Opinion
NO. 5:13-MJ-01800-FL-1
07-20-2017
UNITED STATES OF AMERICA, v. ANTWAINE D. MCKETHAN, Defendant.
ORDER
This matter is before the court on defendant's appeal (DE 47) of the court's judgment entered April 13, 2017, upon sentencing determination by United States Magistrate Judge Robert T. Numbers, II (the "magistrate judge"). Defendant filed a memorandum in support of appeal, the government filed a response, and defendant filed a reply. In this posture, the issues raised are ripe for ruling. For the following reasons, the judgment is affirmed.
BACKGROUND
On August 7, 2013, the government filed a three-count criminal information against defendant charging defendant with operating a motor vehicle in February 2013 within the special maritime and territorial jurisdiction of the United States 1) while impaired, in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-138.1 (count one); 2) while his driver's license was suspended, in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-28(a) (count two); and 3) in excess of the posted speed limit in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-141(e) (count three).
The government filed a superseding criminal information on May 8, 2014, charging defendant with those offenses plus one additional driving while impaired offense committed in October 2013 in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-138.1 (superseding count four); and one additional driving while license suspended offense in violation of 18 U.S.C. § 13, assimilating N.C. Gen. Stat. § 20-28(a) (superseding count five). On May 6, 2015, the government filed a second superseding information which listed the same charges as the first superseding information.
On June 1, 2016, defendant consented to proceed before the magistrate judge and pleaded guilty to second superseding counts one and four, with remaining counts dismissed by the government. A pretrial services report pertinent thereto noted that, at that time, defendant had two additional convictions in state court for driving while impaired, for separate incidents in March and April, 2014. (See DE 19). The court sentenced defendant to a term of 12 months probation, with conditions of probation including prohibition on operating a motor vehicle, prohibition from consuming alcohol, and confinement in the custody of the Bureau of Prisons for a period of 30 days for each count to run consecutive as arranged by the probation office. In addition, the court imposed a special assessment of $50.00 and a fine of $8,000.00, to be paid during the term of probation.
On January 24, 2017, at the request of the probation office and with defendant's consent, the court extended the term of probation to November 30, 2017. On March 13, 2017, the probation office moved for revocation of probation, alleging that defendant committed criminal conduct, including driving while impaired; failed to abstain from the use of alcohol; and failed to pay his monetary obligation.
On April 12, 2017, defendant appeared for revocation hearing and sentencing, at which the defendant pleaded no contest to the alleged violations of criminal conduct and failure to abstain, as well as admitted that he failed to pay monetary obligations. The government presented testimony of a North Carolina state trooper who testified to the violation conduct. The magistrate judge heard argument from the government and the defendant as to sentencing, with the government recommending a sentence of ten months imprisonment and defendant asking the court to "consider a sentence of something like six months in custody." (Tr. 14). The magistrate judge invited defendant to make a statement, which defendant did. The magistrate judge then pronounced the decision of the court and sentence as follows:
The transcript of the revocation hearing and sentencing is filed at DE 50.
All right. The Court finds as fact that the defendant, Antwaine D. McKethan, has violated the terms and conditions of the judgment imposed by the Court by engaging in additional criminal conduct, failing to refrain from excessive abuse of alcohol, and failing to pay monetary obligations. The defendant has failed to adjust to the conditions of supervision by continuing to consume alcohol and to operate a motor vehicle while on probation.
In this it appears he -- he certainly has four convictions for DWIs in the past several years and appears to have substantial evidence in support of a fifth conviction against him. These actions create a significant and ongoing danger to the community and to the defendant himself.
Therefore, it's ordered and adjudged that the supervision term heretofore granted is revoked. The defendant is ordered committed to the custody of the Bureau of Prisons or its authorized representative for a period of ten months.
It's further ordered that the balance of the financial imposition originally imposed be due in full immediately.
Mr. McKethan, I know that these sort of addictions are difficult to deal with. You clearly have a very serious problem, and it's quite fortunate that you have not seriously harmed yourself or anyone else.
Your daughter deserves better. You deserve better from yourself. Your family deserves better from you. It's very hard to overcome these problems, and I hope that over the course of the next several months, as you're in the custody of the Bureau of Prisons, you can find a way to overcome this, and that when you get out you can additionally find resources to help you continue to live your life in a sober and responsible way.(Tr. 16-17).
It's just unfortunate we're back here again. It's just -- I hate to see someone's life being thrown away because of these types of addictions, and I wish you the best of luck in overcoming them in the future.
This appeal followed.
COURT'S DISCUSSION
A. Standard of Review
"An appeal of an otherwise final sentence imposed by a United States magistrate judge may be taken to a judge of the district court," and the same standard of review applies "as though the appeal were to a court of appeals from a sentence imposed by a district court." 18 U.S.C. § 3742(h); see Local Criminal Rule 58.1(b).
