USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4519
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUSTIN SCOTT FILES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:19-cr-00116-MHL-1)
Submitted: September 21, 2022 Decided: September 30, 2022
Before WYNN and DIAZ, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Nia A. Vidal, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 2 of 6
PER CURIAM:
Dustin Scott Files appeals the district court’s judgment revoking his supervised
release and sentencing him to 30 months’ imprisonment. Counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds
for appeal but questioning whether Files’ due process rights were violated when he was
expelled from a treatment program and whether Files’ revocation sentence is plainly
unreasonable. The Government has not filed a brief. Files filed a pro se supplemental
brief. We affirm.
Counsel asserts a violation of Files’ procedural due process rights. The Fourteenth
Amendment provides: No “State [shall] deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1. For the revocation of
supervised release, due process requires a preliminary hearing “to determine whether there
is probable cause or reasonable ground to believe that the [defendant] has committed acts
that would constitute a violation of [supervised release] conditions,” Morrissey v. Brewer,
408 U.S. 471, 485 (1972), and a final hearing within a reasonable time after the defendant
is taken into custody providing “an opportunity to be heard and to show, if he can, that he
did not violate the conditions, or, if he did, that circumstances in mitigation suggest that
the violation does not warrant revocation,” id. at 488; see United States v. Copley, 978 F.2d
829, 831 (4th Cir. 1992) (extending Morrissey’s due process requirements to supervised
release revocations).
Files’ liberty interest was not implicated until the district court adjudicated the
disputed violation and revoked his supervised release, and our review shows that the court
2 USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 3 of 6
complied with due process. The court held a preliminary hearing and, based on the
evidence presented, determined that there was probable cause to believe Files had violated
the supervised release condition requiring him to participate in an inpatient treatment
program. A month later, the court held a final revocation hearing where Files presented
evidence, called two witnesses, and testified in his defense. The court therefore provided
Files with all the process that was due before revoking his supervised release. See United
States v. Van Donk, 961 F.3d 314, 327 (4th Cir. 2020) (noting that “the [district] court
didn’t automatically revoke [the defendant’s] supervised release, but rather ordered
hearings on the issue. This regime affords [the defendant] due process without
micromanaging his treatment.”).
In his pro se supplemental brief, Files challenges the district court’s factual findings
upon which the revocation decision was based. To revoke supervised release, the district
court need only find a violation of a supervised release condition by a preponderance of
the evidence. 18 U.S.C. § 3583(e)(3); United States v. Dennison, 925 F.3d 185, 191 (4th
Cir. 2019). We “review[] a district court’s decision to revoke a defendant’s supervised
release for abuse of discretion,” its underlying factual findings for clear error, and
unpreserved challenges for plain error. Id. at 190; see United States v. Doctor, 958 F.3d
226, 234 (4th Cir. 2020) (describing clear error standard). With these standards in mind,
we have reviewed the record and conclude that the district court’s factual findings were
not clearly erroneous and, therefore, that the court did not err by revoking Files’ term of
supervised release.
3 USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 4 of 6
Counsel argues Files’ sentence is unreasonable. “We will affirm a revocation
sentence if it is within the statutory maximum and is not plainly unreasonable.” United
States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (internal quotation marks omitted).
Files’ revocation sentence is within the statutory maximum. “When reviewing whether a
revocation sentence is plainly unreasonable, we must first determine whether it is
unreasonable at all.” United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). “In
making this determination, we follow generally the procedural and substantive
considerations that we employ in our review of original sentences, with some necessary
modifications to take into account the unique nature of supervised release revocation
sentences.” Slappy, 872 F.3d at 207 (cleaned up). Only if a sentence is either procedurally
or substantively unreasonable is a determination then made as to whether the sentence is
plainly unreasonable. United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007).
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding
Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) factors.” United
States v. Coston, 964 F.3d 289, 297 (4th Cir. 2020) (internal quotation marks omitted); see
18 U.S.C. § 3583(e). “A revocation sentence is substantively reasonable if, in light of the
totality of the circumstances, the [district] court states an appropriate basis for concluding
that the defendant should receive the sentence imposed.” Id. (internal quotation marks
omitted). “A court need not be as detailed or specific when imposing a revocation sentence
as it must be when imposing a post-conviction sentence, but it still must provide a statement
Free access — add to your briefcase to read the full text and ask questions with AI
USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-4519
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DUSTIN SCOTT FILES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:19-cr-00116-MHL-1)
Submitted: September 21, 2022 Decided: September 30, 2022
Before WYNN and DIAZ, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Nia A. Vidal, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 2 of 6
PER CURIAM:
Dustin Scott Files appeals the district court’s judgment revoking his supervised
release and sentencing him to 30 months’ imprisonment. Counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds
for appeal but questioning whether Files’ due process rights were violated when he was
expelled from a treatment program and whether Files’ revocation sentence is plainly
unreasonable. The Government has not filed a brief. Files filed a pro se supplemental
brief. We affirm.
