United States v. Weaver ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4735
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LARRY WEAVER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:03-cr-00394-JRS-22)
Submitted: August 12, 2010 Decided: August 20, 2010
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Edwin F. Brooks, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Roderick C. Young, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Weaver pled guilty in December 2003 to one count
of conspiracy to possess with the intent to distribute and to
distribute fifty grams or more of cocaine base, in violation of
21 U.S.C. § 846 (2006). He was sentenced to 135 months’
imprisonment, followed by a five-year term of supervised
release. The prison term was subsequently reduced to sixty-
seven months’ imprisonment as a result of Weaver’s substantial
assistance to the Government, see Fed. R. Crim. P. 35(b), and
then to time served as a result of a retroactive amendment to
the Sentencing Guidelines, see 18 U.S.C. § 3582(c)(2) (2006).
Weaver began serving his term of supervised release in
July 2008. Between March and May 2009, however, Weaver violated
the conditions of his supervised release by failing to submit to
urinalysis testing on eight occasions and pleading guilty to
misdemeanor assault in state court. Weaver admitted to these
violations at the revocation hearing. The district court
revoked Weaver’s supervised release and sentenced him to thirty-
six months’ imprisonment, followed by a three-year term of
supervised release. Weaver appeals, arguing that the thirty-six
month prison sentence is plainly unreasonable because the
district court failed to consider applicable 18 U.S.C. § 3553(a)
(2006) factors and relied on improper considerations in imposing
the sentence.
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A district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will
affirm if the sentence is within the applicable statutory
maximum and is not “plainly unreasonable.” United States v.
Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). In
determining whether a revocation sentence is “plainly
unreasonable,” we first assess the sentence for
unreasonableness, “follow[ing] generally the procedural and
substantive considerations that we employ in our review of
original sentences.” Id. at 438.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
U.S. Sentencing Guidelines Manual Chapter 7 policy statements
and the 18 U.S.C. § 3553(a) factors that it is permitted to
consider in a supervised release revocation case. See 18
U.S.C.A. § 3583(e)(3) (West Supp. 2010); 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.” Thompson, 595 F.3d at 547(internal quotation marks omitted). A revocation sentence is
substantively reasonable if the district court stated a proper
basis for concluding the defendant should receive the sentence
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imposed, up to the statutory maximum. Crudup, 461 F.3d at 440.
Only if a sentence is found procedurally or substantively
unreasonable will we “then decide whether the sentence is
plainly unreasonable.” Id. at 439 (emphasis omitted).
After review of the record, we conclude that the
thirty-six month prison sentence, although above the advisory
policy statement range of five to eleven months’ imprisonment,
is not unreasonable. It is undisputed that the sentence falls
within the applicable statutory maximum. See 18 U.S.C.A.
§ 3583(e)(3). The district court considered the advisory policy
statement range and the argument of Weaver’s counsel. It is
apparent that the court considered relevant § 3553(a) factors,
addressing on the record the nature and circumstances of
Weaver’s violative behavior and the need for the sentence to
protect the public from further crimes by Weaver. See 18 U.S.C.
§ 3553(a)(1), (2)(C). The court’s comments also indicate that
it imposed a sentence above the policy statement range as a
result of Weaver’s breach of trust, despite prior lenient
treatment. See USSG Ch. 7, Pt. A, introductory cmt. 3(b) (“[A]t
revocation the [district] court should sanction primarily the
defendant’s breach of trust.”). We conclude that the district
court adequately explained its rationale for imposing the
thirty-six month prison sentence and relied on proper
considerations in doing so. Based on the broad discretion that
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a district court has to revoke a term of supervised release and
impose a prison term up to and including the statutory maximum,
Weaver’s sentence is not unreasonable. Therefore, we conclude
that Weaver’s sentence is not plainly unreasonable. See Crudup,
461 F.3d at 438-39.
Accordingly, we affirm the district court’s order
revoking Weaver’s supervised release and imposing a thirty-six
month prison sentence and a three-year term of supervised
release. 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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