United States of America v. Loy Boney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4148
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LOY BONEY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:01-cr-00064-F-1)
Submitted: October 25, 2010 Decided: November 10, 2010
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Loy Boney appeals the sixty-month sentence imposed
upon revocation of his term of supervised release. Boney argues
on appeal that his sentence is procedurally unreasonable because
the district court improperly considered factors not permitted
by 18 U.S.C. § 3583(e) (2006). We affirm.
We will not disturb a sentence imposed after
revocation of supervised release if it is within the prescribed
statutory range and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). In
making this determination, we first consider whether the
sentence is unreasonable. Id. at 438. “This initial inquiry
takes 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 and citation
omitted).
The district court’s discretion is not unlimited,
however. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
2010). Although a district court “ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum,” Crudup, 461 F.3d at
439 (internal quotation marks omitted), the court must consider
the Chapter Seven policy statements in the federal sentencing

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guidelines manual, as well as the statutory requirements and
factors applicable to revocation sentences under 18 U.S.C.
§§ 3553(a), 3583(e) (2006). Chapter Seven provides, “at
revocation, 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.” USSG ch. 7, pt. A(3)(b). Section
3583 approves consideration of a majority of the factors listed
in § 3553(a), omitting only two. 18 U.S.C. § 3583(e). Among
the omitted factors is the need “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).
Citing Crudup, Boney contends that his sentence is
plainly unreasonable because the court’s upward departure
sentence reflected one of the § 3553(a)(2)(A) factors, namely,
the seriousness of Boney’s revocation offenses. Specifically,
Boney points to the district court’s explicit reference to his
“continued engagement in criminal conduct activity involving
illegal substances” and the fact that three of Boney’s arrests
cited by the probation officer in the revocation motion involved
illegal drugs. In considering this improper factor, Boney
argues, the court failed to give adequate consideration to the
sentencing factors that are relevant to supervised release
cases.

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In this case, the district court considered Boney’s
sentence reduction from his original sentence, Boney’s drug
treatment and drug use while on supervised release, and his
repeated violations of the terms of his supervised release,
which included predominantly drug-related offenses. While Boney
accurately states the court noted the drug-related nature of the
revocation offenses and the number of those violations involving
illegal drugs, the district court did not explicitly state it
had considered the seriousness of the revocation conduct. In
fact, the court clearly considered these facts in the context of
assessing the need to protect the public from Boney’s future
crimes, a required consideration for revocation sentences.
See 18 U.S.C. § 3553(a)(2)(C). In this regard, the court found
that Boney’s “continued engagement in criminal activity
involving illegal substances posed a threat to society.”
Moreover, the district court is required to consider the nature
and circumstances of the offense and the history and
characteristics of the defendant. See 18 U.S.C. §§ 3553(a)(1),
3583(e).
To the extent the court arguably considered the
seriousness of the revocation conduct, viewed as a whole, we
find any such consideration was only one of many factors
considered by the court and such consideration did not render
Boney’s sentence procedurally unreasonable. The grounds cited

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by the district court were relevant to other required
considerations, including the nature and circumstances of the
offense, the history and characteristics of the defendant, and
the need to protect the public. Furthermore, the court’s
comments implicitly suggest that it imposed a sentence above the
advisory policy statement range as a result of Boney’s breach of
trust. See USSG ch. 7, pt. A, introductory cmt. n.3(b) (“[A]t
revocation the [district] court should sanction primarily the
defendant’s breach of trust.”).
We further reject Boney’s contention that the district
court improperly considered Boney’s sentence reduction as
lenient treatment in fashioning his revocation sentence. There
is no clear indication that the district court deemed the
reduction as lenient treatment previously given to Boney by the
courts. In any event, the court was authorized to consider the
reduction in considering Boney’s history and characteristics.
See 18 U.S.C. § 3553(a)(1).
Accordingly we conclude that Boney’s sentence is not
plainly unreasonable. We therefore affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED

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