United States v. Thompson ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4350
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY GLEN THOMPSON, a/k/a Berry G. Thompson,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph R. Goodwin,
Chief District Judge. (6:95-cr-00115-1)
Submitted: July 23, 2010 Decided: August 9, 2010
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, Monica K. Schwartz,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Glen Thompson appeals the eighteen-month
sentence imposed by the district court upon revocation of his
supervised release. We previously vacated the sentence and
remanded for resentencing because the district court failed to
explain adequately its choice of an eighteen-month term of
imprisonment. United States v. Thompson, 595 F.3d 544 (4th Cir.
2010). On remand, the district court provided its reasoning and
re-imposed the same sentence. Thompson contends that the
sentence is unreasonable because the district court plainly
erred on remand by incorrectly stating that he was exposed to a
statutory maximum sentence of three years imprisonment, rather
than two years. 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. Thompson, 595 F.3d at
546; United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th
Cir. 2006). However, only if we conclude that a sentence is
procedurally or substantively unreasonable will we consider
whether the sentence is plainly unreasonable. Crudup, 461 F.3d
at 439.
At the first sentencing hearing, the district court
correctly stated the statutory maximum of two years, then
proceeded to impose a sentence of eighteen months imprisonment.
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On remand, the statutory maximum was never in dispute. The
court misspoke when it stated that the maximum was three years
rather than two years; however, the court’s explanation for the
sentence reveals that it did not reconsider the eighteen-month
sentence on remand, but simply provided an explanation for the
sentence as directed. The court’s misstatement of the statutory
maximum was error; however, the error did not affect the
sentence or Thompson’s substantial rights. See United States v.
Olano, 507 U.S. 725, 732-37 (1993) (stating standard).
Therefore, although Thompson has identified a procedural error,
the sentence was not unreasonable.
Accordingly, we affirm the sentence imposed by the
district court. 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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