U.S. v. Bungar

• Decision Date: 05 March 2007
• Docket Number: No. 05-5519.,05-5519.
• Citation: 478 F.3d 540
• Parties: UNITED STATES of America v. Ronald BUNGAR, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

478 F.3d 540

UNITED STATES of America v. Ronald BUNGAR, Appellant.

No. 05-5519.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) January 29, 2007.

Opinion Filed March 5, 2007.

Karen S. Gerlach, Esq., Lisa B. Freeland, Esq., Office of the Federal Public Defender, Pittsburgh, PA, for Appellant.

Robert L. Eberhardt, Esq., Kelly R. Labby, Esq., Office of the United States Attorney, Pittsburgh, PA, for Appellee.

Before BARRY, ROTH, Circuit Judges, and DEBEVOISE,^* District Judge.

OPINION OF THE COURT

BARRY, Circuit Judge.

Ronald Bungar appeals from a final judgment of the District Court imposing a sentence of 60 months' imprisonment for violating various conditions of his supervised release. We hold, post-Booker, that our review should be for reasonableness. Because the sentence imposed was not unreasonable, we will affirm.

I.

On August 20, 1996, a federal grand jury sitting in the Western District of Pennsylvania returned a three-count indictment against Bungar, charging him with conspiracy to distribute and possession with intent to distribute less than 100 grams of a substance containing heroin, in violation of 21 U.S.C. § 846 (Count 1); distribution and possession with intent to distribute less than 100 grams of a substance containing heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 2); and distribution and possession with intent to distribute less than 500 grams of a substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 3). The conduct charged in the indictment had resulted in the overdose deaths of two of Bungar's friends, although he was never charged in those deaths. Bungar pled guilty to Counts 1 and 2 in exchange for the government's agreement to move for dismissal of Count 3. Under the 1995 Sentencing Guidelines, with a Total Offense Level of 35 and a Criminal History Category of VI, he faced a sentencing range of 292 to 365 months' imprisonment.

The government moved, pursuant to U.S.S.G. § 5K1.1, for a downward departure based on Bungar's substantial assistance to authorities. On April 11, 1997, the District Court held a sentencing hearing, at which the Court granted the government's motion and sentenced Bungar to 96 months' imprisonment followed by five years of supervised release. Bungar did not appeal. He was released from custody on November 7, 2003.

On November 8, 2005, two years into Bungar's term of supervised release, his probation officer filed a Petition on Supervised Release and requested a hearing on four alleged violations of the conditions of his supervised release: twice testing positive for cocaine use; failing to submit verification of his attendance at Narcotics Anonymous and Alcoholics Anonymous meetings; changing his address without notifying his probation officer; and failing to report to his probation officer that local police had questioned him concerning the alleged assault of his girlfriend. The District Court held a hearing, and Bungar admitted all four violations. In the Violation Worksheet submitted to the Court, the probation officer concluded that each violation was a grade C violation and calculated the advisory range of imprisonment under § 7B1.4(a) of the Guidelines to be eight to fourteen months. Bungar requested a sentence of twelve months' house arrest, and the government did not object.

The District Court, however, disagreed with the probation officer's conclusions. Citing United States v. Blackston, 940 F.2d 877 (3d Cir.1991), the Court found that Bungar's admitted cocaine use also constituted circumstantial evidence of simple possession of a controlled substance in violation of 21 U.S.C. § 844, a grade B violation, and, as required by 18 U.S.C. § 3583(g) and U.S.S.G. § 7B 1.3(a)(1), revoked his supervised release. Under the advisory Guidelines, Bungar therefore faced a term of imprisonment in the range of 21 to 27 months. He faced a statutory maximum, pursuant to 18 U.S.C. § 3583(e)(3), of five years' imprisonment.

The District Court heard argument as to the appropriate sentence, expressing concern over Bungar's continuing abuse of illegal drugs in spite of having received a significant downward departure at sentencing in 1997. The Court also emphasized Bungar's long history of offenses that included causing the deaths of two people and allegedly assaulting his girlfriend. Based on these considerations, the Court found that a sentence above the advisory Guidelines range was warranted, and imposed a statutory maximum sentence of 60 months' imprisonment. Bungar now appeals, arguing that the sentence imposed was unreasonable. He does not contest the Court's finding that he had committed a grade B violation. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) (authorizing review of a sentence imposed "in violation of law").

II.

The dust has settled, post-Booker, and it is now well understood that an appellate court reviews a sentence for reasonableness with regard to the factors set forth in 18 U.S.C. § 3553(a). United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Cooper, 437 F.3d 324, 326 (3d Cir.2006). We see no reason why that standard should not also apply to a sentence imposed upon a revocation of supervised release, and we so hold.¹

Section 3553(a) instructs a sentencing court to consider

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed —

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .

. . . .

(5) any pertinent policy statement . . . issued by the Sentencing Commission . . .;

. . . .

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

In order for a sentence to be reasonable, the record must demonstrate that the sentencing court gave "meaningful consideration" to these factors. Cooper, 437 F.3d at 329. The court need not, however, discuss a defendant's clearly nonmeritorious arguments, or otherwise "discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing." Id.

In addition to demonstrating that it gave meaningful consideration to the § 3553(a) factors, a sentencing court must demonstrate that it reasonably applied those factors to the circumstances of the case. Id. at 330. Our review in this regard is highly deferential. Id. We may not substitute our judgment for the sentencing court's, but will affirm if we are convinced that "the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors" in light of the circumstances of the case. United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006); see also Cooper, 437 F.3d at 330 (noting that the central inquiry "`is whether the district judge imposed the sentence he or she did for reasons that are logical and consistent with the factors set forth in section 3553(a)'" (quoting United States v. Williams, 425 F.3d 478, 481 (7th Cir.2005))). The party challenging the sentence bears the burden of proving its unreasonableness. United States v. King, 454 F.3d 187, 194 (3d Cir.2006).

When a sentence is imposed for a violation of the conditions of supervised release, additional considerations apply. Section 3583(e)(3) of Title 18 of the United States Code permits a district court, after considering the § 3553(a) factors,² to revoke a term of supervised release and sentence the defendant to imprisonment for up to five years if it finds, by a preponderance of the evidence, that the defendant violated a condition of supervised release.³ If a defendant, while under supervision, is found to have unlawfully possessed a controlled substance, the district court is required to revoke supervised release and sentence the defendant in accordance with subsection (e)(3). 18 U.S.C. § 3583(g)(1). Sentence is imposed for violations of supervised release primarily to sanction 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.'" United States v. Dees, 467 F.3d 847, 853 (3d Cir.2006) (quoting U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt.). In imposing sentence, a district court must consider the policy statements under Chapter 7 of the Sentencing Guidelines, see 18 U.S.C. § 3553(a)(5); Blackston, 940 F.2d at 893, although the sentencing ranges set forth in the revocation table at U.S.S.G. § 7B1.4(a) are merely advisory, Dees, 467 F.3d at 853.

There is no dispute that Bungar used cocaine in violation of a condition of his supervised release, and that his testing positive for cocaine use constituted circumstantial evidence of simple possession, a grade B violation. See Blackston, 940 F.2d at 892. At the time of his 1997 sentencing, the District Court found him to have a Criminal History Category of VI, a finding he did not appeal. See U.S.S.G. § 7B1.4 application note 1. Under the § 7B1.4(a) policy statement, a grade B violation coupled with a Criminal History Category of VI suggests a sentencing range of 21...