The court must "affirm a revocation sentence if it is within the statutory maximum and is not 'plainly unreasonable.'" United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013) (quoting United States v. Crudup, 461 F.3d 433, 438 (4th Cir.2006)). "In making this determination, [the court] first consider[s] whether the sentence imposed is procedurally or substantively unreasonable." Id. "Only if [the court] find[s] the sentence unreasonable must [the court] decide whether it is plainly so." Id. (internal quotations omitted).
"In determining whether a revocation sentence is unreasonable, [the court] strike[s] 'a more deferential appellate posture' than [the court] do[es] when reviewing original sentences." United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (quoting United States v. Moulden, 478 F.3d 652, 656 (4th Cir.2007)). "Nonetheless, the same procedural and substantive considerations that guide [the court's] review of original sentences inform [the court's] review of revocation sentences as well." Id. (internal quotations omitted).
Among these considerations, a sentence is procedurally unreasonable if the sentencing court "fails to adequately explain the chosen sentence." United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). "A court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence, but it still 'must provide a statement of reasons for the sentence imposed.'" Id. (quoting Moulden, 478 F.3d at 657). "We may be hard-pressed to find any explanation for within-range, revocation sentences insufficient given the amount of deference we afford district courts when imposing these sentences; but a district court may not simply impose sentence without giving any indication of its reasons for doing so." Id. The sentencing court must "provide a sufficient explanation so that we may effectively review the reasonableness of the sentence" imposed. Moulden, 478 F.3d at 657. B. Analysis
Defendant argues on appeal that his sentence is procedurally unreasonable because the magistrate judge failed to explain adequately the chosen sentence. As set forth below, contrary to defendant's argument, the magistrate judge sufficiently explained the sentence to permit reasonable review.
As an initial matter, the court notes that the sentence imposed, ten months, was within the statutory maximum of 12 months and the limited sentencing range suggested by the Sentencing Guidelines. Both defendant and the government requested a sentence within this range, and the difference between defendant's and the government's requested sentences was only 4 months. Under these circumstances, a lengthy or detailed explanation of the sentence imposed was not required.
The record does not include a statutory penalty sheet or calculation of the suggested sentencing range under the Guidelines. In light of the jurisdiction of the magistrate judge, the statutory maximum penalty is capped at one year imprisonment. See 18 U.S.C. § 3565(a)(2) (providing for sentencing maximum upon revocation of probation determined by maximum applicable to original offense); 18 U.S.C. § 13 (providing for maximum penalty as imposed by state law); 18 U.S.C. § 3401 (limiting jurisdiction of magistrate judge to misdemeanor offenses); 18 U.S.C. § 3581 (defining misdemeanor offense maximum as not exceeding one year imprisonment). With respect to the Guidelines, a suggested sentencing range is provided by U.S.S.G. § 7B1.4(a)(1); see Moulden, 478 F.3d at 655 ("There are no sentencing guidelines for violations of probation or supervised release. Although Chapter 7 of the Guidelines includes a revocation table suggesting appropriate terms of imprisonment for each grade of violation at each criminal history category, the table itself is a 'policy statement' and not a 'guideline.'"). Given defendant's criminal history of two state law impaired driving convictions prior to the date of his original sentence in this matter (DE 19), a suggested sentencing range of at least 4-10 months is applicable. See U.S.S.G. § 7B1.4(a) (criminal history category II); § 4A1.1(c) (directing application of one criminal history point for each prior sentence).
In imposing the revocation sentence, the magistrate judge was required to "consider both the policy statements and the applicable policy statement range found in Chapter 7 of the Sentencing Guidelines manual, as well as the applicable 18 U.S.C. § 3553(a) factors." Padgett, 788 F.3d at 373; See Moulden, 478 F.3d at 656. "[T]he commentary to the policy statements in Chapter 7 make clear that district courts should focus on the defendant's failure to follow the court-imposed conditions of supervised release as a 'breach of trust' when imposing revocation sentences." Crudup, 461 F.3d at 437. Statutory § 3553(a) factors include 1) the nature and circumstances of the offense and history of the defendant, 2) the need for the sentence to promote respect for the law and adequate deterrence, and 3) the need to protect the public. See 18 U.S.C. § 3553(a).
Here, in explaining the sentence, the magistrate judge included statements bearing on each of these considerations. The magistrate judge noted that "defendant has failed to adjust to the conditions of supervision by continuing to consume alcohol and to operate a motor vehicle while on probation," and he noted "[i]t's just unfortunate we're back here again," (Tr. 16, 17). In this manner, the magistrate judge made statements related to the core Chapter 7 policy to consider defendant's "breach of trust," Crudup, 461 F.3d at 437, as well as sentencing factors such as promoting respect for the law.
