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


12-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4144




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"USA v. Davis" (2007). 2007 Decisions. Paper 100.
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                                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 06-4144



                           UNITED STATES OF AMERICA

                                            v.

                                   JAMES T. DAVIS,
                                               Appellant



                     On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D.C. No. 95-cr-00125)
                      District Judge: Honorable Robert B. Kugler



                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 10, 2007

        Before: SLOVITER, AMBRO, Circuit Judges, and RESTANI*, Judge

                              (Filed: December 11, 2007)

                                       OPINION




SLOVITER, Circuit Judge.


                 *
                   Hon. Jane A. Restani, Chief Judge, United States Court of
          International Trade, sitting by designation.
       James T. Davis appeals from the judgment of the District Court sentencing him to

thirty-six months imprisonment for violating the conditions of his supervised release to

be served consecutive to his state term of imprisonment. Davis argues that this sentence

is unreasonable. We disagree, and will affirm.

                                             I.

       As we write for the parties, we only discuss those facts relevant to our analysis.

       On December 5, 2003, Davis completed serving his federal sentence for using and

carrying a firearm in relation to a drug trafficking offense and began his term of

supervised release. On December 1, 2004, Davis attended a homicide trial in a New

Jersey state court and, during the testimony of a principal prosecution witness–who had

been in protective custody due to threats against her life–was observed standing, facing

the witness, and lifting his hand toward his chin, making a gesture with his hand and

finger that suggested a firearm. When he repeated this motion, state officers escorted him

from the courtroom, arrested him and charged him with obstructing the administration of

law, making threats of violence, and tampering with witnesses.

       Thereafter, the United States Probation Office filed a petition for an arrest warrant

for Davis based on the state criminal charges. As the state was holding him in custody,

the federal warrant was lodged as a detainer. Davis ultimately pled guilty to the state

charge of making terroristic threats, and was sentenced to three years imprisonment. The

state judge recommended that Davis’ sentence run concurrent with any federal sentence



                                             2
imposed on Davis for violation of supervised release.

       At a subsequent hearing in federal court, Davis admitted that he had violated the

conditions of his supervised release. The District Court imposed the statutory maximum

sentence of thirty-six months, to run consecutively to Davis’ state sentence. In arriving at

this conclusion, the District Court stated that the sentence would “protect the public from

people like Mr. James Davis . . . [and] support the U.S. Probation in their efforts to

supervise people successfully.” App. at 30. The District Court also noted the serious

nature of the crime, Davis’ record of violent crimes, and Davis’ previous violations of

supervision. Finally, the District Court noted that it would make the sentence

consecutive because it did not think that “there’s any such thing as free crimes if he’s on

Supervised Release Federal on a sentence [sic], then you’re going to have to expect that

if you violate it by committing a violent crime such as this, that you’re going to pay the

price.” App. at 30.

       In its oral pronouncement, the District Court stated that the thirty-six month

sentence would be followed by two years of Supervised Release. However, counsel for

both parties agreed that the period of supervised release was not permissible because the

statutory maximum prison term had been imposed. The parties brought this matter to the

District Court’s attention. To redress that error, the Court entered an order providing that

no term of supervised release would be imposed on Davis’ sentence.

       Davis appeals on the ground that the District Court’s sentence was unreasonable.



                                              3
                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(4).

Prior to United States v. Booker, 543 U.S. 220 (2005), we reviewed the imposition of

consecutive sentences under the abuse of discretion standard. United States v. Spiers, 82

F.3d 1274, 1277 (3d Cir. 1996). Davis argues that our post-Booker review should be for

reasonableness, and that his sentence was unreasonable. We need not address the

question of which standard applies here, because Davis’ sentence satisfies either

standard.

       Under 18 U.S.C. § 3584(a), sentencing courts may impose a term of imprisonment

that runs consecutively or concurrently. A defendant’s violation of supervised released is

considered to be a “breach of the Court’s trust,” United States v. Dees, 467 F.3d 847, 853

(3d Cir. 2006). The policy statements of the Sentencing Commission are instructive in

determining the appropriate sentence to be imposed for such violations. See United

States v. Blackston, 940 F.2d 877, 893 (3d Cir. 1991); 18 U.S.C. § 3583(d)(3). The

Sentencing Commission recommends that “[a]ny term of imprisonment imposed upon

the revocation of probation or supervised release shall be ordered to be served

consecutively to any sentence of imprisonment that the defendant is serving . . . .” U.S.

Sentencing Guidelines Manual § 7B1.3(f) (2004). Here, Davis’ sentence fell within the

advisory guideline range set forth in U.S.S.G. § 7B1.4(a). Moreover, the District Court’s

imposition of a consecutive term of imprisonment was consistent with the Guideline



                                             4
recommendation.

       According to Davis, however, the entire sentence was unreasonable because it was

primarily focused on punishing the perceived seriousness of Davis’ criminal history and

the underlying offense. In its discussion, the District Court noted that the defendant

“seems to have violated every period of supervision that he was ever on.” App. at 30.

Further, although the state judge’s sentencing recommendation was relevant, the state

court judge’s task was punishing the underlying state offense, whereas the District

Court’s primary task was sanctioning Davis’ breach of trust of the federal sentence.

Thus, the District Court’s decision to impose a consecutive sentence notwithstanding the

State recommendation was not unreasonable, given the considerations that the District

Court articulated. For these reasons, we will affirm.




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