UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4421
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORTEZ L. BAREFIELD, a/k/a PC,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. Joseph R. Goodwin, District Judge. (2:06-cr-00055-2)
Submitted: November 17, 2017 Decided: December 8, 2017
Before NIEMEYER, SHEDD, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John R. McGhee, Jr., KAY CASTO & CHANEY PLLC, Charleston, West Virginia, for
Appellant. Carol A. Casto, United States Attorney, John J. Frail, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cortez L. Barefield appeals from his 60-month sentence entered pursuant to the
revocation of his supervised release. On appeal, Barefield contends that his sentence was
plainly procedurally and substantively unreasonable. Barefield assigns procedural error
to the district court’s failure to provide sufficient reasoning for the imposition of the
statutory maximum, within-policy-statement sentence. Further, Barefield argues that the
sentence is substantively unreasonable because the district court did not properly consider
that his original sentence was longer than it might have been if he were sentenced anew.
In addition, Barefield contends that the court relied too heavily on his involvement with
heroin even though the state heroin charges against him were dismissed.
“A district court has broad discretion when imposing a sentence upon revocation
of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We
will affirm a revocation sentence that “is within the prescribed statutory range and is not
plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 440 (4th Cir. 2006). We
first consider whether the sentence imposed is procedurally and substantively reasonable,
applying the same general considerations utilized in its evaluation of original criminal
sentences. Id. at 438. In this initial inquiry, we “take[] a more deferential appellate
posture concerning issues of fact and the exercise of discretion than reasonableness
review for guidelines sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th Cir.
2007) (internal quotation marks omitted). Only if we find the sentence unreasonable will
[we] consider whether it is “plainly so.” Id. at 657 (internal quotation marks omitted).
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A supervised release revocation sentence is procedurally reasonable if the district
court considered the policy statements contained in Chapter Seven of the Sentencing
Guidelines and the 18 U.S.C. § 3553(a) (2012) factors applicable in revocation
proceedings. Crudup, 461 F.3d at 439. The district court also must provide a statement
of reasons for the sentence imposed, but that explanation “need not be as detailed or
specific when imposing a revocation sentence as it must be when imposing a
post-conviction sentence.” United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
2010).
In fashioning an appropriate sentence, “the court should sanction primarily the
defendant’s breach of trust, while taking into account, to a limited degree, the seriousness
of the underlying violation and the criminal history of the violator.” U.S. Sentencing
Guidelines Manual (USSG) ch. 7, pt. A(3)(b) (2016). According to 18 U.S.C. § 3583(e)
(2012), which governs supervised release revocation proceedings, the court also must
consider some of the factors enumerated under § 3553(a), though not the need for the
sentence “to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). See 18 U.S.C.
§ 3583(e); Crudup, 461 F.3d at 439. We have recognized, however, that the
§ 3553(a)(2)(A) factors “are intertwined with the factors courts are expressly authorized
to consider under § 3583(e).” Webb, 738 F.3d at 641-42 (collecting cases recognizing
this enmeshment of the disfavored and the authorized factors). Thus, although the district
court may not base a revocation sentence “predominately” on the § 3553(a)(2)(A) factors,
“mere reference to such considerations does not render a revocation sentence
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procedurally unreasonable when those factors are relevant to, and considered in
conjunction with, the enumerated § 3553(a) factors.” Id. at 642.
In announcing the selected sentence, the district court did not explicitly address
several arguments outlined by Barefield in his sentencing memorandum. However, we
conclude that the district court did not commit reversible procedural error in failing to
directly reference Barefield’s arguments because, while not frivolous, these were
relatively weak arguments when balanced against the district court’s explanation for the
sentence imposed. Specifically, the district court concluded that Barefield demonstrated
a repeated and serious inability to conform his behavior to the law. See United States v.
Boulware, 604 F.3d 832, 839-40 (4th Cir. 2010) (finding harmless error when court did
not explain its rejection of weak arguments in light of strong indications that district court
considered Defendant’s claims).
Moreover, as the district court noted, Barefield had many of the same mitigating
circumstances proffered for a lower sentence when he was initially sentenced and, not
only did he fail to reform upon release to supervised release, but he failed quickly and
repeatedly. Thus, the identified sentencing factors weighed heavily against Barefield:
the demonstrable need to protect the public from future crimes by Barefield, to deter
Barefield from his continuing propensity to traffic drugs, and the need for Barefield to
receive psychological testing. See 18 U.S.C. § 3553(a)(2)(B)-(D). It is also plain from
the record that the court imposed the maximum sentence because Barefield’s commission
of new crimes amounted to significant breaches of the court’s trust. See USSG ch. 7, pt.
A(3)(b).
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In addition, while Barefield avers that the court erred by placing weight on a
heroin charge that was dismissed, Barefield admitted to a violation of supervised release
involving his trafficking of heroin and testified that he was part of the heroin problem in
his community. Further, the court discussed the heroin charge in the context of pointing
out that, even though Barefield was well aware of the dangers of heroin in the
community, he continued his involvement, demonstrating his inability to behave
lawfully. Accordingly, we conclude that the court’s explanation was sufficient to support
Barefield’s within-policy-statement sentence and demonstrated that the court considered
the relevant sentencing factors.
Next, Barefield challenges the substantive reasonableness of the sentence, arguing
that the court failed to give his prior sentence consideration and accorded too much
weight to Barefield’s involvement in a heroin offense. A revocation sentence is
substantively reasonable if the district court “sufficiently state[s] a proper basis” for
concluding the defendant should receive the sentence imposed, up to the statutory
maximum. Crudup, 461 F.3d at 440. Because Barefield’s repeated and serious failures
to obey the law and respect the requirements of supervised release are a proper basis for
the sentence imposed, the sentence was substantively reasonable.
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As such, we affirm Barefield’s sentence. * We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
*
Barefield also argues that the district court should have credited his sentence
with the time served in state custody on the charges which provided the basis for the
revocation. The Bureau of Prisons (BOP), as the delegate of the United States Attorney
General, is responsible for computing federal sentences. See United States v. Wilson, 503
U.S. 329, 334-37 (1992). The computation requires a determination about when the
sentence commenced and whether credit is awardable for time already spent in custody.
Binford v. United States, 436 F.3d 1252, 1254 (10th Cir. 2006). A federal sentence
cannot commence prior to the date it is pronounced, even if made concurrent with a
sentence already being served. See Schleining v. Thomas, 642 F.3d 1242, 1249 (9th Cir.
2011) (stating that “federal sentence does not begin under 18 U.S.C. § 3585 until
[defendant] has been sentenced in federal court”); accord Coloma v. Holder, 445 F.3d
1282, 1284 (11th Cir. 2006).
In addition, the BOP, not the sentencing court, makes credit determinations.
Wilson, 503 U.S. at 332–34; United States v. Tindall, 455 F.3d 885, 887-88 (8th Cir.
2006). In fact, the district court lacks authority to order the BOP to credit a sentence.
See Wilson, 503 U.S. at 334; see also United States v. Hornick, 815 F.2d 1156, 1160 (7th
Cir. 1987) (judge’s direction to BOP is merely an advisory opinion). Accordingly, the
court lacked authority to provide the relief requested.
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