UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4990
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TONYA RYANS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:02-cr-01253)
Submitted: July 6, 2007 Decided: August 15, 2007
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald Lloyd, United States
Attorney, Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In July 2003, Appellant Tonya Ryans pled guilty to
student loan fraud and was sentenced to sixteen months of
incarceration with a period of two years of supervised release to
follow. Ryans’ supervised release commenced on February 4, 2005.
On August 22, 2006, Ryans’ probation officer filed a Petition for
Warrant or Summons alleging various supervised release violations.
A summons was issued requiring Ryans to appear before the
magistrate judge on August 30, 2006. Ryans failed to appear and
the court issued an Order for Bench Warrant. Ryans was arrested by
the United States Marshals on September 1, 2006.
A violation report was prepared noting that Ryans faced
a statutory term of imprisonment of not more than two years, an
advisory guidelines range of three to nine months of imprisonment,
and that “[t]here [were] no reasons for departure in this case.”
The report alleged five violations: (1) failure to pay restitution
and an arrearage of $5,100; (2) failure to report to the probation
office on August 14, 2006; (3) failure to notify and provide
verification of employment; (4) failure to provide financial
information as requested on two dates in August; and (5) failure to
submit a monthly supervision report for June 2006.
On September 7, 2006, Ryans appeared for her supervised
release revocation hearing. Although Ryans contested the alleged
violations, the court found by a preponderance of the evidence and
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beyond a reasonable doubt that she had violated the terms and
conditions of her release and revoked that release. The court then
departed from the recommended guideline range and sentenced Ryans
to two years in prison. While the court did not provide prior
notice of its intent to depart from the advisory guidelines range,
Ryans did not object to the lack of notice at the hearing or in a
post-hearing motion. Ryans timely appeals her sentence arguing
that the district court erred by failing to provide notice of its
intention to upwardly depart from the advisory guidelines
sentencing range. Finding no error, we affirm.
Ryans contends on appeal that the district court erred by
not providing her with notice that it was contemplating a sentence
above the guidelines sentencing range of imprisonment. See Fed. R.
Civ. P. 32(h). Because Ryans did not object, review on appeal is
for plain error. Under the plain error standard, Ryans must show:
(1) there was error; (2) the error was plain; and (3) the error
affected her substantial rights. United States v. Olano, 507 U.S.
725, 732-34 (1993). Further, even if these conditions are
satisfied, this court may exercise its discretion to notice the
error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
736 (internal quotation marks omitted). The burden of showing
plain error is on the defendant. United States v. Strickland, 245
F.3d 368, 379-80 (4th Cir. 2001).
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This court, post-Booker* has held that, pursuant to Rule
32(h), advance notice is required before a district court departs
or varies from the advisory guideline range in sentencing a
defendant after the original judgment of conviction. United
States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006). The
failure to give notice that the court intends to depart is plain
error. United States v. McClung, 483 F.3d 273, 276 (4th Cir.
2007). However, this holding has not been extended to sentences
imposed after revocation of supervised release, which is governed
instead by Fed. R. Crim. P. 32.1.
Unlike Rule 32(h), Rule 32.1 contains no notice
requirement in its express terms. Pre-Booker, courts agreed that
no notice of intent to depart was required in revocation
proceedings because the policy statements in Chapter 7 are merely
advisory. See United States v. Shaw, 180 F.3d 920 (8th Cir. 1999);
United States v. McClanahan, 136 F.3d 1146 (7th Cir. 1998); United
States v. Taylor, 78 Fed. App’x 893 (4th Cir. 2003). Ryans
contends that post-Booker, now that the sentencing guidelines and
the Chapter 7 policy statements are both merely advisory, the need
to distinguish between notice requirements in sentencing and
revocation hearings has evaporated. Thus, she concludes, the court
should engraft the notice requirement for sentencing departures to
supervised release violations.
*
United States v. Booker, 543 U.S. 220 (2005).
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We disagree with Ryans’ analysis. Ryans wholly ignores
the fact that Rule 32.1 has not been amended post-Booker to include
a notice requirement. In addition, Ryans points to no authority
that supports her position. Ryans cites to United States v.
Davenport, in which the court explained that post-Booker, Rule
32(h) still contained a notice requirement before sentencing
hearings because “[t]here is essentially no limit on the number of
potential factors that may warrant a departure or a variance, and
neither the defendant nor the Government is in a position to guess
when or on what grounds a district court might depart or vary from
the guidelines.” 445 F.3d at 371 (internal quotation marks
omitted). This case is inapplicable to her argument because it
discusses only Rule 32(h) in the post-Booker sentencing environment
and does not purport to apply to Rule 32.1.
Moreover, Ryans’ twenty-four month sentence falls within
the range authorized by statute and is reviewable only to determine
if it is “plainly unreasonable” with regard to those 18 U.S.C.
§ 3553(a)(2000) factors applicable to supervised release revocation
sentences. United States v. Crudup, 461 F.3d 433, 437 (4th Cir.
2006). As purely advisory policy statements, the sentencing ranges
provided by USSG § 7B1.4, have never bound the sentencing court.
See United States v. Davis, 53 F.3d 638, 640 n.6, 642 (4th Cir.
1995). This court grants broad authority to the district court to
revoke its previous sentence and impose a term of imprisonment up
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to the statutory maximum. Crudup, 461 F.3d at 440 (citing United
States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005)).
Here, while Ryans was sentenced over the guidelines
range, her sentence did not exceed the statutory maximum of two
years. The district court more than adequately provided its
reasoning for the sentence, stating that it had “examined this case
very carefully, including the Defendant’s behavior, the Guidelines
that are in effect, and the statutory factors under Section
3553(a).” The district court stated that the Government’s request
was insufficient to address punishment or the “Defendant’s problems
and needs,” including the need to be treated for mental health
problems and personality disorders which had been previously
diagnosed. The court outlined her “totally” noncompliant behavior
while on supervision, the seriousness of the offense and her
“whitewash[ing]” of it, her lack of respect for the law and total
disdain for the judicial process, and the need for adequate
deterrence of criminal conduct. Ryans concedes that there was
overwhelming evidence supporting the court’s grounds for its
sentence. We conclude that no notice was required prior to the
upward departure from the advisory guidelines sentencing range and
that Ryans’ sentence was not plainly unreasonable. Accordingly, we
affirm Ryans’ sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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