U.S. v. Crudup, 05-4048.

• Decision Date: 07 August 2006
• Docket Number: No. 05-4048.,05-4048.
• Citation: 461 F.3d 433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher Devon CRUDUP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 433

461 F.3d 433

UNITED STATES of America, Plaintiff-Appellee, v. Christopher Devon CRUDUP, Defendant-Appellant.

No. 05-4048.

United States Court of Appeals, Fourth Circuit.

Argued May 26, 2006.

Decided August 7, 2006.

ARGUED: Jane Ely Pearce, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Christine Witcover Dean, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Chief Judge WILKINS and Senior Judge HAMILTON joined.

SHEDD, Circuit Judge.

Christopher Crudup appeals his 36-month term of imprisonment imposed after the district court revoked his supervised release. Crudup claims that the length of his revocation sentence is unreasonable.¹ We affirm.

I.

In 1996, Crudup pleaded guilty to armed bank robbery and was sentenced to 63 months' imprisonment to be followed by 36 months of supervised release. The district court imposed several conditions on Crudup's supervised release, including that he must not engage in any criminal conduct, he must submit to drug-screen urinalysis, and he must work regularly at a lawful occupation. After serving his term of imprisonment, Crudup was released from federal prison in 2000 and began his 36-month term of supervised release.

In July 2002, Crudup was arrested on various state charges, including assaulting a police officer with a deadly weapon and fleeing to avoid arrest. In September 2002, Crudup pleaded guilty in state court to the assault and flight charges and was sentenced to approximately two years of confinement in state prison.

The federal probation officer assigned to supervise Crudup filed a motion to revoke Crudup's supervised release based on the state offenses. During the supervised release revocation hearing, the district court determined that Crudup violated the terms of his supervised release by engaging in criminal conduct. Nevertheless, the district court concluded that "the ends of justice would best be served by denying the motion for revocation . . . and continuing supervision under the original terms and conditions imposed in this case." J.A. 15. The district court warned Crudup, however, that if he violated the conditions of his supervised release again the court would impose the maximum applicable statutory revocation sentence—36 months' imprisonment.

Crudup was released from state custody in April 2004. Six months later, on October 5, 2004, Crudup tested positive for using marijuana. Rather than revoke Crudup's supervised release based on this violation of the conditions of his release, the district court gave Crudup "one last chance" and placed him in a more comprehensive drug-detection urinalysis program. J.A. 21. Crudup failed to submit to required drug tests on seven occasions in October and November. When Crudup finally submitted to a drug test on November 22, he tested positive for marijuana and cocaine.

The federal probation officer again moved to revoke Crudup's supervised release based on his violation of three conditions: (1) failing to take required drug tests; (2) using illicit drugs; and (3) quitting his job. The revocation worksheet completed by the probation officer noted that all three grounds were Grade C violations. The worksheet also calculated the applicable advisory sentencing range to be 5 to 11 months' imprisonment based on the policy statements in Chapter 7 of the United States Sentencing Commission Guidelines Manual.

At the revocation hearing, Crudup did not dispute the factual allegations of the motion for revocation. Crudup also admitted his drug problem and requested drug treatment. The district court concluded that Crudup violated the conditions of his supervised release by using illicit drugs, by refusing to submit to drug tests, and by failing to work regularly at a lawful occupation. After noting that the recommended Chapter 7 range was 5 to 11 months, the district court sentenced Crudup to 36 months' imprisonment based on his numerous violations of the conditions of his supervised release and the district court's previous warning to Crudup that he would get the maximum statutory revocation sentence if he continued to violate his release conditions. The district court also recommended that Crudup receive intensive drug treatment while incarcerated.

II.

Crudup's only argument is that the district court's variance from the 5 to 11-month advisory sentencing range to the 36-month statutory maximum sentence is unreasonable. Crudup asserts that the advisory range of 5 to 11 months is presumptively reasonable and would have punished him adequately.

