                                                  NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                    Nos. 09-4224, 09-4225




              UNITED STATES OF AMERICA

                              v.

                     ARTHUR BOYCE,
                             Appellant




        On Appeal from the United States District Court
                  for the District of New Jersey
       (D.C. Nos. 1-07-cr-01018-001, 1-09-cr-00375-001)
           District Judge: Honorable Noel L. Hillman




          Submitted Under Third Circuit LAR 34.1(a)
                       June 29, 2010

  Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

                     (Filed: July 2, 2010)

                            _____

                          OPINION
SLOVITER, Circuit Judge.

       Arthur Boyce appeals the judgment of the District Court imposing consecutive

sentences for Boyce’s offenses of drug distribution and violation of supervised release.

The issue before us is a narrow one - limited to the Court’s imposition of fully

consecutive terms for the two offenses.

                                              I.

       In January 2009, Boyce was charged in a complaint with drug distribution in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On the day that he was arrested, the

United States Probation Department filed a petition for an arrest warrant for Boyce based

on multiple violations of his supervised release. Boyce subsequently waived indictment

and entered into a plea agreement in which he agreed both to plead guilty to distribution

and possession with intent to distribute five grams or more of crack cocaine, and to admit

that he was guilty of a Grade A violation of his supervised release. The District Court

sentenced Boyce to 197 months incarceration for the drug violation and to a consecutive

fifty-five month sentence for violating his supervised release, resulting in a total of 252

months imprisonment (21 years).

       By entering into this plea agreement, Boyce waived his right to appeal the

within-guidelines sentences that he received for each offense. However, Boyce reserved

his ability to appeal the District Court’s decision to make the two sentences consecutive,




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an argument he now presses. 1 More specifically, Boyce argues that the aggregate

sentence is unreasonable to satisfy the court’s stated purposes of specific deterrence and

public protection. He refers to the Court’s statement that Boyce’s risk of recidivism was

reduced due to his age.

       In determining whether sentences should be consecutive or concurrent, district

courts must consider the factors set out in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3584(b).

Here, the District Court considered and gave some weight to Boyce’s arguments

regarding those factors, including that he should receive a combined sentence of fifteen

years because of his “eye difficulties, . . . his need for some alternative treatment or

additional mental health substance abuse treatment[,] [and] the age of . . . [Boyce’s]

predicate conviction for career offender status.” App. at 121. But the District Court’s

overwhelming concern, the one that appeared to drive the Court’s decision to make the

sentences consecutive, was the likelihood of recidivism.

       In imposing the sentence, the District Court stated, “[t]he circumstances of this

offense suggest to me the risk of recidivism is enormous.” App. at 123. We need not list

all of Boyce’s prior offenses, which are set forth in detail in the presentence report, to

conclude that there was an ample factual basis for the District Court’s conclusion.

       In December 2000, officers conducting a search of Boyce’s apartment found a



                    1
                    The District Court had jurisdiction under 18 U.S.C. §§
             3231 and 3583(a). This court has jurisdiction under 18 U.S.C. §
             3742(a) and 28 U.S.C. § 1291.

                                               3
loaded gun, cocaine, and drug packaging materials. Boyce pled guilty to possession of

cocaine with intent to distribute and possession of a firearm in furtherance of drug

trafficking. He served more than thirty-nine months imprisonment in federal custody

until March 2004. He was subsequently tried in state court on pending charges for which

he was acquitted.

       In January 2008, the Probation Office petitioned the District Court for a hearing on

Boyce’s alleged violations of conditions of his supervised release. Boyce pled guilty to

the violation of his supervised release and was sentenced to five months of imprisonment

with two years of supervised release. While that proceeding was ongoing, Boyce sold

crack and/or powder cocaine to a confidential source working with the Drug Enforcement

Agency on four separate occasions. In fact, Boyce conducted one of those drug sales only

four days before he self-surrendered for punishment regarding his supervised release

violation.

       After his release from this term of imprisonment in late June 2008, Boyce received

several written warnings for non-compliance with the terms of his home confinement

condition. Then, about seven months later, Boyce once again was caught dealing drugs

when he conducted yet another crack cocaine sale with the confidential source.

       The Sentencing Guidelines advise courts to assess consecutive sentences to

offenders in Boyce’s circumstances. See U.S.S.G. § 7B1.3(f) (“Any 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

                                             4
serving, whether or not the sentence of imprisonment being served resulted from the

conduct that is the basis of the revocation of probation or supervised release.”).

       The District Court’s decision to impose consecutive sentences was not an abuse of

discretion, especially given Boyce’s recent criminal history. See United States v. Tomko,

562 F.3d 558, 567-68 (3d Cir. 2009) (en banc) (setting abuse of discretion standard). The

result of the District Court following the advice of the Sentencing Guidelines may be

harsh for Boyce, but we cannot say that “no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

provided.” Id. at 568.

                                             II.

       For the reasons set out above, we will affirm the judgments of the District Court.




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