Argued: January 25, 2018
from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox,
Senior District Judge. (7:13-cr-00110-F-1)
Maria Allen, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant.
Russell Pender, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
C. Allen, Acting Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Stuart Bruce, United States Attorney, Jennifer P. May-Parker,
First Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.
NIEMEYER, Circuit Judge
Erick Gibbs admitted to four violations of the conditions of
his supervised release, the district court, upon giving its
explanation for doing so, imposed the Guidelines-recommended
sentence of 24-months' imprisonment. Gibbs contends that
the sentence was plainly procedurally unreasonable because
the district court did not adequately address his arguments
in favor of a downward-variance sentence. We conclude,
however, that the record amply demonstrates that the district
court, in reaching its decision to impose the recommended
sentence, considered Gibbs's arguments for a downward
variance and addressed several of them, while highlighting
the seriousness of the violations, as well as Gibbs's
extensive criminal history. Accordingly, we affirm.
pleaded guilty in August 2010 to possession of a firearm by a
felon, in violation of 18 U.S.C. § 922(g)(1), and
thereafter he was sentenced to 36 months' imprisonment
and 3 years' supervised release.
months after Gibbs was released from prison, he was charged
in state court for possession of drug paraphernalia and, upon
conviction, was sentenced to 45 days' imprisonment,
suspended, and 18 months' probation. Then, in February
2013 and again in August 2013, Gibbs tested positive for the
use of marijuana. Finally, in February 2014, Gibbs
participated in a conspiracy to traffic in heroin and
maintained a vehicle, dwelling, or place for controlled
substances and, upon conviction, was sentenced to 19 to 32
months' imprisonment. All four of these incidents
violated the conditions of Gibbs's supervised release,
and Gibbs's probation officer accordingly filed a motion
for revocation. At the revocation hearing, Gibbs admitted to
all four violations, and the court thus found "as a fact
that the defendant violated the terms and conditions of his
2010 judgment." The court concluded further that
Gibbs's drug trafficking offense was a Grade A violation,
the most serious. See U.S.S.G. § 7B1.1(a).
provided by the policy statements in Chapter 7 of the
Sentencing Guidelines, Gibbs's Grade A violation mandates
revocation of supervised release, see U.S.S.G.
§§ 7B1.1(a)(1), 7B1.3(a)(1), and when a Grade A
violation is coupled with Gibbs's Criminal History
Category VI, a sentence of 33 to 41 months' imprisonment
is recommended, see id. § 7B1.4. But because
the maximum revocation sentence that Gibbs could receive,
given his underlying conviction, was 24 months'
imprisonment, see 18 U.S.C. § 3583(e)(3), that
sentence became his recommended sentence, U.S.S.G. §
7B1.4(b)(1). Counsel for both parties recognized as much.
presenting no evidence at the hearing, Gibbs's counsel
asked the court to impose a downward-variance sentence of 12
months' imprisonment based on three "mitigation
factors." As she stated to the court, "There's
extreme hardship on his family. There is the time already
served [on the drug-trafficking conviction]. There may be,
thirdly, some discussion from the Government."
first factor, which was counsel's main argument, counsel
stated that a 24-month prison term would deprive Gibbs's
three children of significant income and a stable home
environment and would impose hardship on Gibbs's mother,
who had relocated to care for the children during his
absence, as his wife was deceased. With respect to
Gibbs's earning potential, counsel noted that Gibbs
"went through a program called Youth Build, where he
learned a significant amount of skills. He can build a house
from the ground up, framing, painting, landscaping." She
also pointed to Gibbs's employment, stating that Gibbs
had been employed "at the House of Raeford, the chicken
plant" and at "Peters Landscaping Company, in
Wilmington. He worked seven days, from 10 to 3. So he has
skills that he can build upon once he gets this behind
him." Counsel also noted that Gibbs had been
"working toward his GED."
second mitigation factor, counsel noted that Gibbs had
already served 14 months on his drug-trafficking conviction
and therefore argued that he had already been duly punished.
the third factor, she stated, "hopefully, the Government
will discuss with this Court" Gibbs's assistance to
law enforcement after his drug-trafficking conviction.
Counsel then summarized Gibbs's justification for a
Now, I'm asking for 12 months . . . [a]nd I do think that
period of time will be enough time to not only punish Mr.
Gibbs, but certainly deter him from any further conduct. But
. . . it is [also] a reasonable time to be away from the
unique and extraordinary situation that he has with his
family. So that when he returns home, he can immediately jump
in with the skills that he has and be able to provide
resources for them[.]
response, the government argued that Gibbs's Grade A
violation was a "serious charge" and that otherwise
he had an extensive criminal history:
200 bags of heroin was the amount that was involved with the
second conviction in 2014. And Mr. Gibbs has had several
prior drug convictions and has had 12 convictions prior to
his federal sentence. And it's over a six-year period.
And several of those were assaultive in nature. He had two
assaults. He had multiple resisting officers. So he has not
had a good track record.
government noted further that one of the violations at issue
- Gibbs's possession of drug paraphernalia - occurred
within months after beginning his term of supervised release.
But the government did acknowledge Gibbs's cooperation
with law enforcement, explaining that "after the state
[offense] with the 200 bags of heroin, [Gibbs] did meet with
ATF and did assist them . . . with regard to criminal
activity in the Wilmington area." The government allowed
that although the information Gibbs provided had not yet
resulted in any charges, law enforcement officers believed
that the information was "helpful" and
the district court offered Gibbs the opportunity to speak on
his own behalf, which he declined to do, the court imposed
the Guidelines' recommended sentence of 24-months'
imprisonment. In doing so, it explained:
On March 1st, 2013, the defendant pled guilty to misdemeanor
possession of drug paraphernalia in Brunswick County District
Court and was sentenced to 45 days' imprisonment,
suspended, 18 months of supervised probation. On January 19,
2015, the defendant was arrested and charged with felony
conspiracy to traffic opium/heroin and felony maintain
vehicle/dwelling/place for controlled substances. On
September 17th, 2015, defendant pled guilty to conspiracy to
sell heroin and maintain a vehicle/dwelling/place for
controlled substances. The court imposed a 19 to 32 month
term of imprisonment. On February 25th, 2013, and August 1st,
2013, the defendant tested positive for marijuana.
The defendant has a history of gang affiliation and has prior
convictions for assault, marijuana possession, resisting a
public officer, possession of stolen goods, trespass,
possession of cocaine, possession of a firearm by a felon,
possession of a handgun by a minor, carrying a concealed
weapon, and driving while license revoked.
He has a scant employment record and little in the way of
marketable job skills. While on supervision, the defendant
did make an effort to obtain his GED. Upon consideration of
Chapter 7 of the [Sentencing Guidelines Manual] and the
relevant factors listed in 18 U.S.C. § 3553(a), the
defendant's term of supervision is revoked and the
defendant is ordered to be committed to the custody of the
[BOP] . . . for a period of 24 months.
the court then asked defense counsel if she had anything
further to add, she stated:
Yes, Your Honor. I would ask you to reconsider the range of
24 months again - if nothing else, for the extreme hardship
that it's going to be on his family at this point. They
have done a significant amount to try to mitigate this
themselves. But him being away for two years, Your Honor,
that's [something] I believe . . . the Court can
consider. I do not - ...