United States v. Phillip McLeod , 711 F. App'x 711 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4210
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP BOYD MCLEOD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, District Judge. (5:07-cr-00062-BO-1)
Submitted: November 29, 2017 Decided: December 7, 2017
Before SHEDD, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Leza Lee Driscoll, LAW OFFICE OF LEZA LEE DRISCOLL, PLLC, Raleigh, North
Carolina, for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Boyd McLeod appeals the district court’s judgment revoking and
terminating supervised release and sentencing him to 60 months’ imprisonment. McLeod
contends that the district court clearly erred in finding that he possessed cocaine in violation
of the terms of supervision. He also contends that the court erred in finding that his
violations for speeding to elude arrest with a motor vehicle and assault with a deadly
weapon on a government official were Grade A violations under the Sentencing
Guidelines. Additionally, he contends that the court failed to properly justify the sentence.
We affirm.
We review a sentence imposed as a result of a supervised release violation to
determine whether the sentence is plainly unreasonable. United States v. Crudup, 461 F.3d
433, 438-39 (4th Cir. 2006). To determine whether a revocation sentence is plainly
unreasonable, we consider whether the sentence is procedurally or substantively
unreasonable. United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017). “A revocation
sentence is procedurally reasonable if the district court adequately explains the chosen
sentence after considering the Sentencing Guidelines’ nonbinding Chapter Seven policy
statements and the applicable 18 U.S.C. § 3553(a) [(2012)] factors.” Id. (footnote omitted).
The sentence is substantively reasonable “if the court sufficiently states a proper basis for
its conclusion that the defendant should receive the sentence imposed.” Id. (brackets and
internal quotation marks omitted).
The Government urges us to apply “assumed error harmlessness” analysis. This
analysis originates from two bases: (1) procedural errors at sentencing are typically
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reviewed for harmless error and (2) a reviewing court commonly assumes, without
deciding, that there is error. United States v. Savillon-Matute, 636 F.3d 119, 123-24 (4th
Cir. 2011). “[R]ather than review the merits of each of [an appellant’s] challenges, we may
proceed directly to an assumed error harmlessness inquiry.” United States v. Gomez-
Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal quotation marks omitted); see also
United States v. McDonald, 850 F.3d 640, 643 (4th Cir.) (assuming procedural sentencing
error and examining whether error affected sentence), cert. denied, __ S. Ct. __, 2017 WL
2909366 (U.S. Oct. 2, 2017) (No. 17-5092).
“[A]ssumed harmlessness inquiry requires (1) knowledge that the district court
would have reached the same result even if it had decided the guidelines issue the other
way, and (2) a determination that the sentence would be reasonable even if the guidelines
issue had been decided in the defendant’s favor.” Savillon-Matute, 636 F.3d at 123 (ellipsis
and internal quotation marks omitted). The error will be deemed harmless only if we are
certain of these two factors. United States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012)
(declining to find harmless error where unable to state with certainty that district court
would have imposed same sentence).
The assumed error harmlessness inquiry does not require the district court to have
announced that it would impose the same sentence even if the contested Guidelines issues
fell in the defendant’s favor. Savillon-Matute, 636 F.3d at 124. The inquiry “is an appellate
tool that we utilize in appropriate circumstances to avoid the empty formality of an
unnecessary remand where it is clear that an asserted guideline miscalculation did not affect
the ultimate sentence.” United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012)
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(internal quotation marks omitted). Upon our review of the revocation hearing transcript
and the court’s written order, we conclude that the court would have imposed the same
sentence even if McLeod’s claims fell in his favor and his highest violation was only Grade
B. We also conclude that the 60-month sentence is reasonable, given the seriousness of
the violation.
Accordingly, we affirm the district court’s order. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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