Filed: Jun. 16, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4267 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY ROMERO BENTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:98-cr-00036-RBS-1) Argued: May 13, 2011 Decided: June 16, 2011 Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Frances H
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4267 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY ROMERO BENTON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:98-cr-00036-RBS-1) Argued: May 13, 2011 Decided: June 16, 2011 Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Frances H...
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4267
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY ROMERO BENTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:98-cr-00036-RBS-1)
Argued: May 13, 2011 Decided: June 16, 2011
Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Darryl James Mitchell,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Rodolfo Cejas II, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney,
Alexandria, Virginia, Emily Sowell, Third-Year Law Student,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The district court determined that Timothy Romero Benton
violated the conditions of his supervised release, and the court
sentenced Benton to 36 months’ imprisonment, the maximum
sentence available for the Grade-C violations committed by
Benton. Benton appeals, challenging the procedural and
substantive reasonableness of the sentence. We affirm.
I.
Benton was released by the Federal Bureau of Prisons on
January 15, 2010, after serving a 147-month sentence for armed
bank robbery. Benton met with his probation officer for the
first time on January 19, 2010. At that meeting, the officer
instructed Benton to report back to the probation office the
next day and then to a substance abuse treatment center for an
initial assessment. Benton called the probation officer the
next day to say that he would not be reporting to the probation
office or to the substance abuse center. Benton told the
officer that he refused to abide by the conditions of his
supervised release and asked the officer to return him to court
for sentencing. Benton did return to the probation office on
January 21, 2010, and he again stated that he would not abide by
the conditions of supervised release and asked to be returned to
court for sentencing. The probation officer thereafter filed a
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petition on supervised release, alleging two violations --
failure to participate in a treatment program and failure to
report to the probation officer.
At the revocation hearing, the probation officer testified
that during their first meeting, Benton “didn’t seem to
understand why he was on supervised release,” and that Benton
believed “he had already done his time and he shouldn’t have to
be doing any more time.” J.A. 34. According to the probation
officer, Benton was “adamant” in his refusal to abide by the
conditions of supervised release. J.A. 35.
Benton’s testimony at the hearing reflected his disdain for
the concept of supervised release and the specific conditions
imposed on him. Benton stated that since he had not been
charged with any drug crimes, he should not have been ordered to
undergo a substance abuse assessment, and that he thus had “no
intentions” of reporting to the treatment center as ordered by
his probation officer. J.A. 41. He stated that he “d[id]n’t
trust the system” and he told the officer that he refused to
comply with the conditions because he wanted to challenge the
“legality of supervised release.” J.A. 42. When asked by his
attorney if he intended to comply with the terms of supervised
release, Benton stated he would comply “within reason,” if his
probation officer would work with him. J.A. 42. The district
court then asked Benton if he intended to comply with the
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conditions of supervised release, and Benton reaffirmed his
position, stating that “I intend to follow it within reason.”
J.A. 46. Benton also indicated that since he had served his
time, he should not be required to pay restitution, but stated
that “[i]f they work with me, then I will work . . . . I have
rights.” J.A. 49. Benton claimed that he had “no problem with
the law. I love the law, if it’s done right.” J.A. 50.
The government argued that Benton’s statements to his
probation officer and at the hearing demonstrated that Benton
had no respect for the court and that “[t]here is absolutely no
prospect that this defendant will ever be a compliant
supervisee.” J.A. 51-52. The government therefore asked the
district court to terminate supervised release and impose the
maximum sentence available. Counsel for Benton contended that
while Benton believed that supervised release in general was
illegal, Benton said that he would comply with the conditions.
Counsel made no argument about what sentence would be
appropriate for Benton, nor did counsel raise any objection to
the sentence sought by the government.
