United States v. Victoria Howell , 500 F. App'x 246 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4454
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTORIA NICOLE HOWELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, Chief
District Judge. (5:08-cr-00944-MBS-23)
Submitted: October 10, 2012 Decided: December 19, 2012
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. John David Rowell, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victoria Howell appeals the district court’s order
revoking her term of supervised release and imposing a sentence
of six months’ imprisonment. Counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), certifying that
there are no meritorious issues for appeal, but questioning
whether the six-month sentence was plainly unreasonable. Howell
was given the opportunity file a pro se supplemental brief, but
has not done so. The Government declined to file a brief. We
affirm.
A district court has broad discretion to impose a
sentence revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will
affirm a sentence imposed after revocation of supervised release
if it is within the statutory maximum and is not “plainly
unreasonable.” United States v. Crudup, 461 F.3d 433, 439-40
(4th Cir. 2006). In making this determination, we first
consider whether the sentence imposed is procedurally or
substantively unreasonable. Id. at 438. A supervised release
revocation sentence is procedurally reasonable if the district
court has considered the advisory policy statement range and the
18 U.S.C. § 3553(a) factors applicable to supervised release
revocation. Id. at 438-40. “A court need not be as detailed or
specific when imposing a revocation sentence as it must be when
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imposing a post-conviction sentence, but it still must provide a
statement of reasons for the sentence imposed.” Thompson, 595
F.3d at 547 (internal quotation marks omitted). A 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.
The district court correctly calculated the Guidelines
policy statement range as three to nine months’ imprisonment,
and the six-month sentence is within the statutory maximum of
thirty-six months’ imprisonment. Howell admitted each of the
violations: failing to report for scheduled drug testing on
three separate occasions, testing positive for illegal drugs on
three occasions, and refusing to enter inpatient treatment.
The district court’s revocation sentence did not,
however, address or rely on any of the 18 U.S.C. § 3553(a)
factors listed in § 3583(e). Nevertheless, a defendant must
invoke those factors and argue “for a sentence different than
the one ultimately imposed” in order to “preserve[] its claim.”
United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010). “An
objection to an inadequate explanation will be preserved if,
during sentencing proceedings, the defendant properly raised a
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meritorious factual or legal issue relating to one or more of
the [sentencing] factors." Id. at 579 (quotation omitted).
Howell never submitted a request for a below-
guidelines sentence or any sentence different than the one
imposed, and "the rigorous plain-error standard applies to
unpreserved claims of procedural sentencing error." Id. at 577.
In order to prevail, therefore, Howell “must show that an error
(1) was made, (2) is plain (i.e., clear or obvious), and (3)
affects substantial rights.” Id. The first two conditions are
likely satisfied, since "failing to consider the § 3553(a)
factors" delineated in § 3583(e) constitutes a procedurally
unreasonable sentence. Gall v. United States, 552 U.S. 38, 49
(2007).
However, we are satisfied that any error did not
affect Howell's substantial rights. "An error that affects
substantial rights is an error that has a prejudicial effect on
the outcome: there is a reasonable probability that, but for the
error claimed, the result of the proceeding would have been
different." In re Gates, 600 F.3d 333, 340 (4th Cir. 2010)
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 82,
(2004)). Howell admitted to the allegations underlying the
sentencing revocation, and the sentence was in the middle of the
applicable guidelines. Accordingly, we find there is no
reasonable probability that the district court would have
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imposed a different sentence even after considering the §
3553(a) factors.
We therefore affirm the district court’s judgment and
deny Howell’s motion and supplemental motion to expedite as
moot. This court requires that counsel inform Howell, in
writing, of her right to petition the Supreme Court of the
United States for further review. If Howell requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Howell. 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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