United States v. Otis Kelly , 548 F. App'x 93 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4600
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
OTIS KELLY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:09-cr-00982-SB-1)
Submitted: December 12, 2013 Decided: December 19, 2013
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Michael Rhett DeHart, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otis Kelly pleaded guilty to passing counterfeit
currency, in violation of 18 U.S.C. § 472 (2012). The district
court sentenced Kelly to three years of probation in March 2011.
Kelly subsequently pleaded guilty to violating the terms of his
probation and the district court sentenced Kelly to twelve
months and one day of imprisonment, with no period of supervised
release to follow. Kelly now appeals. Appellate counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), questioning whether the revocation sentence is
reasonable. Kelly was informed of his right to file a pro se
supplemental brief, but he has not done so. Finding no error,
we affirm.
Counsel questions whether the sentence is reasonable.
Upon finding a probation violation, the district court may
revoke probation and resentence the defendant to any sentence
within the statutory maximum for the original offense. 18
U.S.C. § 3565(a) (2006); United States v. Schaefer, 120 F.3d
505, 507 (4th Cir. 1997). “[W]e review probation revocation
sentences, like supervised release revocation sentences, to
determine if they are plainly unreasonable.” United States v.
Moulden, 478 F.3d 652, 656 (4th Cir. 2007). We first assess the
sentence for unreasonableness, “follow[ing] generally the
procedural and substantive considerations that we employ in our
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review of original sentences.” United States v. Crudup, 461
F.3d 433, 438 (4th Cir. 2006). Only if we determine that a
sentence is procedurally or substantively unreasonable will we
“decide whether the sentence is plainly unreasonable.” Id.
Although a district court must consider the policy
statements in Chapter Seven of the sentencing guidelines along
with the statutory requirements of 18 U.S.C. § 3553(a) (2006),
“‘the 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 (quoting United
States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005)) (internal
quotation marks omitted); see also Moulden, 478 F.3d at 656-57.
In addition, “[t]he court must provide a statement of reasons
for the sentence imposed, as with the typical sentencing
procedure, but this statement ‘need not be as specific as has
been required’” for original sentences. Moulden, 478 F.3d at
657 (quoting Crudup, 461 F.3d at 438). We have thoroughly
reviewed the record and conclude that the sentence imposed is
both procedurally and substantively reasonable; it follows,
therefore, that the sentence is not plainly unreasonable.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Kelly, in
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writing, of the right to petition the Supreme Court of the
United States for further review. If Kelly 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 Kelly. 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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