United States v. Horne , 386 F. App'x 447 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4093
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANDRE HORNE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:96-cr-00200-BR-1)
Submitted: June 24, 2010 Decided: June 30, 2010
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, for Appellant. George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Horne appeals from the district court’s order
revoking his supervised release and imposing a forty-six-month
prison term. He contends that the sentence imposed is plainly
unreasonable because the district court failed to calculate his
advisory guideline range. We affirm.
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
review the sentence for unreasonableness, “follow[ing] generally
the procedural and substantive considerations that we employ in
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. If we
conclude that a sentence is not unreasonable, we will affirm the
sentence. Id. at 439. Only if a sentence is found procedurally
or substantively unreasonable will we “decide whether the
sentence is plainly unreasonable.” Id.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
Chapter Seven advisory policy statements and the 18 U.S.C.
§ 3553(a) (2006) factors that it is permitted to consider in a
supervised release revocation case. See 18 U.S.C.A. § 3583(e)
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(West 2000 & Supp. 2010); Crudup, 461 F.3d at 440. Such 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. A sentence is plainly unreasonable if
it is clearly or obviously unreasonable. Id. at 439.
The district court “need not engage in ritualistic
incantation” in order to satisfy its burden of considering the
Chapter 7 policy statements. United States v. Davis, 53 F.3d
638, 642 (4th Cir. 1995). Here, the district court clearly
stated that it had considered the Chapter 7 policy statements,
which include the advisory imprisonment ranges upon revocation
of supervised release. So long as the advisory range was put
before the court, “[c]onsideration is implicit in the court’s
ultimate ruling.” Id.
The district court clearly considered the advisory
guideline range and imposed sentence at the bottom of that
range. We find that the forty-six-month term imposed on
revocation was not “plainly unreasonable.” Accordingly, we
affirm the district court’s judgment. 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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