Monday, March 12, 2007

Maximum 60-month Sentence on Revocation of Supervised Release Reasonable

In United States v. Bungar, No. 05-5519 (3d Cir. Mar. 5, 2007), the Third Circuit found reasonable a 60-month sentence upon revocation of supervised release for drug-related violations. Bungar was originally charged with conspiracy to possess with intent to deliver heroin, distribution and possession with intent to distribute heroin and distribution and possession with intent to distribute cocaine. Pursuant to a cooperation agreement, he entered a guilty plea to the first two charges. The mandatory guideline range at the time was 292 - 365 months. The government filed a §5K1.1 motion and the court departed to 96 months’ imprisonment and 5 years’ supervised release.

Two years into supervised release, Bungar admitted to four violations of release: twice testing positive for cocaine, failure to submit verification of drug program attendance, failure to report change of address, and failure to report questioning by police about an alleged assault on his girlfriend. Each are grade C violations with an advisory guideline range of 8 -14 months’ imprisonment. Bungar requested 12 months’ house arrest and the government did not object. Instead, the district court found that admitted use of cocaine was sufficient to find possession, a grade B violation with a range of 21 - 27 months. The court then went even further, finding that a sentence above the range was warranted and sentencing Bungar to the maximum 60 months’ imprisonment. In doing so, the court cited Bungar’s continuing use of drugs, his return to illegal conduct despite the large downward departure he received, his long history of violent offenses and Criminal History Category of VI, his prior drug involvement which resulted in the deaths of two people, that drug counseling had proven ineffective and that he had been questioned regarding an assault on his girlfriend. These demonstrated a continuing threat to the community and a significant breach of the trust given in granting the downward departure.

Holding that the post-Booker reasonableness standard of review applies to a sentence imposed upon revocation of supervised release, the Third Circuit declined to find the sentence unreasonable. In setting the sentence, the district court properly considered the §3553(a) factors as well as application note 4 to §7B1.4, which allows the court to consider the circumstances informing the original sentence resulting in supervised release and states further, "[w]here the original sentence was the result of downward departure, ... an upward departure may be warranted."

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