United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
matter is before the Court on the Defendant's APPEAL OF
MAGISTRATE JUDGE DECISION (ECF No. 25), which challenges the
sentence imposed by the Magistrate Judge for probation
violations. For the reasons set forth below, the Court
affirms the sentence imposed by the Magistrate Judge.
Barber ("Barber") was charged in June 2017 with
simple possession of marijuana and cocaine, which are Class A
Misdemeanors. See ECF No. 1. After being fully
advised of her right to being tried and sentenced by a
district judge, Barber signed a form waiving those rights.
See ECF No. 3. On that form, Barber, inter
alia, (1) [w]aive[d] [her] right to trial, judgment and
sentencing by a United States district judge"; (2)
[c]onsent[ed] to being tried, judged, and sentenced by a
United States magistrate judge"; and
(3)”[w]aiv[ed] [her] right to trial by jury before
either a United States district judge or a United States
magistrate judge." Id. The Government also had
to "consent to Defendant being sentenced by a United
States magistrate judge.'7 Id.
this waiver, Barber pled guilty to both misdemeanors before
Magistrate Judge Roderick Young. ECF No. 2. The parties
agreed to pre-judgment probation under 18 U.S.C. § 3607
whereby Barber was placed on probation for one year with
various conditions, including periodic drug testing. ECF No.
5. In other words, no judgment would be entered if Barber
complied with the conditions of her probation for one year.
Barber did violate her probation. She tested positive for
marijuana on several occasions in 2017. ECF No. 7. As a
result, her probation was modified to require her to
participate in a drug treatment program. ECF No. 6. She was
referred to such a program, and failed to report for drug
testing on several occasions. ECF No. 7. She also had failed
other drug tests. Id.
the Probation Officer filed a petition for revocation of
Barber's probation, and a revocation hearing was held
before Magistrate Judge Young on May 7, 2018. ECF Nos. 7, 12.
Barber pled guilty to violating her probation and judgment on
the initial cocaine and marijuana possession offenses was
entered. ECF No. 13. Barber was sentenced to 18 months'
probation, with conditions of mental health evaluation,
substance abuse treatment and testing, and attendance at 90
Narcotics Anonymous ("N.A.") meetings in 90 days.
ECF No. 15.
February 1, 2019, the Probation Officer filed a second
petition alleging that Barber had once again violated the
conditions of her probation. ECF No. 16. That petition
charged four probation violations: (1) driving under a
suspended license;(2) marijuana use; (3) failure to pay
special assessment; and (4) failure to attend 90 N.A.
meetings in 90 days. Id. Magistrate Judge Young held
an initial hearing on Barber's probation violations on
February 19, 2019, and a final hearing on February 22, 2019.
ECF Nos. 27, 38.
February 19 hearing, Magistrate Judge Young heard testimony
from Barber's mother, in which she explained her
daughter's violations. See Feb. 19 Hr'g Tr.
8-17 (ECF No. 38). Barber's mother testified that: (1)
Barber had transportation difficulties because her
driver's license had been revoked; (2) Barber's
Probation Officer had told her (the mother) to wait on paying
the special assessment; (3) Barber struggled with mental
health issues; (4) Barber lived in a crime-ridden area; and
(5) Barber had made efforts at working (which were
complicated by her lack of a driver's license) .
Id. At the end of the hearing, Magistrate Judge
Young remanded Barber to custody pending her final hearing a
few days later. Id. at 25.
February 22 hearing, Barber pled guilty to the remaining
three violations of the conditions of her
probation.See Feb. 22 Hr'g Tr. at 10
(ECF No. 27). The Government asked for three months7
incarceration, followed by no supervision, because Barber had
not complied with the terms of her probation and because she
had "breach[ed] [the Court's] trust."
Id. at 12-13. The Government argued that such a
sentence, which was at the low end of the Guidelines, was
"sufficient" and satisfied the "factors of
3553(a)." Id. Barber sought home detention
(with electronic monitoring) to be served at her parents'
home. Id. at 22-23. Barber argued that various
factors explained her probation violations: that it was
difficult to attend 90 N.A. meetings in 90 days because her
driver's license had been revoked; that her obligations
to her children made complying with the 90-meeting condition
difficult; that she was also required to have a job; and that
she has struggled with mental health issues. Id. at
13-20. Additional time in prison, she argued, was unnecessary
and would "exacerbate" her mental health issues.