After considering the parties’ arguments, the district
court stated that it had considered imposing the statutory
maximum sentence, but that it was giving Benton the benefit of
the doubt in light of Benton’s “shaky” statements that he would
comply with the conditions of supervised release. J.A. 57. The
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court thus announced its intention to sentence Benton to six
months’ imprisonment, to be followed by supervised release for
54 months. The court stated that if Benton were to return to
court “with the same business about what you are not going to
do,” the court would terminate supervised release and impose the
maximum sentence. J.A. 57. The court explained:
So we are going to start over again in six
months, give you time to think about it. If you come
back in here and decide you don’t want to comply, that
you are going to jerk the Court around, that’s it. . .
. The Court is certain that it is giving you a fair
opportunity to succeed. I have explained it to you.
There’s nothing to negotiate about whether you are on
supervised release or question the legality of it.
There’s not one ounce . . . of credence or credibility
in that argument.
J.A. 58. As the court was instructing Benton to “drop that”
approach, Benton interrupted to say, “I can’t drop it, your
Honor.” J.A. 58. The court then asked, “Are you telling me
that when you come back, you are coming back with the same thing
again?” J.A. 58. Benton responded, “I didn’t say I was coming
back with the same thing, but I have an issue where it’s based
on my rights. My liberty is being -- I’m being deprived on my
liberty.” J.A. 58. The district court then changed its view
and sentenced Benton to 36 months’ imprisonment, because Benton
was “evidencing to the Court that he does not accept supervised
release [and that] [h]e does not plan to comply with the Court’s
directives to him.” J.A. 58-59. The court explained that
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Upon your completion of the 36 months, you will
be a free man. You won’t have to do anything. You
are free to go.
All right. And the reason for it is the
defendant has indicated he’s not going to comply and
he continues to . . . challenge the right of the Court
to impose supervised release.
J.A. 59. Benton interjected, claiming that he did not refuse to
comply with the conditions of supervised release or challenge
the court’s right to impose supervised release. The district
court was unconvinced:
[T]he Court has attempted to impose a sentence that’s
reasonable, but the defendant, through his words and
his deeds, is resisting the Court’s efforts to do
that. He’s made it clear he challenges the Court’s
right and his responsibility to be on supervised
release. So the Court does not believe it appropriate
to continue to waste the resources of this Court on
someone who does not respect the system or will not
comply. Therefore, the Court will give him what he’s
due under the law and release him.
J.A. 59-60.
II.
Benton appeals, challenging the sentence imposed by the
district court as both procedurally and substantively
unreasonable.
A sentence imposed on revocation of supervised release may
be reversed if it is “plainly unreasonable.” 18 U.S.C. §
3742(a)(4). “In determining whether a sentence is plainly
unreasonable, we must first decide whether the sentence is
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unreasonable.” United States v. Crudup, 461 F.3d 433, 438 (4th
Cir. 2006). Only if this court finds the sentence unreasonable
must we decide whether it is “plainly” so. See United States v.
Moulden,
478 F.3d 652, 657 (4th Cir. 2007).
Reviewing the reasonableness of a revocation sentence
generally involves the same considerations of procedural and
substantive reasonableness employed in the review of the
original sentences imposed in criminal proceedings. See Crudup,
461 F.3d at 438. In the context of supervised release, however,
our review “takes a more deferential appellate posture
concerning issues of fact and the exercise of discretion than
reasonableness review for guidelines sentences.”
Moulden, 478
F.3d at 656 (internal quotation marks omitted).
Benton argues his sentence is procedurally unreasonable
because the district court did not consider the sentencing range
suggested in Chapter 7 of the Sentencing Guidelines or the
relevant § 3553(a) factors and did not sufficiently explain the
basis for imposing the maximum sentence. Because Benton made no
arguments about what sentence would be appropriate and did not
object after sentence was imposed, we review for plain error
only. See United States v. Lynn, 592 F.3d 572, 578 (4th Cir.
2010) (“By drawing arguments from § 3553 for a sentence
different than the one ultimately imposed, an aggrieved party
sufficiently alerts the district court of its responsibility to
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render an individualized explanation addressing those arguments,
and thus preserves [his] claim.”). In our view, Benton has
failed to carry his burden of showing that plain error occurred.
