United States v. Moore , 374 F. App'x 405 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4637
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY MOORE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:98-cr-00183-JAB-3)
Submitted: March 30, 2010 Decided: April 16, 2010
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian M. Aus, Durham, North Carolina, for Appellant. Lisa Blue
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Moore appeals the district court’s revocation of
his supervised release and the twenty-one month sentence imposed
upon revocation. Appellate counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), questioning
whether the district court erred in revoking Moore’s supervised
release and sentencing Moore to twenty-one months’ imprisonment,
but concluding there are no meritorious grounds for appeal.
Moore did not file a pro se supplemental brief despite being
informed of his right to do so, and the Government elected not
to file a brief. We affirm.
After considering the applicable 18 U.S.C. § 3553(a)
(2006) factors, a district court may revoke a term of supervised
release upon finding by a preponderance of the evidence that the
defendant violated a condition of supervised release. 18 U.S.C.
§ 3583(e)(3) (2006). We review such factual findings and
credibility determinations for clear error. See United
States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).
We will affirm a sentence imposed after revocation of
supervised release if it is within the applicable statutory
maximum and is not plainly unreasonable. See United States v.
Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). We first
assess the sentence for unreasonableness, “follow[ing] generally
the procedural and substantive considerations that we employ in
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our review of original sentences, . . . with some necessary
modifications to take into account the unique nature of
supervised release revocation sentences.” Id. at 438-39; see
United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In
applying the ‘plainly unreasonable’ standard, we first
determine, using the instructions given in Gall [v. United
States, 552 U.S. 38 (2007)], whether a sentence is
‘unreasonable.’”). If we conclude that a sentence is not
unreasonable, we will affirm the sentence. Crudup, 461 F.3d at
439. Only if a sentence is found procedurally or substantively
unreasonable will we “decide whether the sentence is plainly
unreasonable.” Id.; see Finley, 531 F.3d at 294.
Although the district court must consider the Chapter
7 policy statements of the United States Sentencing Guidelines
Manual (“USSG”) and the requirements of 18 U.S.C. § 3583(e),
“the [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 and citations omitted). While a sentencing
court must provide sufficient explanation of the sentence to
allow effective review of its reasonableness on appeal, the
court need not “‘robotically tick through § 3553(a)’s every
subsection.’” United States v. Moulden, 478 F.3d 652, 657 (4th
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Cir. 2007) (probation revocation) (quoting United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006)).
After reviewing the record, we find the district court
did not err in revoking Moore’s supervised release. However, it
appears that the district court committed procedural error when
sentencing Moore upon revocation of his supervised release.
Though the court correctly determined that Moore’s guideline
range upon revocation was twenty-one to twenty-seven months’
imprisonment and sentenced Moore to the low end of that range,
the court entirely failed to provide any explanation for its
chosen sentence, apart from noting the applicable guideline
range. We have recently confirmed that the requirement that a
sentencing court adequately explain its chosen sentence is
equally applicable to sentences imposed upon revocation of
supervised release. United States v. Thompson, ___ F.3d ___,
2010 WL 624118, *2 (4th Cir. 2010). Though the court is not
required to be as detailed or specific as when imposing a
sentence following a criminal conviction, “it still must provide
a statement of reasons for the sentence imposed.” Id. (quoting
Moulden, 478 F.3d at 657) (internal quotation marks omitted).
Here, the district court provided no explanation of
its chosen sentence. Though we afford great deference to
district courts imposing sentences, “a district court may not
simply impose sentence without giving any indication of its
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reasons for doing so.” Thompson, 2010 WL 624118 at *2.
Accordingly, the district court’s failure to explain its
sentence renders its sentence procedurally unreasonable.
However, because Moore failed to object to the
adequacy of the district court’s explanation, we will only
reverse for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). Though we have
found that “a defendant need only ask for a sentence outside the
range calculated by the court prior to sentencing in order to
preserve his claim for appellate review,” Thompson, 2010 WL
624118 at *1, the record reflects that Moore’s attorney only
requested that his supervised release not be revoked. The
attorney made no request for a sentence within or outside of the
guideline range. Accordingly, Moore has not preserved his
claim, and our review is for plain error. Under plain error
review,
[A]n appellate court may correct an error not brought
to the attention of the trial court if (1) there is an
error (2) that is plain and (3) that affects
substantial rights. If all three of these conditions
are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness,
integrity, or public reputation of judicial
proceedings.
United States v. Carr, 303 F.3d 539, 543 (4th Cir. 2002)
(internal quotation marks, citations, and alterations omitted).
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Although the district court erred in failing to
explain Moore’s sentence and the error is plain, we conclude
that this error did not affect Moore’s substantial rights. In
the sentencing context, an error affects substantial rights if
the defendant can show that the sentence imposed “was longer
than that to which he would otherwise be subject.” United
States v. Washington, 404 F.3d 834, 849 (4th Cir. 2005)
(internal quotation marks and citation omitted). Here, Moore
was sentenced at the low end of a correctly calculated guideline
range, and did not argue for a lower sentence. Under these
circumstances, Moore cannot show that the sentence imposed by
the district court was longer than one to which he otherwise
would have been subjected had the court adequately conducted an
individualized assessment on the record.
Finally, we turn to the substantive propriety of
Moore’s sentence. After reviewing the record, we find that
Moore’s sentence was substantively reasonable, as he was
sentenced at the low end of the properly calculated guideline
range, this court affords a presumption of reasonableness to
such sentences, and Moore has not rebutted this presumption.
See Rita v. United States, 551 U.S. 338, 341, 347 (2007); United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006).
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We have reviewed the entire record in accordance with
Anders and have not identified any meritorious issues for
appeal. Accordingly, we affirm the district court’s judgment.
This court requires counsel to inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, counsel may move in this court to withdraw from
representation. Counsel’s motion must state that a copy of the
motion was served on the client. 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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