United States v. Avery Lawton , 477 F. App'x 132 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4880
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AVERY MYRON LAWTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:96-cr-00153-RAJ-4)
Submitted: March 30, 2012 Decided: April 25, 2012
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Rodolfo Cejas,
Assistant Federal Public Defender, Carolina S. Platt, Appellate
Attorney, Norfolk, Virginia, for Appellant. Laura Pellatiro
Tayman, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Avery Myron Lawton appeals the thirty-six-month
sentence of imprisonment imposed by the district court following
revocation of his supervised release. On appeal, counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting that there are no meritorious issues for
appeal, but questioning whether Lawton’s sentence is plainly
unreasonable. Counsel challenges the sentence’s procedural
reasonableness on the ground that the district court failed to
explain its reasons for running the thirty-six-month revocation
sentence consecutive to a state sentence when both arose from
the same conduct. Counsel also questions whether the thirty-
six-month sentence is substantively unreasonable because it is
greater than necessary in light of the 18 U.S.C. § 3553(a)
(2006) factors that the district court was required to consider.
Lawton, informed of his right to file a pro se supplemental
brief, has not done so. The Government has declined to file a
responsive brief. We affirm.
We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). In determining whether a
sentence is plainly unreasonable, we must first consider whether
it is unreasonable. Id. at 438. In making this determination,
2
we follow “the procedural and substantive considerations that we
employ in our review of original sentences,” id. but with “a
more deferential appellate posture concerning issues of fact and
the exercise of discretion than reasonableness review for
guidelines sentences.” United States v. Moulden, 478 F.3d 652,
656 (4th Cir. 2007). Only if we find the sentence procedurally
or substantively unreasonable must we decide whether it is
“plainly” so. Id. at 657. A sentence is plainly unreasonable
if it runs afoul of clearly settled law. United States v.
Thompson, 595 F.3d 544, 548 (4th Cir. 2010).
We find Lawton’s challenge to the procedural
reasonableness of his sentence unavailing. The district court
meaningfully entertained the arguments of the parties as to
whether the revocation sentence should run consecutive or
concurrent to the state sentence, and elected to impose a
consecutive sentence. See U.S. Sentencing Guidelines Manual
(“USSG”) § 7B1.3(f), p.s. (2010) (stating revocation sentence
should be consecutive to any sentence the defendant is serving,
regardless of whether both sentences resulted from same
conduct). Although a more explicit explanation of its decision
on this aspect of the sentence might be preferable, we find the
district court’s overall explanation sufficient and the sentence
procedurally reasonable, especially in light of the command of
USSG § 7B1.3(f).
3
Lawton also challenges the substantive reasonableness
of his sentence. Although a district court “ultimately has
broad discretion to revoke its previous sentence and impose a
term of imprisonment up to the statutory maximum,” Crudup, 461
F.3d at 439 (internal quotation marks omitted), the court must
consider the Chapter Seven policy statements in the federal
Sentencing Guidelines manual, as well as the statutory
requirements and factors applicable to revocation sentences
under 18 U.S.C. §§ 3553(a), 3583(e) (2006). Chapter Seven
provides that “at revocation the court should sanction primarily
the defendant’s breach of trust, while taking into account, to a
limited degree, the seriousness of the underlying violation and
the criminal history of the violator.” USSG ch. 7, pt. A(3)(b).
Section 3583 approves consideration of a majority of the factors
listed in § 3553(a), omitting only two. 18 U.S.C. § 3583(e).
Among the omitted factors is the need for the sentence “to
reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense.” 18
U.S.C. § 3553(a)(2)(A).
After reviewing the transcript of the sentencing
hearing, we conclude that the district court’s observations
regarding the serious nature of Lawton’s state offense were
relevant to other, required considerations, including “the
nature and circumstances of the offense and the history and
4
characteristics of the defendant,” adequately deterring criminal
conduct, and protecting the public from further crimes of the
defendant. 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C). The
district court also considered Lawton’s failure to abide by the
terms of his supervised release, a factor relevant to the breach
of the court’s trust. We conclude that in light of the district
court’s articulation of factors specifically listed in
§ 3583(e), consideration of other factors did not render
Lawton’s sentence plainly unreasonable.
Accordingly, as Lawton’s sentence is not plainly
unreasonable, we affirm the judgment below. In accordance with
Anders, we have reviewed the entire record in this case and have
found no meritorious issues for appeal. We therefore affirm the
district court’s judgment. This court requires that counsel
inform Lawton in writing of his right to petition the Supreme
Court of the United States for further review. If Lawton
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 Lawton.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
5
before the court and argument would not aid the decisional
process.
AFFIRMED
6