged that if he again violated the terms of his
release or was discharged from the community confinement center,
“the court is likely to impose a very significant term of
imprisonment on him.” J.A. 33.
In response, the court stated that it had anticipated
imposing a prison sentence of six to twelve months based on the
violations and the range of imprisonment prescribed by the U.S.
4
Sentencing Guidelines. The court noted that it was “disturbed”
that the violations occurred so soon following Caudill’s release
and was “dubious about whether or not [Caudill] really [had] any
desire to conform [his] conduct to the requirements of society”
or the community confinement center. Id. 34. The court
nevertheless agreed with Caudill’s request, holding the
revocation in abeyance and ordering six additional months of
community confinement. The court warned Caudill, however, that
“this is the last chance you have.” Id. 35.
Within six months of the hearing, Caudill’s probation
officer submitted a second petition recommending revocation of
Caudill’s supervised release. The petition restated the prior
violations and added that Caudill had been discharged from the
community confinement center for multiple rules violations. In
an amendment to the petition, the probation officer described an
additional violation, alleging that Caudill participated in a
transaction involving drugs and a stolen firearm.
At a second revocation hearing, Caudill admitted to the
rules violations at the community confinement center--including
failure to complete release forms and possession of contraband
in the form of a cell phone, rolling papers, and a lighter--but
contested the merits of the decision to discharge him. Caudill
also challenged the violation related to the drug and gun
offense. The government presented evidence to support the
5
violations, including testimony from several witnesses involved
in the drug and firearm transaction and subsequent
investigation. The evidence showed that Caudill sold a stolen
firearm on behalf of an associate in exchange for $400 worth of
OxyContin pills. Caudill also provided drugs to facilitate a
drug deal between the same individual and customers, who turned
out to include a confidential informant and an undercover police
officer.
The district court found by a preponderance of the evidence
that Caudill had committed the additional supervised release
violations. The court concluded that Caudill’s distribution of
OxyContin pills, a Grade A violation, was the most serious
offense and calculated an advisory range of imprisonment of
fifteen to twenty-one months. Neither Caudill nor the
government objected to the court’s factual findings, and both
sides agreed with the guidelines calculation. Caudill then
argued for a sentence within the guidelines range. In an effort
to persuade the court to allow him to self-report, Caudill
described several mitigating factors, including his compliance
with bond requirements, recent work history, and the birth of
his son.
The court sentenced Caudill to twenty-one months in prison,
a sentence at the high end of the guidelines range, followed by
6
a period of thirty-nine months of supervised release. When
announcing its sentence, the court began as follows:
[I]n view of the seriousness of the charges in this
matter, not only those that the court earlier found,
but these more recent ones that have been more grave
indeed than those that the court had originally found,
it seems to me that it is appropriate to sentence you
substantially, and although I believe that a sentence
within the suggested range under the advisory
guidelines is appropriate, I also believe it ought to
be at the top of that range.
Id. 213. The court also took into account “the need to protect
the public from continuing criminal conduct” and “to deter
others from engaging in like conduct.” Id. The court then
remanded Caudill into custody to begin serving his sentence
immediately. Caudill did not object to the sentence but now
appeals, contending that the sentence was plainly unreasonable
because the district court improperly focused on the seriousness
of his revocation violation when imposing the sentence.
II.
A.
We review a sentence imposed following the revocation of
supervised release to determine if it is “plainly unreasonable.”
United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). * “In
*
Recognizing that one panel of this court may not overrule
another, Caudill nevertheless asks us to reconsider the plainly
unreasonable standard adopted in Crudup. We decline Caudill’s
(Continued)
7
determining whether a sentence is plainly unreasonable, we first
decide whether the sentence is unreasonable,” applying the same
procedural and substantive considerations that we employ in
reviewing an initial sentence. Id. at 438. If the revocation
sentence is either procedurally or substantively unreasonable,
“we must then decide whether the sentence is plainly
unreasonable, relying on the definition of ‘plain’ that we use
in our ‘plain’ error analysis.” Id. at 439.
Because Caudill did not object or argue for a different
sentence from the one imposed, he must satisfy the additional
requirements of plain error review. See United States v. Lynn,
592 F.3d 572, 578 (4th Cir. 2010) (ruling that to preserve a
sentencing error, a defendant need only have argued for a
sentence different than the one imposed). To satisfy plain
error, Caudill must show not only that an error was made and
that the error was plain--requirements he must already meet
under Crudup--but also that the error affected his substantial
rights. Id. at 580. Even if Caudill satisfies these
requirements, we retain discretion and will correct the error
invitation and instead apply the binding law of the circuit.
