United States of America v. Ronald Aniello Averson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5151
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD ANIELLO AVERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:04-cr-00160)
Submitted: October 29, 2007 Decided: November 8, 2007
Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellant Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ronald Aniello Averson appeals the district court’s order
imposing a fifteen-month sentence after revoking Averson’s
supervised release. Ronald Aniello Averson was convicted in 2003
of conspiracy to unlawfully transport stolen property in interstate
commerce. He was sentenced to twenty-four months’ incarceration,
to be followed by a three year term of supervised release.
After Averson began serving his term of supervised
release, Averson’s probation officer petitioned the district court,
alleging that Averson violated the terms of his release by testing
positive for cocaine and oxycodone. On June 14, 2006, the district
court found that Averson violated the conditions of his release by
using narcotics and sentenced him to one day in custody, followed
by twenty-four months of supervised release. Six months of the
supervised release were to be served living in a halfway house.
Averson began supervised release in June 2006.
Approximately three months later, Averson’s probation officer again
petitioned the district court, alleging that Averson violated the
terms of his release by testing positive for cocaine. At the
following revocation hearing, the district court determined that
Averson had violated the conditions of his release. The district
court therefore revoked supervised release.
The district court noted that the sentencing guidelines
recommended a range of four to ten months’ imprisonment, but that

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under the statute, the district court could impose a maximum term
of twenty-three months and twenty-nine days. The district court
commented:
After consideration of the applicable
statutes and guideline provisions, including
18 U.S.C. Section 3553(a), I am ready to
impose sentence.
. . . Mr. Averson, on a previous occasion you
came before me on a revocation petition and I
gave you what I think was a break. I gave you
one day of imprisonment to be followed by six
months in a halfway house. You have not taken
the opportunity to avail yourself of that
break.
The district court imposed fifteen months’ imprisonment, to be
followed by eighteen months of supervised release.
Averson argues on appeal that his sentence was plainly
unreasonable because it was “unduly punitive and does not serve the
purposes of supervised release.” A sentence imposed after
revocation of supervised release should be affirmed if it is within
the applicable statutory maximum and is not plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006),
cert. denied, 127 S. Ct. 1813 (2007). In determining whether a
sentence is “plainly unreasonable,” this Court first assesses
whether the sentence is procedurally and substantively reasonable.
Crudup, 461 F.3d at 438.
In evaluating the reasonableness of a revocation
sentence, this court views issues of fact and the district court’s
exercise of discretion with deference. Id. at 439. A district

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court has broad discretion to revoke its previous sentence and
impose a term of imprisonment up to the statutory maximum. Id.
Moreover, a district court’s statement of reasons for going beyond
non-binding policy statement “in imposing a sentence after revoking
a defendant’s supervised release need not be as specific as has
been required when courts departed from guidelines that were,
before Booker, considered to be mandatory.” Crudup, 461 F.3d at
439 (quoting Lewis, 424 F.3d at 245).
A sentence is procedurally reasonable if the district
court considered the guidelines’ Chapter 7 policy statements and
the pertinent factors in 18 U.S.C. § 3553(a) (2000). See Crudup,
461 F.3d at 440. A sentence is substantively reasonable if the
district court stated a proper basis for concluding that the
defendant should receive the sentence imposed, up to the statutory
maximum. See id. Only if a sentence is found procedurally or
substantively unreasonable will this Court “then decide whether the
sentence is plainly unreasonable.” Id. at 439.
Procedurally, the district court explicitly stated that
it considered the required statutory factors and the guideline
provisions in sentencing Averson. The district court expressly
considered the guidelines advisory range of four to ten months’
imprisonment, and Averson does not argue that the court failed to
consider any pertinent sentencing factors under § 3553(a).

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Substantively, the district court sufficiently stated a
proper basis for its decision to sentence Averson above the
guidelines range. The district court’s comments indicate that it
imposed a sentence above the guidelines range because Averson’s
breach of trust was a repeat violation following an instance of
extreme leniency. See generally USSG Ch.7, Pt.A, intro. comment.
3(b) (“[A]t revocation the court should sanction primarily the
defendant’s breach of trust.”); see also Crudup, 461 F.3d at 440
(affirming the imposition of the statutory maximum sentence when
the appellant had repeatedly violated numerous conditions of his
supervised release). The district court also noted Averson’s need
for substance abuse treatment and required that he participate in
a drug treatment program as a condition of supervised release.
Based on the broad discretion that a district court has to revoke
supervised release and impose a term of imprisonment up to the
statutory maximum, Averson’s sentence was not unreasonable.
Therefore, we find Averson’s sentence was not plainly unreasonable.
Accordingly, we affirm the sentence. 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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