                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2007

USA v. Bungar
Precedential or Non-Precedential: Precedential

Docket No. 05-5519




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                                              PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 05-5519


               UNITED STATES OF AMERICA

                                v.

                      RONALD BUNGAR,
                                 Appellant


APPEAL FROM THE UNITED STATES DISTRICT COURT
 FOR THE WESTERN DISTRICT OF PENNSYLVANIA
              D.C. Crim. No. 96-cr-00127-1
     District Judge: The Honorable Alan N. Bloch


           Submitted Under Third Circuit LAR 34.1(a)
                       January 29, 2007


  Before: BARRY, ROTH, Circuit Judges, and DEBEVOISE,*
                    District Judge

                (Opinion Filed: March 5, 2007)




       *
         The Honorable Dickinson R. Debevoise, Senior District
Judge, United States District Court for the District of New Jersey,
sitting by designation.

                                1
Karen S. Gerlach, Esq.
Lisa B. Freeland, Esq.
Office of the Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222

Counsel for Appellant


Robert L. Eberhardt, Esq.
Kelly R. Labby, Esq.
Office of the United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 91529

Counsel for Appellee



                  OPINION OF THE COURT


BARRY, Circuit Judge

        Ronald Bungar appeals from a final judgment of the
District Court imposing a sentence of 60 months’ imprisonment
for violating various conditions of his supervised release. We
hold, post-Booker, that our review should be for reasonableness.
Because the sentence imposed was not unreasonable, we will
affirm.

                               I.

       On August 20, 1996, a federal grand jury sitting in the
Western District of Pennsylvania returned a three-count
indictment against Bungar, charging him with conspiracy to
distribute and possession with intent to distribute less than 100
grams of a substance containing heroin, in violation of 21 U.S.C.
§ 846 (Count 1); distribution and possession with intent to
distribute less than 100 grams of a substance containing heroin,

                               2
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 2);
and distribution and possession with intent to distribute less than
500 grams of a substance containing cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C) (Count 3). The conduct
charged in the indictment had resulted in the overdose deaths of
two of Bungar’s friends, although he was never charged in those
deaths. Bungar pled guilty to Counts 1 and 2 in exchange for the
government’s agreement to move for dismissal of Count 3.
Under the 1995 Sentencing Guidelines, with a Total Offense
Level of 35 and a Criminal History Category of VI, he faced a
sentencing range of 292 to 365 months’ imprisonment.

       The government moved, pursuant to U.S.S.G. § 5K1.1,
for a downward departure based on Bungar’s substantial
assistance to authorities. On April 11, 1997, the District Court
held a sentencing hearing, at which the Court granted the
government’s motion and sentenced Bungar to 96 months’
imprisonment followed by five years of supervised release.
Bungar did not appeal. He was released from custody on
November 7, 2003.

        On November 8, 2005, two years into Bungar’s term of
supervised release, his probation officer filed a Petition on
Supervised Release and requested a hearing on four alleged
violations of the conditions of his supervised release: twice
testing positive for cocaine use; failing to submit verification of
his attendance at Narcotics Anonymous and Alcoholics
Anonymous meetings; changing his address without notifying
his probation officer; and failing to report to his probation officer
that local police had questioned him concerning the alleged
assault of his girlfriend. The District Court held a hearing, and
Bungar admitted all four violations. In the Violation Worksheet
submitted to the Court, the probation officer concluded that each
violation was a grade C violation and calculated the advisory
range of imprisonment under § 7B1.4(a) of the Guidelines to be
eight to fourteen months. Bungar requested a sentence of twelve
months’ house arrest, and the government did not object.

       The District Court, however, disagreed with the probation
officer’s conclusions. Citing United States v. Blackston, 940
F.2d 877 (3d Cir. 1991), the Court found that Bungar’s admitted

                                 3
cocaine use also constituted circumstantial evidence of simple
possession of a controlled substance in violation of 21 U.S.C. §
844, a grade B violation, and, as required by 18 U.S.C. § 3583(g)
and U.S.S.G. § 7B1.3(a)(1), revoked his supervised release.
Under the advisory Guidelines, Bungar therefore faced a term of
imprisonment in the range of 21 to 27 months. He faced a
statutory maximum, pursuant to 18 U.S.C. § 3583(e)(3), of five
years’ imprisonment.

