United States v. Lewis

90 F.4th 288

UNITED STATES of America, Plaintiff - Appellee, v. Richard Dewayne LEWIS, Defendant - Appellant.

No. 22-4291

United States Court of Appeals, Fourth Circuit

Argued: October 25, 2023

Decided: January 8, 2024

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:03-cr-00309-HEH-1)

ARGUED: Joseph Stephen Camden, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Olivia L. Norman, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and BENJAMIN, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Wilkinson and Judge Benjamin joined.

NIEMEYER, Circuit Judge:

In December 2010, after serving roughly seven years in prison for his 2004 federal conviction for conspiracy to traffic in illegal drugs and unlawful firearm possession, Richard Lewis began serving two concurrent 5-year terms of supervised release. While on supervised release, he was arrested and convicted under state law on three counts of manufacturing or distributing illegal drugs and sentenced to 13 years' imprisonment for those offenses.

On the federal probation officer's petition, the district court revoked Lewis's supervised release for violating a condition of his release — that he not commit any new crimes — and sentenced him to 20 months' imprisonment, to be served consecutively to his state sentence. Explaining its sentence, the court addressed Lewis's particular factual circumstances, some of which favored him, and concluded that its revocation sentence "satisf[ied] all the factors set forth in [18 U.S.C. §] 3553(a), and provide[d] for just punishment, and reflect[ed] the extent of the breach of trust evidenced by [Lewis's] breaches of supervised release."

Lewis challenges his sentence, contending first that it was plainly unreasonable because the district court "expressly considered and based its sentence on the need to provide just punishment [for] and reflect the seriousness of the violation." And second, he contends that the district court imposed the sentence pursuant to Chapter 7 of the Sentencing Guidelines, which, he argues, is invalid because its provisions recommend imprisonment ranges based on "the seriousness of the violation (a forbidden factor) and justify imprisonment as a sanction for breach of the court's trust — also a consideration omitted from" the supervised release revocation statute, 18 U.S.C. § 3583(e). He claims that Chapter 7's "express reliance on punishment as the justification for its policy statement renders [its] provisions ultra vires." (Emphasis added).

We conclude that the district court faithfully complied with Chapter 7 and that Chapter 7 faithfully implements the governing statutes and therefore is not ultra vires. We also conclude that the district court's reference to prohibited factors did not render its sentence plainly unreasonable. Accordingly, we affirm.

I

After the government alleged that Lewis had committed numerous offenses between 1996 and 2002, he pleaded guilty in 2004 to two counts charging him with conspiracy to distribute 50 grams or more of cocaine base and possession of a firearm in furtherance of a drug trafficking crime. He was sentenced to a term of 211 months' imprisonment, which was later reduced to 90 months' imprisonment. He was also sentenced to two 5-year terms of supervised release, to be served concurrently.

Lewis was released from prison in December 2010 and began serving his 5-year terms of supervised release. In July 2014, while on supervised release, Lewis was arrested by state law enforcement officers and thereafter charged with drug trafficking in violation of state law. In August 2015, he was convicted on three counts and sentenced to 20 years' imprisonment for each count, with 15 years suspended on the first two counts and 17 years suspended on the third. Thereafter, in June 2016, the state court revoked Lewis's probation and sentenced him to an additional 6 years' imprisonment. His current estimated release date from state custody is in June 2027.

Based on Lewis's state law violations and his repeated failures of drug tests during his term of supervised release, his federal probation officer filed a petition for revocation of Lewis's supervised release, which had been imposed as part of his 2004 federal sentence. The district court conducted a hearing on May 3, 2022, at which Lewis admitted that he had been convicted in state court for offenses committed while on federal supervised release. Based on that admission, the court found that Lewis had violated his supervised release conditions and revoked his supervised release.

