U.S. v. Moulden

• Decision Date: 07 March 2007
• Docket Number: No. 06-4630.,06-4630.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damien Troy MOULDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

478 F.3d 652

UNITED STATES of America, Plaintiff-Appellee, v. Damien Troy MOULDEN, Defendant-Appellant.

No. 06-4630.

United States Court of Appeals, Fourth Circuit.

Argued February 2, 2007.

Decided March 7, 2007.

ARGUED: Mary Elizabeth Maguire, Assistant Federal Public Defender, Office of the Federal Public Defender, Richmond, Virginia, for Appellant. Sara Elizabeth Flannery, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Acting Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WILKINSON and Judge TRAXLER joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

Damien Troy Moulden appeals an 18-month sentence, imposed following the revocation of his probation. We affirm.

I.

In November 2001, Moulden pleaded guilty to one count of conspiracy to commit bank fraud and pass counterfeit checks. See 18 U.S.C. §§ 371, 513(a), 1344 (2000). At that time, the court sentenced Moulden to three years' probation and ordered him to pay $31,625.80 in restitution. Moulden's probation carried with it a number of standard conditions, such as a requirement that Moulden not commit any crime, as well as special conditions — including periodic drug testing, participation in a substance abuse program, six months of home detention, and regular restitution payments.

In March 2004, Moulden tested positive for marijuana use, but the district court signed a "No Action Violation Report." Eight months later, in November 2004, Moulden again tested positive for marijuana, and failed to make his monthly restitution payments, but the court still did not revoke his probation. However, with Moulden's consent, the court extended the supervision period by two years.

Nevertheless, Moulden continued to violate the conditions of his probation. In April 2006, Moulden's probation officer submitted to the court a Petition on Probation to which an Addendum was added in May, alleging that Moulden had violated numerous conditions of his probation, ultimately including: failure to satisfactorily participate in a drug treatment program, use of marijuana, commission of "law violations," failure to pay restitution as directed, failure to submit monthly supervision reports as directed, and failure to report an arrest or questioning by law enforcement to the probation officer within 72 hours of contact. In response, the district court issued a summons, directing Moulden to show cause why the court should not revoke his probation.

On May 12, Moulden failed to appear in response to that summons. The court then issued a bench warrant for his arrest. Moulden self-surrendered on May 22, and on June 8, 2006, the court held a hearing on the violations. At this hearing, Moulden pleaded guilty to the violations in the Petition and Addendum.¹ Under the gradation scheme of violations provided in the United States Sentencing Commission Guidelines Manual, each of the admitted violations is a "Grade C" violation—the lowest of the three grades of violation. See U.S.S.G. § 7B1.1 (2005).

After the court accepted Moulden's guilty pleas, it heard testimony from Moulden, his mother, and his probation officer prior to imposing sentence. Relevant testimony focused on the extent to which Moulden had paid restitution, whether Moulden had been gainfully employed as required by the conditions of his probation, and the extent to which Moulden had made other positive strides in his life, including mentoring high school students and ceasing his marijuana use. The Government introduced testimony from Moulden's probation officer suggesting that Moulden had "absconded from probation," and disputing Moulden's suggestion that he had met his restitution obligations. The court credited the probation officer's testimony. Although defense counsel attempted to characterize Moulden's violations as "technical," the district court disagreed, finding that the violations were "serious," notwithstanding the fact that they were "only" grade C violations.

The policy statements contained in Chapter 7 of the Guidelines Manual call for three to nine months of imprisonment for commission of a grade C probation violation by a person with Moulden's criminal history category (I). See U.S.S.G. § 7B1.4. The court noted this range, but stated that it was "inadequate to address the proper punishment necessary here." The district court instead imposed an 18-month sentence, explaining that Moulden had "flaunted the rules of the court" and "flaunted the requirements of probation." Addressing Moulden directly, the court further explained that Moulden had been "given a break, a substantial break," but that Moulden "acted as if [he] had no responsibility to perform under probation." The sentence imposed was required, in the court's view, to teach Moulden that he "cannot behave in a way that [he] did and that [he is] obligated to perform in accord with the rules of society and the Court."

