United States v. Barber
United States v. Barber
Opinion of the Court
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.
BACKGROUND
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." 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
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.
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 *663of her probation. ECF No. 16. That petition charged four probation violations: (1) driving under a suspended license;
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).
At the February 22 hearing, Barber pled guilty to the remaining three violations of the conditions of her probation.
After hearing the evidence and argument, Magistrate Judge Young sentenced Barber to three months' imprisonment with no supervision to follow.
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.
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.
*664LEGAL FRAMEWORK FOR APPEALS FROM JUDGMENTS OF MAGISTRATE JUDGES
When a defendant consents to be tried and sentenced by a magistrate judge,
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.
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,
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,
Lastly, review of probation revocation sentences is even more deferential to the district court. See, e.g., United States v. Gibbs,
The Court will review the revocation sentence imposed by Magistrate Judge Young under the foregoing standard.
DISCUSSION
Barber raises two general arguments in her appeal. First, she argues that
A. Constitutionality of
Barber argues that the statute governing appeals of magistrate judge sentences is unconstitutional to the extent that it does not require the District Court to perform de novo review of the Magistrate Judge's sentence. That is so, says Barber, because: (1) sentencing on a Class A misdemeanor (as here) is at the "core of the judicial power"; (2) an Article III judge must make the "ultimate determination" of the exercise of this power de novo; and (3) the statute governing appeals of magistrate judge sentences mandates that the District Court perform a review that is more deferential than de novo review. ECF No. 30 at 3-10. Although Barber consented to sentencing before the Magistrate Judge, she argues that she waived only the right to have the proceedings conducted by a district judge, but did not waive de novo review of the ultimate sentence imposed by the Magistrate Judge.
To assess this constitutional argument, it is helpful to understand the framework for the Magistrate Judge's jurisdiction over this case. The constitutional issues raised by Barber will then be assessed.
(1) Statutory Framework
The parties agree that the Magistrate Judge had jurisdiction over Barber's misdemeanor case. See ECF No. 30 at 1; see generally ECF No. 37. That jurisdiction arises out of several interrelated statutory provisions. The first provision is
The cross-referenced section in
Lastly, when a defendant consents to trial and sentencing before a magistrate judge, the magistrate judge also has jurisdiction over the defendant's probation. "The probation laws shall be applicable to persons tried by a magistrate judge under this section, and such officer shall have power to grant probation and to revoke, modify, or reinstate the probation of any person granted probation by a magistrate judge."
In sum, there is no dispute that, under the statutory provisions discussed above, the Magistrate Judge in this case had jurisdiction to impose a sentence, including a sentence for probation violations. The issue now becomes whether this Court must review de novo the sentence imposed by the Magistrate Judge.
(2) Barber Waived Any Right She Had to De Novo Review
Barber argues that several decisions of the Supreme Court of the United States establish that, under the Article III of the United States Constitution, this Court must perform a de novo review of the sentence imposed by the Magistrate Judge. She argues that, because
That contention lacks merit. As the Supreme Court has made clear, Barber's consent changes the constitutional calculus. And, it cannot be said that the provision of
(a) The Supreme Court Decisions
Barber relies primarily on the decisions in United States v. Raddatz,
although the statute permits the district court to give to the magistrate's proposed findings of fact and recommendations such weight as [their] merit commands and the sound discretion of the district judge warrants...that delegation does not violate Art. III so long as the ultimate decision is made by the district court.
In Peretz v. United States,
The Supreme Court held that "[t]here is no constitutional infirmity in the delegation of felony trial jury selection to a magistrate when the litigants consent."
More recently, in Wellness Int'l. Network, Ltd. v. Sharif, --- U.S. ----,
The lesson of Schor, Peretz, and the history that preceded them is plain: The entitlement to an Article III adjudicator is "a personal right" and thus ordinarily "subject to waiver," [Commodity Futures Trading Com'n v.]Schor, 478 U.S. [833] at 848,106 S.Ct. 3245 [92 L.Ed.2d 675 (1986) ]. Article III also serves a structural purpose, "barring congressional attempts 'to transfer jurisdiction [to non-Article III tribunals] for the purpose *668of emasculating' constitutional courts and thereby prevent [ing] 'the encroachment or aggrandizement of one branch at the expense of the other.' " Id., at 850,106 S.Ct. 3245 (citations omitted). But allowing Article I adjudicators to decide claims submitted to them by consent does not offend the separation of powers so long as Article III courts retain supervisory authority over the process.
the extent to which the essential attributes of judicial power are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.
