Filed: Sep. 23, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5127 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BARNEY EDWARD SAUNDERS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, District Judge. (4:01-cr-00076-RBS-1) Submitted: September 3, 2010 Decided: September 23, 2010 Before GREGORY, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nac
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5127 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BARNEY EDWARD SAUNDERS, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, District Judge. (4:01-cr-00076-RBS-1) Submitted: September 3, 2010 Decided: September 23, 2010 Before GREGORY, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nach..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5127
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BARNEY EDWARD SAUNDERS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:01-cr-00076-RBS-1)
Submitted: September 3, 2010 Decided: September 23, 2010
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Rudolpho Cejas
II, Assistant Federal Public Defender, Patrick L. Bryant,
Research and Writing Attorney, Norfolk, Virginia, for Appellant.
Neil H. MacBride, United States Attorney, Timothy R. Murphy,
Special Assistant United States Attorney, Matthew J. Sutton,
Second Year Law Student, William and Mary School of Law, Newport
News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barney Edward Saunders appeals the district court’s
order revoking his supervised release and sentencing him to
thirty months in prison. On appeal, Saunders contends that his
sentence is plainly unreasonable. We affirm.
We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). We first consider whether
the sentence is procedurally or substantively unreasonable.
Id.
at 438. In this initial inquiry, we take a more deferential
posture concerning issues of fact and the exercise of discretion
than reasonableness review for guidelines sentences. United
States v. Moulden,
478 F.3d 652, 656 (4th Cir. 2007). Only if
we find the sentence procedurally or substantively unreasonable
must we decide whether it is “plainly” so.
Id. at 657.
While a district court must consider the Chapter Seven
policy statements and the statutory factors applicable to
revocation sentences under 18 U.S.C. §§ 3553(a), 3583(e) (2006),
the court need not robotically tick through every subsection,
and ultimately, the court has broad discretion to revoke the
previous sentence and impose a term of imprisonment up to the
statutory maximum. Id. at 656-57. Moreover, while a district
court must provide a statement of reasons for the sentence, the
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court need not be as detailed or specific when imposing a
revocation sentence as when imposing a post-conviction sentence.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
Saunders contends his sentence is plainly unreasonable
for four reasons: (1) his overall adjustment to supervision was
good; (2) his violations were relatively minor; (3) the district
court erred in characterizing his record as comprising “more
than three strikes”; and (4) his sentence creates unwarranted
disparities. We have reviewed the record and conclude these
arguments are without merit, and Saunders’s sentence is both
within the prescribed statutory range and reasonable.
Saunders was convicted of possession of cocaine base
with intent to distribute and possession of a firearm by a
convicted felon, and he was sentenced to 105 months in prison
followed by five years of supervised release. On July 20, 2006,
the district court granted the Government’s Fed. R. Crim. P.
35(b) motion based on substantial assistance and reduced his
prison sentence from 105 months to sixty months. He began his
supervised release term on July 25, 2006, and reported for his
first supervision interview on August 1, 2006. Just eight days
later, he was charged with driving on a revoked operator’s
license and speeding, and he was convicted on October 23, 2006.
On October 14, 2007, he was charged with driving while
intoxicated, driving under suspension—4th offense, and speeding.
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On December 17, 2007, he was convicted of driving while
intoxicated and driving under suspension, but he appealed the
driving under suspension conviction. On December 9, 2007,
Saunders was charged with assault: child in common. He also
submitted late monthly supervision reports to the probation
officer in July 2007, August 2007, and October 2007; and he
failed to notify the probation officer within seventy-two hours
of his October 14, 2007 arrest. He appeared before the district
court at his first revocation hearing on February 28, 2008.
Saunders did not dispute any of the allegations in the
probation officer’s petition on supervised release, except that
he informed the district court that the assault charge had been
nolle prossed, and his de novo appeal of the driving under
suspension charge was still pending. His attorney requested
that the court keep him on supervised release, arguing he was
“worthy of this one chance.” The district court found Saunders
had violated the conditions of his supervised release but did
not revoke his supervised release. The district court continued
disposition of the violations pending any further violations.
The district court explained it would “give him one more chance”
but warned him that he was facing a prison term of three years,
and the “next time [would] have some serious consequences.”
In addenda to the petition on supervised release, the
probation officer alleged additional violations by Saunders.
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His previous charge of driving under suspension—4th offense was
amended to driving under suspension—3rd offense, and he was
convicted on May 22, 2008. On February 2, 2009, he was again
charged with driving under suspension—3rd offense, and he was
convicted on April 16, 2009. He failed to notify the probation
officer within seventy-two hours of his new arrest on February
2, 2009. On July 19, 2009, Saunders was arrested and charged
with assault: child in common, assault and battery, and assault,
after he assaulted three different people. First, he engaged in
a confrontation with the mother of his child and threw alcohol
in her face and on her body. When she got away from him and
went into the bathroom, he kicked in the door and hit her in the
back of the head. When her sister tried to help her, Saunders
punched the sister twice in the face. After the sisters went to
the home of Saunders’s aunt and uncle, Saunders punched the
uncle in the jaw. At his final revocation hearing on November
9, 2009, Saunders informed the district court that the assault
charges had been dismissed but that he did not contest the facts
of the incident and he stipulated to the violations.
At the hearing, the district court found that Saunders
continued to be in violation of his supervised release and had
committed additional violations with his new conviction for
driving under suspension, not notifying the probation officer of
the arrest, and the matters giving rise to his three assault
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charges as set forth in the addenda. In revoking his supervised
release and sentencing him to thirty months in prison, the
district court considered the § 3553(a) factors and noted its
action should be sufficient but not greater than necessary to
comply with the purposes of the statute. The court found that
the nature and circumstances of the offense, together with his
history and characteristics, weighed tremendously against him.
The court noted Saunders had repeatedly abused his supervised
release and had committed a “series of violations now that have
been going on for a couple of years.” This was the second time
he had appeared before the court on violations; and the
violations were severe, as they were the commission of crimes,
assaults, and involvement with police, which was particularly
unacceptable after the court had given him a break.
The district court also looked to the kinds of
sentences available and the need to avoid unwarranted sentencing
disparities, but noted the revocation table was only advisory
and Saunders faced up to thirty-six months in prison. Although
the court reasonably decided it was time to have his supervision
revoked, and that a thirty-month prison sentence with no further
supervised release was appropriate, the court ordered that while
incarcerated Saunders would be directed to undergo anger
management counseling, take a parenting class, receive substance
abuse treatment, further his education, and work on a skill.
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Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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