United States District Court, E.D. Virginia, Richmond Division
R. SPENCER, Senior District Judge.
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.)
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). For the reasons that follow, the Court
will affirm the magistrate judge's findings and the
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. Â§ 13, assimilating Va. Code Â§ 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. Â§ 634.25(f), assimilating Va.
Code Â§ 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.
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.)
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
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.
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 Â§ 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)
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 ...