COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Huff, Athey and White
MICHAEL KEVIN TRAVIS MEMORANDUM OPINION* BY v. Record No. 1302-21-3 JUDGE CLIFFORD L. ATHEY, JR. NOVEMBER 22, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Timothy W. Allen, Judge
(William C. Meyer, II, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Susan Brock Wosk, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Appellant Michael K. Travis (“Travis”) appeals his sentence, following his guilty pleas, to
two counts of distribution of cocaine, distribution of imitation heroin, and distribution of heroin, in
violation of Code § 18.2-248(C), 18.2-248(G), and 18.2-248.1 Travis asserts that the Pittsylvania
County Circuit Court (“trial court”) abused its discretion when it sentenced him to eight years’
incarceration on each distribution conviction, and five years’ incarceration on the distribution of
imitation heroin conviction; with all but one year suspended on each conviction. Both parties waive
oral argument on appeal. We affirm the trial court’s judgment.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The indictment, trial order, and sentencing order did not contain the subsection for the distribution of heroin charge. I. BACKGROUND
Under settled principles, we state the facts in the light most favorable to the
Commonwealth, the prevailing party below. Gerald v. Commonwealth, 295 Va. 469, 472
(2018). On July 14, 2021, Travis pled guilty to two counts of distribution of cocaine, distribution
of heroin, and distribution of imitation heroin. After conducting a colloquy with Travis, the trial
court accepted his pleas and convicted him of the charges.
The Commonwealth proffered that this case involved three controlled purchases of illegal
narcotics with a confidential informant (“CI”) working for the Pittsylvania County Sheriff’s
Office. Each purchase occurred at the Food Lion at Market Square. Before each purchase,
officers searched the CI for contraband. Finding no contraband, the officers gave the CI paper
currency to complete the transaction. The officers then drove the CI to the Food Lion and
surveilled the scene.
The CI set up a purchase for thirty dollars’ worth of crack cocaine from Travis on
January 17, 2020. Officers observed the CI approach Travis and exchange thirty dollars for a
substance. After the purchase, Investigator Sargent took possession of the substance, which she
believed to be crack cocaine, and placed it into evidence. Testing confirmed that the substance
was cocaine.
The same CI set up another purchase from Travis for one gram of heroin on January 23,
2020. After searching the CI for contraband and finding none, officers gave him $110 for the
transaction and traveled to the Food Lion. The officers observed the CI approach Travis in the
parking lot, exchange money for what the CI believed to be heroin and return to the
investigators. The officers took possession of the substance, which based on their training and
experience, they believed to be heroin and placed it into evidence. Testing revealed that the
substance was not a controlled substance.
-2- The CI set up a final buy from Travis on February 4, 2020. After being searched by the
officers, who found no contraband, the CI was given $400 to purchase fentanyl and crack
cocaine. After the exchange with Travis, the CI turned over the substances to Investigator
Sargent who placed them into evidence. Testing revealed that one of the substances was heroin
and the other substance was cocaine.
At trial, in support of Travis’ guilty pleas, the Commonwealth proffered and the court
accepted, without objection, the certificates of analysis into evidence. Travis agreed that the
evidence the Commonwealth proffered was accurate, and his counsel noted that Travis would
provide more detail about the transactions and his situation at sentencing. After considering the
evidence and Travis’ pleas, the trial court convicted Travis of two counts of distribution of
cocaine, distribution of heroin, and distribution of imitation heroin. At the sentencing hearing on
November 4, 2021, the Commonwealth requested restitution in the amount of $540 and submitted
the case to the court’s discretion.
Travis testified that after he was last released from prison, he had difficulty finding
employment and faced a significant financial hardship. Consequently, he resorted to selling drugs
to survive. He articulated his desire to participate in a program that provides “life skills, job
training, spiritual guidance,” and opportunities. He stated that he no longer wanted to be a burden
on his parents and emphasized that he would take advantage of whatever chance the court granted
him. While incarcerated, Travis had also assisted the police in some of its investigations.
After Travis rested, the Commonwealth submitted the case to the court’s discretion as to
sentencing. Travis argued that he had been of great assistance to the Danville police in their
ongoing investigations and that because he had provided the names of places and people to
investigators, he was unlikely to return to selling illegal narcotics. He articulated his desire to be a
productive member of the community by staying clean of drugs and earning his own living. He
-3- asked the court to sentence him to a work program. In allocution, Travis apologized for selling
drugs and acknowledged that what he had done was wrong. He also reiterated his desire for the
court to sentence him to a program which would provide him with life skills.
