United States v. Napier , 208 F. App'x 197 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5210
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD V. NAPIER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-03-245)
Submitted: October 25, 2006 Decided: December 1, 2006
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellant Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Stephanie L. Haines, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard V. Napier was charged with violating several
conditions of supervised release, including the condition that he
not possess any form of child pornography. Napier denied the
charges. Following a hearing, the district court concluded that
Napier had violated release as charged. The court revoked Napier’s
release and imposed a sentence of twenty-four months. Napier
appeals. We affirm.
Napier first contends that the district court erred by
finding by a preponderance of the evidence, see 18 U.S.C.
§ 3583(e)(3) (2000), that he possessed child pornography. Napier
complains that the Government failed to present at the hearing any
of the images that Napier allegedly possessed on a computer.
However, witnesses who worked at a computer repair store testified
that Napier, using an alias, took the computer to the store to be
serviced. The witnesses testified in detail about some of the
images that they viewed on Napier’s computer. The images were of
girls--some as young as five or six--engaged in a variety of sexual
acts. The district court’s determination that the evidence at the
hearing supported a finding that Napier possessed child pornography
is not clearly erroneous. See United States v. Carothers, 337 F.3d
1017, 1019 (8th Cir. 2003) (stating standard of review for factual
finding under § 3583(e)(3)).
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Napier also contends that his sentence is unreasonable.
We note that, while the sentence was substantially above the
advisory guideline range of four-ten months, see U.S. Sentencing
Guidelines Manual § 7B1.4(a), p.s. (2000), it was within the
applicable statutory maximum of two years. See 18 U.S.C.
§ 3583(e)(3). Additionally, the court considered permissible 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) factors when imposing
sentence. See 18 U.S.C. § 3583(e)(3). Further, while the district
court recognized the advisory guideline range, the court
sufficiently explained its reasons for imposing a significantly
longer sentence. The court noted Napier’s possession of a
substantial amount of child pornography, his use of an alias when
he took his computer to be serviced, his failure to recognize that
he had a significant problem, his being a danger to others,
including children, and his not having benefitted from prior
treatment. We conclude that the sentence imposed upon revocation
of supervised release was not plainly unreasonable. See United
States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006).
We accordingly 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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