Filed: Dec. 08, 2016
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-4071 _ UNITED STATES OF AMERICA v. TONY ORENTHAL FLOYD, a/k/a NELLO TONY ORENTHAL FLOYD, Appellant _ On Appeal from the United States District Court for the Western District of Pennsylvania, (District Court No. 2:08-cr-00385-001) District Judge: Hon. Nora Barry Fischer _ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 23, 2016 _ Before: McKee, Chief Judge, Hardiman and Rendell, Circuit Judges. (Opinion f
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-4071 _ UNITED STATES OF AMERICA v. TONY ORENTHAL FLOYD, a/k/a NELLO TONY ORENTHAL FLOYD, Appellant _ On Appeal from the United States District Court for the Western District of Pennsylvania, (District Court No. 2:08-cr-00385-001) District Judge: Hon. Nora Barry Fischer _ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 23, 2016 _ Before: McKee, Chief Judge, Hardiman and Rendell, Circuit Judges. (Opinion fi..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-4071
_____________
UNITED STATES OF AMERICA
v.
TONY ORENTHAL FLOYD,
a/k/a NELLO
TONY ORENTHAL FLOYD,
Appellant
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania,
(District Court No. 2:08-cr-00385-001)
District Judge: Hon. Nora Barry Fischer
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 23, 2016
______________
Before: McKee, Chief Judge, Hardiman and Rendell, Circuit Judges.
(Opinion filed: December 8, 2016)
_______________________
OPINION*
______________________
Judge McKee concluded his term as Chief of the U.S. Court of Appeals for the Third Circuit on
September 30, 2016.
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Chief Judge.
Tony Orenthal Floyd appeals from an order of the District Court for the Western
District of Pennsylvania revoking a term of supervised release and imposing 21 months
of imprisonment followed by a term of 24 months of supervised release as a sanction for
Floyd violating the terms of his supervised release. Floyd argues that his sentence is
substantively unreasonable because it is greater than necessary to accomplish the
purposes of sentencing. For the reasons that follow, we will affirm the District Court’s
sentence.
I.
Floyd pled guilty in 2010 to one count of possession with intent to distribute five
grams or more of crack cocaine. The court granted a downward variance from the
suggested Guideline range and sentenced him to the mandatory minimum sentence of 60
months in prison and five years of supervised release. The sentence was the lowest
possible sentence that the court could have imposed.
Within months of being released from prison on that sentence, Floyd was arrested
for both driving under the influence and possessing heroin with the intent to deliver. As a
result, Floyd’s supervision was revoked and he was sentenced to 14 months
imprisonment and a new term of supervised release that included residential drug
treatment. When released from imprisonment for a second time, he again almost
immediately violated his supervision by testing positive for cocaine and marijuana and
failing to comply with his drug treatment. He fled the state when he learned that a
warrant had been issued for his arrest on a number of charges. When he was
2
apprehended, the District Court revoked his supervised release term and sentenced him to
21 months’ imprisonment, followed by 24 months of supervision. The government
agreed that the highest grade violation facing Floyd was a Grade B violation stemming
from his drug possession, and stipulated that the applicable guideline range was 21 to 27
months imprisonment. The sentence that was imposed was therefore at the very bottom of
the suggested range. Floyd now appeals that sentence.
II.
We review the District Court’s revocation of supervised release for an abuse of
discretion.1 The party challenging the substantive reasonableness of the sentence bears
the burden of establishing an abuse of discretion.2 We will affirm the sentence “unless no
reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided.”3
III.
Revocation of supervised release is governed by 18 U.S.C. § 3583, which instructs
a sentencing court to consider the factors set forth in 18 U.S.C. § 3553(a) in imposing a
sentence for violation of supervised release.4 Floyd has not come close to demonstrating
1
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).
2
Id.
3
Id. at 568.
4
However, 18 U.S.C. § 3583(e) omits § 3553(a)(2)(A) (punitive purposes of sentencing)
and § 3553(a)(3) (kind of sentences available) from the § 3553(a) factors to be considered
when sentencing a defendant for violation of supervised release. While the Guidelines are
advisory and sentencing courts have broad discretion in imposing sentences, sentencing
courts are required to give meaningful consideration to the § 3553(a) factors and
reasonably apply those factors. See United States v. Booker,
543 U.S. 220, 246 (2005)
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substantive unreasonableness. A sentence is not unreasonable simply because the
sentencing court failed to give mitigating factors the weight a defendant attaches to
them.5
Floyd relies almost exclusively on the language in § 3553(a) which states that a
court must impose a sentence that is “sufficient but not greater than necessary.” He
argues that the sentence imposed by the District Court is greater than necessary—and,
therefore, substantively unreasonable—since a 21-month period of incarceration would
likely worsen his serious drug addiction.
The District Court discussed each § 3553(a) factor in detail in determining what
sentence would be most appropriate for Floyd given his history of recidivism and drug
addiction. The court considered, among other factors, the need to provide Floyd with
alcohol and substance abuse treatment. The District Court acknowledged that it takes
time for an individual to control an addiction. The court also noted the extent to which
the probation officer had tried to work with Floyd. Floyd had been granted supervised
release twice by the court and both times violated the terms of the release. Floyd had also
been placed in both in-patient and out-patient treatment programs but either failed to
complete the programs or began using drugs again shortly after completing them. Given
(stating that the guidelines are advisory); United States v. Bungar, 478 F.3d 540, 543 (3d
Cir. 2007) (quoting United States v. Cooper,
437 F.3d 324, 329 (3d Cir. 2006), abrogated in
part by Rita v. United States,
551 U.S. 338 (2007) (requiring courts to give “meaningful
consideration” to the § 3553(a) factors). The sentencing court need not make findings on
the record as to each factor if the record demonstrates that the court took the factors into
account in sentencing.
Bungar, 478 F.3d at 543; United States v. Lessner,
498 F.3d 185,
203 (3d Cir. 2007).
5
Lessner, 498 F.3d at 204.
4
Floyd’s response to his prior two sentences, the District Court’s conclusion that 21
additional months imprisonment followed by another 24 months of supervised release
was sufficient but not greater than necessary to address the goals of punishment,
rehabilitation, and deterrence was reasonable.6
IV.
For the reasons set forth above, we will affirm the judgment of sentence.
6
We are not unsympathetic to Floyd’s argument that the sentence is particularly severe
for “a 35-year-old man struggling with . . . a ‘serious drug problem,’” and that
alternatives were available. See Appellant’s Br. at 16. However, given Floyd’s reaction to
the prior two sentences it is clear that neither his demographics, nor the perceived
severity of the sentence, render it unreasonable.
5