The magistrate judge noted that defendant had "four convictions for DWI's in the past several years and appears to have substantial evidence in support of a fifth conviction against him," (Tr. 16), thus bearing the circumstances of the offense and the history of the defendant. The magistrate judge further noted that "[t]hese actions create a significant and ongoing danger to the community and to the defendant himself," (id.), which relates to the statutory factor of the need to protect the public. In this vein, the magistrate judge also explained "[y]ou clearly have a very serious problem, and it's quite fortunate that you have not seriously harmed yourself or anyone else." (Tr. 17).
Furthermore, the magistrate judge noted "[i]t's very hard to overcome these problems, and I hope that over the course of the next several months, as you're in the custody of the Bureau of Prisons, you can find a way to overcome this, and that when you get out you can additionally find resources to help you continue to live your life in a sober and responsible way." In this manner, the magistrate judge touched on the statutory factor related to provision of "needed . . . medical care, or other correctional treatment in the most effective manner," 18 U.S.C. § 3553(a)(2)(D), without unduly emphasizing rehabilitative needs. See United States v. Bennett, 698 F.3d 194, 201 (4th Cir. 2012).
Finally, the magistrate judge expressly noted during the hearing the government's report that "defendant has not done any of the sixty days to which he was sentenced for the underlying offense," while "[p]robation has made clear that that's not the fault of the defendant." (Tr. 11). As to this information, the magistrate judge noted "Thank you. I was going to ask you about that issue, and I appreciate your bringing it to my attentinon." (Id.). Although defendant's failure to serve the incarceration term of the original sentence was not his fault, this issue still is relevant to the "need for the sentence imposed . . . to reflect the seriousness of the offense . . . and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2).
In light of these statements and their relevance to policy considerations and statutory factors, the magistrate judge provided a sufficient explanation of his basis for imposing a revocation sentence of ten months under the circumstances presented.
Defendant contends, nonetheless, that the explanation by the magistrate judge was deficient because it did not address any of the arguments raised by the defendant in support of a lesser sentence. For example, defendant argued in favor of a six month sentence on grounds that he had completed three years of combined state and federal probation without any issues, that he had spent "four and a half years as a lot attendant with his father's business," that he was one semester shy of graduating from a technical degree program, and that he has been helping his daughter with tutoring. (Tr. 12-13). Contrary to defendant's suggestion, however, the law does not require the court to address specifically the arguments raised by a defendant, where the sentencing judge as here has "set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." Rita v. United States, 551 U.S. 338, 357 (2007). Even in the context of a full original sentencing, the Supreme Court has remarked:
We acknowledge that the judge might have said more. He might have added explicitly that he had heard and considered the evidence and argument; that (as no
one before him denied) he thought the Commission in the Guidelines had determined a sentence that was proper in the mine run of roughly similar . . . cases; and he found that [defendant's] personal circumstances here were simply not different enough to warrant a different sentence. But context and the record made clear that this, or similar, reasoning underlies the judge's conclusion. Where a matter is conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.Id. at 359 (emphasis added); see Thompson, 595 F.3d at 547 (recognizing that "a district court's reasons for imposing a within-range sentence may be clear from context"). Here, in the context of a revocation sentence, considered within a small statutory and advisory range, and within an even smaller range suggested by the parties' competing sentencing requests, further detailed explanation addressing each of defendant's arguments was not required. The context in which the magistrate judge imposed the ten month sentence, and the magistrate judge's findings bearing on breach of trust and other sentencing factors, made sufficiently clear that the magistrate judge rejected defendant's arguments in favor of a lower sentence.
Moreover, although the magistrate judge did not reference specific arguments of the defendant in his decision, the magistrate judge referenced defendant's family in a manner that expressed a counter-balance to defendant's arguments based upon his family circumstances. In particular, the magistrate judge noted "[y]our daughter deserves better. You deserve better for yourself. Your family deserves better from you." (Tr. 17). These comments show that the magistrate judge considered defendant's arguments, including those concerning his daughter and his family work history, but that these considerations were outweighed by the breach of trust reflected in the violation of supervised release conditions.
In light of the explanation given by the magistrate judge in imposing defendant's sentence, defendant has failed to establish that his sentence was procedurally or substantively unreasonable. Accordingly, the court need not reach the issue whether the sentence was plainly unreasonable, or whether it would fail harmless error review. The court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
Defendant does not suggest a separate basis for finding the sentence substantively unreasonable, apart from the asserted lack of sufficient explanation therefor. Having determined that the magistrate judge sufficiently explained the sentence given, where the sentence is within the statutory maximum allowed, defendant has not shown that the sentence was substantively unreasonable. See Crudup, 461 F.3d at 440; Padgett, 788 F.3d at 373. --------
CONCLUSION
Based on the foregoing, the judgment of the district court, entered upon the sentencing determination of the magistrate judge, is AFFIRMED.
SO ORDERED, this the 20th day of July, 2017.
/s/_________
LOUISE W. FLANAGAN
United States District Judge