United States v. Dominique Weldon , 538 F. App'x 301 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4026
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DOMINIQUE RASHEED WELDON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:09-cr-00287-H-1)
Submitted: August 6, 2013 Decided: August 23, 2013
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Yvonne Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dominique Rasheed Weldon appeals the twenty-four-month
sentence imposed upon revocation of supervised release. Finding
no error, we affirm.
We will affirm a sentence imposed following revocation
of supervised release if the “sentence is within the applicable
statutory range . . . and is not plainly unreasonable.” United
States v. Crudup, 461 F.3d 433, 439-40 (4th Cir 2006). “When
reviewing whether a revocation sentence is plainly unreasonable,
we must first determine whether it is unreasonable at all.”
United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010).
Such a sentence is procedurally reasonable if the district court
considered both the policy statements in Chapter Seven of the
Sentencing Guidelines and any pertinent 18 U.S.C. § 3553(a)
(2006) factors. Crudup, 461 F.3d at 440. A sentence is
substantively reasonable if the district court states a proper
basis for the sentence. Id. Where, as here, the sentence
departs from the Chapter 7 policy statement range, the court
must make “explicit the reasons for its departure.” See United
States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007). If the
sentence is not unreasonable, we will affirm because “a sentence
that is not unreasonable also is not plainly unreasonable.”
Crudup, 461 F.3d at 439.
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None of Weldon’s challenges to the procedural
reasonableness of his sentence has merit. First, he complains
that the district court identified the need “to promote respect
for the law” as one of several reasons for imposing the selected
sentence. Weldon correctly states that this § 3553(a)(2)(A)
factor is not among the factors identified in 18 U.S.C.
§ 3583(e) that a court may consider prior to imposing a
revocation sentence. However, consideration of an omitted
§ 3553(a) factor does not render a revocation sentence plainly
unreasonable, especially where, as here, the district court
primarily relied on permitted factors in selecting the sentence.
See United States v. Black, 289 F. App’x 613, 614-15 (4th Cir.
2008); United States v. Lewis, 498 F.3d 393, 399-400 (6th Cir.
2007).
Weldon also argues that the court gave an insufficient
explanation for the twenty-four-month sentence, which is well
above the recommended Chapter 7 policy statement range of six-
twelve months. The record reflects that the court cited as
reasons for the selected sentence Weldon’s extensive criminal
history beginning at age sixteen, his gang affiliation, his poor
work record, and his having failed multiple drug tests
administered over a short period of time. We conclude that this
explanation was sufficient.
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Finally, Weldon contends that the district court did
not consider placing him in a substance abuse treatment program
in lieu of incarceration. See 18 U.S.C. § 3583(d) (2006).
While the record is silent as to whether the court considered
this alternative to incarceration, we note that, in the absence
of evidence to the contrary, the district court is presumed to
have properly recognized and exercised its discretion under
§ 3583(d). United States v. Hammonds, 370 F.3d 1032, 1038-39
(10th Cir. 2004). We find nothing in the record that would
rebut this presumption.
Because Weldon’s sentence is not plainly unreasonable,
we affirm. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before us and argument would not aid the decisional process.
AFFIRMED
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