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    United States v. Terrence Barbour, 4th Cir. (2015)

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    1) The defendant, Terrence Overton Barbour, appealed the 37-month sentence imposed by the district court following the revocation of his supervised release term. 2) The Fourth Circuit affirmed the district court's sentence, finding it was both procedurally and substantively reasonable. The sentence was within the statutory maximum and the district court considered the proper sentencing factors. 3) The Fourth Circuit also held that the district court was not required to explain why it rejected the defendant's request for a concurrent sentence, as the sentencing guidelines recommend consecutive sentences in such cases.

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    United States v. Terrence Barbour, 4th Cir. (2015)

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    1) The defendant, Terrence Overton Barbour, appealed the 37-month sentence imposed by the district court following the revocation of his supervised release term. 2) The Fourth Circuit affirmed the district court's sentence, finding it was both procedurally and substantively reasonable. The sentence was within the statutory maximum and the district court considered the proper sentencing factors. 3) The Fourth Circuit also held that the district court was not required to explain why it rejected the defendant's request for a concurrent sentence, as the sentencing guidelines recommend consecutive sentences in such cases.

    Original Description:

    Filed: 2015-05-20 Precedential Status: Non-Precedential Docket: 14-4777

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    1) The defendant, Terrence Overton Barbour, appealed the 37-month sentence imposed by the district court following the revocation of his supervised release term. 2) The Fourth Circuit affirmed the district court's sentence, finding it was both procedurally and substantively reasonable. The sentence was within the statutory maximum and the district court considered the proper sentencing factors. 3) The Fourth Circuit also held that the district court was not required to explain why it rejected the defendant's request for a concurrent sentence, as the sentencing guidelines recommend consecutive sentences in such cases.

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    58 views6 pages

    United States v. Terrence Barbour, 4th Cir. (2015)

    Uploaded by

    Scribd Government Docs
    1) The defendant, Terrence Overton Barbour, appealed the 37-month sentence imposed by the district court following the revocation of his supervised release term. 2) The Fourth Circuit affirmed the district court's sentence, finding it was both procedurally and substantively reasonable. The sentence was within the statutory maximum and the district court considered the proper sentencing factors. 3) The Fourth Circuit also held that the district court was not required to explain why it rejected the defendant's request for a concurrent sentence, as the sentencing guidelines recommend consecutive sentences in such cases.

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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 14-4777

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    TERRENCE OVERTON BARBOUR,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of Virginia, at Lynchburg.
    Norman K. Moon, Senior
    District Judge. (6:06-cr-00026-NKM-2)

    Submitted:

    April 28, 2015

    Decided:

    May 20, 2015

    Before SHEDD, FLOYD, and THACKER, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Larry W. Shelton, Federal Public Defender, Christine Madeleine


    Lee, Research and Writing Attorney, Roanoke, Virginia, for
    Appellant.
    Anthony P. Giorno, Acting United States Attorney,
    Jean
    B.
    Hudson,
    Assistant
    United
    States
    Attorney,
    Charlottesville, Virginia, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Terrence

    Overton

    Barbour

    appeals

    the

    37month

    sentence

    imposed following the revocation of his supervised release term.


    On

    appeal,

    Barbour

    substantively

    argues

    unreasonable

    that

    this

    because

    sentence

    it

    was

    is

    ordered

    plainly
    to

    run

    consecutively to a previously imposed 20-year state sentence.


    Barbour also assigns procedural error to the district courts
    failure

    to

    explain

    why

    concurrent sentence.

    it

    rejected

    Barbours

    request

    for

    For the reasons that follow, we reject

    these arguments and affirm the revocation judgment.


    A

    district

    court

    has

    broad

    discretion

    when

    sentence upon revocation of supervised release.


    v.

    Webb,

    738

    F.3d

    638,

    640

    (4th

    Cir.

    imposing

    United States

    2013).

    revocation

    sentence that is both within the applicable statutory maximum


    and

    not

    plainly

    unreasonable

    will

    be

    affirmed

    on

    appeal.

    United States v. Crudup, 461 F.3d 433, 43738 (4th Cir. 2006).
    In

    determining

    whether

    revocation

    sentence

    is

    plainly

    unreasonable, we first assess the sentence for reasonableness,


    utilizing

    the

    procedural

    and

    substantive

    employed in evaluating an original sentence.


    A

    revocation

    district

    court

    sentence

    has

    is

    procedurally

    considered

    both

    the

    considerations

    Id. at 438.
    reasonable
    policy

    if

    the

    statements

    contained in Chapter Seven of the Sentencing Guidelines and the


    18

    U.S.C.

    3553(a)

    (2012)

    factors
    2

    identified

    in

    18

    U.S.C.

    3583(e) (2012).

    Id. at 439.

    The district court must also

    explain the chosen sentence, although this explanation need not


    be

    as

    detailed

    sentence.
    Cir.

    or

    specific

    as

    is

    required

    for

    an

    original

    United States v. Thompson, 595 F.3d 544, 547 (4th

    2010).

    sentence

    is

    substantively

    reasonable

    if

    the

    district court states a proper basis for concluding that the


    defendant should receive the sentence imposed.

