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United States v. Barber

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

April 29, 2019

SHAWN M. BARBER, Defendant.


          Robert E. Payne Senior United States District Judge.

         This 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.


         Shawn 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.

         Following 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.

         However, 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.

         Thereafter, 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.

         On 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;[1](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.

         At the 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.

         At the February 22 hearing, Barber pled guilty to the remaining three violations of the conditions of her probation.[2]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.

         After 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 follows:

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 forward.

Id. at 25.

         Barber 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.


         When a 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 reads:

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).

         As 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 error").

         Lastly, 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).

         The Court will review the revocation sentence imposed by-Magistrate Judge Young under the foregoing standard.


         Barber 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.

         A. Constitutionality of 18 ...

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