United States v. Marrs , 408 F. App'x 705 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4017
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARLIN ANDREW MARRS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Thomas E. Johnston,
District Judge. (1:03-cr-00289-1)
Submitted: October 29, 2010 Decided: January 26, 2011
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlin Andrew Marrs appeals the district court’s
judgment finding he violated a condition of supervised release,
revoking supervised release and sentencing him to twenty-three
months’ imprisonment. Marrs claims the evidence was
insufficient to support a finding that he violated a condition
of supervised release. He also claims the sentence was plainly
unreasonable. Finding no error, we affirm.
This court reviews a district court’s judgment
revoking supervised release and imposing a term of imprisonment
for abuse of discretion. United States v. Copley, 978 F.2d 829,
831 (4th Cir. 1992). To revoke supervised release, a district
court need only find a violation of a condition of supervised
release by a preponderance of the evidence. 18 U.S.C.A.
§ 3583(e)(3) (West 2000 & Supp. 2010); Id. This burden “simply
requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence.” United States v.
Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation
marks omitted). A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). In determining whether the
evidence in the record is substantial, this court views the
evidence in the light most favorable to the government. United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).
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This court will not second guess the district court’s
credibility determination. United States v. Lomax, 293 F.3d
701, 706 (4th Cir. 2002).
We conclude there is more than ample evidence to
support the factual finding that Marrs violated a condition of
supervised release. “[W]e will not confine the [court’s]
discretion to the evidence the adversaries wish it to consider.”
See United States v. Choate, 12 F.3d 1318, 1321 (4th Cir. 1993).
This court 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). While a district
court must consider the Chapter Seven policy statements, USSG
Ch. 7, Pt. B, and the statutory requirements and factors
applicable to revocation sentences under 18 U.S.C.A. §§ 3553(a),
3583(e) (West 2000 & Supp. 2010), the court ultimately has broad
discretion to revoke the previous sentence and impose a term of
imprisonment up to the statutory maximum. Crudup, 461 F.3d at
438-39.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
Sentencing Guidelines’ Chapter 7 advisory policy statements and
the 18 U.S.C.A. § 3553(a) factors that it is permitted to
consider in a supervised release revocation case. See 18
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U.S.C.A. § 3583(e); Crudup, 461 F.3d at 440. Although the court
need not explain the reasons for imposing a revocation sentence
in as much detail as when it imposes an original sentence, it
“still must provide a statement of reasons for the sentence
imposed.” United States v. Thompson, 595 F.3d 544, 547 (4th
Cir. 2010) (internal quotation marks omitted). Additionally,
the court should address the defendant’s nonfrivolous reasons
for imposing a sentence different from the advisory sentencing
range. See United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). A revocation 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. Only if a sentence
is found procedurally or substantively unreasonable will this
court “then decide whether the sentence is plainly
unreasonable.” Id. at 439 (emphasis omitted).
We conclude the sentence was reasonable because there
were no procedural or substantive sentencing errors. Therefore,
the sentence 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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