United States v. Marlon Pegram ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4070
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARLON J. PEGRAM, a/k/a Marlon Jamel Pegram,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:06-cr-00383-REP-1)
Submitted: January 22, 2014 Decided: February 14, 2014
Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Valencia D.
Roberts, Assistant Federal Public Defender, Patrick L. Bryant,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant. Peter Sinclair Duffey, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlon J. Pegram appeals from the thirty-six-month
sentence imposed by the district court after revocation of his
supervised release. Pegram's counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious grounds for appeal but
questioning whether Pegram’s sentence is plainly unreasonable
because the district court failed to adequately explain the
reasoning for the sentence. Pegram has not filed a pro se
supplemental brief, despite receiving notice of his right to do
so. For the reasons that follow, we affirm in part, vacate in
part, and remand for resentencing.
I.
“This Court reviews whether or not sentences imposed
upon revocation of supervised release are within the prescribed
statutory range and are not ʽplainly unreasonable.’” United
States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). Because
Pegram’s sentence was within the statutory range, the issue
before us is whether his sentence is plainly unreasonable.
In sentencing for a violation of supervised release, a
district court must consider the statutory factors in 18 U.S.C.
§ 3583(e), the advisory Sentencing Guidelines range in the U.S.
Sentencing Guidelines Manual (“USSG”) § 7B1.4, p.s. (2012), as
well as the Chapter Seven policy statements and relevant 18
2
U.S.C. § 3553(a) factors. See United States v. Moulden, 478
F.3d 652, 656 (4th Cir. 2007).
Here, there is no record evidence that the district
court in the revocation hearing considered the sentencing range,
which would have been calculated under the Chapter 7 policy
statements of the Guidelines. See USSG § 7B1.4. There is no
record of a sentencing worksheet, mention of the worksheet on
the record, or discussion of the sentencing range at the
hearing. Thus, Pegram’s sentence is plainly unreasonable. See
United States v. Waller, ___ F. App’x ___, 2013 WL 6727896, at
*1-*2 (4th Cir. Dec. 23, 2013) (No. 13-4118) (remanding for
resentencing because district court failed to consider policy
statement range on record). 1
II.
In accordance with Anders, we have reviewed the entire
record and have found one meritorious ground for appeal. Thus,
for the reasons set forth herein, we vacate the thirty-six-month
sentence and remand for resentencing in conformity with this
1
We do not resolve whether the standard of review is for
harmless or plain error because reversal is appropriate under
either standard.
3
opinion. 2 We affirm the district court’s decision to revoke
Pegram’s supervised release.
This court requires that counsel inform Pegram, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Pegram 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 Pegram. 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 IN PART,
VACATED IN PART,
AND REMANDED
2
By this disposition, we intimate no view as to the length
of the sentence to be imposed on remand, leaving that decision
to the district court in the first instance.
4