United States v. Cory Fennell ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4647
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORY DEXTER FENNELL, a/k/a Ace,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:04-cr-00440-FL-1)
Submitted: February 14, 2013 Decided: February 21, 2013
Before KING, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cory Dexter Fennell appeals from the district court’s
judgment revoking his supervised release and imposing a
thirty-six-month prison term. Fennell challenges this sentence,
arguing that it is plainly unreasonable. We affirm.
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 a sentence imposed after revocation of supervised
release if it is within the applicable statutory maximum and 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
Sentencing Guidelines’ Chapter 7 advisory policy statements and
the 18 U.S.C. § 3553(a) (2006) factors it is permitted to
consider in a supervised release revocation case. 18 U.S.C.A.
§ 3583(e) (West 2006 & Supp. 2011); Crudup, 461 F.3d at 439.
Although a district court need not explain the reasons for
imposing a revocation sentence in as much detail as when it
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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
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. A sentence is plainly
unreasonable if it is clearly or obviously unreasonable. Id.Fennell contends that his sentence is procedurally
unreasonable because the district court failed to consider and
explain why it rejected his arguments for the imposition of a
six-month sentence. We conclude that this contention is without
merit. At the revocation hearing, Fennell’s counsel and Fennell
made note of his accomplishments on release, raised the
possibility that his drug use on release was related to his
untreated mental illness, and described his living environment
and a family dispute without explaining why these circumstances
merited a revocation sentence of six months’ imprisonment.
Fennell also contends that the district court failed
to provide a sufficient explanation for its decision to impose a
sentence three times above the top of the advisory policy
statement range. Assuming without deciding that Fennell’s
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revocation sentence is unreasonable because the district court
failed to provide an adequate explanation — grounded in relevant
§ 3553(a) factors — for imposing a thirty-six-month prison term,
we conclude that the sentence is not “plainly unreasonable”
because the sentence does not exceed the applicable statutory
maximum, 18 U.S.C. § 3559(a)(1) (2006); 18 U.S.C.A.
§ 3583(e)(3), and Fennell does not point to facts establishing
that the sentence is clearly or obviously unreasonable.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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