The trial court reviewed Travis’ presentence report and guidelines.2 Upon his last release,
the court noted that Travis had done well for a period by remaining drug free and was only hindered
by his unemployment. The court also noted that Travis had taken responsibility by entering guilty
pleas and had provided substantial assistance to the Danville police. Consequently, the court found
that Travis qualified for a downward modification of his guidelines. As a result, the guideline
ranges were reduced to a minimum of two years, seven months, seventeen days and a high point of
eight years, seven months. After noting the mitigating circumstances, the court stated that selling
narcotics is “terribly harmful to the community.” The court subsequently sentenced Travis to eight
years’ incarceration on each distribution conviction, and five years’ incarceration on the distribution
of imitation heroin conviction, with all but one year suspended for each conviction. He is to serve
an active sentence of four years’ incarceration. This appeal followed.
II. ANALYSIS
A. Standard of Review
“We review the trial court’s sentence for abuse of discretion.” Scott v. Commonwealth,
58 Va. App. 35, 46 (2011). “[W]hen a statute prescribes a maximum imprisonment penalty and
the sentence does not exceed that maximum, the sentence will not be overturned as being an
abuse of discretion.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Alston
v. Commonwealth, 274 Va. 759, 771-72 (2007)). “[O]nce it is determined that a sentence is
within the limitations set forth in the statute under which it is imposed, appellate review is at an
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Huff, Athey and White
MICHAEL KEVIN TRAVIS MEMORANDUM OPINION* BY v. Record No. 1302-21-3 JUDGE CLIFFORD L. ATHEY, JR. NOVEMBER 22, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Timothy W. Allen, Judge
(William C. Meyer, II, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Susan Brock Wosk, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Appellant Michael K. Travis (“Travis”) appeals his sentence, following his guilty pleas, to
two counts of distribution of cocaine, distribution of imitation heroin, and distribution of heroin, in
violation of Code § 18.2-248(C), 18.2-248(G), and 18.2-248.1 Travis asserts that the Pittsylvania
County Circuit Court (“trial court”) abused its discretion when it sentenced him to eight years’
incarceration on each distribution conviction, and five years’ incarceration on the distribution of
imitation heroin conviction; with all but one year suspended on each conviction. Both parties waive
oral argument on appeal. We affirm the trial court’s judgment.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The indictment, trial order, and sentencing order did not contain the subsection for the distribution of heroin charge. I. BACKGROUND
Under settled principles, we state the facts in the light most favorable to the
Commonwealth, the prevailing party below. Gerald v. Commonwealth, 295 Va. 469, 472
(2018). On July 14, 2021, Travis pled guilty to two counts of distribution of cocaine, distribution
of heroin, and distribution of imitation heroin. After conducting a colloquy with Travis, the trial
court accepted his pleas and convicted him of the charges.
The Commonwealth proffered that this case involved three controlled purchases of illegal
narcotics with a confidential informant (“CI”) working for the Pittsylvania County Sheriff’s
Office. Each purchase occurred at the Food Lion at Market Square. Before each purchase,
officers searched the CI for contraband. Finding no contraband, the officers gave the CI paper
currency to complete the transaction. The officers then drove the CI to the Food Lion and
surveilled the scene.
The CI set up a purchase for thirty dollars’ worth of crack cocaine from Travis on
January 17, 2020. Officers observed the CI approach Travis and exchange thirty dollars for a
substance. After the purchase, Investigator Sargent took possession of the substance, which she
believed to be crack cocaine, and placed it into evidence. Testing confirmed that the substance
was cocaine.
The same CI set up another purchase from Travis for one gram of heroin on January 23,
2020. After searching the CI for contraband and finding none, officers gave him $110 for the
transaction and traveled to the Food Lion. The officers observed the CI approach Travis in the
parking lot, exchange money for what the CI believed to be heroin and return to the
investigators. The officers took possession of the substance, which based on their training and
experience, they believed to be heroin and placed it into evidence. Testing revealed that the
substance was not a controlled substance.
-2- The CI set up a final buy from Travis on February 4, 2020. After being searched by the
officers, who found no contraband, the CI was given $400 to purchase fentanyl and crack
cocaine. After the exchange with Travis, the CI turned over the substances to Investigator
Sargent who placed them into evidence. Testing revealed that one of the substances was heroin
and the other substance was cocaine.
At trial, in support of Travis’ guilty pleas, the Commonwealth proffered and the court
accepted, without objection, the certificates of analysis into evidence. Travis agreed that the
evidence the Commonwealth proffered was accurate, and his counsel noted that Travis would
provide more detail about the transactions and his situation at sentencing. After considering the
evidence and Travis’ pleas, the trial court convicted Travis of two counts of distribution of
cocaine, distribution of heroin, and distribution of imitation heroin. At the sentencing hearing on
November 4, 2021, the Commonwealth requested restitution in the amount of $540 and submitted
the case to the court’s discretion.
Travis testified that after he was last released from prison, he had difficulty finding
employment and faced a significant financial hardship. Consequently, he resorted to selling drugs
to survive. He articulated his desire to participate in a program that provides “life skills, job
training, spiritual guidance,” and opportunities. He stated that he no longer wanted to be a burden
on his parents and emphasized that he would take advantage of whatever chance the court granted
him. While incarcerated, Travis had also assisted the police in some of its investigations.
