United States v. Coles , 325 F. App'x 274 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4658
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN TERRANCE COLES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:03-cr-00346-REP-1)
Submitted: April 8, 2009 Decided: April 29, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Paul G. Gill,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Dana J. Boente, Acting United States Attorney,
Richard D. Cooke, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Terrance Coles appeals the district court’s
order revoking his supervised release and sentencing him to
twenty-seven months’ imprisonment on finding that Coles
embezzled money from his employer in violation of the terms of
his supervised release. On appeal, Coles argues that the
district court erred in finding that he had embezzled money and
that his sentence is therefore plainly unreasonable. We affirm.
After considering the applicable 18 U.S.C. § 3553(a)
(2006) factors, a district court may revoke a term of supervised
release on finding by a preponderance of the evidence that the
defendant violated a condition of supervised release. 18 U.S.C.
§ 3583(e)(3) (2006). We review the district court’s factual
determinations for clear error. See United States v. Carothers,
337 F.3d 1017, 1019 (8th Cir. 2003).
Here, the district court did not err in finding, by a
preponderance of the evidence, that Coles embezzled money from
his employer, Carlton Jackson, thereby violating a condition of
his supervised release. The evidence was uncontroverted that
Coles directed that a commission payment of approximately $6,700
owed to his employer be sent instead to him. Indeed, he
admitted doing so, and agreed, but failed, to return the money.
The Government also introduced evidence that Coles
arranged to receive another approximately $16,000 in commissions
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meant for loan officers at Jackson’s branch office. Though
Coles’s counsel argued that Coles was entitled to the money as
commissions for loans he had originated, this contention is
without factual support. As the district court did not commit
clear error in accepting as credible the testimony of the
Government’s witnesses, and the evidence submitted before the
district court established that Coles embezzled approximately
$23,000 owed to Jackson or other individuals employed by
Jackson, the district court did not err in finding that Coles
violated a condition of his supervised release.
Coles also challenges his sentence. We will affirm a
sentence imposed after revocation of supervised release if it is
within the applicable statutory maximum and is not plainly
unreasonable. See United States v. Crudup, 461 F.3d 433, 437,
439-40 (4th Cir. 2006). This court first assesses the sentence
for unreasonableness, “follow[ing] generally the procedural and
substantive considerations that we employ in our review of
original sentences, . . . with some necessary modifications to
take into account the unique nature of supervised release
revocation sentences.” Id. at 438-39. If we conclude a
sentence is not unreasonable, we will affirm it. Id. at 439.
It is only if we find a sentence procedurally or substantively
unreasonable that we must “decide whether the sentence is
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plainly unreasonable.” Id.; see United States v. Finley, 531
F.3d 288, 294 (4th Cir. 2008).
Although the district court must consider the Chapter
7 policy statements of the United States Sentencing Guidelines
Manual and the requirements of 18 U.S.C. § 3583(e) (2006), “the
[district] court ultimately has broad discretion to revoke [the]
previous sentence and impose a term of imprisonment up to the
statutory maximum.” Crudup, 461 F.3d at 439 (internal quotation
marks and citations omitted). Though a sentencing court must
provide sufficient explanation of the sentence to allow
effective review of its reasonableness on appeal, the court need
not “‘robotically tick through § 3553(a)’s every subsection.’”
United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007)
(probation revocation) (quoting United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006)).
We find that Coles’s sentence is not plainly
unreasonable. The district court sentenced Coles to twenty-
seven months’ imprisonment, the maximum allowable under the
statute. 18 U.S.C. § 3583(e)(3). A review of the record makes
it clear that the court adequately considered the applicable
§ 3553(a) factors. First, the court stated that the “sentence
is warranted by virtue of the nature of [Coles’s] original
offense,” and commented on the negligible deterrent effect of
Coles’s prior sentences. The court also cited the need to
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protect the public from Coles’s future offenses. As the
district court sentenced Coles to the statutory maximum
sentence, and adequately justified its sentence, Coles’s
sentence is not unreasonable, much less plainly so.
Accordingly, we affirm the judgment of the district
court. We deny Coles’s motion to file a pro se supplemental
brief. We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court, and further argument would not aid the decisional
process.
AFFIRMED
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