United States v. Slappy

• Citation: 872 F.3d 202
• Decision Date: 22 September 2017
• Docket Number: No. 16-4010.,16-4010.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Lacresha Janelle SLAPPY, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

872 F.3d 202

UNITED STATES of America, Plaintiff–Appellee,

v.Lacresha Janelle SLAPPY, Defendant–Appellant.

No. 16-4010.

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2017

Decided: September 22, 2017

ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Donald Russell Pender, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, Acting United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before GREGORY, Chief Judge, and SHEDD and WYNN, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Gregory wrote the majority opinion, in which Judge Wynn joined. Judge Shedd wrote a dissenting opinion.

GREGORY, Chief Judge:

Defendant–Appellant Lacresha Janelle Slappy appeals her thirty-six month sentence, which the district court imposed after revoking Slappy's term of supervised release. Slappy argues that her revocation sentence is plainly unreasonable because the district court failed to address her nonfrivolous arguments in favor of a within-range sentence or to sufficiently explain why it imposed the statutory maximum sentence. We agree, and for the reasons that follow, we vacate Slappy's revocation sentence and remand for resentencing.

I.

In 2006, Slappy pleaded guilty to armed bank robbery and aiding and abetting, in violation of 18 U.S.C. § 2113(a) and (d) and § 2. On July 18, 2007, the district court sentenced Slappy to 107 months of imprisonment, followed by five years of supervised release, as well as $16,192 in restitution. Slappy served her term of imprisonment, and on September 30, 2014, she began serving her term of supervised release.

In February 2015, Slappy's probation officer filed a Petition for Action on Supervised Release, which stated that Slappy had violated the terms of her supervised release by submitting urine screens that on two occasions tested positive for the use of cocaine. J.A. 21. According to the Petition, Slappy stated that she was having a hard time adjusting to her release from prison and bonding with her children. J.A. 21. She was otherwise in compliance with the terms of her release by participating in a Relapse Prevention Group, seeing a therapist weekly to address substance abuse and mental health issues, and making regular payments on her restitution. J.A. 21, 29. The district court ordered Slappy to serve a weekend in prison and participate in a cognitive behavior program.

On October 27, 2015, Slappy's probation officer submitted an Amended Motion for Revocation on Offender Under Term of Supervised Release, alleging that Slappy committed the following violations: (1) engaged in criminal conduct (arrested for theft of a pair of shoes from a Nordstrom in Baltimore County, Maryland, and released on bond); (2) failed to report for seven urine screens; (3) used a controlled substance (marijuana); (4) left the judicial district without permission (based on Maryland theft charge); and (5) absconded from supervision (probation officer could not reach Slappy by phone or at her residence for three weeks). J.A. 23–24.

At the revocation hearing, Slappy did not contest violations one, two, or five, and admitted violations three and four. J.A. 27. Although the Government began to proffer evidence of all five alleged violations, the court stated, "I'm not going to find that she's violated but 3 and 4." J.A. 29. The parties agreed that violations three and four were both Grade C violations with a recommended sentence of seven to thirteen months of imprisonment under the Sentencing Guidelines' Chapter Seven policy statements, and that the statutory maximum sentence was thirty-six months of imprisonment. J.A. 29, 32; see also U.S. Sentencing Guidelines Manual § 7B1.4(a) (U.S. Sentencing Comm'n 2015).

Slappy requested a revocation sentence of thirteen months of imprisonment, followed by termination of her supervised release, based on her post-incarceration conduct and attempts at rehabilitation. J.A. 29–31. As she explained at the revocation hearing, following her release from custody on her 107-month sentence, she resided in a halfway house and worked at a fast food restaurant. J.A. 30. She also participated in New Hanover's Scared Straight program, which allowed her to share her experiences with the youths in the program. J.A. 30. According to Slappy's counsel, the director of the program said Slappy was quite effective, and that he gave her a lot of autonomy and would bring her the "hardened youth ... because she seems to be able to get through to them." J.A. 30. And a local news station interviewed Slappy for a documentary on prostitution and female drug users. J.A. 30. All of this, her counsel argued, helped Slappy gain "a lot of insight" and "start[ ] to look over her own life to figure out what [she] can do better," and that ultimately, "the fact that she's contributing to society in this way certainly shows us that she has." J.A. 30–31. Slappy addressed the court and explained that she had only left Wilmington because she felt she was in some danger, and that when she tried to explain that to her probation officer, she was not taken seriously. She said she otherwise would not have left, because she "was doing good." J.A. 31.