A sentence is procedurally reasonable if the district court
considered the relevant policy statements set forth in Chapter 7
of the Sentencing Guidelines and the applicable factors set out
in 18 U.S.C. § 3553(a) and sufficiently explained the sentence
imposed. See United States v. Thompson, 595 F.3d 544, 547 (4th
Cir. 2010);
Moulden, 478 F.3d at 657. Nonetheless, “[w]e have
repeatedly said post-Booker that a court need not robotically
tick through § 3553(a)’s every subsection.”
Moulden, 478 F.3d
at 657 (internal quotation marks omitted). The court’s
explanation of its sentence must be sufficient to permit us to
“effectively review the reasonableness of the sentence,”
id.,
but the explanation for a sentence exceeding that recommended by
the Guidelines’ policy statements need not be as specific as
might be required in the context of an initial sentencing, see
id. at 657; Crudup, 461 F.3d at 439.
In this case, the district court did not explicitly refer
to the Guidelines’ suggested sentencing range, nor did the court
specifically mention the other relevant § 3553(a) factors. See
18 U.S.C. § 3583(e) (listing the § 3553(a) factors to be
considered when modifying or revoking supervised release). We
nonetheless believe that the record as a whole demonstrates that
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the court in fact properly considered the advisory sentencing
range and the relevant statutory factors and sufficiently
explained the basis for the sentence imposed.
Preliminarily, we note that the court’s initial decision to
impose a sentence of six months demonstrates that the court was
in fact aware of the sentencing range suggested by the
Guidelines. Moreover, the factor driving the sentence in this
case, as the district court made abundantly clear, was Benton’s
own defiant intransigence. After considering the statements
Benton made to his probation officer and during the hearing, the
district court concluded as a factual matter that Benton would
not comply with the conditions of supervised release and that
the appropriate sentence therefore was the maximum term of
imprisonment and termination of supervised release. The
concerns expressed by the court during the hearing were clearly
related to several of the relevant § 3553(a) factors, see 18
U.S.C. § 3553(a)(1), (a)(2)(B) & (C), and reflected
consideration of Benton’s individual circumstances. See
Moulden, 478 F.3d at 658 (finding that district court
“articulated clear and appropriate reasons under § 3553(a)”
where court’s reasons, “[e]ven if not couched in the precise
language of § 3553(a), . . . [could] be matched to a factor
appropriate for consideration under that statute and [were]
clearly tied to [the defendant’s] particular situation”).
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Because the district court’s statements during the hearing
established that he considered all required factors before
imposing sentence and were sufficiently detailed to permit us to
review the reasonableness of the sentence imposed, we find no
procedural error, plain or otherwise.
As to Benton’s contention that the sentence imposed was
substantively unreasonable, we again disagree. A sentence is
substantively reasonable if the district court states a proper
basis for its imposition of a sentence up to the statutory
maximum. See Crudup, 461 F.3d at 440; see also
Thompson, 595
F.3d at 548 (“For a sentence to be plainly unreasonable, . . .
it must run afoul of clearly settled law.”). While the court
preliminarily indicated that a six-month sentence would be
reasonable if Benton intended to comply with the conditions of
supervised release, the district court subsequently concluded,
based on Benton’s continued statements to the court, that Benton
in fact did not intend to comply with the conditions of
supervised release. The district court’s factual finding on
this point is a fair reading of the many statements made by
Benton to his probation officer and during the course of the
hearing. Given the record-supported factual finding by the
district court and our highly deferential review of revocation
sentences, see
Moulden, 478 F.3d at 656;
Crudup, 461 F.3d at
439, we cannot conclude that the district court erred, much less
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plainly erred, by imposing the maximum revocation sentence on a
defendant who refuses to comply with the conditions of
supervised release. The sentence is substantial, but we cannot
say that it is substantively unreasonable under the
circumstances of this case.
III.
As explained above, the district court’s sentence is
neither procedurally nor substantively unreasonable. Because
the sentence is not unreasonable, it quite clearly is not
plainly unreasonable. Accordingly, we reject Benton’s
challenges and affirm the 36-month sentence imposed by the
district court.
AFFIRMED
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