United States v. Ernest Walker ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4209
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNEST WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Irene C. Berger,
District Judge. (5:01-cr-00140-1)
Submitted: January 28, 2014 Decided: February 11, 2014
Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellant Counsel, Rhett H. Johnson, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, William B. King, II,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Walker appeals from the thirty-six-month
sentence imposed upon revocation of his supervised release. He
contends that this sentence was plainly unreasonable. 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). * First we consider whether
the sentence imposed is procedurally or substantively
unreasonable. Id. at 438. In this initial inquiry, we take a
more deferential posture concerning issues of fact and the
exercise of discretion than undertaken for the reasonableness
review for Guidelines sentences. United States v. Moulden, 478
F.3d 652, 656 (4th Cir. 2007). If we find the sentence
procedurally or substantively unreasonable, we must then decide
whether it is “plainly” so. Id. at 657.
Here, the district court correctly calculated and
considered the advisory policy statement range, considered the
*
Although Walker requests that we reexamine the “plainly
unreasonable” standard in light of decisions from other circuit
courts applying a “reasonableness” standard of review, we
decline to do so. United States v. Bullard, 645 F.3d 237, 246
(4th Cir. 2011) (one panel of this court cannot overrule the
decision of another panel).
2
relevant factors, and gave the parties an opportunity to present
argument. The sentence was procedurally reasonable. See United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). The
court also sufficiently explained its reasons for imposing a
sentence within the policy statement range. See Crudup, 461
F.3d at 440.
Walker contends that, in determining the sentence, the
district court improperly relied on the need for the sentence
imposed to provide just punishment for the offense. Because
Walker did not object in the district court to the explanation
of his sentence, we review for plain error. United States v.
Hargrove, 625 F.3d 170, 183-84 (4th Cir. 2010); see United
States v. Olano, 507 U.S. 725, 732-34 (1993).
The district court’s consideration of the need to
impose just punishment was in conjunction with its consideration
of the factors in 18 U.S.C. § 3583(e) (2012). “Although
§ 3583(e) enumerates the factors a district court should
consider when formulating a revocation sentence, it does not
expressly prohibit a court from referencing other relevant
factors omitted from the statute.” United States v. Webb, 738
F.3d 638, 641 (4th Cir. 2013). Because the district court
properly considered the need for punishment in conjunction with
the enumerated factors, we find no plain error by the district
court. See id. at 642 (concluding that reference to non-
3
enumerated factor does not render revocation sentence
procedurally unreasonable when considered in conjunction with
enumerated 18 U.S.C. § 3553(a) (2012) factors).
Accordingly, we conclude that the thirty-six-month
revocation sentence—which is not greater than the statutory
maximum and is within the policy statement range of Chapter 7 of
the Guidelines—is not plainly unreasonable. We therefore affirm
the revocation judgment. 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
4