                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1764




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"USA v. Colbert" (2008). 2008 Decisions. Paper 1002.
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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-1764


                          UNITED STATES OF AMERICA

                                           v.

                                 TROY J. COLBERT,

                                                Appellant




                     Appeal from the United States District Court
                      for the Western District of Pennsylvania
                     (D.C. Criminal Action No. 00-cr-00003-1J)
                      District Judge: Honorable Kim R. Gibson


                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 9, 2008

          Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges

                             Opinion filed : June 19, 2008


                                       OPINION


AMBRO, Circuit Judge

  Troy J. Colbert pled guilty in 2000 to two counts of theft and one count of burglary,

 receiving a sentence of 33 months’ imprisonment and three years’ supervised release.
After his release from federal prison, he experienced problems stemming from drug and

alcohol abuse. In 2006 he served time in the Cambria County, Pennsylvania, prison for

 the state-law crimes of disorderly conduct, public drunkenness, and criminal mischief.

    He later stipulated to six violations of the terms of his federal supervised release,

 including: (1) possession of a controlled substance, (2) failure to participate in a drug

   treatment program, (3) failure to report to his probation officer, (4) commission of

another state criminal offense, (5) failure to notify his probation officer of his arrest, and

(6) failure to pay restitution. The United States District Court for the Western District of

Pennsylvania adopted a Magistrate Judge’s report and recommendation concerning these

violations and imposed a sentence of 18 months’ imprisonment. Colbert now appeals his

                                 sentence, and we affirm.

 We have jurisdiction under 28 U.S.C. § 1291. We review a sentence imposed upon a

revocation of supervised release for reasonableness. United States v. Bungar, 478 F.3d

 540, 542 (3d Cir. 2007) (citing United States v. Booker, 543 U.S. 220, 261–62 (2005)).

Because Colbert’s violations of state law were punishable by a prison term of one year or

  less, the District Court found that Colbert had committed a Grade C violation of his

   supervised release under U.S.S.G. § 7B1.1(a)(3). Given Colbert’s criminal history

 category of VI, this yielded a federal Sentencing Guidelines range of 8 to 14 months at

step one of our sentencing framework under United States v. Gunter, 462 F.3d 237, 247

   (3d Cir. 2006). But the District Court also found that Colbert’s supervised-release



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violations were “associated with a high risk of new felonious conduct,” meaning that “an

 upward departure [in the Sentencing Guidelines range] may be warranted.” U.S.S.G. §

7B1.4, appl. n. 3. As a result, it imposed—at Gunter’s step two—an upward departure of

four months from the top of the Guidelines range, ultimately resulting in a final sentence

   of 18 months. See generally 462 F.3d at 247 (describing step two of the sentencing

                                         process).

On appeal, Colbert argues that the District Court erred for two reasons. First, he cites the

example given in the application note on which the District Court relied, which states that

  “a defendant, under supervision for conviction of criminal sexual abuse, violates the

  condition that he not associate with children by loitering near a schoolyard.” Id. He

  contends that his behavior on supervised release does not fit this example because he

neither violated an “unusual” condition specific to his release nor suggested that he would

  again engage in the specific offenses of burglary and theft (for which he received his

 initial federal sentence in 2000). This argument fails because the application note does

not limit its reach to violations of “unusual” conditions of supervised release. Its example

is meant only to be suggestive. The District Court reasonably found that Colbert’s failure

to complete a required drug rehabilitation program in 2006 demonstrates a high likelihood

                                      of recidivism.

  Second, Colbert argues that his sentence was unreasonable in light of the sentencing

   factors listed in 18 U.S.C. § 3553(a). His main contention in this regard is that the



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District Court failed to give him credit for partial satisfaction of some of the terms of his

supervised release. For instance, he completed a 14-day inpatient drug treatment program

  before failing to complete a subsequent, more intensive program. He also paid some,

   though not all, of the restitution he owed. The Magistrate Judge’s report, which the

District Court adopted, does mention some of these potentially mitigating factors. But it

    also discussed the nature of Colbert’s violations of his supervised release, see id.

 § 3553(a)(1); the need for his sentence to serve the various goals of criminal law, see id.

  § 3553(a)(2); the sentences available, see id. § 3553(a)(3); and the federal Sentencing

     Guidelines range, see id. § 3553(a)(4). Thus, the report addressed the “relevant

[§ 3553(a)] factors.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006); see also

id. (a district court need not list every § 3553(a) factor “if the record makes clear the court

                       took the factors into account in sentencing”).

    We thus hold that Colbert’s sentence, reflecting a four-month upward departure in

   calculating the Sentencing Guidelines range that serves as an advisory factor for the

              actual sentence, was reasonable in this context and thus affirm.




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