United States v. Muncy ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4112
MICHAEL A. MUNCY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CR-98-21)
Submitted: August 22, 2000
Decided: September 18, 2000
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Yvonne V. Watford-
McKinney, Assistant United States Attorney, Raleigh, North Caro-
lina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Michael Allen Muncy appeals the district court's order revoking
his term of supervised release and imposing a sentence of twenty-four
months. Muncy raises three issues on appeal: (1) the district court
erred by sentencing him to a twenty-four-month term of incarceration;
(2) the district court erred by failing to demonstrate on the record its
consideration of the factors outlined in 18 U.S.C.A.§ 3553(a) (West
Supp. 2000); and (3) the district court erred by not stating its reasons
for the twenty-four-month sentence. Finding no reversible error, we
affirm.
Muncy first contends that his sentence of twenty-four months is in
error because a sentence within the advisory guidelines range of six
to twelve months was adequate since he faced the possibility of addi-
tional punishment from the United States Parole Commission. We
disagree and find that the district court did not abuse its discretion
when sentencing Muncy to twenty-four months of incarceration. See
United States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995) (stating
standard of review). First, the sentencing guidelines range calculated
under U.S. Sentencing Guidelines Manual§ 7B1.4(a) (1998) is purely
advisory. See Davis, 53 F.3d at 642. Second, Muncy's sentence did
not exceed the statutory parameters as the twenty-four-month sen-
tence is the statutory maximum. See 18 U.S.C.A. § 3583(e) (West
1994 & Supp. 2000). Finally, Muncy admitted committing all five
violations of the conditions of his supervised release as charged, one
of which involved absconding from supervision to the extent that the
probation officer did not know Muncy's whereabouts for nearly six
months.
Muncy next contends that the district court erred when pronounc-
ing sentence because it failed to demonstrate on the record its consid-
eration of § 3553(a)'s factors as noted by 18 U.S.C.A. § 3583(e).
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Because Muncy failed to raise this issue before the district court, we
review for plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). Four conditions must be met
before this Court will notice plain error: (1) there must be error; (2)
it must be plain under current law; (3) it must affect substantial rights,
typically meaning that the defendant is prejudiced by the error in that
it affected the outcome of the proceedings; and (4) the error must seri-
ously affect the fairness, integrity, or public reputation of judicial pro-
ceedings. See Olano, 507 U.S. at 733-37. We find that the district
court's failure to expressly state its consideration of § 3553(a)'s fac-
tors does not constitute plain error. Unless some contrary indication
exists, this court presumes in non-departure cases that a district court
properly considered the pertinent statutory factors. See United States
v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998); see also United
States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995).* Because a sentence
above the advisory guidelines range does not constitute a departure,
see Davis, 53 F.3d at 642 n.15, this presumption applies in Muncy's
case unless contrary indications exist. Here, the record does not reveal
any such indications.
Finally, Muncy contends that the district court erred by failing to
adequately state its reason for sentencing him above the advisory
guidelines range. Again, because Muncy failed to raise this issue
below, our review is limited to plain error. See Fed. R. Crim. P. 52(b);
Olano, 507 U.S. at 731-32. Here, we find that the district court's
alleged inaction was not plain error warranting correction. Even if we
were to assume that the district court did not adequately state its rea-
son for Muncy's sentence and that this failure constituted an error that
is plain, the failure did not prejudice Muncy's substantial rights
because it did not affect the outcome of the proceedings. See Olano,
507 U.S. at 734-35. Moreover, Muncy makes no attempt to show how
this alleged error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id. at 735-36.
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*Although Muncy cites United States v. McClellan , 164 F.3d 308 (6th
Cir. 1999), in support of his argument, to the extent McClellan conflicts
with Johnson and Davis, Johnson and Davis govern. See Busby v. Crown
Supply, Inc., 896 F.2d 833, 840-41 (4th Cir. 1990).
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Accordingly, we affirm the district court's order. 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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