The Government asked the court to impose the statutory maximum sentence of thirty-six months of imprisonment. The Government recounted Slappy's criminal history, including three convictions for assault, one conviction for communicating a threat, a "resist, delay, and obstruct" conviction, and one conviction for raising a false fire alarm after she pulled a prison fire alarm and activated the sprinkler system. J.A. 32. The Government also recounted at length the conduct underlying her bank robbery conviction, for which Slappy was then serving the term of supervised release.

The Government further noted that when this bank robbery occurred, Slappy already had thirteen state convictions, had violated her probation five times, and had committed some of her crimes while out on bond for prior charges. And, the Government added, the five violations at issue all occurred less than a year after her release from her 107-month sentence on the bank robbery conviction. J.A. 33. The Government argued that "[b]ased on [Slappy's] history and characteristics," as well as "the need to protect the public from any further crimes of the defendant, and the need to promote the respect for the law," the statutory maximum was "the only sentence that's sufficient, but not greater than necessary." J.A. 34.

Slappy's counsel argued that Slappy had already been punished for her role in the bank robbery. Her counsel requested that the court consider only the currently alleged violations, which were "nowhere near any of the priors" that the Government had described. J.A. 34–35. Slappy herself reiterated that she had made significant attempts to try and help society through her involvement in community programs and asked that the court consider that in imposing a revocation sentence. J.A. 35–36.

Without addressing these arguments, the district court then sentenced Slappy to the statutory maximum of thirty-six months of imprisonment, stating only that

[t]he Court finds as a fact that the defendant has violated the terms of the conditions of the judgment by using a controlled substance, by leaving the judicial district without permission of The Court or Probation Officer. The Court has considered policy statements contained in Chapter 7 of the United States Sentencing Guidelines as well as the relevant factors listed in 18–USC–Section 3553(a) and weighed all these factors. Therefore, it is the Order of The Judge that the supervision (inaudible) granted be revoked. This defendant is ordered committed to the custody of the Bureau of Prisons for a period of 36 months. This sentence is imposed to afford adequate deterrence to criminal conduct imposed to the law rather than the defendant's use of (inaudible) is a threat to society. It's further ordered that the (inaudible). Ms. Slappy was released from the Bureau of Prisons on September 30, 2014, at which time her supervised release commenced. Since her release, she has submitted four positive drug screens for use of illegal drugs, failure to participate in a urinalysis as directed, incurred new criminal charges, and absconded from supervision. It is evidenced by her behavior that she doesn't respect The Court, and supervision based on a non-compliant behavior. This sentence is imposed.

J.A. 36–37.

Slappy timely appealed her revocation sentence.

II.

A district court has broad, though not unlimited, discretion in fashioning a sentence upon revocation of a defendant's term of supervised release.

United States v. Webb , 738 F.3d 638, 640 (4th Cir. 2013) ; United States v. Thompson , 595 F.3d 544, 547 (4th Cir. 2010). Accordingly, when this Court examines a revocation sentence, we "take[ ] 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) (quoting United States v. Crudup , 461 F.3d 433, 439 (4th Cir. 2006) ). "We will affirm a revocation sentence if it is within the statutory maximum and is not ‘plainly unreasonable.’ " Webb , 738 F.3d at 640 (quoting Crudup , 461 F.3d at 438 ). And even if a revocation sentence is plainly unreasonable, we will still affirm it if we find that any errors are harmless. See Thompson , 595 F.3d at 548.

To consider whether a revocation sentence is plainly unreasonable, we first must determine whether the sentence is procedurally or substantively unreasonable. Id. at 546. In making this determination, "we follow generally...