United States v. Silas Foster, Jr.

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 14, 2019
• Docket: 18-4910
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4910

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SILAS FOSTER, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:08-cr-00218-D-1)

Submitted: July 18, 2019 Decided: August 14, 2019

Before NIEMEYER and KING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:

Silas Foster, Jr., appeals his 36-month revocation sentence of imprisonment

imposed after the district court revoked his supervised release. Foster asserts that this

sentence is substantively unreasonable because it is double the top of the sentencing range

recommended by the policy statements in the Sentencing Guidelines and the court failed

to state a proper basis for its upward variance. Foster also contends that the record does

not support the district court’s observation during sentencing that Foster was incredible

and that the sentence does not advance Foster’s alleged need for medical treatment for his

opioid addiction. We affirm.

“Recognizing the distinction between original sentencing and revocation

sentencing, the Sentencing Commission has adopted ‘revocation policy statements’ that

provide sanctions for [revocation violations], formalizing an approach that provides district

courts with ‘greater flexibility’ than would be provided by specific revocation guidelines

to determine the appropriate sanction.” United States v. Gibbs, 897 F.3d 199, 203 (4th Cir.

2018) (quoting U.S.S.G. ch.7, pt. A, intro. cmt. 3). As a consequence, we have adopted a

more deferential posture than when reviewing original sentences to “account [for] the

unique nature of supervised release revocation sentences.” United States v. Crudup, 461

F.3d 433, 438–39; see also United States v. Slappy, 872 F.3d 202, 207 (4th. Cir. 2017);

United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007). In a revocation context,

therefore, “a [district] court’s statement of its reasons for going beyond non-binding policy

statements in imposing [a revocation] sentence . . . need not be as specific as has been

required when courts departed from Guidelines that were before Booker considered to be

2 mandatory.” Gibbs, 897 F.3d at 203 (quoting Crudup, 461 F.3d at 439); Slappy, 872 F.3d

at 208–09. Of course, if the district court issues a variance sentence that departs from the

policy statement range of the Sentencing Guidelines, more explanation for the sentence is

required than when imposing a within-range revocation sentence. See Gibbs, 897 F.3d at

204. At bottom, however, the explanation needs to be sufficient to allow us “to engage in

meaningful appellate review.” United States v. Ross, 912 F.3d 740, 745 (4th Cir. 2019)

(cleaned up), pet. for cert. filed, ____ U.S.L.W. ____ (May 27, 2019) (No. 18-9654). As

a consequence, we have concluded that while original sentences are reviewed for

“reasonableness,” even an unreasonable revocation sentence may stand unless it is plainly

unreasonable. Crudup, 461 F.3d at 438–39.

Applying these standards here, we conclude that Foster’s sentence is not plainly

unreasonable. The district court appropriately considered the parties’ arguments, allowed

Foster to allocute, and explained the selective sentence in terms of revocation-relevance

statutory factors. Moreover, we reject Foster’s argument that the court did not articulate a

proper basis for the variance sentence. The court fairly complied with the instruction that,

“at revocation [it] should sanction primarily the defendant’s breach of trust,” and consider

“to a limited degree” the defendant’s criminal history and the seriousness of his supervised

release violations. See U.S.S.G. ch.7, pt. A, intro. cmt. 3(b). Also, we defer to the district

court in its determination that Foster was not credible during his representations to the

court. See United States v. Feurtado, 191 F.3d 420, 424 n.2 (4th Cir. 1999) (recognizing

that a district court’s credibility determination is “entitled to great deference by this court”).

3 We conclude accordingly that Foster’s sentence was not unreasonable and therefore also

not plainly unreasonable.

Based on the foregoing, 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