Fourth Circuit Court of Appeals upholds sentences - WTRF 7 News Sports Weather - Wheeling Steubenville

4th Circuit Court of Appeals upholds sentences given to 2 WV men

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The Court of Appeals for the 4th Circuit said there's no reason for lower courts to reconsider the prison sentences meted out to two West Virginia men.

Jason Swisher, 31, of Bunker Hill, had asked the appeals court to determine whether his 33-month prison sentence had been properly calculated by U.S. District Judge Gina M. Groh.

Swisher, who had pleaded guilty to possession with intent to distribute heroin and distributing heroin, questioned whether he'd been properly credited for accepting responsibility for his actions as well as Groh's reliance on a pre-sentence report that included testimony from a confidential informant at his co-defendant's hearing.

The appellate judges, however, pointed out that in considering whether a defendant has accepted responsibility, a sentencing court may consider if the criminal conduct had actually ended.

"Because Swisher consumed alcohol and possessed a controlled substance while on bond awaiting sentencing and therefore did not cease his criminal conduct, we conclude that the district court did not clearly err in denying the acceptance of responsibility adjustment," the court said.

Likewise, they said Swisher could have objected to the pre-sentencing report at his sentencing hearing, but did not.

"Because the pre-sentence report set forth essentially the same facts to which the informant testified at Swisher's co-defendant's sentencing hearing and Swisher had an opportunity to object to those facts, the district court did not err in relying on the informant's testimony to impose the firearm enhancement," they said.

Joseph Pettaway, 39, an inmate at Mt. Olive Correctional Center, also questioned the 39-month sentenced imposed by U.S. District Judge John T. Copenhaver after he pleaded guilty mailing a threatening communication.

Pettaway questioned whether he'd been erroneously denied a sentence reduction for accepting responsibility for his actions and if, in fact, that sentence should have been served concurrent to his undischarged state and federal sentences.

The judges pointed out that even though Pettaway had admitted to sending the threatening letter, "he continued to issue threats against his victim.

"This conduct belies his assertion that he accepted responsibility for his criminal conduct. Based on the facts before the district court, it did not clearly err in denying the reduction."

Likewise, the appellate court pointed out the infraction came after he had been convicted and sentenced for sending similar threats to someone else.

"Furthermore, he had a long history of sending threatening letters to the victim in this case, and he continued making threats after pleading guilty," they said. "In these circumstances, the district court did not abuse its discretion in requiring that Pettaway serve this sentence consecutive to his undischarged state and federal sentence."

The appellate panel said they'd concluded that a sentence at the high end was necessary "to provide deterrence and protect the public," based on Pettaway's "long history of sending threatening letters" and in light of the timing of the instant offense.