United States v. David Espaillat, 4th Cir. (2011)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 11-4243
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
DAVID ONELIO ESPAILLAT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.
Rebecca Beach Smith,
District Judge. (4:04-cr-00147-WDK-001)
Submitted:
October 21, 2011
Decided:
November 1, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.

Pratt, Rodolfo Cejas II, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant.
Lisa Rae McKeel, Assistant
United States Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Onelio Espaillat appeals the twenty-four-month
sentence
imposed
upon
revocation
of
his
term
of
supervised
Espaillats counsel filed a brief pursuant to Anders
release.
v. California, 386 U.S. 738 (1967), stating that there are no

meritorious
sentence
grounds
is
for
plainly
appeal,
but
unreasonable
questioning
because
the
whether
district
the
court
failed to consider the Chapter Seven policy statement range,

improperly
3583(e)
considered
(2006),
privilege.
and
factors
opined
not
permitted
that
supervised
by
18
U.S.C.
release
was
Espaillat was advised of his right to file a pro se
supplemental brief, but he did not file one.

We
will
not
disturb
We affirm.
sentence
imposed
after
revocation of supervised release that is within the prescribed

statutory range and is not plainly unreasonable.
United States
v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006).
In making this
determination,
unreasonable.
we
first
Id. at 438.
consider
whether
the
sentence
is
This initial inquiry takes a more
deferential appellate posture concerning issues of fact and the

exercise
of
discretion
[G]uidelines sentences.
than
reasonableness
review
for
United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007) (internal quotation marks and citations
omitted).
Although
district
court
ultimately
has
broad
discretion to revoke its previous sentence and impose a term of

imprisonment up to the statutory maximum, Crudup, 461 F.3d at
439 (internal quotation marks omitted), the court must consider
the Chapter Seven policy statements in the federal Sentencing
Guidelines manual, as well as the statutory requirements and
factors
applicable
to
revocation
3553(a), 3583(e) (2006).
sentences
under
18
U.S.C.
Chapter Seven provides that at
revocation the court should sanction primarily the defendants

breach of trust, while taking into account, to a limited degree,
the seriousness of the underlying violation and the criminal
history of the violator.
7, pt. A(3)(b) (2010).
U.S. Sentencing Guidelines Manual ch.
Section 3583 approves consideration of a
majority of the factors listed in 3553(a), omitting only two.

18 U.S.C. 3583(e).
the
sentence
to
Among the omitted factors is the need for
reflect
the
seriousness
of
the
offense,
to
promote respect for the law, and to provide just punishment for
the offense.
18 U.S.C. 3553(a)(2)(A).
Citing Crudup, Espaillat contends that his sentence is

plainly
unreasonable
considered
the
need
because
to
the
promote
district
respect
court
for
the
improperly
law,
the
seriousness of the offense, and the need for just punishment.

We conclude that the district courts observations regarding the
seriousness of Espaillats offense and the need to provide just
3
punishment
other
and
promote
required
respect
for
considerations,
the
law
were
including
relevant
the
nature
to
and
circumstances of the offense and the history and characteristics

of the defendant, adequately deterring criminal conduct, and
protecting the public from further crimes of the defendant.
U.S.C. 3553(a)(1), (a)(2)(B), (a)(2)(C).
noted
Espaillats
failure
to
abide
18
The district court
by
the
terms
of
his
supervised release, a factor relevant to Chapter Sevens policy

that a revocation sentence should focus on the breach of the
courts
trust.
considered
the
Moreover,
factors
revocation sentences.
in
the
district
3553(a)
that
court
are
expressly
applicable
to
We conclude that in light of the district
courts articulation of factors specifically listed in 3583,

consideration
of
other
factors
did
not
render
Espaillats
sentence plainly unreasonable.

Espaillat also contends that his sentence was plainly
unreasonable
because
the
district
court
did
not
specifically
reference the Chapter Seven policy statement sentencing range.

Consideration of the range was implicit in the courts ruling in
light of defense counsels concession at the revocation hearing
that a sentence within that range was not necessarily supported
by
the
circumstances
of
Espaillats
case
and
the
courts
detailed reasoning for imposing the statutory maximum sentence.

United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995).
4
We
district
further
court
reject
committed
Espaillats
reversible
supervised release as a privilege.
contention
error
by
that
the
referring
to
First, the district courts
view of supervised release as a privilege, in a general sense,

See generally United States v. Johnson, 529
is not erroneous.
U.S. 53, 59 (2000) (Congress intended supervised release to

assist
individuals
in
their
transition
to
community
life.
Supervised release fulfills rehabilitative ends, distinct from

those served by incarceration.).
Second, Espaillat points to
no legal authority prohibiting the district court from viewing

supervised release as a privilege.
in
the
district
courts
We therefore find no error
expression
of
its
opinion
that
supervised release is a privilege.

In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.
We therefore affirm.
This court requires that counsel
inform their client, in writing, of his right to petition the

Supreme Court of the United States for further review.
If the
client requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move
in
this
court
for
leave
to
withdraw
from
representation.
Counsels motion must state that a copy of the motion was served
on their client.
facts
and
legal
We dispense with oral argument because the

contentions
are
5
adequately
presented
in
the
materials
before
the
court
and
argument
would
not
aid
the
decisional process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

October 21, 2011

Before DAVIS, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Frances H.

Unpublished opinions are not binding precedent in this circuit.

Espaillats counsel filed a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), stating that there are no

failed to consider the Chapter Seven policy statement range,

Espaillat was advised of his right to file a pro se

supplemental brief, but he did not file one.

revocation of supervised release that is within the prescribed

v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006).

This initial inquiry takes a more

deferential appellate posture concerning issues of fact and the

United States v. Moulden, 478 F.3d

discretion to revoke its previous sentence and impose a term of

3553(a), 3583(e) (2006).

Chapter Seven provides that at

revocation the court should sanction primarily the defendants

U.S. Sentencing Guidelines Manual ch.

Section 3583 approves consideration of a

majority of the factors listed in 3553(a), omitting only two.

Among the omitted factors is the need for

Citing Crudup, Espaillat contends that his sentence is

seriousness of the offense, and the need for just punishment.

circumstances of the offense and the history and characteristics

The district court

supervised release, a factor relevant to Chapter Sevens policy

We conclude that in light of the district

courts articulation of factors specifically listed in 3583,

sentence plainly unreasonable.

reference the Chapter Seven policy statement sentencing range.

detailed reasoning for imposing the statutory maximum sentence.

supervised release as a privilege.

First, the district courts

view of supervised release as a privilege, in a general sense,

U.S. 53, 59 (2000) (Congress intended supervised release to

Supervised release fulfills rehabilitative ends, distinct from

Second, Espaillat points to

no legal authority prohibiting the district court from viewing

We therefore find no error

supervised release is a privilege.

This court requires that counsel

inform their client, in writing, of his right to petition the

client requests that a petition be filed, but counsel believes

We dispense with oral argument because the

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