    Crudup, 461 F.3d

    at 440.
    If,

    after

    considering

    the

    above,

    sentence is reasonable, we will affirm.


    find

    the

    sentence

    to

    be

    we

    decide

    Id. at 439.

    procedurally

    or

    that

    Only if we

    substantively

    unreasonable will we evaluate whether it is plainly so.


    Against

    these

    principles,

    sentence is reasonable.

    we

    conclude

    the

    that

    Id.

    Barbours

    The sentence is within the five-year

    statutory maximum authorized for the underlying Class A felony


    offense that resulted in the supervised release order.

    See 18

    U.S.C.

    U.S.C.

    3559(a)(1),

    841(b)(1)(A) (2006).
    the

    district

    court

    3583(e)(3)

    (2012);

    see

    also

    21

    Our review of the record confirms that

    considered

    the

    advisory

    policy

    statement

    range of 37 to 46 months imprisonment, the calculation of which


    was not disputed in the district court and is not challenged on
    appeal,

    and

    heard

    argument

    from

    appropriate sentence to be imposed.

    the

    parties

    regarding

    the

    Furthermore, the district

    court drew on the 3553(a) factors enumerated in 3583(e) in


    3

    sentencing Barbour and explained the reasons for the selected


    sentence in terms of those factors.
    Barbour

    asserts

    the

    district

    court

    committed

    reversible

    procedural error by failing to respond to his argument for a


    concurrent sentence.

    We disagree.

    The policy statement set

    forth in USSG 7B1.3(f) specifically states that


    Any term of imprisonment imposed upon the revocation
    of . . . supervised release shall be ordered to be
    served consecutively to any sentence of imprisonment
    that the defendant is serving, whether or not the
    sentence of imprisonment being served resulted from
    the conduct that is the basis of the revocation
    of . . . supervised release.
    Thus, in imposing a consecutive sentence, the district court
    deferred to this advisory policy statement.
    while not required, was more than proper.

    Such deference,
    See Thompson, 595

    F.3d at 547; see also United States v. Moulden, 478 F.3d 652,
    65657 (4th Cir. 2007).

    And we reject Barbours contention that

    the district court needed to explain why it adhered to this


    clear

    policy

    statement,

    because

    such

    position

    unwarranted obligation on sentencing courts.


    United

    States,

    551

    U.S.

    338,

    35657

    (2007)

    places

    an

    See, e.g., Rita v.


    ([W]hen

    judge

    decides simply to apply the Guidelines to a particular case,


    doing so will not necessarily require lengthy explanation.).
    This court recognized in Thompson that it may be hardpressed

    to

    find

    any

    explanation

    for

    within-range,

    revocation

    sentences insufficient given the amount of deference we afford


    4

    district courts when imposing these sentences[.]


    F.3d at 547.
    within

    the

    Thompson, 595

    Here, the district court opined that a sentence


    properly

    calculated

    policy

    statement

    range

    was

    warranted given Barbours history and characteristics; the need


    to protect the public and to deter Barbour from future crimes
    and noncompliance; and the need to avoid unwarranted sentencing
    disparities.

    We

    thus

    discern

    no

    procedural

    error

    in

    the

    district courts explanation for the selected sentence.


    Barbour also contends that imposing a consecutive sentence
    was substantively unreasonable because he faced a 20-year state
    sentence for the same underlying conduct.

    But this argument

    ignores the established principle that a revocation sentence is


    designed to punish the defendants failure to abide by the terms
    of his supervised release, which is separate and distinct from
    the

    punishment

    Crudup,

    461

    imposed

    F.3d

    at

    for

    any

    437-38

    underlying

    ([T]he

    criminal

    sentence

    conduct.

    imposed

    upon

    revocation [is] intended to sanction the violator for failing to


    abide

    by

    (quoting

    the
    USSG

    conditions
    ch.

    7,

    pt.

    alteration in original)).

    of

    the

    A,

    court-ordered

    introductory

    cmt.

    supervision.
    3(b))

    (second

    Barbour admitted both of the alleged

    violations of the terms of his supervised release, one of which


    involved

    multiple

    violations
    supervision.

    reflect

    instances

    of

    Barbours

    drug
    serious

    trafficking.
    disregard

    These
    for

    his

    Further, as discussed supra, because the court


    5

    plainly identified a proper basis for concluding the defendant


    should

    receive

    the

    sentence

    imposed,

    id.

    at

    440,

    we

    readily

    conclude that the sentence is substantively reasonable.


    Accordingly, we affirm the district courts judgment.
    dispense

    with

    contentions

    are

    oral

    argument

    adequately

    because

    presented

    in

    the
    the

    facts

    We

    and

    legal

    materials

    before

    this court and argument would not aid the decisional process.

    AFFIRMED

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