United States v. Canterbury , 292 F. App'x 235 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4078
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM LEE CANTERBURY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, District
Judge. (5:03-cr-00056-1)
Submitted: July 18, 2008 Decided: September 4, 2008
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Miller A. Bushong, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Lee Canterbury appeals the district court’s
judgment revoking his supervised release and sentencing him to
eleven months’ imprisonment, a sentence at the top of the
applicable range based on the non-binding federal sentencing
guidelines policy statement. Canterbury contends that there was
insufficient evidence to find that he had violated the terms of his
supervised release by committing assault and battery in violation
of W. Va. Code Ann. § 61-2-9 (Michie 2005) and that the sentence
imposed was unreasonable.
A decision to revoke a defendant’s supervised release is
reviewed for abuse of discretion. United States v. Pregent, 190
F.3d 279, 282 (4th Cir. 1999). The district court need only find
a violation of a condition of supervised release by a preponderance
of the evidence. 18 U.S.C.A. § 3583(e)(3) (West 2000 & Supp.
2008). We review for clear error factual determinations underlying
the conclusion that a violation occurred. United States v.
Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).
Canterbury argues that the evidence was insufficient to
find by a preponderance of the evidence that he committed assault
and battery because the witnesses whose testimony supported such a
finding were not credible. However, this court gives due regard to
the district court’s opportunity to judge the credibility of
witnesses and does not review credibility determinations. United
States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995). Accordingly,
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we find no abuse of discretion in the revocation of Canterbury’s
supervised release.
Next, Canterbury argues that the sentence imposed is
unreasonable. We will affirm a sentence imposed following
revocation of supervised release if it is within the applicable
statutory limits and is not plainly unreasonable. United States v.
Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006), cert. denied,
127 S. Ct. 1813 (2007). The sentence first must be assessed for
reasonableness, “follow[ing] generally the procedural and
substantive considerations that we employ in our review of original
sentences, . . . with some necessary modifications to take into
account the unique nature of supervised release revocation
sentences.” Id. at 438-39; see United States v. Finley, ___ F.3d
___, ___, 2008 WL 2574457, at *5 (4th Cir. June 30, 2008) (No. 07-
4690) (“In applying the ‘plainly unreasonable’ standard, we first
determine, using the instructions given in Gall[v. United States,
128 S. Ct. 586, 597 (2007)], whether a sentence is
‘unreasonable.’”). If we find the sentence to be reasonable, we
affirm. Crudup, 461 F.3d at 439. Only if a sentence is found
procedurally or substantively unreasonable will this court “decide
whether the sentence is plainly unreasonable.” Id.; see Finley,
___ F.3d at ___, 2008 WL 2574457, at *5. Although the district
court must consider the Chapter 7 policy statements and the
requirements of 18 U.S.C.A. §§ 3553(a), 3583 (West 2000 & Supp.
2008), “the [district] court ultimately has broad discretion to
revoke its previous sentence and impose a term of imprisonment up
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to the statutory maximum.” Crudup, 461 F.3d at 439 (internal
quotation marks and citations omitted).
We have thoroughly reviewed Canterbury’s sentence and
find it to be procedurally and substantively reasonable. Based on
this conclusion, “it necessarily follows that [Canterbury’s]
sentence is not plainly unreasonable.” Gall, 128 S. Ct at 597; see
Finley, ___ F.3d at ___, 2008 WL 2574457, at *9.
Accordingly, we affirm the district court’s judgment
revoking Canterbury’s supervised release and imposing an eleven-
month prison term. 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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