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United States v. Fore-Durham

United States District Court, E.D. Virginia, Richmond Division

May 6, 2016

THEA A. FORE-DURHAM, Defendant/Appellant.


          JAMES R. SPENCER, Senior District Judge.

         THIS MATTER is before the Court on Defendant/Appellant Thea A. Fore-Durham's Appeal of the Magistrate Judge's Decision to the District Court (ECF No. 11). On January 19, 2016, Fore-Durham noted her appeal from the January 5, 2016 Judgment issued by the Honorable David J. Novak, United States Magistrate Judge, which sentenced Fore-Durham to 12 months' probation and a $10 Special Assessment (ECF No. 10). On February 24, 2016, Fore-Durham filed her brief in support of her appeal (ECF No. 17), and on March 7, 2016, the United States filed a brief in response (ECF No. 18). Fore-Durham has not filed a reply brief, and the time to do so has expired. Fore-Durham's appeal presents the following issue: "Whether the sentence imposed was procedurally and substantively reasonable under the circumstances?" (Fore-Durham Appeal Br. 1.)

         The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to Federal Rule of Criminal Procedure 58(g)(2)(B).[1] For the reasons that follow, the Court will affirm the magistrate judge's findings and the sentence imposed.

         I. BACKGROUND

         On September 24, 2015, the United States filed a one-count criminal information against Fore-Durham alleging that she drove her vehicle in a reckless manner, in that she drove 20 miles per hour over the speed limit, in violation of 18 U.S.C. § 13, assimilating Va. Code § 46.2-862. At Fore-Durham's initial appearance, the charge was amended to speeding 64 miles per hour in a posted 45-mile per hour zone, in violation of 32 C.F.R. § 634.25(f), assimilating Va. Code § 46.2-878. The maximum possible punishment for such a charge is 30 days' confinement, $5, 000 fine, $10 special assessment, and up to 5 years' probation. On November 20, 2015, Fore-Durham pleaded guilty to the amended charge. The magistrate judge then scheduled a sentencing hearing for January 5, 2016.

         Prior to the sentencing hearing, Fore-Durham submitted a sentencing position (ECF No. 8). Fore-Durham requested a sentence of a fine, arguing that a fine was warranted in light of her personal history, which included drug-addicted parents, her father being murdered, her own battle with addiction, and the death of an infant son. (Def.'s Sentencing Pos. 2-5.)

         At the sentencing hearing, the United States likewise sought a sentence of a fine, but proposed an alternative sentence of 6 months' probation with 20 hours of community service. (Sentencing Transcript 4:19-5:2, ECF No. 16.) Fore-Durham's counsel highlighted Fore-Durham's history and characteristics in support of the imposition of a fine. The magistrate judge then expressed concern over whether a fine would appropriately deter future conduct and discussed the appropriateness of probation. ( Id. 8:17-9:1.) Specifically, the magistrate judge explained:

How does the fine help her though? A fine doesn't really-a fine is a nonstarter here because, first of all, either she's getting the money from somebody else, I gather, the fiance, right? But even if she does, she needs that money far more than the United States government needs it. I don't think that's the issue. I don't-fines are not going to deter conduct. It's not going to help her. If anything, it's going to hurt her. I don't think a fine is the answer. I think a term of probation is the answer here.

( Id. 8:17-9:1.) Noting the need to protect the public and address recidivism, the magistrate judge imposed a sentence of 12 months' probation, with various conditions, including requirements that Fore-Durham: (1) attend one meeting per week of "NA, AA, or a similar type of program"; (2) maintain contact with a probation-approved sponsor twice a week; complete 25 hours of community service; and (4) undergo any recommended mental health treatment. ( Id. 15:14-16:15.) The Court indicated that early termination of her sentence would be considered if Fore-Durham maintained good behavior for 6 months. ( Id. 16:16-20.) The magistrate judge ultimately sentenced Fore-Durham to 12 months' probation and a $10 Special Assessment


         Pursuant to Federal Rule of Criminal Procedure 58(g)(2)(B), a defendant may appeal a magistrate judge's judgment of conviction or sentence to a district judge within fourteen days of its entry. "The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed. R. Crim. P. 58(g)(2)(D). Thus, in reviewing a judgment of conviction entered by a magistrate judge, a "district court utilizes the same standards of review applied by a court of appeals in assessing a district court conviction, " rather than conducting a "trial de novo." United States v. Bursey, 416 F.3d 301, 305 (4th Cir. 2005).

         A district judge should affirm a sentence imposed by a magistrate judge unless it is unreasonable or resulted from a significant procedural error. See Gall v. United States, 552 U.S. 38, 51 (2007) (describing the standard of review by a court of appeals of a sentence by a district judge); United States v. Riley, 991 F.2d 120, 126 (4th Cir. 1993), cert, denied, 510 U.S. 949 (1993). Procedural errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence- including an explanation for any deviation from the Guidelines range." United States v. Diosdado-Star, 630 F.3d 359, 363 (4th Cir. 2011) (citation omitted).

         Absent a significant procedural error, the Court must assess the substantive reasonableness of the sentence imposed. See id. A "deferential abuse-of-discretion standard" applies to "any sentence, whether inside, just outside, or significantly outside the Guidelines range." United States v. Savillon-Matute, 636 F.3d 119, 122 (4th Cir. 2011) (citation omitted). As the Supreme Court of the United States has cautioned, "[t]he fact that the [reviewing] court might reasonably have concluded that a ...

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