UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4336
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALBERTO DAVILA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:89-cr-00400-PMD)
Submitted: September 26, 2007 Decided: October 10, 2007
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Robert H. Bickerton, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alberto Davila appeals the sentence of forty-eight
months’ imprisonment he received after the district court revoked
his supervised release. He argues that his sentence was plainly
unreasonable because the district court relied on factors it was
not authorized to consider to determine the length of the sentence,
specifically, the seriousness of the offense and a desire to impose
a just punishment, factors which are not enumerated in 18 U.S.C.A.
§ 3583(e) (West 2000 & Supp. 2007), as proper considerations under
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). We affirm.
Davila was convicted in South Carolina of cocaine
trafficking in 1991, served his federal sentence, and began a term
of five years supervised release in 2001. In 2005, Davila was
charged in Florida with armed robbery, armed kidnaping, and armed
sexual battery with a firearm. He pled guilty to armed burglary
and served a two-year state sentence. In 2007, the district court
revoked his supervised release. The Chapter 71 policy statements
established a sentencing range of 24-30 months. At the revocation
hearing, Davila disputed the allegation in the violation report
that he had gone to his ex-girlfriend’s residence, forced his way
in, and raped her. Defense counsel argued for a sentence within
the range prescribed under the Chapter 7 policy statements,
anticipating that the court might depart upward because of the
nature of the charges brought against Davila. Counsel related
1
U.S. Sentencing Guidelines Manual ch. 7, pt. A (2006).
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Davila’s version of events, stating that Davila went to the
victim’s residence to collect belongings; that she asked him to
stay and became angry when he refused; that he found a gun that was
not his in the house which accidentally discharged; that he threw
the gun into an empty lot next door; and that he was arrested after
a neighbor called the police.
The district court reviewed the documents provided by
Davila: a medical report which was negative for sperm on the
victim, the victim’s statement to police, and two incident reports
involving the couple from the prior month. The court determined
that the victim’s statement was more credible than Davila’s version
of events and that, at the least, he had “terrorized” her while
armed with the gun. The court imposed a sentence of forty-eight
months and one year of supervised release, stating that it had
considered the statutory requirements and the guidelines.
In United States v. Crudup, 461 F.3d 433, 437 (4th Cir.
2006), cert. denied, 127 S. Ct. 1813 (2007), we held that
“revocation sentences should be reviewed to determine whether they
are ‘plainly unreasonable’ with regard to those § 3553(a) factors
applicable to supervised release revocation sentences.” Review of
a revocation sentence involves both procedural and substantive
considerations. Id. at 438. A sentence is procedurally reasonable
if the court considered the Chapter 7 policy statements and the
pertinent factors in § 3553(a). Id. at 440. It is substantively
reasonable if the court stated a proper basis for its decision to
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impose the sentence. Id. Finally, “a court’s statement of its
reasons for going beyond non-binding policy statements in imposing
a sentence after revoking a defendant’s supervised release need not
be as specific as has been required when courts departed from
guidelines that were, before Booker,[2] considered to be
mandatory.” Id. at 439 (quoting United States v. Lewis, 424 F.3d
239, 245 (2d Cir. 2005)).
Here, the court did not state a specific reason for
imposing a sentence above the Chapter 7 sentencing range, but its
comments indicate a concern with Davila’s conduct, which the court
observed involved a gun and either violence or the threat of
violence, and a concern that he might commit similar acts in the
future. These factors are proper concerns for sentencing under
§ 3553(a)(1) (nature and circumstances of the offense), (2)(B)
(adequate deterrence to criminal conduct), and (2)(c) (protection
of the public). Therefore, we conclude that the sentence is not
plainly unreasonable.
Accordingly, we affirm the sentence imposed by the
district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
2
United States v. Booker, 543 U.S. 220 (2005).
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