United States v. Tully , 210 F. App'x 327 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4679
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS M. TULLY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (5:06-cr-0005-SGW)
Submitted: December 14, 2006 Decided: December 19, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Roland M. L. Santos, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Roanoke, Virginia; Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas M. Tully appeals from the twenty-four month
sentence imposed for violation of the terms of his supervised
release. On appeal, Tully argues that the district court did not
sufficiently address the 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2006) factors in determining his sentence. He alleges that,
instead, the court focused only on his extensive criminal history.
Finding no error, we affirm.
Because Tully did not object to the determination of his
sentence on 18 U.S.C.A. § 3553(a) grounds in the district court,
our review is for plain error. United States v. Olano, 507 U.S.
725, 732 (1993); United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005). Under the plain error standard, Tully must show:
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. Olano, 507 U.S. at 732-34. Even
when these conditions are satisfied, this court may exercise its
discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks omitted).
In United States v. Crudup, 461 F.3d 433 (4th Cir. 2006),
petition for cert. filed, __ U.S.L.W. __ (U.S. Nov. 3, 2006)
(No. 06-7631), this court held that, after United States v. Booker,
543 U.S. 220 (2005), “revocation sentences should be reviewed to
determine whether they are ‘plainly unreasonable’ with regard to
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those § 3553(a) factors applicable to supervised release revocation
sentences.” 461 F.3d at 437 (footnote omitted). This court
explained that it must first assess the sentence for
reasonableness, “follow[ing] generally the procedural and
substantive considerations that we employ in our review of original
sentences . . . .” Id. at 438. Should this court conclude a
sentence is reasonable, it should affirm the sentence. Id. at 439.
Only if a sentence is found unreasonable will this court “decide
whether the sentence is plainly unreasonable.” Id. This court
emphasized that, although the district court must consider the
Chapter 7 policy statements and the requirements of § 3553(a) and
18 U.S.C.A. § 3583 (West 2000 & Supp. 2006), “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 quotations and citations
omitted). The court also has held that a sentencing court is
presumed to have considered the factors set out in § 3553(a) unless
the record indicates otherwise and that it need not specifically
address each factor. United States v. Legree, 205 F.3d 724, 728-29
(4th Cir. 2000) (dealing with denial of motion to reduce sentence);
see also United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006) (stating that district court need not “robotically tick
through § 3553(a)’s every subsection” or “explicitly discuss every
§ 3553(a) factor on the record”).
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Although the record does not indicate whether the
district court considered the § 3553 factors applicable to
revocations of supervised release, as provided in Crudup, the
district court considered the probation officer’s report and
testimony, the violations Tully committed, his prior criminal
history, argument by counsel, and Tully’s statement to the court.
The court sentenced Tully within the statutory maximum. Thus, we
find no evidence that the district court’s determination of Tully’s
sentence was plainly erroneous or plainly unreasonable.
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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