        The District Court heard argument as to the appropriate
sentence, expressing concern over Bungar’s continuing abuse of
illegal drugs in spite of having received a significant downward
departure at sentencing in 1997. The Court also emphasized
Bungar’s long history of offenses that included causing the
deaths of two people and allegedly assaulting his girlfriend.
Based on these considerations, the Court found that a sentence
above the advisory Guidelines range was warranted, and
imposed a statutory maximum sentence of 60 months’
imprisonment. Bungar now appeals, arguing that the sentence
imposed was unreasonable. He does not contest the Court’s
finding that he had committed a grade B violation. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a)(1) (authorizing review of a sentence imposed “in
violation of law”).

                                II.

       The dust has settled, post-Booker, and it is now well
understood that an appellate court reviews a sentence for
reasonableness with regard to the factors set forth in 18 U.S.C. §
3553(a). United States v. Booker, 543 U.S. 220, 261-62 (2005);
United States v. Cooper, 437 F.3d 324, 326 (3d Cir. 2006). We
see no reason why that standard should not also apply to a
sentence imposed upon a revocation of supervised release, and
we so hold.1


       1
         In so holding, we join a growing number of circuit courts
that have reached the same conclusion. See, e.g., United States v.
Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006); United States
v. Tyson, 413 F.3d 824, 825 (8th Cir. 2005); United States v.
                                4
       Section 3553(a) instructs a sentencing court to consider
       (1) the nature and circumstances of the offense and
       the history and characteristics of the defendant;
       (2) the need for the sentence imposed–
               (A) to reflect the seriousness of the offense,
               to promote respect for the law, and to
               provide just punishment for the offense;
               (B) to afford adequate deterrence to
               criminal conduct;
               (C) to protect the public from further crimes
               of the defendant; and
               (D) to provide the defendant with needed
               educational or vocational training, medical
               care, or other correctional treatment in the
               most effective manner;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range
       established for . . . the applicable category of
       offense committed by the applicable category of
       defendant as set forth in the guidelines . . .
       ....
       (5) any pertinent policy statement . . . issued by the
       Sentencing Commission . . .;
       ....
       (6) the need to avoid unwarranted sentence
       disparities among defendants with similar records
       who have been found guilty of similar conduct;
       and
       (7) the need to provide restitution to any victims of
       the offense.

In order for a sentence to be reasonable, the record must
demonstrate that the sentencing court gave “meaningful
consideration” to these factors. Cooper, 437 F.3d at 329. The
court need not, however, discuss a defendant’s clearly


Fleming, 397 F.3d 95, 99 (2d Cir. 2005); see also United States v.
Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005) (noting that the
standard of review was, before Booker, and remains, post-Booker,
a review for reasonableness).
                                5
nonmeritorious arguments, or otherwise “discuss and make
findings as to each of the § 3553(a) factors if the record makes
clear the court took the factors into account in sentencing.” Id.

        In addition to demonstrating that it gave meaningful
consideration to the § 3553(a) factors, a sentencing court must
demonstrate that it reasonably applied those factors to the
circumstances of the case. Id. at 330. Our review in this regard
is highly deferential. Id. We may not substitute our judgment
for the sentencing court’s, but will affirm if we are convinced
that “the final sentence, wherever it may lie within the
permissible statutory range, was premised upon appropriate and
judicious consideration of the relevant factors” in light of the
circumstances of the case. United States v. Schweitzer, 454 F.3d
197, 204 (3d Cir. 2006); see also Cooper, 437 F.3d at 330
(noting that the central inquiry “‘is whether the district judge
imposed the sentence he or she did for reasons that are logical
and consistent with the factors set forth in section 3553(a)’”
(quoting United States v. Williams, 425 F.3d 478, 481 (7th Cir.
2005))). The party challenging the sentence bears the burden of
proving its unreasonableness. United States v. King, 454 F.3d
187, 194 (3d Cir. 2006).

