United States v. Demarlo Kornegay

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 12, 2019
• Docket: 18-4379
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4379

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMARLO TEVON KORNEGAY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. W. Earl Britt, Senior District Judge. (5:09-cr-00161-BR-1)

Submitted: March 29, 2019 Decided: April 12, 2019

Before GREGORY, Chief Judge, WILKINSON and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Research & Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Demarlo Tevon Kornegay appeals the 24-month sentence imposed upon the

revocation of his supervised release. On appeal, Kornegay argues that the sentence

imposed is both procedurally and substantively unreasonable because the district court

failed to address his nonfrivolous arguments in favor of a lesser sentence, did not

adequately explain the chosen sentence, relied on improper sentencing factors, and

imposed a sentence greater than necessary to accomplish the relevant sentencing goals.

Kornegay also contends that his revocation sentence violates the Double Jeopardy

Clause. We affirm.

“A district court has broad discretion when imposing a sentence upon revocation

of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We

will affirm a revocation sentence that “is within the prescribed statutory range and is not

plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 440 (4th Cir. 2006)

(internal citation omitted). We first consider whether the sentence imposed is

procedurally and substantively reasonable, applying the same general considerations

utilized in its evaluation of original criminal sentences. Id. at 438. In this initial inquiry,

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) (internal quotation marks omitted). Only if

we find the sentence unreasonable will [we] consider whether it is “plainly so.” Id. at

657 (internal quotation marks omitted).

2 A supervised release revocation sentence is procedurally reasonable if the district

court considered the policy statements contained in Chapter Seven of the Sentencing

Guidelines and the 18 U.S.C. § 3553(a) (2012) factors applicable in revocation

proceedings. Crudup, 461 F.3d at 439. The district court also must provide a statement

of reasons for the sentence imposed, but that explanation “need not be as detailed or

specific when imposing a revocation sentence as it must be when imposing a

post-conviction sentence.” United States v. Thompson, 595 F.3d 544, 547 (4th Cir.

2010). Additionally, when imposing a revocation sentence, the district court must

“address the parties’ nonfrivolous arguments in favor of a particular sentence, and if the

court rejects those arguments, it must explain why in a detailed-enough manner that this

[c]ourt can meaningfully consider the procedural reasonableness of the revocation

sentence imposed.” United States v. Slappy, 872 F.3d 202, 208 (4th Cir. 2017) .

In fashioning an appropriate sentence, “the court should sanction primarily the

defendant’s breach of trust, while taking into account, to a limited degree, the seriousness

of the underlying violation and the criminal history of the violator.” U.S. Sentencing

Guidelines Manual ch. 7, pt. A(3)(b) (2016). According to 18 U.S.C. § 3583(e) (2012),

which governs supervised release revocation proceedings, the court also must consider

some of the factors enumerated under § 3553(a), though not the need for the sentence “to

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). See 18 U.S.C. § 3583(e);

Crudup, 461 F.3d at 439. We have recognized, however, that the § 3553(a)(2)(A) factors

“are intertwined with the factors courts are expressly authorized to consider under

3 § 3583(e).” Webb, 738 F.3d at 641-42 (collecting cases recognizing this enmeshment of

the disfavored and the authorized factors). Thus, although the district court may not base

a revocation sentence “predominately” on the § 3553(a)(2)(A) factors, “mere reference to

such considerations does not render a revocation sentence procedurally unreasonable

when those factors are relevant to, and considered in conjunction with, the enumerated

§ 3553(a) factors.” Id. at 642.

We conclude that Kornegay’s sentence is not plainly unreasonable. First, although

the district court did not address all of Kornegay’s nonfrivolous arguments for a sentence

below the policy statement range, Kornegay concedes that the court considered and

rejected his primary mitigation argument that he had served a state sentence based on the

conduct forming the basis for his revocation. As to Kornegay’s contention that the

district court failed to address his argument that he generally complied with the terms of

his supervision, we conclude such argument is frivolous in light of his record of repeat

violations. See Slappy, 872 F.3d at 207 (noting that the district court must “meaningfully

respond to the parties’ nonfrivolous arguments” (emphasis added)). Kornegay also

maintains that the district court did not specifically address defense counsel’s statements

regarding Kornegay’s family support network, that Kornegay had obtained a commercial

driver’s license, that his uncle was willing to provide him a job, and that his grandmother

was willing to house him upon his release. Because the district court acknowledged

Kornegay’s family in the courtroom, expressly rejected Kornegay’s primary argument for

a lesser sentence, indicated that the circumstances “very loudly called for the maximum,”

we conclude that the district court “provide[d] enough” to indicate “that it considered”

4 the defendant’s arguments.” Slappy, 872 F.3d at 210. Accordingly, we find that

Kornegay’s sentence is not plainly unreasonable in this regard.

Second, Kornegay asserts that the district court failed to adequately explain the

chosen sentence. Specifically, Kornegay claims that “the court simply imposed the

maximum possible sentence and gave no justification” for the sentence. Contrary to

Kornegay’s assertion, the district court did offer an explanation for the chosen sentence.

Notably, the district court discussed a recent surge in firearms cases and noted that

Kornegay’s offense involved not only a firearm, but also the sale of cocaine. Due to the

“troubling” nature of the underlying criminal conviction, the court determined that the

statutory maximum sentence—which was also the policy statement range—was

appropriate. Moreover, the court emphasized that it had considered the relevant policy

statements and 18 U.S.C. § 3553(a) factors. We conclude that the court therefore

“sufficiently state[d] a proper basis for its conclusion that the defendant should receive

the sentence imposed.” Slappy, 872 F.3d at 207; see also Thompson, 595 F.3d at 547

(noting that district court’s explanation “need not be as detailed or specific when

imposing a revocation sentence as it must be when imposing a post-conviction

sentence”).

Relatedly, Kornegay argues that, in selecting the sentence, the district court

improperly considered the seriousness of Kornegay’s offense. The court stated that it had

considered and based its sentence upon “the policy statements on revocation contained in

Chapter 7 of the [S]entencing [G]uidelines as well as the relevant factors listed in 18

U.S.C., Section 3553(a).” (J.A. 37). Contrary to Kornegay’s argument, the court did not

5 state it was basing its sentence on the seriousness of the offense−a prohibited factor.

Rather, the court simply observed that Kornegay’s conduct involved firearms and drugs.

The district court’s explanation does not render Kornegay’s sentence plainly

unreasonable.

Moreover, we conclude that the sentence is substantively reasonable. The

within-policy statement range sentence imposed is afforded a presumption of

reasonableness, and, in light of the factors supporting that sentence, Kornegay has not

overcome that presumption. Gibbs, 897 F.3d at 204. Finally, as Kornegay concedes on

appeal, his Double Jeopardy argument is squarely foreclosed by existing Supreme Court

precedent. See Johnson v. United States, 529 U.S. 694, 700-01 (2000); Abbate v. United

States, 359 U.S. 187, 194-96 (1959); see also United States v. Woodrup, 86 F.3d 359,

361-63 (4th Cir. 1996) (holding sentence on revocation of supervised release not barred

by Double Jeopardy Clause because sentence is punishment for original offense and not

for offense that violated terms of supervised release).

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED