                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2003

USA v. Arnold
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2873




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    ___________

                                    No. 02-2873
                                    ___________

                          UNITED STATES OF AMERICA

                                          v.

                                MICHAEL ARNOLD,

                                                     Appellant.

                                    ___________

             On Appeal from the Order of the United States District Court
                      for the Middle District of Pennsylvania
                               (No. 1:99-CR-060-1)

                 District Court Judge: The Honorable Sylvia H. Rambo

                                    ___________

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   June 5, 2003

     Before: BARRY, FUENTES, Circuit Judges, McLAUGHLIN,* District Judge

                            (Opinion Filed: June 10, 2003)

* The Honorable Mary A. McLaughlin of the United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
                              __________________________

                                OPINION OF THE COURT
                              __________________________

FUENTES, Circuit Judge.

       Defendant Michael Arnold (“Arnold”) appeals the twelve-month sentence imposed

by the District Court for his second violation of supervised release conditions. Although

there is no dispute that the District Court’s sentence was within the range of the policy

statement set forth in § 7B1.4(a) of the United States Sentencing Guidelines (“USSG”),

Arnold seeks remand for re-sentencing. The District Court’s imposition of a twelve-

month sentence was not plainly unreasonable, and we will affirm.

                                              I.

       Arnold’s most recent supervised release violation was his second, but it is worth

noting that this violation is part of multiple criminal offenses dating back several years.

In 1998, Arnold was convicted of a counterfeiting offense and sentenced to two months

of incarceration to be followed by a two-year period of supervised release. After his

release from prison, Arnold violated the conditions of his first supervised release term by

possessing firearms. He pleaded guilty, and the District Court sentenced him to eight

months of incarceration for the supervised release violation and twenty-seven months for

unlawful possession of firearms, to be followed by another two-year term of supervised

release.

       After his subsequent release from prison, Arnold again violated the terms of his

                                              2
supervised release. Within months of his release, Arnold was charged in separate

incidents of speeding, criminal mischief, public drunkenness, and disorderly conduct--

charges that are classified as “Grade B” offenses pursuant to USSG § 7B1.1(a)(2).

Furthermore, Arnold failed to inform his Probation Officer promptly about these charges,

as required by the terms of his supervised release--a “Grade C” violation pursuant to

USSG § 7B1.1(a)(3). As a result of these recent offenses, the Government sought to

revoke Arnold’s second term of supervised release.

       At the revocation hearing, Arnold agreed to admit to the Grade C offense of failing

to inform his Probation Officer about the charges, while the Government agreed to refrain

from introducing testimony as to the Grade B offenses. Arnold’s Grade C offense and his

criminal history category of IV resulted in a sentencing range of six to twelve months,

pursuant to the policy statement in USSG § 7B1.4(a). The District Court sentenced

Arnold to twelve months of incarceration.

                                            II.

       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3583(e).

We have jurisdiction over the final order imposing sentence pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a)(4). In general, we will not disturb a District Court’s sentence for

a violation of supervised release pursuant to USSG § 7B1.4(a), unless the sentence was

“plainly unreasonable.” 18 U.S.C. § 3742(a)(4); see also United States v. Blackston, 940

F.2d 877, 894 (3d Cir. 1991).



                                            3
                                            III.

       Because they appear as “policy statements,” the sentencing ranges set forth in

USSG § 7B1.4(a) are not mandatory guidelines, but rather “advisory” ranges. United

States v. Schwegel, 126 F.3d 551, 552 (3d Cir. 1997). In the present case, the District

Court sentenced Arnold to a term within the applicable range in USSG § 7B1.4(a).

Furthermore, the Court carefully considered Arnold’s unique situation, including his

persistent problems with alcohol abuse and his record of criminal activity. Under the

circumstances, the Court’s sentence reflected both the seriousness of the offenses and the

need to provide “structured alcohol counseling.” App. at 69. Given its well reasoned

decision, we hold that the District Court’s imposition of the maximum sentence within the

applicable range in USSG § 7B1.4(a) was not plainly unreasonable.

       For the reasons set forth above, we will affirm the judgment of the District Court.




                                             4
______________________________

TO THE CLERK OF COURT:

Kindly file the foregoing opinion.




                                         By the Court,




                                         /s/ Julio M. Fuentes

                                         Circuit Judge




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