        When a sentence is imposed for a violation of the
conditions of supervised release, additional considerations apply.
Section 3583(e)(3) of Title 18 of the United States Code permits
a district court, after considering the § 3553(a) factors,2 to
revoke a term of supervised release and sentence the defendant
to imprisonment for up to five years if it finds, by a
preponderance of the evidence, that the defendant violated a


       2
           Section 3583(e) omits § 3553(a)(2)(A) (describing the
punitive purposes of sentencing) and § 3553(a)(3) (“the kinds of
sentences available”) from among the § 3553(a) factors that a court
must consider when sentencing a defendant for a violation of
supervised release. At least one circuit court has held, however,
that this omission does not foreclose a court from considering
“other pertinent factors,” such as the need for the sentence to
reflect “the seriousness of the offense.” United States v. Williams,
443 F.3d 35, 47-48 (2d Cir. 2006) (quoting § 3553(a)(2)(A)).
                                 6
condition of supervised release.3 If a defendant, while under
supervision, is found to have unlawfully possessed a controlled
substance, the district court is required to revoke supervised
release and sentence the defendant in accordance with subsection
(e)(3). 18 U.S.C. § 3583(g)(1). Sentence is imposed for
violations of supervised release primarily to sanction 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.’” United States v. Dees, 467
F.3d 847, 853 (3d Cir. 2006) (quoting U.S. Sentencing
Guidelines Manual ch. 7, pt. A, introductory cmt.). In imposing
sentence, a district court must consider the policy statements
under Chapter 7 of the Sentencing Guidelines, see 18 U.S.C. §
3553(a)(5); Blackston, 940 F.2d at 893, although the sentencing
ranges set forth in the revocation table at U.S.S.G. § 7B1.4(a) are
merely advisory, Dees, 467 F.3d at 853.

        There is no dispute that Bungar used cocaine in violation
of a condition of his supervised release, and that his testing
positive for cocaine use constituted circumstantial evidence of
simple possession, a grade B violation. See Blackston, 940 F.2d
at 892. At the time of his 1997 sentencing, the District Court
found him to have a Criminal History Category of VI, a finding
he did not appeal. See U.S.S.G. § 7B1.4 application note 1.
Under the § 7B1.4(a) policy statement, a grade B violation
coupled with a Criminal History Category of VI suggests a
sentencing range of 21 to 27 months. The record clearly reflects
that the Court consulted § 7B1.4(a) and calculated the correct
range. The record further establishes that the Court properly
recognized that this policy statement was not binding, and that it
could sentence Bungar to a statutory maximum sentence of five
years’ imprisonment. See 18 U.S.C. § 3583(e)(3). Accordingly,
the Court adequately considered both “the kinds of sentence and
the sentencing range established for . . . the applicable category


       3
          A sentence of up to five years is warranted where the
crime for which supervised release was originally imposed was a
class A felony. 18 U.S.C. § 3583(e)(3). Bungar’s original
convictions were class A felonies because they resulted in the
deaths of two people. 21 U.S.C. § 841(b)(1)(C).
                                7
of offense committed by the applicable category of defendant”
and the “pertinent policy statement.” See 18 U.S.C. §
3553(a)(4), (5).

       Application note 6 to § 7B1.4 states that when a
defendant fails a drug test, a district court “shall” consider
whether the defendant’s placement in a substance abuse program
might warrant an exception to the requirement of mandatory
revocation. The District Court did just that, posing the following
question to Bungar’s counsel:

       Let’s talk about [Bungar’s] treatment. He served, I
       believe, it was 96 months . . . [i]n a federal prison
       where one would hope that he was without drugs.
       That didn’t cure the situation. . . . . What makes
       you think that anymore [sic] treatment is going to
       do any good?

(Appellant’s App. at 35-36.) The Court then heard the
respective positions of Bungar’s counsel and the government
regarding whether additional drug treatment would be effective.
At several points in the colloquy, the Court noted that neither
incarceration nor drug counseling had proven effective, and
expressed skepticism at defense counsel’s suggestion that
Bungar’s counselors “believe in him.” (Id. at 36-38, 40.) It is
clear from the record, therefore, that the Court adequately
considered the possibility of allowing Bungar to remain in a
substance abuse program. Cf. 18 U.S.C. § 3553(a)(3)
(instructing courts to consider “the kinds of sentences
available”).