After Travis rested, the Commonwealth submitted the case to the court’s discretion as to
sentencing. Travis argued that he had been of great assistance to the Danville police in their
ongoing investigations and that because he had provided the names of places and people to
investigators, he was unlikely to return to selling illegal narcotics. He articulated his desire to be a
productive member of the community by staying clean of drugs and earning his own living. He
-3- asked the court to sentence him to a work program. In allocution, Travis apologized for selling
drugs and acknowledged that what he had done was wrong. He also reiterated his desire for the
court to sentence him to a program which would provide him with life skills.
The trial court reviewed Travis’ presentence report and guidelines.2 Upon his last release,
the court noted that Travis had done well for a period by remaining drug free and was only hindered
by his unemployment. The court also noted that Travis had taken responsibility by entering guilty
pleas and had provided substantial assistance to the Danville police. Consequently, the court found
that Travis qualified for a downward modification of his guidelines. As a result, the guideline
ranges were reduced to a minimum of two years, seven months, seventeen days and a high point of
eight years, seven months. After noting the mitigating circumstances, the court stated that selling
narcotics is “terribly harmful to the community.” The court subsequently sentenced Travis to eight
years’ incarceration on each distribution conviction, and five years’ incarceration on the distribution
of imitation heroin conviction, with all but one year suspended for each conviction. He is to serve
an active sentence of four years’ incarceration. This appeal followed.
II. ANALYSIS
A. Standard of Review
“We review the trial court’s sentence for abuse of discretion.” Scott v. Commonwealth,
58 Va. App. 35, 46 (2011). “[W]hen a statute prescribes a maximum imprisonment penalty and
the sentence does not exceed that maximum, the sentence will not be overturned as being an
abuse of discretion.” Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Alston
v. Commonwealth, 274 Va. 759, 771-72 (2007)). “[O]nce it is determined that a sentence is
within the limitations set forth in the statute under which it is imposed, appellate review is at an
2 The presentencing report guidelines recommended that Travis be incarcerated for five years, three months as a low point and eight years, seven months as a high point, with seven years as the midpoint. -4- end.” Thomason v. Commonwealth, 69 Va. App. 89, 99 (2018) (quoting Minh Duy Du, 292 Va.
at 565).
B. The trial court did not abuse its discretion in its sentencing decision because the trial court properly weighed Travis’ mitigating evidence.
Travis contends that his sentence is “too harsh.” He asserts that the facts of his case are
unique so the test for whether the trial court abused its discretion must be based on the facts of his
case. He argues that this Court should set aside sentences that are plainly wrong just as we set aside
convictions that are plainly wrong or without evidence to support them. Travis further argues that
the trial court ignored his mitigating evidence when fashioning his sentence. We disagree and find
that the trial court properly took mitigating evidence into account when determining Travis’
sentence.
The standard sentencing guidelines “are not binding on the trial judge; rather, the
guidelines are merely a ‘tool’ to assist the judge in fixing an appropriate punishment.” Belcher v.
Commonwealth, 17 Va. App. 44, 45 (1993). “[O]nce it is determined that a sentence is within
the limitations set forth in the statute under which it is imposed, appellate review is at an end.”
Thomason, 69 Va. App. at 99 (quoting Minh Duy Du, 292 Va. at 565).
It was within the trial court’s purview to weigh Travis’ mitigating evidence. Keselica v.
Commonwealth, 34 Va. App. 31, 36 (2000). “Criminal sentencing decisions are among the most
difficult judgment calls trial judges face.” Minh Duy Du, 292 Va. at 563. “Because this task is
so difficult, it must rest heavily on judges closest to the facts of the case—those hearing and
seeing the witnesses, taking into account their verbal and nonverbal communication, and placing
all of it in the context of the entire case.” Id.
The record does not support Travis’ claim that the trial court did not consider his
mitigating evidence in fashioning a sentence. Before pronouncing its sentence, the trial court
acknowledged Travis’ cooperation with, and great assistance to, the Danville police in several -5- investigations. The trial court also noted that Travis had taken responsibility for his crimes by
pleading guilty. Consequently, the trial court found the mitigating evidence sufficient to
downwardly modify Travis’ guidelines. Balanced against this mitigating evidence, the trial court
found that selling illegal narcotics is harmful to the community. Thus, the record reflects that the
trial court considered all the evidence presented, both mitigating and aggravating, before
imposing the challenged sentences. Here, Travis’ sentences were within the ranges set by the
legislature. See Code § 18.2-248(C) and 18.2-248(G). Accordingly, we find no abuse of
discretion with the trial court’s sentencing decision.
III. CONCLUSION
For the foregoing reasons, the trial court’s sentence is affirmed.
Affirmed.
-6-