(b) Analysis
After considering the foregoing authority and the parties' arguments, the Court concludes that Barber waived her right to a full de novo sentencing before the District Court when she consented to sentencing before the Magistrate Judge, and that
First, Barber unambiguously consented to full adjudication of her Class A misdemeanor, including sentencing, before the Magistrate Judge.
Second,
The defendant has a statutory right to appeal the sentence of the Magistrate Judge, see
In the structural analysis, the Court also considers whether the "non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III." Sharif,
Finally, there is no indication that Congress chose to grant magistrate judges expanded powers in this context in order to aggrandize Article I courts at the expense of Article III courts. Rather, Congress acted to assist Article III courts with their "bloated dockets," subject to the review and control of the Article III court. See Peretz,
Contrary to Barber's view, Raddatz and Peretz do not require de novo review in this context. First, those decisions involve felony criminal cases, and this case involved misdemeanor charges as to which, as the law clearly permits, Barber gave informed consent to be tried and sentenced before a magistrate judge. Second, neither Raddatz nor Peretz (nor any other authority cited in Barber's brief) holds that Article III mandates de novo review of the sentence imposed by a magistrate judge when the party consented to be sentenced by the magistrate judge. Instead, in Peretz, the Supreme Court wrote: " Raddatz established that, to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz,
For the foregoing reasons, the Court rejects the constitutional challenge to
B. The Sentence of the Magistrate Judge is Affirmed
Wholly apart from the constitutional argument, Barber contends argues that, either under de novo or deferential review, the three-month sentence cannot stand. The Court does not agree.
(1) The Sentence is Affirmed Under Deferential Standard
For the reasons outlined above, de novo review of the Magistrate Judge's sentence is not required. Accordingly, analysis of Barber's appeal will proceed under the deferential standard for reviewing revocation sentences by a district court. See Gibbs,
In United States v. Gibbs, the Court of Appeals set out the controlling framework for assessing whether a revocation sentence is procedurally and substantively reasonable.
A revocation sentence passes procedural muster if it is supported by "a sufficient explanation so that we may effectively review the reasonableness of the sentence," which must encompass "an assurance that the sentencing court considered the [applicable sentencing] factors with regard to the particular defendant before [it] and also considered any potentially meritorious arguments raised by the parties with regard to sentencing." [United States v.] Moulden, 478 F.3d [652] at 657 [ (4th Cir. 2007) ). And a sentence passes substantive muster if the totality of the circumstances indicates that the court had a " 'proper basis for its conclusion' that the defendant should receive the sentence imposed." United States v. Slappy,872 F.3d 202 , 207 (4th Cir. 2017) (quoting Crudup,461 F.3d at 440 ).
It is clear that the Magistrate Judge's sentence in this case is procedurally reasonable.
But, even if these two notions are regarded as non-frivolous, there is no procedural defect in Barber's sentence. Reviewing the transcript of the February 22 revocation hearing (ECF No. 27), it appears that Barber raised, quite briefly, the issue of her license suspension and resulting inability to drive. Id. at 14. She also raised the fact that the Guidelines allow for home confinement for her offense. Id. at 22-23. The sentencing transcript discloses that, during the presentation of the defendant's position, the Magistrate Judge was fully aware of all mitigation arguments. Magistrate Judge Young stated that he had reviewed the petition, the advisory guidelines, and listened to arguments of counsel where Barber's mitigation was discussed. Id. at 24-25. He then listed the § 3553 factors but did not expressly make a finding on each one. Id. 24-25. He then imposed the sentence 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.
*672In sum, the Magistrate Judge's sentence is procedurally reasonable, and accordingly, is affirmed.
(2) The Sentence Is Affirmed Under De Novo Review
Even assuming that the Court is required to engage in a de novo review of the sentence (which it is not), the sentence would be affirmed. Under this standard of review, Barber argues that a sentence of time-served was appropriate because of her efforts at rehabilitation, her future prospects to turn her life around, the nature and circumstances of her violation, and the fact that the Guidelines do not require imprisonment. See ECF No. 30 at 11-14. The Government, on the other hand, argues that the Magistrate Judge's three-month sentence is appropriate under de novo review because of Barber's repeated probation violations, her resistance of help from the probation office, her breach of the Court's trust, and the fact that non-imprisonment sentences have not worked for Barber. See ECF No. 37 at 11-12.