       It is equally clear that the District Court considered “the
nature and circumstances of the offense and the history and
characteristics of the defendant.” See 18 U.S.C. § 3553(a)(1).
The Court recited the alleged violations of supervised release,
and, following Bungar’s admission of guilt, appropriately and
specifically found that he had committed the charged conduct.
The Court also demonstrated knowledge of the conduct for
which Bungar was convicted in 1996, noting more than once that
he had had a history of drug abuse before his incarceration that
had resulted in the deaths of two people. Moreover, the Court

                                8
found, Bungar had a “violent criminal record” that was “replete
with violent crimes, including harassment, multiple charges of
simple assault, and multiple charges of disorderly conduct.”
(Appellant’s App. at 38, 42.) These offenses resulted in a
Criminal History Category of VI, the highest possible under the
Guidelines. Particularly disturbing, the Court noted, was
evidence that Bungar was questioned by police regarding the
alleged assault of his girlfriend. Indeed, defense counsel
conceded that Bungar was undergoing treatment “for both drug
abuse and domestic violence issues.” (Id. at 35.) All of these
considerations, which are reflected in the record, demonstrate
that the Court gave adequate and meaningful consideration to the
nature of the offense and Bungar’s history of criminal activity.

        The record also reflects that the District Court understood
the need for the sentence imposed “to reflect the seriousness of
the offense”; “to afford adequate deterrence to criminal
conduct;” “to protect the public from further crimes of the
defendant;” and “to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” 18 U.S.C.
§ 3553(a)(2)(A)–(D). Following a colloquy concerning
Bungar’s questioning as to the alleged domestic assault, the
Court stressed its belief that a further term of imprisonment
“keeps him away from hurting other people for the time that I
can keep him away from them.” (Appellant’s App. at 40; see
also id. at 42 (finding that “you remain a danger to society”).)
On several occasions, the Court expressed its displeasure with
Bungar’s return to criminal activity in spite of having received a
substantial downward departure in 1997 and stated that, in
retrospect, it believed the original sentence was “insufficient.”
(Id. at 42.) And, as noted above, the Court found that further
drug counseling was not likely to be effective.

        Accordingly, we find that the District Court properly
applied § 3583 and gave meaningful consideration to the factors
set forth under § 3553(a). In so doing, the Court adequately
established an affirmative basis for sentencing Bungar above the
advisory Guidelines range. We must still consider, however,
whether the final sentence represented an appropriate application
of the § 3553(a) factors to the circumstances of the case.

                                 9
       Bungar stresses that his final sentence was more than
twice the advisory Guidelines range and represents additional
punishment for his 1996 convictions, rather than a sanction for
the breach of trust occasioned by his violations of supervised
release. Thus, he argues, the District Court failed to impose a
sentence “sufficient, but not greater than necessary” to achieve
the purposes set forth in § 3553(a)(2). See 18 U.S.C. § 3553(a).

        We decline to find that the District Court’s imposition of
a 60-month sentence was unreasonable. As Bungar concedes,
the advisory Guidelines range under § 7B1.4 did not bind the
Court. See Dees, 467 F.3d at 853. Moreover, he studiously
ignores application note 4, which recognizes that in imposing
sentence following the revocation of supervised release, a
district court may consider the circumstances that informed the
original sentence resulting in the supervised release – “[w]here
the original sentence was the result of a downward departure
(e.g., as a reward for substantial assistance), . . . an upward
departure may be warranted.” U.S.S.G. § 7B1.4 application note
4. Consistent with application note 4, the Court sentenced
Bungar above the suggested range based on its concerns that his
return to illegal conduct, his extensive history of violent criminal
offenses, and the recent evidence of domestic violence, showed
not only that he continued to pose a threat to the community, but
constituted a significant breach of the considerable trust that the
Court reposed in him by granting a generous downward
departure in 1997. We do not find this determination
unreasonable. See Blackston, 940 F.2d at 894 (stating that
defendant’s failed drug tests, “occurring immediately on the
heels of his release from prison and relating directly to the
conduct for which he originally was convicted, surely bespeak a
breach of trust”). See also United States v. Larison, 432 F.3d
921, 923 (8th Cir. 2006) (finding that 60-month sentence for
drug-related violations of supervised release was not
unreasonable where Guidelines suggested a range of five to
eleven months and defendant had received a large substantial
assistance departure at his original sentencing). Nor do we find
that a district court’s failure to give mitigating factors the weight
a defendant contends they deserve renders the sentence
unreasonable. See United States v. Scherrer, 444 F.3d 91, 93-95
(1st Cir. 2006) (en banc); United States v. Rodriguez-Alvarez,

                                 10
425 F.3d 1041, 1047-48 (7th Cir. 2005).

                             III.

       Because Bunger has not demonstrated that the 60-month
sentence imposed on him for violating the conditions of his
supervised release was unreasonable, the judgment of the
District Court will be affirmed.




                              11
