Criminal Practice — No Third Chance for Supervised Release

U.S. v. Padgett (Lawyers Weekly No. 15-01-0577, 9 pp.) (Motz, J.) No. 14-4625, June 9, 2015; USDC at Huntington, W.Va. (Berger, J.) 4^th Cir.

Holding: A defendant originally convicted of cocaine and attempted-escape offenses, and who already had violated terms of supervised release and been resentenced to supervised release, is sentenced to 24 months in prison after revocation of his most recent period of supervised release for his offenses of firearm possession, battery and possession of a switchblade knife; the 4^th Circuit upholds as reasonable defendant’s top-of-the-range sentence.

We will not disturb a district court’s revocation sentence unless it falls outside the statutory maximum or is otherwise plainly unreasonable. In determining whether a revocation sentence is unreasonable, we strike a more deferential appellate posture than we do when reviewing original sentences. Nonetheless, the same procedural and substantive considerations that guide our review of original sentences inform our review of revocation sentences as well.

Here, defendant challenges only the district court’s finding that he possessed a firearm and its imposition of what he contends is a plainly unreasonable revocation sentence. Both arguments fail.

At the revocation hearing, the government offered three witnesses to support the firearm allegation. First, a deputy testified that while on patrol, he heard five gun shots fired in rapid succession and received a call directing him to Sheer Fantasy, where defendant worked, to investigate a possible shooting. Witnesses there reported the shots had been fired by a black male, dressed in black clothing. Shortly thereafter, nearby officers apprehended defendant, who matched the witnesses’ description, and located five shell casings less than a block from Sheer Fantasy.

Second, a woman testified she witnessed an altercation between two men in the Sheer Fantasy parking lot on the night in question. One of the men, whom she recognized as appellant, fired five shots in the area where the shell casings had been found. Finally, a forensic analyst and qualified gunshot residue expert testified that residue samples taken from defendant’s hands and face on the night he was apprehended contained particles consistent with gunshot residue. The expert opined that defendant had either discharged a firearm or come into contact with an environment where gunshot residue was present.

Defendant’s counsel elicited testimony from forensic analyst that gunshot residue could be transferred by means other than discharging a firearm. Defendant’s girlfriend at the time testified she had heard gunshots that night too, but defendant was at home with her at the time.

The district court did not clearly err in finding the government had proven by a preponderance of the evidence that defendant had possessed a firearm.

The district court also imposed a reasonable revocation sentence. Though the combined term of 24 months represents the maximum in-range sentence, the district court had ample reason to eschew leniency here. Defendant had violated the terms of his supervised release once before, squandering the second chance afforded him by committing multiple serious violations of his supervision. A top-of-the-range sentence falls well within the broad zone of discretion sentencing courts enjoy in this context.