With respect to sentencing, the court began by finding that Lewis's violation was classified as a "Grade A violation" under U.S.S.G. § 7B1.1. And after combining that with his criminal history category (Category IV) and the fact that his supervised release was part of a sentence for a Class A felony, the court found that the resulting advisory sentencing range was 37 to 46 months' imprisonment, to be served consecutively to his state sentence. The court also found that the statutory maximum term of imprisonment was 60 months' imprisonment, as fixed in 18 U.S.C. § 3583(e)(3). Finally, the court stated that it would take into account Lewis's medical condition — he is paraplegic — and his serious mental health issues stemming from the extreme trauma he experienced as a child. After announcing these preliminaries, the court heard from counsel for the parties as to the appropriate sentence.

The government requested that Lewis receive a sentence of 37 months' imprisonment, consecutive to his state sentence, which was at the bottom of his advisory Guidelines range. It explained that "because of the severity of the breach of trust in this case," it would have "typically" requested either "a sentence at the high end of the revocation table range [i.e., 46 months] . . . or even the statutory maximum [i.e., 60 months]." "But given a number of other mitigating circumstances, including the personal characteristics of [Lewis] and the fact that he does have a considerable amount of [state] time to serve," it requested instead a sentence at the bottom of the advisory range.

Lewis requested a below-Guidelines sentence. His counsel argued that "this will actually be the third time [that] he's being punished for" his 2014 drug-distribution activity, given his state sentences both for the convictions themselves and his state probation violation. As to the circumstances of the violation of supervised release, counsel argued that Lewis had been motivated to return to selling drugs because of the extreme financial difficulty he faced as a disabled person who, as a convicted felon, was ineligible for certain government benefits. His counsel explained that, in addition to his paraplegia, Lewis had other medical problems that had required at least three hospitalizations while he was in state custody. He also emphasized that Lewis had had "excellent conduct" while in state custody, with no disciplinary violations since his 2014 arrest, and that he had been given a minimum-security-level classification. Finally, Lewis's counsel noted that Virginia had an excellent reentry program and urged the court to consider that as a reason for running his federal revocation sentence concurrent to his state sentence. Thus, he requested a sentence of 36 months to be imposed concurrently with his state sentence. And if the court were inclined to reject that, he suggested "36 months, but half concurrent and half consecutive" or "the equivalent" of that, i.e., an 18-month consecutive sentence.

Lewis's counsel also made legal arguments, contending that there was a "problem . . . with Chapter 7 [of the Sentencing Guidelines] as a whole." He observed that "Chapter 7 grades the violations according to how serious they are" by tying a violation's grade "to what the statutory[ ] maximum in state court was, or what type of crime it was," and he argued that this framework violated 18 U.S.C. § 3583(e). He explained that § 3583(e) directs district courts sentencing a defendant following a violation of supervised release conditions to consider "all the [§] 3553(a) factors except for just punishment, the seriousness of the offense, and the need to promote respect for the law," i.e., the retribution factor listed in 18 U.S.C. § 3553(a)(2)(A). (Emphasis added). And he noted that we have specifically directed district courts not to consider the § 3553(a)(2)(A) factor when imposing a revocation sentence. See United States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006). He concluded that because Chapter 7 ranks supervised release violations "by the seriousness of the offense," it violates the "text of [§] 3583" and therefore is not a valid implementation of the statute. In addition, he argued that the § 3553(a) factors that were made applicable by § 3583(e) "all . . . recommend both a sentence below the Guidelines and [a] concurrent sentence."

After receiving the arguments of counsel and hearing from Lewis directly, the district court sentenced him to 20 months' imprisonment, to be served consecutively to his state sentence. In doing so, the court stated that it had "reviewed all the factors set forth in . . . [§] 3553(a)" and explained that two "important factors" stood out. "Number one, [his] criminal record [was] horrendous," and "[n]umber two, [his] institutional record ha[d] been good." The court also noted that, "unfortunately," Lewis had "physical conditions that [would] affect [him] for the balance of [his] l...