United States v. Richard Wager ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4773
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ALLEN WAGER,
Defendant - Appellant.
No. 11-4775
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ALLEN WAGER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00258-MOC-1; 3:96-cr-00030-MOC-1)
Submitted: January 17, 2012 Decided: January 24, 2012
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Elizabeth A. Blackwood,
Research and Writing Attorney, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Richard Allen Wager was sentenced to ten months’
imprisonment and thirty-nine months’ supervised release
following the revocation of his supervised release. Wager’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious issues for
appeal but questioning whether the district court imposed a
substantively unreasonable sentence when it imposed an
additional thirty-nine months of supervision. Although informed
of his right to file a pro se supplemental brief, Wager has not
done so. We affirm.
In reviewing a sentence imposed upon revocation of
supervised release, this court “takes a more ‘deferential
appellate posture concerning issues of fact and the exercise of
discretion’ than reasonableness review for [G]uidelines
sentences.” United States v. Moulden, 478 F.3d 652, 656
(4th Cir. 2007) (quoting United States v. Crudup, 461 F.3d 433,
439 (4th Cir. 2006)). We will affirm a sentence imposed after
revocation of supervised release if it is not plainly
unreasonable. United States v. Thompson, 595 F.3d 544, 546 (4th
Cir. 2010). The first step in this review requires a
determination of whether the sentence is unreasonable. Crudup,
461 F.3d at 438. Only if the sentence is procedurally or
substantively unreasonable does the inquiry proceed to the
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second step of the analysis to determine whether the sentence is
plainly unreasonable. Id. at 438-39.
A supervised release revocation sentence is
procedurally reasonable if the district court considered Chapter
Seven’s advisory policy statement range and the 18 U.S.C.
§ 3553(a) (2006) factors applicable to supervised release
revocation. See 18 U.S.C. § 3583(e) (2006); Crudup, 461 F.3d at
438-40. “A court need not be as detailed or specific when
imposing a revocation sentence as it must be when imposing a
post-conviction sentence, but it still must provide a statement
of reasons for the sentence imposed.” Thompson, 595 F.3d at 547
(internal quotation marks omitted). A 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.
Upon review of the record, we agree with counsel’s
assessment that Wager’s sentence is procedurally reasonable.
Although counsel suggests the sentence is substantively
unreasonable because Wager had been gainfully employed, enrolled
in substance abuse treatment, and had no contact with law
enforcement while on supervised release, we conclude otherwise.
The district court reasonably found that the sentence was
necessary in light of Wager’s continued use of illegal
substances, and the court acted well within its discretion in
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declining to reward Wager for his unabated drug use by ending
supervision. Because the district court articulated a proper
basis for imposing a sentence below the statutory maximum, there
is no substantive error. Because Wager’s sentence is
procedurally and substantively reasonable, it is not plainly
unreasonable.
In accordance with Anders, we have reviewed the
records in these cases and have found no meritorious issues for
appeal. Accordingly, we affirm the judgments of the district
court. This court requires that counsel inform Wager, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Wager requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Wager. 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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