Moulden timely appealed, arguing that the sentence imposed is unreasonable and should be vacated on that basis. The Government contends, in opposition, that a revocation sentence like Moulden's should be vacated only if plainly unreasonable, but that the sentence is appropriate under either standard. We first address the appropriate standard of review, and then the merits of Moulden's claim.

II.

In reviewing a sentence imposed after the revocation of a defendant's supervised release, we recently held, in United States v. Crudup, 461 F.3d 433, 437 (4th Cir.2006), that "revocation sentences should be reviewed to determine whether they are `plainly unreasonable' with regard to [applicable 18 U.S.C.] § 3553(a) factors." Notwithstanding our recent decision in Crudup, Moulden argues that revocation sentences stemming from revocation of probation should be evaluated under a "reasonableness" standard. Because we can find no compelling reason to treat probation revocation sentences differently than supervised release revocation sentences, and many persuasive reasons to treat them alike, we reject Moulden's approach.

Our decision to review both species of revocation sentences under the same standard accords with 18 U.S.C.A. § 3742(a)(4) (West 2005), the relevant Sentencing Commission policy statements and commentary, and our historical treatment of revocation sentences.

First, § 3742(a)(4) governs both sentences for revocation of probation and those imposed for revocation of supervised release. That statute provides that a defendant convicted of an "offense for which there is no sentencing guideline" may appeal the resultant sentence if it is "plainly unreasonable." 18 U.S.C. § 3742(a)(4).² 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." See U.S.S.G. § 7B1.4. Indeed, violations of probation and supervised release are addressed in "a single set of policy statements." See U.S.S.G., ch. 7, pt. A, introductory cmt. 4 (2005). The Commission selected this approach in order to give courts "greater flexibility" in imposing a sentence for probation and supervised release violations than a guideline would allow. U.S.S.G., ch. 7, pt. A, introductory cmts. 1, 3(a).

Moreover, a closer look at the contents of Chapter 7 of the Guidelines further suggests that revocation sentences of both kinds should be treated similarly. The Guidelines Manual states that it views "violations of the conditions of probation and supervised release as functionally equivalent." U.S.S.G. ch. 7, pt. B, introductory cmt. The Commission instructs that both species of revocation sentences should aim to "sanction the violator for failing to abide by the conditions of the court-ordered supervision," and to punish the inherent "breach of trust" indicated by the defendant's behavior, rather than punish the defendant for additional criminal behavior (to the extent that the violating behavior is criminal). U.S.S.G., ch. 7, pt. A, cmt. 3(b). As a result, a similarly classified violation of either type of supervision is subject to the same revocation table and the same policy statement range. See U.S.S.G. § 7B1.4. Furthermore, in previously discussing the unitary treatment of both types of revocation sentences by the policy statements of Chapter 7, we have noted that "there is no reason in policy or principle to distinguish between probation revocation and supervised release revocation." United States v. Davis, 53 F.3d 638, 640 (4th Cir.1995).

Nevertheless, Moulden urges that, because a court imposing a sentence upon revoking a defendant's probation must consider all § 3553(a) factors, see 18 U.S.C.A. § 3565(a) (West 2005)—rather than just some of those factors, as is the case when revoking supervised release, see 18 U.S.C.A. § 3583(c) (West 2005)—a probation revocation sentence is indistinguishable from the usual guidelines sentence for the purposes of our review. We disagree. Probation revocation sentences, although they do require consideration of all of the § 3553(a) factors, are not true "guidelines" sentences. Even under the mandatory guidelines regime that predated Booker, such sentences were left to the discretion of the court and the policy statement ranges were treated as non-mandatory. See United States v. Denard, 24 F.3d 599, 602 (4th Cir.1994). Historically, we have viewed such sentences as different, in kind, from a sentence imposed after a criminal conviction and have accorded the district court's determination of the appropriate sentence greater deference. See id.

Finally, we note that...