United States v. Raymond Roe , 669 F. App'x 638 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4254
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAYMOND D. ROE, a/k/a Rudy,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:09-cr-00195-1)
Submitted: October 13, 2016 Decided: October 17, 2016
Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christian M. Capece, Federal Public Defender, Jonathan D. Byrne,
Research and Writing Specialist, Rhett H. Johnson, Assistant
Federal Public Defender, Charleston, West Virginia, for
Appellant. Carol A. Casto, United States Attorney, Joseph F.
Adams, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond D. Roe appeals from the order revoking his
supervised release and imposing a 24-month sentence. Roe
challenges the revocation, arguing that his conviction pursuant
to a guilty plea to a West Virginia charge of possession of
material depicting a minor engaged in sexually explicit conduct
did not prove a violation of state law. He also claims that his
sentence is plainly unreasonable, contending that it was based
primarily on a prohibited factor. We affirm.
We review a district court’s decision to revoke an
individual’s supervised release for abuse of discretion. United
States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999). To revoke
supervised release, a district court need only find a violation
of a condition of supervised release by a preponderance of the
evidence. 18 U.S.C. § 3583(e)(3) (2012); United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992). This burden “simply
requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence.” United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation
marks omitted).
We review the district court’s factual findings for clear
error. United States v. White, 620 F.3d 401, 410 (4th Cir.
2010). A factual finding is clearly erroneous if, after
reviewing all the evidence, we are “left with the definite and
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firm conviction that a mistake has been committed.” United
States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal
quotation marks omitted). In West Virginia, a guilty plea is
treated as an admission by a defendant of factual guilt. State
ex rel. Burton v. Whyte, 256 S.E.2d 424, 429 (W. Va. 1979). We
have reviewed the record and conclude that the district court
did not clearly err when it found that the Government’s evidence
established that Roe violated his supervised release.
We also discern no error in the district court’s decision
to impose a 24-month sentence. We will affirm a sentence
imposed after revocation of supervised release if it is within
the prescribed statutory range and is not plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 438-40 (4th Cir. 2006).
While a district court must consider the Chapter Seven policy
statements, U.S. Sentencing Guidelines Manual Ch. 7, Pt. B, and
the statutory requirements and factors applicable to revocation
sentences under § 3583(e) and 18 U.S.C. § 3553(a) (2012), the
district court ultimately has broad discretion to revoke
supervised release and impose a term of imprisonment up to the
statutory maximum. Crudup, 461 F.3d at 438-39.
A supervised release revocation sentence is procedurally
reasonable if the district court considered the Chapter 7
advisory policy statements and the § 3553(a) factors it is
permitted to consider in a supervised release revocation case.
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See 18 U.S.C. § 3583(e); Crudup, 461 F.3d at 439-40. A
revocation sentence is substantively reasonable if the district
court stated a proper basis for concluding the defendant should
receive the sentence imposed, up to the statutory maximum.
Crudup, 461 F.3d at 440. Only if a sentence is found
procedurally or substantively unreasonable will we “then decide
whether the sentence is plainly unreasonable.” Id. at 439
(emphasis omitted).
While Roe contends that the court impermissibly relied on
the seriousness of the West Virginia offense in sentencing him,
that factor may be taken into consideration to a limited degree
and the record does not support that it was the determinative
factor underpinning the sentence. Further, the court adequately
stated permissible reasons for the sentence, including that Roe
had a pattern of continuing criminal conduct when he was not
incarcerated and that Roe breached the court’s trust by seeking
to access child pornography on a public library computer shortly
after being released to probation. The court also acknowledged
that the sentence was above the policy statement range but that
it was necessary in light of the approved § 3553(a) factors.
The court also rejected Roe’s argument that he should receive a
lenient sentence because the underlying behavior was allegedly
not as culpable as it could be for the state conviction. We
have reviewed the record and considered the parties’ arguments
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and discern no sentencing error. We therefore conclude that
Roe’s sentence is not plainly unreasonable.
Accordingly, we affirm the judgment order. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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