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United States v. Jones

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

December 21, 2016



          Henry E. Hudson United States District Judge.

         The Defendant Antonio Jones appeals to this Court the sentence imposed by the United States Magistrate Judge after finding him in violation of the terms and conditions of his probation. This Court's review focuses on the record of that court's proceedings, along with the transcript of the sentencing proceedings at issue. As articulated in Rule 58 of the Federal Rules of Criminal Procedure, "[t]he 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). Accordingly, the Defendant is not entitled to a de novo proceeding. Id. Both parties have submitted memoranda supporting their respective positions. The Court heard oral argument on December 16, 2016. For the reasons that follow, this Court finds that the sentence imposed by the United States Magistrate Judge is both procedurally and substantively reasonable.

         The Defendant initially appeared before the Magistrate Judge on September 4, 2015, after being charged by criminal information with operating a motor vehicle under the influence of alcohol, in violation of §§ 18.2-270 and 46.2-266, Code of Virginia, as assimilated under 18 U.S.C. § 13. At the time of his initial appearance, the Defendant waived trial by a United States District Judge and consented to disposition of his case by a United States Magistrate Judge.

         On October 16, 2015, the Defendant entered a plea of guilty to the amended charge of reckless driving, in violation of § 46.2-852, Code of Virginia, as assimilated under 18 U.S.C. § 13. Prior to sentencing, the Magistrate Judge ordered the preparation of a modified Presentence Investigation Report, accompanied by a calculation of the Defendant's United States Sentencing Guidelines. The probation officer determined that the Defendant had a Total Offense Level of 4, Criminal History Category III, yielding a guideline range of zero to six months of confinement, with a statutory maximum of twelve months. The guidelines also provided for up to three years of probation with a statutory maximum of five years. Neither the Defendant nor the United States offered any objections to the probation officer's calculation of the Guidelines.

         On November 24, 2015, the Magistrate Judge sentenced the Defendant to thirty months of probation, adding the special conditions that he totally abstain from the use of alcohol and enroll in and successfully complete an alcohol safety action program. The standard terms and conditions of probation also included a prohibition from violating any federal, state, or local laws. The record reveals no restriction on the Defendant's operation of a motor vehicle.

         On July 21, 2016, the probation officer filed a petition alleging violations of the Defendant's probation. The probation officer reported that the Defendant had been arrested in Brunswick County, Virginia, for driving under the influence of alcohol and possession of an open container of alcohol. The officer further noted two violations of the special condition of the Defendant's probation disallowing consumption of alcohol. Those violations encompassed both his arrest on July 3, 2016, for driving under the influence of alcohol, and a May 26, 2016, urine specimen which tested positive for alcohol.

         On August 4, 2016, the Defendant made an initial appearance before the Magistrate Judge on the probation violation petition. The Magistrate Judge released the Defendant pending the revocation hearing, but added two special conditions to the terms of his probation. The first condition required the Defendant to submit to remote alcohol testing. The second condition prohibited the Defendant from driving. At the hearing, the Magistrate Judge said that the alcohol testing device would not be available for a few days, and the Defendant was "not to drive under any circumstances during that time period." (Initial Appearance Tr. 5, ECF No. 37.) The written order, however, stated only that "Defendant shall immediately surrender his driver's license to the U.S. Probation Officer and he is prohibited from driving any vehicle." (ECF No. 25.)

         On September 19, 2016, the Defendant again appeared before the Magistrate Judge for a revocation hearing. At that time he admitted consuming alcohol on May 26, 2016, and being convicted of driving under the influence of alcohol in Brunswick County. (Sentencing Tr. 5, ECF No. 37.) After finding the Defendant in violation of his probation, the court inquired of all parties whether the Guidelines had been properly calculated. The Defendant acknowledged that it was a Grade C violation and that he had a Criminal History Category I, [1] yielding a sentencing range of three to nine months. (Id. at 8.) The court then proceeded to explain its reasoning for rejecting the Government's recommendation of three months of incarceration. (Id. at 23-24.)

         The court began by reminding the Defendant that he had received a significant benefit when the court initially sentenced him to thirty months of probation. (Id. at 12.) He also reminded the Defendant of his admonition that the consequences would be harsh if he continued to consume alcohol and drive a motor vehicle. (Id.)

         The court declined to depart downward from the Guidelines, as recommended by defense counsel. Counsel suggested that the Defendant had made significant progress in addressing his alcohol problem since his arrest in Brunswick County several months prior. This argument, however, was not persuasive.

         Prior to imposing sentence, the court touched on each of the relevant factors under 18 U.S.C. § 3553(a). First, the Magistrate Judge underscored that the Defendant had a significant prior criminal history, including convictions for burglary and rape, which resulted in a substantial period of incarceration. He added that the sentence he imposed must reflect the seriousness of the offense, promote respect for the law, and provide for just punishment. Given the circumstances at hand, the court stressed that protecting the public was paramount. "Driving under the influence is a significant danger to the public." (Id. at 23.) Turning to adequate deterrence, the court reminded the Defendant of their discussion at the time of his guilty plea of the danger posed by drinking alcohol and operating a motor vehicle. (Id. at 24.)

         Ultimately, the Magistrate Judge sentenced the Defendant to eight months of imprisonment to be followed by one year of supervised release. As special conditions of the supervised release, the Magistrate Judge said he was "going to require the existing conditions of probation ... that includes no driving, period."[2] (Id. at 25.) Thus the Defendant's supervised release conditions will require him to use a remote alcohol testing device, to refrain from any alcohol consumption, and prohibition from driving a motor vehicle. (Id. at 24-25.) The Defendant timely noted his appeal to this Court.

         The Defendant maintains that the sentence and accompanying conditions imposed by the Magistrate Judge were both substantively and procedurally unreasonable. In his view, the sentence was substantively unreasonable because it was greater than necessary to serve the factors set forth in 18 U.S.C. § 3553(a). He contends that the judge's primary motivation was the perception that he originally received a lenient sentence on the original underlying offense of reckless driving. In placing undue emphasis on the original sentence of thirty months of probation, he argues that the court marginalized many of the § 3553(a) factors. Furthermore, the Defendant maintains that his eight months of incarceration, along with the supervised release requirements that he wear a transdermal alcohol detection device, that he refrain from the consumption of alcohol, and driving prohibition, is disproportionate to sentences imposed in other comparable cases.

         The Defendant contends that the supervised release condition that prohibits him from driving is procedurally unreasonable because it is based on clearly erroneous facts. The judge "erroneously believed he had previously ordered [the Defendant] not to drive a vehicle, when he actually ordered him not to drive a vehicle for a limited period of time while waiting to be placed on the [transdermal alcohol detection] device." (Def.'s Opening Br. 14-15, ECF No. ...

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