Id. at 22.
hearing the evidence and argument, Magistrate Judge Young
sentenced Barber to three months' imprisonment with no
supervision to follow. Id. at 24-26. In imposing
this sentence, Magistrate Judge Young considered the
Guidelines, Barber's past performance on probation,
arguments of counsel, and the Section 3553 factors.
Id. at 24-25. His reasoning for the sentence was as
After considering the foregoing, I find that it is -- the
only appropriate sentence is to revoke the defendant's
term of probation, and to sentence her to a term of three
months of imprisonment. And I'm sentencing her to the low
end of the guidelines due to her anxiety, her depression, her
anorexia and some other mitigating factors that her attorney
has raised in his argument by the evidence that he's put
Id. at 25.
now appeals the sentence imposed by Magistrate Judge Young.
The parties have fully briefed the matter, and the Court
heard oral argument on April 8, 2019.
FRAMEWORK FOR APPEALS FROM JUDGMENTS OF MAGISTRATE
defendant consents to be tried and sentenced by a magistrate
judge, 18 U.S.C. § 3742(h) governs this Court's
review of the sentence imposed by the magistrate judge. It
An appeal of an otherwise final sentence imposed by a United
States magistrate judge may be taken to a judge of the
district court, and this section shall apply (except for the
requirement of approval by the Attorney General or the
Solicitor General in the case of a Government appeal) as
though the appeal were to a court of appeals from a sentence
imposed by a district court.
18 U.S.C. § 3742(h) (emphasis added); see also
18 U.S.C. § 3742(e) (describing court of appeals'
review of sentence). Fed. R. Crim. P. 58(g)(2)(B) permits a
defendant to appeal a magistrate judge's sentence to a
district judge within 14 days. And, when that appeal is made,
Mt]he defendant is not entitled to a trial de novo by a
district judge. 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); see
also United States v. Bursey, 416 F.3d 301, 305-06 (4th
Cir. 2005) (describing the Fed. R. Crim. P. 58 standard).
interpreted by the Fourth Circuit post-Booker, the
Court of Appeals reviews sentences imposed by the district
court for "reasonableness using an abuse of discretion
standard." United States v. Shephard,
892 F.3d 666, 670 (4th Cir. 2018) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)). That review requires,
first, that the Court of Appeals
ensure that the district court committed no significant
procedural error, such as 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. Zuk, 874 F.3d 398, 409 (4th Cir.
2017) (citing Gall, 552 U.S. at 51) . If there is a
challenge to the Guidelines calculation, the district
court's factual findings are reviewed for clear error and
the legal conclusions are reviewed de novo.
United States v. Dodd, 770 F.3d 306, 309 (4th Cir.
2014) (citation omitted). Second (assuming no procedural
error), the Court of Appeals considers the "substantive
reasonableness of the sentence imposed under an
abuse-of-discretion standard" that takes into account
"the totality of the circumstances." Zuk,
874 F.3d at 409; see also United States v. Lambert,
594 F.Supp.2d 676, 680 (W.D. Va. 2009) (in petty offense
case, holding that" [a] district judge should therefore
affirm a sentence imposed by a magistrate judge unless it is
unreasonable or resulted from significant procedural
review of probation revocation sentences is even more
deferential to the district court. See, e.g.,
United States v. Gibbs, 897 F.3d 199, 203-05 (4th
Cir. 2018); United States v. Thompson, 595 F.3d 544,
546-48 (4th Cir. 2010) . That is, "while original
sentences are reviewed for 'reasonableness,' we have
recognized that even an unreasonable revocation sentence may
stand unless it is plainly unreasonable."
Gibbs, 897 F.3d at 204 (quoting United States v.
Crudup, 461 F.3d 433, 438-39 (4th Cir. 2006)) (emphasis
in original). A revocation sentence must still meet
"both procedural reasonableness and
substantive reasonableness, but on the more
deferential basis noted." Gibbs, 461 F.3d at
204 (emphasis in original).
Court will review the revocation sentence imposed
by-Magistrate Judge Young under the foregoing standard.
raises two general arguments in her appeal. First, she argues
that 18 U.S.C. § 3742(h), which governs the appeals of
sentences imposed by magistrate judges, is unconstitutional
to the extent that it does not require the District Court to
perform de novo review of the sentence. Second, she
argues that the Court should reverse the Magistrate
Judge's sentence of three months7 imprisonment, either
under de novo review or under the deferential
standard of review.
Constitutionality of 18 ...