Filed: May 05, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4425 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JON ERIC MILLER, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:02-cr-00082-RBS-TEM-1) Submitted: March 30, 2011 Decided: May 5, 2011 Before WILKINSON, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federa
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4425 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JON ERIC MILLER, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:02-cr-00082-RBS-TEM-1) Submitted: March 30, 2011 Decided: May 5, 2011 Before WILKINSON, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4425
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JON ERIC MILLER,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:02-cr-00082-RBS-TEM-1)
Submitted: March 30, 2011 Decided: May 5, 2011
Before WILKINSON, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Rodolfo Cejas, II, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Cameron M. Rountree, Special Assistant United
States Attorney, Richard D. Cooke, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jon Eric Miller appeals the forty-eight-month sentence
imposed upon revocation of his term of supervised release.
Miller argues on appeal that his sentence is procedurally
unreasonable because the district court improperly considered
factors not permitted by 18 U.S.C. § 3583(e) (2006) and it
stated its view that supervised release was a privilege. We
affirm.
We will not disturb a sentence imposed after
revocation of supervised release if it is within the prescribed
statutory range and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). In
making this determination, we first consider whether the
sentence is unreasonable.
Id. at 438. “This initial inquiry
takes a more deferential appellate 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) (internal quotation marks and citation
omitted).
Miller did not request a sentence outside the policy
statement range and he failed to raise below any objection to
the district court’s consideration of unauthorized factors or to
its statement regarding supervised release as a privilege.
Therefore, his challenge to the procedural reasonableness of his
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sentence is reviewed for plain error. United States v. Lynn,
592 F.3d 572, 580 (4th Cir. 2010) (finding error not preserved
where defendant failed to seek sentence outside guidelines
range). “To establish plain error, [Miller] must show that an
error occurred, that the error was plain, and that the error
affected his substantial rights.” United States v. Muhammad,
478 F.3d 247, 249 (4th Cir. 2007). Even if Miller satisfies
these requirements, “correction of the error remains within our
discretion, which we should not exercise . . . unless the error
seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.”
Id. (internal quotation marks and
citation omitted) (third alteration in original).
Although a district court “ultimately 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 (internal quotation marks omitted), the district court must
consider the Chapter Seven policy statements in the federal
sentencing guidelines manual, as well as the statutory
requirements and factors applicable to revocation sentences
under 18 U.S.C. §§ 3553(a), 3583(e) (2006). Chapter Seven
provides, “at 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.” USSG ch. 7, pt. A(3)(b).
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Section 3583 approves consideration of a majority of the factors
listed in § 3553(a), omitting only two. 18 U.S.C. § 3583(e).
Among the omitted factors is the need “to reflect the
seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense.” 18 U.S.C.
§ 3553(a)(2)(A).
Citing Crudup, Miller contends that his sentence is
plainly unreasonable because the district court considered the
need to promote respect for the law, the seriousness of the
offense, and the need for just punishment as factors. We
conclude the district court’s observations regarding the
seriousness of Miller’s offense and the need to provide just
punishment and promote respect for the law were relevant to
other required considerations, including “the nature and
circumstances of the offense and the history and characteristics
of the defendant,” adequately deterring criminal conduct, and
protecting the public from further crimes of the defendant. 18
U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C). The district court
emphasized Miller’s apparent refusal to abide by the terms of
his supervised release, a factor relevant to Chapter Seven’s
policy that a revocation sentence should focus on the breach of
the court’s trust. Moreover, the district court expressly
considered the factors in § 3553(a) that are applicable to
revocation sentences. We conclude there was no plain error with
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regard to the district court’s articulation of the relevant
considerations.
We further reject Miller’s contention that the
district court improperly referred to supervised release as a
privilege. First, the district court’s view of supervised
release as a privilege in a general sense is not erroneous. See
generally United States v. Johnson, 529 U.S. 53, 59 (2000)
(“Congress intended supervised release to assist individuals in
their transition to community life. Supervised release fulfills
rehabilitative ends, distinct from those served by
incarceration.”). Second, Miller points to no legal authority
prohibiting the district court from viewing supervised release
as a privilege. Third, it is evident from the district court’s
statements that it considered Miller’s repeated violations while
on supervised release a breach of trust. See USSG ch. 7, pt. A,
introductory cmt. n.3(b) (“[A]t revocation the [district] court
should sanction primarily the defendant’s breach of trust.”).
We therefore find no error, much less plain error, in the
district court’s consideration of supervised release as a
privilege.
Accordingly, we conclude that Miller’s sentence is not
plainly unreasonable. We therefore affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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