Counsel asserts a violation of Files’ procedural due process rights. The Fourteenth
Amendment provides: No “State [shall] deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1. For the revocation of
supervised release, due process requires a preliminary hearing “to determine whether there
is probable cause or reasonable ground to believe that the [defendant] has committed acts
that would constitute a violation of [supervised release] conditions,” Morrissey v. Brewer,
408 U.S. 471, 485 (1972), and a final hearing within a reasonable time after the defendant
is taken into custody providing “an opportunity to be heard and to show, if he can, that he
did not violate the conditions, or, if he did, that circumstances in mitigation suggest that
the violation does not warrant revocation,” id. at 488; see United States v. Copley, 978 F.2d
829, 831 (4th Cir. 1992) (extending Morrissey’s due process requirements to supervised
release revocations).
Files’ liberty interest was not implicated until the district court adjudicated the
disputed violation and revoked his supervised release, and our review shows that the court
2 USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 3 of 6
complied with due process. The court held a preliminary hearing and, based on the
evidence presented, determined that there was probable cause to believe Files had violated
the supervised release condition requiring him to participate in an inpatient treatment
program. A month later, the court held a final revocation hearing where Files presented
evidence, called two witnesses, and testified in his defense. The court therefore provided
Files with all the process that was due before revoking his supervised release. See United
States v. Van Donk, 961 F.3d 314, 327 (4th Cir. 2020) (noting that “the [district] court
didn’t automatically revoke [the defendant’s] supervised release, but rather ordered
hearings on the issue. This regime affords [the defendant] due process without
micromanaging his treatment.”).
In his pro se supplemental brief, Files challenges the district court’s factual findings
upon which the revocation decision was based. To revoke supervised release, the district
court need only find a violation of a supervised release condition by a preponderance of
the evidence. 18 U.S.C. § 3583(e)(3); United States v. Dennison, 925 F.3d 185, 191 (4th
Cir. 2019). We “review[] a district court’s decision to revoke a defendant’s supervised
release for abuse of discretion,” its underlying factual findings for clear error, and
unpreserved challenges for plain error. Id. at 190; see United States v. Doctor, 958 F.3d
226, 234 (4th Cir. 2020) (describing clear error standard). With these standards in mind,
we have reviewed the record and conclude that the district court’s factual findings were
not clearly erroneous and, therefore, that the court did not err by revoking Files’ term of
supervised release.
3 USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 4 of 6
Counsel argues Files’ sentence is unreasonable. “We will affirm a revocation
sentence if it is within the statutory maximum and is not plainly unreasonable.” United
States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (internal quotation marks omitted).
Files’ revocation sentence is within the statutory maximum. “When reviewing whether a
revocation sentence is plainly unreasonable, we must first determine whether it is
unreasonable at all.” United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). “In
making this determination, we follow generally the procedural and substantive
considerations that we employ in our review of original sentences, with some necessary
modifications to take into account the unique nature of supervised release revocation
sentences.” Slappy, 872 F.3d at 207 (cleaned up). Only if a sentence is either procedurally
or substantively unreasonable is a determination then made as to whether the sentence is
plainly unreasonable. United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007).
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding
Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) factors.” United
States v. Coston, 964 F.3d 289, 297 (4th Cir. 2020) (internal quotation marks omitted); see
18 U.S.C. § 3583(e). “A revocation sentence is substantively reasonable if, in light of the
totality of the circumstances, the [district] court states an appropriate basis for concluding
that the defendant should receive the sentence imposed.” Id. (internal quotation marks
omitted). “A court need not be as detailed or specific when imposing a revocation sentence
as it must be when imposing a post-conviction sentence, but it still must provide a statement
4 USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 5 of 6
of reasons for the sentence imposed.” Thompson, 595 F.3d at 547 (internal quotation marks
omitted).
We conclude that Files’ sentence is procedurally and substantively reasonable. The
district court imposed a custodial sentence below the statutory maximum, considered the
relevant statutory factors, and gave sufficiently detailed reasons for its decision.
Specifically, the court recounted the seriousness and repeated nature of the supervised
release violations, Files’ history of refusing to complete treatment despite being given
several opportunities, the fact that Files had received more lenient treatment than similarly
situated defendants, and the need to protect the public. And while defense counsel
correctly notes that the court mentioned prohibited factors relating to the need to promote
respect for the law and provide just punishment, the court’s sentence was not based
predominantly on those factors; rather the court considered them alongside the permissible
factors when sanctioning Files’ breach of the court’s trust for the third time. See United
States v. Webb, 738 F.3d 638, 642 (4th Cir. 2013) (noting that “mere reference to
[prohibited] 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”).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. Accordingly, we affirm the district court’s
revocation judgment. This court requires that counsel inform Files, in writing, of the right
to petition the Supreme Court of the United States for further review. If Files requests that
a petition be filed, but counsel believes that such a petition would be frivolous, then counsel
5 USCA4 Appeal: 21-4519 Doc: 20 Filed: 09/30/2022 Pg: 6 of 6
may move in this court for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Files.
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