Considering the factors in
In assessing the nature and circumstances of the offense at issue in the revocation proceeding, it is appropriate to note that, on her original conviction for relatively minor drug offenses, Barber was initially sentenced to a deferred-judgment sentence (which would have allowed her to have no judgment of conviction entered had she met the conditions of her probation for one year). Barber responded by continuously violating the terms of her probation, including by failing numerous drug tests and failing to show up at drug testing. Magistrate Judge Young gave Barber further leniency before revoking her probation and sentencing her to prison. But, Barber breached the Court's leniency and trust. She, indeed, made a farce of the leniency and trust.
It is true that Barber's history and characteristics reflect that she has struggled with mental health and possible anorexia, which she asserts is the reason that she smokes marijuana. For a time, she was living in public housing in a dangerous area with her two sons. Her driver's license was suspended as a result of this case, which, she says, made it hard for her to get to substance abuse treatment and her N.A. meetings. Barber appears to have a loving family and her parents have offered to take her in whenever she needs. While those facts could be mitigating to some degree, it is more important that Barber has been given significant opportunities to get help and yet continues to violate the terms of probation. When leniency and trust do not work, incarceration is appropriate.
When assessing the types of punishment available, the Guidelines call for a 3-9-month term of imprisonment because this is a Grade C probation violation. It is true, as Barber points out, that the minimum term of imprisonment could be served by a term of home confinement. USSG § 7B1.3(c) (1). However, that is not required; and, given Barber's lack of compliance with the terms of her probation, a prison term is appropriate. And, frankly, a term of at least nine months would be warranted.
Finally, a three-month prison term promotes deterrence and protects the public from Barber's lawless behavior. Barber has been given many chances to get help and to avoid prison. Those opportunities, however, have gone unanswered. And, *673Barber continues to use marijuana. And, all of that is in breach of the trust imposed by the lenient sentence and other leniency accorded Barber. On this record, and in the face of the many breaches of the Court's trust, it is understandable that a sentence of three months' imprisonment be imposed. A greater term of imprisonment could be justified, but Magistrate Judge Young took a measured approach. Accordingly, even if the Court were to review the sentence de novo, the Magistrate Judge's sentence would be affirmed.
CONCLUSION
For the reasons set forth above, the sentence of the Magistrate Judge is affirmed. And, the Defendant's APPEAL OF MAGISTRATE JUDGE DECISION (ECF No. 25) is denied.
It is so ORDERED.
The Government agreed to drop this violation at the February 22, 2019 revocation hearing. ECF Nos. 22, 37.
The parties did not dispute that the Guidelines range for Barber's probation violation was 3-9 months. ECF No. 30 at 3.
This District's Local Crim. R. 5 authorizes magistrate judges "to perform all duties authorized or allowed to be performed by United States magistrate judges by the United States Code and any rule governing proceedings in this Court."
Peretz decided a question left open in Gomez v. United States,
The Court notes that the provision governing the review of magistrate judge sentences (now codified at
While the parties did not cite this case in their briefing or at oral argument, it is also worth noting that the Fourth Circuit has rejected an Article III challenge to the statutes permitting magistrate judges conducting misdemeanor trials and sentencing. United States v. Ferguson,
Barber does not challenge the substantive reasonableness of the sentence. That is a wise choice, because the "totality of the circumstances indicates that the court had a proper basis for its conclusion that the defendant should receive the sentence imposed." Gibbs,
To the extent that Barber relies on Slappy and Thompson, the more recent Gibbs opinion makes clear that those cases do not alter the Court's analysis here. See Gibbs,
In fact, as the Court stated on the record at oral argument, had this Court sentenced Barber in the first instance, it likely would have sentenced her to a longer term of imprisonment. On the record in this case, Barber has demonstrated a refusal to follow Court orders and an utter failure to comply with her probation. While the Court recognizes the challenges and mitigating factors in Barber's life, the Court would also have to consider the applicable factors under
Reference
- Full Case Name
- United States v. Shawn M. BARBER
- Status
- Published