United States v. Jerry Moore ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY LEE MOORE, a/k/a Bug,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:05-cr-00031-MR-WCM-4)
Submitted: July 30, 2019 Decided: August 20, 2019
Before MOTZ, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Todd Mosley, MOSLEY LAW FIRM, PC, Asheville, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Lee Moore appeals the 30-month sentence imposed upon revocation of his
supervised release. Moore’s counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but
questioning whether the district court abused its discretion by imposing a sentence within
the advisory policy statement range. Moore has filed a pro se supplemental brief raising
one issue. * We affirm.
“We will not disturb a district court’s revocation sentence unless it falls outside
the statutory maximum or is otherwise plainly unreasonable.” United States v. Padgett,
788 F.3d 370, 373 (4th Cir. 2015) (internal quotation marks omitted). “When reviewing
whether a revocation sentence is plainly unreasonable, we must first determine whether it
is unreasonable at all.” United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). In
conducting this analysis, we rely generally on “the same procedural and substantive
considerations that guide our review of original sentences.” Padgett, 788 F.3d at 373
(alteration and internal quotation marks omitted). “A revocation sentence is procedurally
reasonable if the district court adequately explains the . . . sentence after considering
the . . . Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) [(2012)]
factors.” United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (footnote omitted);
*
Moore argues that under United States v. Haymond, 139 S. Ct. 2369 (2019), the
court abused its discretion by imposing the 30-month revocation sentence after the court,
rather than a jury, found that Moore violated the conditions of his supervised release. We
conclude that Haymond does not apply because Moore was not subject to a mandatory
minimum term of imprisonment under 18 U.S.C. § 3583(k) (2012).
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see 18 U.S.C. § 3583(e) (2012) (listing applicable factors). A revocation sentence is
substantively reasonable if, in light of the totality of the circumstances, the court states an
appropriate basis for concluding “that the defendant should receive the sentence
imposed.” United States v. Gibbs, 897 F.3d 199, 204 (4th Cir. 2018) (internal quotation
marks omitted). Ultimately, the court retains “broad discretion” to impose a revocation
sentence “up to the statutory maximum.” United States v. Crudup, 461 F.3d 433, 439
(4th Cir. 2006) (internal quotation marks omitted).
In view of these standards, we discern no procedural or substantive
unreasonableness in Moore’s sentence. The district court properly calculated an advisory
policy statement range of 30 to 37 months’ imprisonment. The court acknowledged that
Moore had a previous record of good behavior and employment while on supervised
release. However, the court also considered Moore’s breach of the court’s trust when he
engaged in conduct similar to that for which he was originally sentenced. We conclude
that the district court did not abuse its broad discretion in determining that a sentence at
the bottom of the policy statement range was warranted on these grounds.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
revocation judgment. This court requires that counsel inform Moore, in writing, of the
right to petition the Supreme Court of the United States for further review. If Moore
requests that a petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on Moore.
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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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