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Date: 10-24-2021
Case Style:
United States of America v. Steffen Thomas Savarino
Case Number: 21-20133
Judge: Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant with three counts of mailmatter theft by a postal employee charge.
In February 2021, Savarino’s probation officer filed a petition,
asserting Savarino violated the conditions of his supervised release by
committing another felony theft, on 29 January 2021. The officer noted the
still-pending felony-theft charge from Savarino’s April 2020 arrest also
served as a basis for revoking his supervised release. In a superseding
petition, Savarino’s probation officer contended Savarino also violated the
conditions of his supervised release by failing to: submit to urine
surveillance; and participate as directed in outpatient substance-abuse
treatment.
The court revoked Savarino’s supervised release and imposed an 18-
month sentence, above the Sentencing Guidelines range. Savarino contests
the sentence and asserts the district court erred in imposing it because the
court improperly considered, as dominant factors, the need for the sentence
imposed to reflect the seriousness of Savarino’s new theft offenses and to
provide just punishment for them.
Both parties contend the standard of review is plain error; but, of
course, our court, not the parties, determines the appropriate standard of
review. E.g., United States v. Torres-Perez, 777 F.3d 764, 766 (5th Cir. 2011).
When defendant properly preserves an objection to his revocation sentence,
a revocation sentence is reviewed under a “plainly unreasonable” standard.
See 18 U.S.C. § 3742(a)(4) (review of sentence); United States v. Miller, 634
F.3d 841, 843 (5th Cir. 2011) (adopting “plainly unreasonable” standard for
revocation sentences). Unpreserved challenges are reviewed for plain error.
United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). A party can
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No. 21-20133
3
preserve error by informing the court of the desired action or objecting to the
court’s action and stating the grounds for the objection. Holguin-Hernandez
v. United States, 140 S. Ct. 762, 764 (2020).
Holguin-Hernandez, however, stopped short of “decid[ing] what is
sufficient to preserve a claim that a trial court used improper procedures in
arriving at its chosen sentence . . . [or] when a party has properly preserved
the right to make particular arguments supporting its claim that a sentence is
unreasonably long”. Id. at 767 (emphasis omitted). And our court has
declined to address the appropriate standard of review for specific assertions
supporting a substantive-unreasonableness claim that were not clearly raised
before the district court. See, e.g., United States v. Holguin-Hernandez, 955
F.3d 519, 520 n.1 (5th Cir. 2020) (pretermitting issue regarding appropriate
standard of review because defendant could not even overcome “less
deferential abuse of discretion standard”) (opinion on remand); United
States v. Navarro-Jusino, 993 F.3d 360, 362 n.2 (5th Cir. 2021) (same); but see
United States v. Cano, 981 F.3d 422, 425 (5th Cir. 2020) (reviewing for plain
error contention district court relied on improper factor because defendant
failed to raise issue).
Savarino sought a lower sentence than the one imposed. At no point,
however, did he assert the court improperly considered a factor when
imposing his revocation sentence. Our court need not decide whether
Savarino preserved his sentencing contention because it fails under either
standard of review.
Reversal of a sentence imposed on revocation under 18 U.S.C.
§ 3583(e) (modification of conditions or revocation) is required only if
impermissible considerations, such as the seriousness of the violations and
the need for just punishment, were dominant factors in the district court’s
sentencing decision. See United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir.
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No. 21-20133
4
2015). There is no error, however, when such a factor “is merely a secondary
concern or an additional justification for the sentence”. Id.; see also United
States v. Sanchez, 900 F.3d 678, 684 & n.5 (5th Cir. 2018) (explaining
revocation sentences are proper if court does “not take account of
retribution” (citation omitted)).
The court’s statements, in context, demonstrate the court was
primarily frustrated with Savarino’s pattern of noncompliance with the terms
of his supervised release and chose the 18-month sentence to afford adequate
deterrence and sanction Savarino for his breach of the court’s trust. These
are permissible considerations in a revocation hearing. See 18 U.S.C.
§ 3583(e); 18 U.S.C. § 3553(a)(1), (a)(2)(B); United States v. Cano, 981 F.3d
422, 426 (5th Cir. 2020) (explaining “[a] sentence imposed on revocation of
supervised release punishes a breach of trust for violating the conditions of
supervision”(citation omitted)); U.S.S.G. Ch.7, Pt.A, intro. comment 3(b)
(U.S. Sentencing Comm’n 2014) (explaining when imposing revocation
sentence, court primarily sanctions defendant’s breach of trust).
Accordingly, while the court may have considered retribution as an
additional justification for the sentence, other permissible statutory factors
were dominant. See Sanchez, 900 F.3d at 684 (affirming district court’s
upward variance based on “defendant’s lack of respect for the law” (citation
omitted)). Moreover, it is not clear under existing law that the court’s
specific comments gave dominant weight to an impermissible factor, and any
error is, therefore, not reversible under the plainly-unreasonable standard.
See id. at 682 (explaining sentence vacated only if identified error “is not just
unreasonable but plainly unreasonable” (emphasis in original)); United States
v. Warren, 720 F.3d 321, 326 (5th Cir. 2013) (“If we find the sentence
unreasonable, we may reverse the district court only if we further determine
the error was obvious under existing law”. (citation omitted))
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: