United States of America v. Gregory Raysor

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1384
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UNITED STATES OF AMERICA
v.
GREGORY RAYSOR,
Appellant
On Appeal from the Final Judgment in a Criminal Case of
the United States District Court for the District of New Jersey
(D.C. No. 2-08-cr-00624-001)
District Judge: Honorable Susan D. Wigenton
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Submitted Under Third Circuit L.A.R. 34.1(a)
on September 9, 2009
Before: SCIRICA, Chief Judge, and
RENDELL AND ALDISERT, Circuit Judges
(Opinion Filed: October 19, 2009)
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OPINION OF THE COURT
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The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 32311
and 18 U.S.C. § 3583(e)(3). We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and
28 U.S.C. § 1291.
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ALDISERT, Circuit Judge.
Gregory Raysor appeals from an order of the District Court of the District of New
Jersey revoking two terms of supervised release and imposing two concurrent sentences
of eight months’ imprisonment and two years’ supervised release after Raysor violated a
condition of both terms of supervised release. Raysor contends that the District Court did
not consider adequately the relevant 18 U.S.C. § 3553(a) and non-Guidelines factors
raised at sentencing and thereby failed to fashion a minimally sufficient, individualized
sentence. We conclude that the District Court did not abuse its sentencing discretion and
we will affirm.1
I.
Because we write only for the parties we will discuss only the relevant legal
precepts and only those facts relating thereto.
In 2005, Raysor pled guilty to conspiracy to commit bank fraud in violation of 18
U.S.C. § 371. On January 13, 2006, he was sentenced to 24 months in prison, three years
of supervised release and restitution. On January 15, 2007, Raysor escaped from
Lewisburg Federal Correctional Institution. He was apprehended and later pled guilty to
escaping from a correctional facility in violation of 18 U.S.C. § 751(a). He was sentenced

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to nine months of imprisonment and three years of supervised release. The conditions of
supervised release ordered, in relevant part, that Raysor “shall not commit another
federal, state, or local crime.” In November 2008, during a period of supervised release
for both the escape and bank fraud sentences, Raysor was arrested in New York City
while in possession of cocaine. He subsequently pled guilty to criminal possession of a
controlled dangerous substance in New York City Criminal Court.
In November 2008, the United States Office of Probation filed a formal petition to
revoke Raysor’s supervised release, alleging that Raysor had violated several conditions
of his supervised release. Raysor pled guilty to committing another federal, state, or local
crime, a grade C violation of his supervised release in both the bank fraud and escape
sentences. The Government dismissed the remaining charges. The Federal Sentencing
Guidelines provided an 8-14 month range for violation of supervised release in the escape
sentence. U.S. Sentencing Guidelines Manual § 7B1.4(a). The Guidelines provided a 6-12
month range for violation of supervised release in the bank fraud sentence. Id. The
statutory maximum was 24 months’ imprisonment for each violation with an additional
term of supervised release. 18 U.S.C. § 3583(e)(3).
At sentencing, Raysor requested leniency based on mitigating factors pursuant to §
3553(a). He urged the District Court to limit his imprisonment to time served, with the
remainder of the sentence to be served under house arrest with electronic monitoring. The
District Court sentenced him to eight months of imprisonment with two years of

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18 U.S.C. § 3583(e) omits § 3553(a)(2)(A) (punitive purposes of sentencing) and2
§ 3553(a)(3) (kind of sentences available) from the § 3553(a) factors to be considered
when sentencing a defendant for violation of supervised release.
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supervised release for violating his supervised release in the escape sentence. The District
Court sentenced him to an identical, concurrent sentence for violating his supervised
release in the bank fraud sentence. The judgment was entered on January 27, 2009 and
Raysor filed a timely notice of appeal on February 6, 2009.
II.
Revocation of supervised release is governed by 18 U.S.C. § 3583, which instructs
a sentencing court to consider virtually all factors set forth in 18 U.S.C. § 3553 in
imposing a sentence for violation of supervised release. After United States v. Booker,2
543 U.S. 220 (2005), which rendered the Guidelines advisory, sentencing courts now
have broad discretion in imposing sentences, subject to the requirement that they
commence analysis with the properly calculated Guidelines range, adequately address the
relevant § 3553(a) factors and fully consider all grounds properly advanced by the parties
at sentencing. United States v. Vampire Nation, 451 F.3d 189, 196 (3d Cir. 2006); see
also United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007) (reasonableness requires
the sentencing court to give “meaningful consideration” to the § 3553(a) factors and to
reasonably apply those factors (quoting United States v. Cooper, 437 F.3d 324, 329 (3d
Cir. 2006))). A sentence imposed following revocation of supervised release is reviewed
for procedural and substantive reasonableness. See United States v. Tomko, 562 F.3d

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558, 567 (3d Cir. 2009) (en banc); Bungar, 478 F.3d at 542 (applying reasonableness
standard to revocation of supervised release). At both stages, the party challenging the
sentence bears the burden of demonstrating unreasonableness and we review for abuse of
discretion. Tomko, 562 F.3d at 567 (citing Gall v. United States, 128 S. Ct. 586, 597
(2007)); Bungar, 478 F.3d at 543 (our review is “highly deferential”). The sentencing
court need not make findings on the record as to each factor if the record demonstrates
that the court took the factors into account in sentencing. Bungar, 478 F.3d at 543; United
States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007). A sentence is not unreasonable
simply because the sentencing court failed to give mitigating factors the weight the
defendant contends they deserve. Lessner, 498 F.3d at 204. After examining the
procedural propriety of the sentencing, we review the totality of the circumstances for
substantive reasonableness. Gall, 128 S. Ct. at 597. Absent procedural error, we will
affirm the sentencing court “unless no reasonable sentencing court would have imposed
the same sentence on that particular defendant for the reasons the district court provided.”
Tomko, 562 F.3d at 568.
III.
Raysor challenges his sentence as procedurally and substantively flawed. Raysor
contends that his sentence was procedurally flawed because the District Court failed to
adequately consider the relevant § 3553(a) factors, instead strictly adhering to the
Guidelines’ sentence range. Second, Raysor contends that his sentence is substantively

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flawed because the District Court failed to take into account relevant non-Guidelines
factors, including his wife’s illness, the nature of the underlying violation, his drug
addiction and his strong support network.
We reject both contentions. The record demonstrates that the District Court
engaged in a textbook discussion of the applicable § 3553(a) factors. The District Court
entertained argument from defense counsel, the United States, and Raysor himself before
thoroughly analyzing each relevant factor and explaining both the type and duration of
sentence imposed. The record further demonstrates that the District Court adequately
addressed the non-Guidelines factors argued by Raysor at his sentencing.
The District Court did not strictly adhere to the Guidelines. The Court clearly
understood its role, as evinced by its explanation of its statutory duty at sentencing:
So in looking at the sentence that’s sufficient but not greater
than necessary to, one, promote respect for the law and reflect
the seriousness of what occurred here.
(J.A. 26.) Contrary to Raysor’s argument that the District Court was not apprised of its
discretion in sentencing, the Court acknowledged that it was not bound by the Guidelines
and that it had discretion to consider mitigating factors raised by Raysor during
sentencing:
And while I’ve accepted the plea of guilty in this matter, I’m
not bound to impose any sentence other than what the Court
feels in its discretion is appropriate.
(J.A. 24.)

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The District Court addressed the substance of each relevant § 3553(a) factor in
detail. The District Court considered the nature and circumstances of the offense and the
history and characteristics of the defendant (§ 3553(a)(1)):
I did have the opportunity, Mr. Raysor, to read the violation
notice as well as the presentence report. . . . And obviously
there’s this escape charge, which is an additional aspect of
your supervised release. . . . One, that obviously you’re on
supervised release for two separate offenses for which you are
now entering a plea of guilty because you’ve gotten arrested
while you’re on supervised release. But also there have been
just a number of non-compliant areas.
(J.A. 23-24, 26.) The District Court addressed the need to afford adequate deterrence and
the need to protect the public from future crimes (§ 3553(a)(2)(B)-(C)), noting that “when
a person is placed on supervised release, it is extremely important . . . that people
understand . . . that these are requirements that you have to follow.” (J.A. 25.) Contrary to
Raysor’s argument that the Court failed to address his need for rehabilitation versus
incarceration, the District Court explicitly considered both Raysor’s drug addiction and
his need for treatment (§ 3553(a)(2)(D)):
The bigger concern is there is a severe drug problem which
requires, and certainly you need treatment for, and it appears
based on the record and my conversations with your probation
officer, that there has been, I don’t know if it’s an inability or
whatever the case maybe [sic], it has resulted in your not
seeking treatment and taking advantage of that treatment. I
still think that that’s something that the Court should be
concerned about and should try to fashion a sentence that
could give you that opportunity to get treatment and try to
rectify what maybe [sic] at the heart of a lot of the activity
that you are involved in.

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(J.A. 24.) The District Court additionally considered the Guidelines and the applicable
policy statements, while directly addressing Raysor’s request for an alternative sentence
without further incarceration (§ 3553(a)(4)-(5)):
But what I think [defense counsel] is arguing for on your
behalf, which is some type of electronic monitoring. I don’t
think that gets to the heart of the problem, quite honestly, and
that is the Court’s concern.
(J.A. 25-26.) Furthermore, the Court addressed the need to provide restitution to victims
(§ 3553(a)(7)), noting that Raysor had not “paid a penny towards” his restitution
obligation. (J.A. 25.) At sentencing and on appeal, Raysor has failed to present evidence
of sentence disparities. He has not met his burden on appeal to prove that his sentence
resulted in unwarranted sentencing disparities pursuant to factor § 3553(a)(6).
Raysor vigorously contends that the District Court disregarded his non-Guidelines
argument that his wife’s stage-four ovarian cancer and attendant need for care were
mitigating factors. To the contrary, the District Court explicitly addressed that argument
during the sentencing hearing:
I did read the letter from Miss Johnson, and certainly her
circumstances are very – I’m very sympathetic to her
situation. And she appears to rely on you greatly. But the
Court has a responsibility as well, and it’s a responsibility that
goes beyond Miss Johnson.
(J.A. 24-25.) We have considered Raysor’s additional non-Guidelines arguments and
conclude that he has not met his burden of demonstrating substantive unreasonableness
by showing that “no reasonable sentencing court would have imposed the same sentence

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on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d
at 568.
*****
After reviewing the record, we find no merit in Raysor’s contention that the
District Court failed to adequately consider the applicable § 3553(a) factors and
erroneously focused only on the recommended Guidelines range. The record similarly
controverts Raysor’s argument that the District Court disregarded non-Guidelines factors
raised at sentencing and therefore failed to fashion a minimally sufficient, individualized
sentence. At sentencing, the District Court entertained extensive argument and gave
meaningful consideration to both the relevant § 3553(a) and the non-Guidelines factors to
arrive at a sentence that was both procedurally and substantively reasonable. The District
Court did not abuse its discretion under this Court’s ruling case law.
We have considered all the contentions presented by the Appellant and conclude
that no further discussion is necessary.
The judgment of the District Court will be affirmed.

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