See United States v. Collins,
415 F.3d 304, 311 (4th Cir. 2005)
(“A decision of a panel of this court becomes the law of the
circuit and is binding on other panels unless it is overruled by
a subsequent en banc opinion of this court or a superseding
contrary decision of the Supreme Court.” (citation omitted)).
8
only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (citation
omitted). Caudill is unable to satisfy any of these
requirements.
B.
A district court has “broad discretion to revoke its
previous sentence and impose a term of imprisonment up to the
statutory maximum.” Crudup, 461 F.3d at 439 (citation and
internal quotation marks omitted). When selecting a revocation
sentence, the court must consider all relevant guidelines policy
statements, as well the statutory requirements outlined in 18
U.S.C. § 3583. Id. Section 3583 directs courts to consider
nearly all of the same factors it considers during an initial
sentencing. See 18 U.S.C. § 3583(e) (listing the factors from
§ 3553(a) that a court should consider during revocation
sentencing). Omitted from this list, however, is “the need for
the sentence imposed to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment
for the offense.” Id. § 3553(a)(2)(A).
Omission of the seriousness of the offense from the list of
factors courts must consider during revocation sentencing
reflects the U.S. Sentencing Commission’s view that “at
9
revocation 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, introductory cmt. 3(b). Instead, “the court with
jurisdiction over the criminal conduct leading to revocation is
the more appropriate body to impose punishment for that new
criminal conduct.” Id. Accordingly, during revocation
sentencing, courts should not seek to punish the defendant for
the offense leading to revocation but should instead impose a
sentence that appropriately sanctions him for his “breach of
trust.” See id. In this case, however, Caudill is unable to
show that the district court’s reference to the seriousness of
the offense leading to revocation constituted error--plain or
otherwise--or rendered his sentence plainly unreasonable.
While not listed as a factor that courts should
specifically consider during revocation sentencing, the
seriousness of the offense is related to several of the
permissible factors. For example, courts must consider the
history and characteristics of the defendant, the need to afford
adequate deterrence to criminal conduct, and the need to protect
the public from further crimes of the defendant. 18 U.S.C.
§ 3583(e) (listing § 3553(a)(1), (a)(2)(B), and (a)(2)(C) as
appropriate factors for consideration during revocation
10
sentencing). The seriousness of the offense leading to
revocation is closely intertwined with a defendant’s history and
characteristics and is relevant to his propensity for recidivism
and ability to integrate into the community. Accordingly, a
court may properly consider the seriousness of the conduct
giving rise to the revocation in connection with the other
statutory factors.
Here, the district court did not err by considering the
seriousness of the offense leading to revocation when sentencing
Caudill. Caudill’s recent drug and firearm offense was a
relevant part of his history and characteristics, which included
past drug use and a drug-related conviction. Furthermore, the
court expressly referenced the need to protect the public and
deter others when it announced Caudill’s sentence. In the first
hearing, the court also noted that it was disturbed that Caudill
had violated his conditions of release so soon after serving his
sentence and questioned whether he would be able to follow the
rules in the future. Based on this record, we conclude that the
district court’s within-guidelines sentence was a proper
sanction for Caudill’s breach of trust and was not plainly
unreasonable. In the context of the two sentencing hearings,
the court’s reference to the seriousness of the offense did not
violate § 3583(e) and did not constitute error--plain or
otherwise.
11
Even if the district court did commit plain error--which it
did not--Caudill is nevertheless unable to satisfy the remaining
requirements of plain error review. In order to show that the
error affected his substantial rights, Caudill must show that
the district court’s consideration of the conduct leading to
revocation “had a prejudicial effect on the sentence imposed.”
Lynn, 592 F.3d at 580. After the first revocation hearing,
Caudill knew that he faced “a very significant term of
imprisonment” if he violated the terms of his release. J.A. 33.
Accordingly, in the second hearing, he did not argue for a
below-guidelines sentence but instead “ask[ed] the court to
consider imposing a sentence within the guideline[s] range.”
Id. 210. To the extent Caudill offered any mitigating factors,
his purpose was to convince the court to allow him to self-
report. Because Caudill argued for the sentence ultimately
imposed, he cannot show that any error affected his substantial
rights. See Lynn, 592 F.3d at 580.
Finally, this is not a case in which our failure to correct
an error would seriously affect the fairness, integrity, or
public reputation of judicial proceedings. Caudill repeatedly
violated the conditions of his supervised release, beginning
within a month of his release from prison. He failed numerous
drug tests, was convicted of driving under the influence, and
was twice discharged from the community confinement center for
12
failure to comply with its rules. The district court had
already given Caudill a second chance when he again violated the
terms of his release by engaging in serious criminal conduct
involving stolen guns and drugs. On this record, we decline to
exercise our discretion to grant relief for plain error.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
13