The United States Supreme Court's recent opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has engendered comment among several circuit courts as to what is the proper standard under which circuit courts should review supervised release revocation sentences.² Before addressing the particular facts and circumstances underlying Crudup's revocation sentence, we first determine the proper standard for our review.

A.

Chapter 7 of the Guidelines Manual deals with violations of supervised release and probation. Rather than issue guidelines to govern sentences for these violations, the United States Sentencing Commission chose instead "to promulgate policy statements only" to give courts "greater flexibility" in devising revocation sentences. Ch.7, pt.A, introductory cmts. 1, 3(a).

Congress has provided in 18 U.S.C. § 3742(a)(4) that a defendant convicted of an "offense for which there is no sentencing guideline" may appeal his sentence on the ground that it is "plainly unreasonable." In Booker, the Supreme Court recognized that defendants who receive supervised release revocation sentences are authorized to appeal under § 3742(a)(4) because these "sentences [are] imposed where there [i]s no applicable Guideline." 543 U.S. at 262, 125 S.Ct. 738.

Congress also "set[ ] forth standards of review" for sentencing appeals at 18 U.S.C. § 3742(e). Booker, 543 U.S. at 259, 125 S.Ct. 738. Section 3742(e)(4) applies to supervised release revocation sentences because it governs sentences "imposed for an offense for which there is no applicable sentencing guideline." Id. This particular standard of review requires the courts of appeals to "determine whether the [supervised release revocation] sentence . . . is plainly unreasonable." Id.

To remedy what it deemed to be a constitutional defect in the guidelines, the Supreme Court in Booker excised § 3553(b)(1) and the standard of review provisions of § 3742(e), thereby effectively rendering the guideline system advisory. United States v. Moreland, 437 F.3d 424, 431-32 (4th Cir.2006). Thus, it appears that the "plainly unreasonable" standard of review at § 3742(e)(4) governing supervised release revocation sentences is no longer valid.³

Having excised the standards of review statutory provision applicable to sentencing, the Supreme Court proceeded to "infer appropriate review standards from related statutory language, the structure of the statute," and other practical considerations. Booker, 543 U.S. at 260-61, 125 S.Ct. 738. Based on these considerations, the Supreme Court inferred a new standard of review for sentencing appeals: "[A]ppellate courts [must] determine whether the sentence `is unreasonable' with regard to [the factors in] § 3553(a)." Id. at 261, 125 S.Ct. 738.⁴

Because Booker reviewed an original guideline sentence imposed after conviction and not a supervised release revocation sentence, the question remains whether Booker's unreasonableness standard applies to revocation sentences.⁵ Based on our review of the structure of § 3742 and other related statutory and guideline provisions, we hold that revocation sentences should be reviewed to determine whether they are "plainly unreasonable" with regard to those § 3553(a) factors applicable to supervised release revocation sentences.⁶

We first note that the structure of § 3742 suggests that "plainly unreasonable" is the proper standard of review for revocation sentences. Under § 3742(a)(4)—a provision not invalidated by Booker—a defendant sentenced for violating supervised release is authorized to appeal only on the ground that his sentence is "plainly unreasonable." We infer from this provision that revocation sentences should be reviewed under this same standard. It would seem incongruous that a defendant limited to asserting that his revocation sentence is "plainly unreasonable," would be allowed to argue that his sentence should be reversed because it is "unreasonable."

Related guideline commentary and statutory provisions also suggest that revocation sentences should not be treated exactly the same as original sentences. For instance, while the guidelines base original sentences primarily on the severity of the defendant's criminal conduct and criminal history, the 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. Guidelines Manual, ch. 7, pt. A, introductory cmt. 3(b). "[I]mposition of an appropriate punishment for any new criminal conduct [is] not . . . the primary goal of a revocation sentence. Instead, the sentence imposed upon revocation [is] intended to sanction the violator for failing to abide by the conditions of the court...